15.1 The introduction to this report describes the limited scope of our inquiry and the policy questions raised by the proposed legislation which we have identified. We now summarise our recommendations in relation to each of the policy questions.

Should There Be a Separation of the Present Judicial and Administrative Functions of the Commission?

15.2 We do not see any objection to the proposed separation of the present judicial and administrative functions of the Workers' Compensation Commission of New South Wales and the formation of a Compensation Court and a State Compensation Board to assume these respective functions. There are sound reasons for this approach which include, in particular, maintenance of the independence of the judiciary from the executive arm of government, in appearance as well as in actuality. We do, however, caution that in our final report, we may recommend a quite different structure for the administration of compensation laws. We make no recommendations in relation to the financial arrangements for the court, but we do point out several areas where further consideration should be given to the legislation to overcome ambiguities or omissions.

What Should Be the Qualifications for Appointment as a Judge of the Court?

15.3 We recommend that the qualifications for a judge of the proposed court should be as specified in the proposed legislation, particularly in order to preserve uniformity with other courts.

Should There Be a Lower Tier of Judicial Officers Such as Commissioners and, if so, What Limits, if any, Should There Be as to Their Jurisdiction?

15.4 leaving regard to the data presently available or readily obtainable, we do not, at this stage, support the proposal for the appointment of commissioners as a lower tier of judicial officers within the proposed court. We advise that before any such proposal could proceed, a detailed study of the judicial functions of the Workers' Compensation Commission would need to I)e made to determine whether such a provision would be a cost saving measure, and whether a suitable jurisdiction for such commissioners could practicably be found. We suggest that consideration be given to the possible restructuring of the role of commissioners, and the means by which the most effective utilisation and integration of the conciliation and arbitration processes could be achieved.

What Should Be the Qualifications for Appointment as a Commissioner?

15.5 If the provision for the appointment of commissioners is to be retained, and if they are to perform judicial or quasi-judicial functions we recommend that they should be legally qualified.

Should Proceedings Before Commissioners Be Informal?

15.6 We do not, at present, make any recommendation as to the relaxation of formality in proceedings before commissioners. We consider this must await further resolution of the role which commissioners would perform.

Should Legally Unqualified Advocates Be Permitted to Appear Before Commissioners?

15.7 We recommend that the proposed provisions relating to legally unqualified advocates be deleted. We further recommend that there should be a right to be represented before commissioners, either by a solicitor or a barrister.

What Rights of Appeal Should There Be From Commissioners?

15.8 If the provision for the appointment of commissioners is to be retained with a judicial or quasi-judicial function, we recommend that the right of appeal from a commissioner to a judge of the court, proposed by the Court Bill, should be limited to interlocutory applications. The main reason for this recommendation is to avoid the expense of the large number of appeals which the proposed provision would generate. We consider it appropriate that an appeal from a commissioner exercising the jurisdiction of the court should be the same as an appeal from a judge of the court, namely, an appeal to the Supreme Court on questions of law or the admission or rejection of evidence. We make an exception in relation to interlocutory applications in order to ensure that the judges of the proposed court retain control over the procedures of the court. We further recommend that if the right of appeal to a judge of the court is not limited to interlocutory matters, the judge should have power to dispose of the application on its merits rather than merely affirm or reverse the decision of the commissioner. It would also be appropriate for there to be express provision allowing for appeals in respect of interlocutory orders.

What Should Be the Function of Registrars of the Court?

15.9 We recommend deletion of the provision in the proposed legislation giving a registrar jurisdiction to determine claims for compensation and interlocutory applications. We advise that the functions of registrars should be limited to the traditional duties of such an office, including the administration of the court and the taxing of bills of costs. We would not oppose them exercising a role in relation to pre-hearing procedures on a trial basis, as we believe this to be a worthy concept.

What Provision Should Be Made for Pre-Trial Procedures?

15.10 We recommend strengthening of the proposed provisions for pre-hearing conferences, for the purposes of identifying issues, of facilitating speedier preparation for trial, and of giving directions as to how the trial should be conducted. We think it desirable that all judges have a power to direct the holding of such conferences. We make no recommendation as to whether such pre-trial procedures should be used to encourage early settlement of claims by way of redemption, because we have reservations, which we have not yet resolved, as to whether redemption of periodic payments is to be encouraged in principle. We also recommend the introduction of a power to dispense with the rules of evidence and to require admissions to be made, in appropriate circumstances. We further recommend that pre-hearing conferences should, in general, be presided over by experienced judicial officers of the court, although as we have mentioned earlier, there may be merit in allowing registrars to exercise this function on a trial basis. Amendment of the Bills would be required to enable judges to direct or preside over pre-hearing conferences.

What Should Be the Rule-Making Power of the Court?

15.11 We recommend amendment to the proposed provision relating to the rule-making power of the court in order to ensure that it is exercisable exclusively by the proposed Rule Committee. We also recommend that as far as practicable the rules should provide the opportunity for standardisation of procedure as between the new court, the Supreme Court and the District Court.

What Provision Should Be Made for Interest on Unpaid Compensation?

15.12 In relation to interest on unpaid compensation, we recommend that the proposed provision be amended to ensure uniformity with the law and procedures adopted for the Supreme Court and the District Court, both in relation to the period before award and after award. We further recommend that the Amendment Bill be amended so as to ensure the power to award interest applies to all types of compensation, including redemption of weekly payments.

What Should Be the Composition of the Board?

15.13 We make no recommendation as to the composition of the proposed Board, but we raise for consideration by Government the question as to whether a board of management on which sectional interests are directly represented affords the best prospect of administrative efficiency, and the attainment of the objectives of the proposed legislation.

Are the Amended Provisions in Relation to Licensing of Insurers and Self-Insurers Satisfactory?

15.14 We make no recommendation in relation to the provisions of the proposed legislation so far as they concern the licensing and supervision of insurers and self-insurers. We consider that there should be no recommendation on this topic in the absence of a detailed review of the licensing provisions generally, which is beyond the scope of this report. We do, however, point to several aspects of the proposed legislation, of a machinery kind, which require attention.