I. INTRODUCTION

16.1 Chapter 15 expressed the view that the administration of the Scheme will be of crucial importance. This Chapter examines one critical aspect of administration namely, assessment of eligibility for benefits under the Scheme. The assessment may relate to initial claims by accident victims or their families, or to their eligibility for continuing benefits such as periodic compensation for loss of earning capacity.

16.2 Part II of the Chapter deals with the decision-making process within the Corporation. The analysis is not exhaustive, partly because some matters have already been dealt with in Chapter 15, but mainly because the details will need to be worked out by the Corporation within the legislative framework. Nonetheless, attention is directed to some important issues including the need to achieve high quality decision-making within the Corporation.

16.3 The proposed system of appeals from decisions of the Corporation is described in Part III. The fundamental principle underlying the recommendations on the appeal system is that a claimant should be entitled to independent review of an unfavourable decision. This should include the opportunity for review of the decision on the merits by a judicial tribunal. However, the appeal system should avoid delays, excessive legalism and high costs. The most appropriate model to achieve these objectives is that followed in relation to social security appeals under the Commonwealth system of administrative law, taking account of changes recently proposed by the Administrative Review Council. ¹ This involves a two-tiered system of appeal.

• The first should be available to a dissatisfied claimant and should be conducted speedily and informally by independent bodies, known as Compensation Review Panels. These Panels should be loosely modelled on Social Security Appeals Tribunals (SSATs). They should have power to substitute their own view of the merits of the case for that of the Corporation and should not be found by the policies of the Corporation (other than those imposed by legislation).
• The second appeal should be open to either the claimant or the Corporation. This appeal should be considered by the Accident Compensation Appeal Tribunal which should be modelled on the Commonwealth Administrative Appeals Tribunal (the AAT). The Tribunal should be presided over by a judge, but should include lay members. It should also have power to assess the merits of the case without being bound by the policies of the Corporation.

An appeal on questions of law would lie to the New South Wales Court of Appeal.

II. DECISION-MAKING WITHIN THE CORPORATION

A. The Claims Process

16.4 The assessment of compensation under the Scheme will commence, in the usual case, with a claim by the accident victim or a member of his or her family. The claim could be lodged by the person entitled to benefits or by someone acting on his or her behalf. Claims should be submitted on simple, standard forms which specify the information required by the Corporation. It is not appropriate in this Report to prescribe the content of the claim form. Obviously, however, the form should seek information about the relevant accident; the nature of injuries sustained; the likely duration of incapacity for work, and details of employment and pre-accident earnings. In some circumstances, as where support services are urgently required, a claim could be made by telephone and later confirmed in writing.

16.5 The reports of medical practitioners treating an accident victim will be of great importance, particularly in the early stages of a claim. Indeed, in most cases of short-term incapacity there would be no need for the Corporation to go beyond the claim form, the treating doctors report and standard verification of the claimant’s pre-accident earnings. Each claim should usually be accompanied, or followed, by a standard medical certificate which sets out the history, diagnosis and treatment of the particular condition or injury. The certificate should include an opinion as to the claimants fitness or otherwise for his or her normal work and an estimate as to the likely period of incapacity. The information on the certificate should be sufficient to enable the Corporation, through the assessing officer, to judge whether the injuries are consistent with the circumstances of the transport accident. In adopting a non-adversarial approach to claims, the Corporation should generally be prepared to rely on the report of the treating doctor, particularly in the initial stages of assessment. In the ordinary case, therefore, there would be no need for the claimant to be referred to a series of doctors or to seek a range of medical opinions. It would be appropriate for the corporation to produce brochures or manuals for the guidance of medical practitioners preparing certificates. The brochures should contain relevant policy guidelines and explain the significance of medical certificates in the decision-making process. The Corporation’s assessing officers should liaise closely with medical practitioners to encourage the submission of reports promptly. While it is in the interests of claimants that such reports should be provided promptly, it is not appropriate for the Corporation to have power to compel treating doctors to provide information. If the necessary information is not forthcoming, the Corporation should have power to require the claim and to be examined by another doctor who is willing to prepare a report, subject to the right of the claimant to refuse to submit to such an examination. Private medical practitioners should be paid a prescribed fee by the Corporation for such reports.

16.6 The Corporation will need to obtain or receive information sufficient to enable it to assess compensation for loss of earning capacity. Basic information will be provided by the claimant on the claim form. As a matter of course the Corporation would verify the information with the employer or former employer of the claimant, who should be required to forward a certificate of earnings when requested to do so. As for medical practitioners, the Corporation should publish and distribute brochures to assist employers to understand the nature of the Scheme and their role within it. As discussed in Chapter 8, the assessment of compensation for a self-employed person is likely to be a more complicated task. It will be necessary for a self-employed person to supplement the claim form with appropriate records such as taxation returns, business accounts and records of payments to employees for additional services provided during the claimants incapacity.

16.7 In order to assess a claim, it may be necessary for the Corporation to undertake investigations beyond those already described. There may be doubt, for example, as to whether the accident was a “transport accident” and further inquiries may be needed to ascertain the precise circumstances of the accident. In some cases it will be necessary to obtain information concerning a claimants previous employment record or the nature of a disability existing at the date of the accident. Many other examples could be suggested. Clearly the Corporation should have appropriate powers to investigate and assess claims.

16.8 It is important that transport accidents causing injury and death come to the attention of the Corporation as soon as possible. This will put the Corporation on notice that there are potential claims under the Scheme and provide an opportunity to gather routine information. Reporting of accidents will assist the Corporation to contact and advise people eligible for benefits who may be unaware of their entitlements. For these reasons the Corporation should adopt measures designed to secure full reporting of accidents likely to lead to claims. These measures could include the following:

• compulsory reporting by drivers, owners and public transport operators of all transport accidents causing death or injury; ²
• the supply to the Corporation of police accident reports; ³
• the supply to the Corporation of workers’ compensation claim forms concerning transport accidents occurring in the course of employment or journeys to and from work; and
• notification by hospitals of the admission of people injured in transport accidents.

Where an accident involving injury or death has been reported, but no claim has been lodged within, say, eight weeks the Corporation should attempt to locate the accident victim or his or her family. While personal contact would be preferable, the Corporation should at least send a letter advising of rights under the Scheme, together with a claim form and information as to where advice could be sought.

B. Assessment of Continuing Entitlement to Compensation

16.9 In addition to deciding initial claims under the Scheme, the Corporation will be required to assess an accident victim’s continuing entitlement to compensation For example, the Corporation will have to determine when compensation for loss of earning capacity should end because the injured person has resumed his or her pre-accident employment. Similarly, the provision of substitute homemaker services will end when the accident victim has substantially recovered from his or her disability. Indeed, in all cases other than permanent disability or incapacity, it will be necessary to decide when benefits provided on a periodic or continuing basis are no longer warranted. This imposes a heavy responsibility on the Corporation.

16.10 Nor is the Corporation’s task limited to deciding when benefits should commence and terminate. It will also have to review the claimant s position to take account of circumstances warranting a variation (but not termination) of benefits. For example, an injured person will often be wholly incapacitated for a period and partially incapacitated for a further period. During the second period, the extent of incapacity may vary according to the amount of part-time work he or she can physically manage or can obtain. Similarly, the need for support services will vary according to the injured person’s degree of disability and family circumstances, both of which can change over time. It follows that the Corporation must develop procedures to enable it to issues not merely whether a claimant continues to be entitled to benefits, but the extent of that entitlement. These procedures should be designed to bring relevant changes of circumstances to the Corporation’s attention, yet should do so in a way which minimises intrusion into the life of the claimant. Some earlier recommendations have been framed with this problem in mind. In particular the proposal for assessment of permanent incapacity (paragraphs 8.52-8.60) provides a means by which a person suffering long-term incapacity can avoid regular reviews of his or her post-accident earning capacity. This proposal, although important, does not overcome the need for a sensitive approach to the assessment of continuing entitlement to compensation.

16.11 As with the initial assessment of claims, the primary sources of information for continuing assessment will be the claimant, his or her treating doctor and, where there is partial incapacity, his or her employer. In the case of a more serious disabled person, the advice of the rehabilitation team working with the claimant will be important in assessing the extent of continuing loss of earning capacity. It will be necessary for regular, although not necessarily frequent, reviews to be made of a claimant’s physical condition and of his or her capacity for work. The frequency of the reviews should reflect the need to minimise intrusion into the claimants life. Thus if a claimant is clearly likely to be totally incapacitated for a substantial period it would be futile and unnecessary to require medical reports otherwise than at long intervals. In general the Corporation would rely heavily on the views of the treating doctor or rehabilitation team, although it must have power to require independent medical examination or assessments of post accident earning capacity. In some circumstances other agencies could guide the Corporation in its assessment. For example, Chapter 10 suggests that substitute homemaker services could be provided, subject of resources being made available, through the Home Care Service of New South Wales. This services, or a similar organisation, would have the expertise required to apply the statutory criteria governing entitlement to such services. This does not mean that the Service would decide questions of eligibility, but simply that it would advise the Corporation which would be responsible for making the decision.

16.12 Not all benefits under the Scheme are provided on a continuing or periodic basis. Thus a transport accident victim suffering permanent disability will be entitled to lump sum compensation, assessed in accordance with the principles stated in Chapter 11. The Corporation will need to develop appropriate procedures for determining the amount of compensation. This is clearly a case in which a medical assessment will be of paramount importance, since the criteria are medical in character, rather than economic or social, although the Corporation will remain responsible for making the decision. The decision, once made, will stand and will not require review. Similarly, a severely disabled person is likely to be entitled to the cost of home modifications (paragraphs 10.41-10.49). While this benefit might be claimed on more than one occasion during a lifetime, the assessment of reasonable cost will be made at the time of the application and will not involve continuing review by the Corporation.

C. Powers

16.13 We recommend that the Corporation should have power to assess and investigate claims for compensation under the Scheme, including the continuing entitlement of claimants to compensation and the extent of that entitlement. The Corporation should have power to require claimants and employers, or former employers, of claimants to provide information reasonably required to assess claims.

D. Advice to Claimants

16.14 Reference has already been made to the Corporation’s role in assisting claimants (paragraphs 15.15-15.17) and to steps that should be taken to ensure that transport accidents come to its notice (paragraph 16.8). This role is of great importance, but does not dispense with the need for claimants to have access to a source of advice which is seen to be clearly independent of the Corporation. The Corporation should support such a development by providing funds to suitable organisations to engage claimant representatives. The functions of these representatives would include advising claimants of their rights under the Scheme and assisting them to prepare claims, present supporting material and maintain compensation. In addition claimant representatives have a substantial role to play in representing or assisting claimants in appeals, particularly before the Compensation Review Panels to which we refer later (paragraphs 16.39-16.56). Bodies such as community legal centres, welfare organisations and hospitals are likely to be prepared to employ claimant representatives, on the basis that reasonable costs are met by the Corporation. We recommend that the Corporation should provide assistance to accident victims and their families in preparing claims, presenting supporting material and maintaining continuing entitlement to compensation. In addition, the Corporation should provide funds to enable organisations to engage claimant representatives. These representatives should provide advice and assistance to claimants, and should act on behalf of claimants seeking review of Corporation decisions.

16.15 Independent advice and representation cam of course, be obtained from legal practitioners.Noimpedimentsshouldbeplacedinthewayofaclaimantwhowishestoobtain legal advice whether from a private practitioner or a legal aid agency. A claimant may wish to obtain advice from an independent source and may prefer legal advice to other forms of assistance. This choice should be respected. However, claimants should not be encouraged to seek legal advice as a matter of course, in the expectation that the cost of such advice will be met by the Corporation. This is likely to introduce an undesirable adversary element into the administration of the Scheme and increase costs unnecessarily. Where disputes arise between the Corporation and claimants, legal practitioners have an important role to play, particularly in appeals to the Accident Compensation Appeal Tribunal. But the vast majority of cases will involve no substantial difficulty and no dispute between the Corporation and the claimant. The decision-making and appeal system proposed adequately safeguards the rights of claimants without requiring the Corporation to pay the costs of legal assistance at the initial stages of the claim. The question of legal costs on appeal is dealt with later (paragraphs 16.55, 16.78)

E. Assessing Officers

16.16 Emphasis has been placed upon the significance of high quality decision-making in the administration of the Scheme. It is important that the Corporation appoints well qualified assessing officers, who should be responsible for the Corporation’s decision-making functions (paragraph 15.47). We stress that each claim should be the responsibility of a single assessing officer. This officer should make decisions affecting the claim and should be the principal point of contact with the claimant. As Professor T G Ison has observed:

[a]ny social insurance system will appear to be a faceless bureaucracy unless there is someone a claimant can meet and identify as the person responsible for the decisions on his claim. ⁴

Further, we agree with his comment that

... there is one ... golden rule that is essential to the quality of primary adjudication-Success tends to be inversely proportionate to the number of people involved in the decisions on a claim. As far as possible, one person must be responsible for all the decisions relating to a claim, and for all communications relating to that claim. ⁵

16.17 It follows that assessing officers should have authority both to make the necessary investigations in relation to claims and to reach decisions. Unless this is done, the Corporation’s decision-making may be based on incomplete information and may be delayed. It is an error to assume that, because there is a comprehensive appeal system, less care need be taken with the initial decision within the Corporation. The Corporation’s duty is to assess claims fully and apply the statutory criteria correctly.

16.18 Theassessingofficershouldadoptaflexibleapproachtothedecision-makingprocess. Personal communication between the claimant and the assessing officer may be necessary to reach a correct decision and to ensure that the claimant feels he or she has been treated fairly. The claimant should be advised of difficulties in acceding to the claim and invited to provide further evidence or argument to the assessing officer. In some cases, an informal hearing may be appropriate, and this possibility should be among the range of procedural options open to the assessing officer. ⁶ Thus the assessing officer should not adopt a purely passive role, waiting for the claimant to establish every aspect of his or her claim. On the contrary, the assessing officer should accept the responsibility of gathering information to assess the claim. As Professor T G Ison puts it

... where the available evidence is insufficient for a definite answer, the first role of a claims officer is to consider what further evidence might reasonably be obtained, and then to initiate the steps necessary to obtain that evidence. ⁷

As mentioned in Chapter 15, the assessing officer should not be responsible for investigating suspected fraud or abuse, although he or she should have power to suggest an investigation. This task should be entrusted to a separate division of the Corporation (paragraph 15.21).

16.19 Accordingly, we recommend that the assessment of each claim and of a person’s continuing entitlement to compensation should be the responsibility of a single assessing officer. This officer should coordinate the collection of the information required for the purposes of assessment and should also coordinate the provision of services to claimants. The Corporation should ensure that assessing officers have authority to make the necessary investigations and decisions in relation to claims and continuing entitlements.

F. Medical Assessment

16.20 In proposing that the responsibility for determining claims should rest With an assessing officer, we have rejected the view that decision-making functions should be entrusted to medical boards or individual medical practitioners. The use of medical boards to resolve issues of entitlement is by no means novel. In Queensland, for example, the findings of Medical Boards finally determine the eligibility of workers for compensation under the Workers’ Compensation legislation of that State.⁸ Some submissions supported the view that the assessment of incapacity for the purposes of the Scheme should be decided by medical practitioners or rehabilitation teams. Thus the New South Wales Branch of the Australian Medical Association stated that:

[a]ny proposal that may disregard the overall medical responsibility for determining individual degrees of disability or advising on individual rehabilitation prospects, will be doing the disabled person concerned and the community at large, a grave injustice. It is the opinion of the Branch that the assessment of disability for both non-economic loss compensation and assessment of loss or reduction of earning capacity should be vested in the rehabilitation team together with input from appropriately trained loss assessors. ⁹

The New South Wales Workers’ Compensation Self Insurers’ Association proposed that an independent Medical Board. with wide powers of adjudication, should be established and that ideally its decision should be final. The Association anticipated

... that considerable savings could be achieved in both settlement time and money, as protracted and costly legal disputes would be eliminated. The worker would also benefit in having his claim resolved much more expeditiously. ¹⁰

While these comments were made in the context of the Workers’ Compensation system, they could be applied to the proposed Scheme.

16.21 There is little doubt that a system of medical boards, the decisions of which are final and conclusive, could expedite the decision-making process. But this would be achieved at a substantial price. The decisions of Queensland’s Medical Boards, for example, involve not merely purely medical questions but the application of statutory criteria to the claims of injured workers. Similarly, under the Scheme we propose, compensation for loss or impairment of earning capacity does not depend simply on the claimant’s medical condition. but on a range of factors including economic conditions and employment opportunities. While the views of the treating doctor or the rehabilitation team will be of very considerable value, they should not necessarily be decisive. The assessing officer may have to take other factors into account and, in some cases, it may be appropriate to obtain a report from a doctor or other professional nominated by the Corporation before a decision is made. Moreover, the “efficiency” of Medical Boards in Queensland depends partly on the final and conclusive character of their decisions. Our view is that a right of appeal should be available to dissatisfied claimants and such a right is likely to remove some of the apparent advantages of medical boards. We appreciate that the argument for medical boards is strongest in relation to claims for compensation for permanent disability, since the questions are essentially medical in character. Even here, however, the assessing officer should make the decision, since there may be room for different opinions on the application of the relevant guidelines.

16.22 For these reasons we conclude that decisions on claims should be made by assessing officers within the Corporation and not by medical panels. However, the Corporation should have power to require the claimant to be medically examined by a doctor or doctors nominated by it, provided the requirement is reasonable. The claimant should be entitled to refuse to undergo such an examination if, for example, it involves unreasonably intrusive or risky procedures. The Corporation should take special care to ensure that medical practitioners reporting on matters relevant to a claim not only have the necessary expertise but understand the nature of the assessment process and the role of medical assessment within it. However, we recommend that the Corporation should have power to require a claimant to undergo reasonable medical examination by a doctor (or panel of doctors) nominated by the Corporation. The Corporation should take the resulting report into account in reaching a decision but, if the decision is unfavourable, should make the report available to the claimant.

G. The Claims Manual

16.23 As already noted (paragraph 15.18), the Corporation will have to formulate guidelines for the assistance of assessing officers and other staff, since any legislation will leave room for interpretation and the exercise of judgment. These guidelines should be embodied in a claims manual. The New Zealand Accident Compensation Corporation has produced a detailed manual, which contains information on the Corporation’s policies and claims processing requirements and procedures. ¹¹ The manual is not, however, generally available to members of the public or those who advise them. The New South Wales counterpart will be an important document which should be published. Public disclosure of policy adopted by government agencies is consistent with modern principles of administrative law and encourages both fairness and consistency in decision-making. The manual will assist claimants or those advising them to submit information or arguments to support their claims. The lawfulness of the Corporation’s policy guidelines can be checked, challenged, and reforms advocated where appropriate. As Professor Ison has observed:

[t]he ordinary structure of social insurance generates natural pressures that militate against procedural due process, and rules requiring, for example, the disclosure of medical reports, are not likely to be observed unless there is continuous monitoring to ensure compliance. One structure to achieve this monitoring is for the agency to publish its procedural rules, including its rules on the disclosure of medical reports. If any failure to comply with the rules can become obvious to claimants there is surely a greater probability of the rules being followed. ¹²

16.24 Accordingly, we recommend that the Corporation should prepare and publish a detailed claims manual. This manual should not bind the appeal tribunals, although they would give weight to the carefully formulated views of the Corporation as to the administration of the Scheme (assuming those views are not beyond the powers conferred by the legislation). Subject to the role of the appeal tribunals, the Corporation’s officers should assess claims in accordance with the guidelines laid down in the claims manual. The manual, embodying as it will the Corporation’s policies, should be under continual review by the independent Policy Review Committee (paragraphs 15.59-15.60).

H. Interim Assessment

16.25 It is essential that assessment and the payment or provision of compensation take place as soon as practicable after lodgment of the claim. This can be a period of great social and financial dislocation and distress for accident victims and their families. The Corporation should aim to pay periodic compensation for loss of earning capacity within two weeks of a claim being lodged; other benefits, such as homemaker services, may be needed almost immediately after the accident But if the goal of high quality decision-making is to be realised, speed of assessment should not be achieved at the expense of a suitably thorough investigation of the claim. To permit both speed and accuracy to be achieved, the Corporation should have power to make an interim assessment of entitlement under the Scheme. If, for example, the payment of periodic compensation for loss of earning capacity is likely to be delayed because of difficulties in assessing entitlement, the Corporation should have power to make an interim assessment on the basis of the material available. ¹³ While it is not appropriate to lay down a rigid rule, we consider that an interim assessment should be made in respect of loss of earning capacity if a full assessment will take more than one month to complete. Interim assessments are likely to be particularly important where the claimant is self-employed or where the transport accident victim has died. Interim assessment should not be confined to periodic compensation. For example, it may be clear that a claimant is entitled to compensation for permanent disability, but the extent of the disability is not precisely clear. In these circumstances ail interim assessment would allow a portion of the lump sum to be paid speedily.

16.26 For these reasons, we recommend that the Corporation should have power to make an interim assessment of compensation under the Scheme and to act on such an assessment. The interim assessment should not limit or bind the Corporation in respect of subsequent assessment. In order to encourage the Corporation to exercise its power at an early stage we recommend that, where the interim assessment results in the claimant being under-compensated or over-compensated, the Corporation should make the necessary adjustments to remedy the position. These adjustments could take the form of the Corporation paving arrears of compensation, deducting over-compensation from future payments to the claimant or requiring the claimant to repay the amount of over-compensation. However, we also recommend that the Corporation should have power to waive the requirement that the claimant refund over-compensation if he or she has acted in good faith, has complied with the reasonable requests of the Corporation, and would suffer hardship if the requirement were to be enforced.

1. Adverse Decisions

16.27 Clearly the Corporation will have occasion to make decisions adverse to a claimant whether in respect of an initial claim under the Scheme or of a continuing entitlement. Where such a decision is made it should be communicated to the claimant without delay. Notification should include a statement of the findings and of the reasons for the adverse decision and should also include information as to the rights to, and means of instituting, an appeal from such a decision including the time limits on applications. The provision in the Victorian legislation which places the onus on claimants to request reasons for an adverse decision, ¹⁴ offends against the principle of entitlement and may operate unfairly against claimants. We recommend that, where the Corporation has made what it considers to be an adverse decision on a claim, the claimant should be notified to that effect within 14 days of the making of the decision, by a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. ¹⁵ In some cases it may not be clear to the Corporation that the decision is adverse, since the claim will not necessarily be for a specific form or amount of compensation. If, however, the claimant considers the decision to be adverse, he or she should have a right to request reasons for the decision. In this case the statement of reasons should constitute the notification for the purpose of time limits in relation to appeals.

J. Time Limit

16.28 Substantial delays in lodging claims can present serious problems for the Scheme. Stale claims, for example, can create difficulties in determining whether a disability or attributable to a transport accident. Delays are likely to prevent the accident victim deriving maximum benefits from rehabilitation programs. These considerations suggest that there should be a limitation period applied to claims under the Scheme. On the other hand, the principle of entitlement suggests that delays ought not necessarily to preclude a person from claiming compensation. On balance there should be a requirement that claims be lodged within one year of the accident, or the date the disability, or incapacity becomes evident, whichever is later, but the period should be extended if the claimant has a reasonable excuse for failing to lodge a claim within the period. The period of one year takes into account the importance of early contact with the Scheme and the fact that, unlike the common law negligence actions, there is no need for injuries to stabilise before a claim can be determined. While the one year period should be capable of extension, the extension should not continue beyond three years from the date of the accident or onset of symptoms. If Such a limit were not to apply, the Scheme would be faced with formidable questions of causation which might be impossible to resolve. We think that the absolute limitation period should be three years. This is less than the limitation period of six years for common law negligence actions ¹⁶ but, as stated above, the Scheme does not require injuries to have stabilised before a claim can be determined. We recommend that a claim for compensation under the Scheme should be lodged within one year of the date of the accident or the onset of symptoms, whichever is later. A claim outside this period should be entertained if the claimant has a reasonable excuse for failing to lodge the claim within the period. However, no claim should be entertained if made more than three years from the date of the accident or of the onset of symptoms, whichever is later. These provisions should not apply to cases where a person makes a claim, then appears to recover or overcome the incapacity’, and later makes another claim arising out of the original accident.

K. Secrecy and Protection from Defamation

16.29 It will be necessary to impose requirements of secrecy on the Corporation to ensure that the information gathered is not disclosed otherwise than for the purpose of processing claims or the performance of the Corporation’s other statutory responsibilities. The legislation will also need specifically to protect officers of the Corporation, medical practitioners and others who prepare reports or provide other information to the Corporation. Accordingly, we recommend that the governing legislation should impose secrecy requirements on the Corporation concerning information supplied in relation to individual claims and should extend appropriate protection against defamation to officers of the Corporation, medical practitioners and others required to supply such information.

III. THE APPEAL STRUCTURE

A. Introduction

16.30 The Corporation will have authority to make decisions affecting the rights of accident victims and their families. These rights will be of great importance to the individuals concerned and perhaps of considerable monetary value. It is essential that a dissatisfied claimant be permitted to appeal to an independent judicial tribunal against an unfavourable decision by the Corporation. An effective appeal system is necessary to protect the rights of claimants and to ensure that the concerns of those who fear an administrative or “bureaucratic” decision-making process are not realised. ¹⁷ An appeal system must add to the cost and complexity of the scheme. Clearly delay and expense would be minimised if the Corporation, like Medical Boards in Queensland, could make final and unreviewable decisions. But the price of such a system would be very high indeed. It would be quite unacceptable if the Corporation could apply its own interpretation of the legislation and decide factual questions without facing the external scrutiny of independent appeal tribunals.

16.31 This commitment to an independent appeal system is consistent with the emphasis placed on high quality decision-making within the Corporation. If the Corporation performs its role satisfactorily, the proportion of cases giving rise to appeals should be very low. ¹⁸ It would be a serious error if the Corporation were to rely on the appeal system as a reason for devoting less attention to decision-making than the task warrants. Moreover, the medical system should be seen as an integral part of the decision-making process. This point has been addressed by the Administrative Review Council in the context of social security.

A review system is not, except in the simplest situations, merely the addition of a means of independent review at the end of and outside an existing decision-making structure. Where the volume of decisions and appeals is large it should be considered and designed as a total process which may require adjustments within the original decision-making structure itself. Given the benefits of administrative review the process is justified provided it does not involve a disproportionate use of resources having regard to the importance of the subject matter to persons affected by decisions. This involves balance in the application of resources to the tasks of primary decision-making, internal review and external so that correct decision-making at the primary level is encouraged and so that disputes are resolved, where this can be done justly and efficiently, at the earlier and less costly-stages of the process rather thin later. ¹⁹

16.32 In our view, an appeal system should:

• promote high quality decision-making within the Corporation;
• provide an opportunity for full review of the Corporation’s decision on the merits;
• be independent of the Corporation;
• avoid delay, excessive formality and high costs; and
• be modelled on appeal structures already operating in Australia.

Also of significance is the observation of the Administrative Review Council that a system of review of administrative decisions should aim “to provide for the resolution of grievances by correct and authoritative decisions which command general confidence”. ²⁰ It is the Council’s view that to achieve this aim a review authority should

• have powers and procedures for effective and efficient fact finding;
• observe high standards of procedural fairness; and
• be accessible, both physically and psychologically, to people seeking review. ²¹

B. A Two-Tiered System

16.33 The preferred appeal system follows broadly the structure for social security appeals under Commonwealth law, subject to certain modifications proposed by the Administrative Review Council. ²² Appeals from decisions of the Department of Social Security on claims for pensions and benefits are heard in the first instance by Social Security Appeals Tribunals (SSATS) established by Ministerial direction in 1975. The Tribunals generally comprise three members, two of whom are part-time and appointed by the Minister while the third is seconded from the Department of Social Security. They have no power to set aside Departmental decisions, but are limited to recommending to the Director-General of Social Security that a decision be affirmed, varied or annulled. The Administrative Review Council has recommended that SSATs be placed on a statutory footing, that they should have power to make binding decisions and that their procedures, which vary considerably from State to State, should be made uniform. ²³ Since 1980 the Administrative Appeals Tribunal (AAT) has had jurisdiction to review decisions of the Director-General in matters which have been considered by SSATS. ²⁴ The AAT reviews decisions on their merits and may

... exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision. ²⁵

16.34 As in the social security appeals system, there should be a two-tiered system of appeals from decisions of the Corporation. While both tiers should have power to review the Corporation’s decision on the merits, each should play a distinctive role. The first stage should provide an “accessible, speedy, informal and economical form of review”,²⁶ with procedures designed to deal with a substantial number of cases. Compensation Review Panels, which should conduct the first stage of appeal, should provide a reasonable opportunity for the aggrieved person to put his or her case. However, the Panels should not conduct lengthy hearings and should not usually give detailed consideration to policy questions. The second appeal should be heard by a body to be called the Accident Compensation Appeal Tribunal and should provide a further opportunity to review decisions on the merits. In addition, the Tribunal should be particularly concerned to formulate general principles for the guidance of the Corporation and Compensation Review Panels. While this stage should also be characterised by flexible and informal procedures, there will be an opportunity for the parties to canvass disputed questions of policy and fact in greater detail.

16.35 In suggesting a two-tiered appeal system, with the first appeal being considered by an independent body, we have taken a different approach from the New Zealand system. There, initial assessments are reviewed by a senior officer of the New Zealand Accident Compensation Corporation called a Review Officer. While this officer is required to act independently, he or she is an employee of the Corporation. ²⁷ The first review of a decision under the proposed Transport Accidents Scheme should be undertaken by a body which is independent of the Corporation and has power to make decisions binding on the Corporation. While the Compensation Review Panels will have similar functions to the internal review mechanism in New Zealand, namely, to provide accessible, economic, prompt and informal review of initial decisions, they will hive the added advantage of being independent of the Corporation and perceived is such by claimants and their advisers.

16.36 There is a danger that an internal system of review would detract from the goal of high quality decision-making because of the belief that mistakes can be corrected within the Corporation, before an external body examines the decision. One commentator has noted that in New Zealand

... most revisions that occur on a reconsideration are not explicable upon any ground except that the initial process of investigation and decision was insufficiently thorough. But that, in turn, is encouraged by the process of reconsideration. If, following an application for review, any ill-considered decision can be patched up in the office in which it was made, the incentive to thoroughness is less than it would be if each claims officer knew that, following an application for review, any ill-considered decision would reach the scrutiny of a hearing officer. Thus reconsideration impedes the appeal process from operating as a quality control device in respect of initial decisions. ²⁸

A further factor is that an internal review may not be taken seriously by claimants or their advisers, ultimately leading to delays and increased costs. The experience of the Commonwealth Commissioner for Employees’ Compensation suggests that, where the first opportunity for review of an adverse decision is internal, applicants and their lawyers have tended to treat that internal review less seriously. even withholding crucial evidence until the matter comes on appeal to the Administrative Appeals Tribunal. ²⁹ An independent review, however informal, will help to avoid this result. This is particularly so if an appeal to the second tribunal can only be made after the first has made a determination.

16.37 We have also considered whether there should be a single tribunal to determine appeals from the Corporation, rather than a two-tiered system. While this solution, on the surface, appears likely to be simpler and to reduce delays, the opposite is more likely to be the case. Many claims will raise relatively simple issues while others will raise complex factual medical or policy questions. A two-tiered system allows the simpler cases to be resolved rapidly by the use of informal procedures which can be especially adapted to the needs and circumstances of accident victims, many of whom will be disabled. The more difficult cases, requiring detailed investigation of facts or administrative policies, can be dealt with by the second tribunal if not resolved satisfactorily on the first appeal. A single tribunal would be required to process ill claims within a single procedural framework, without the benefit of a previous determination by an independent body and without the possibility of further review on the merits in more difficult cases. The Administrative Review Council considers that in a large volume jurisdiction, such as social security and (as we anticipate) accident compensation a two-tiered system is better able to process appeals speedily having due regard to fair procedures. The Council has noted that the Repatriation Review Tribunal, as the single external review body in the repatriation jurisdiction, has been unable to fulfill its role adequately because its high caseload has produced delays in the processing of appeals.

16.38 There is a further advantage in the appeal structure we propose. A two-tiered system, with the first tier providing an informal but independent review, is likely to limit the opportunity for review of decisions within the Corporation itself. This kind of internal review, after an initial decision has been made, can cause significant delays. ³⁰ The procedure suggested will not preclude the Corporation conceding a claim before the first appeal, such as where an obvious error has been made. However, the consideration required for such a concession should not delay the appeal. Of course there can be no question of a negotiated settlement of a claim, in the sense of a compromise position between the claimed amount and the offered amount. The claimant will either be entitled to an amount determined on statutory criteria or not. The Corporation should have no authority to compromise a claim.

IV. THE FIRST STAGE: COMPENSATION REVIEW PANELS

A. The Appeal

16.39 We recommend that a person aggrieved by a decision of the Corporation, or by its failure to make a decision within a reasonable period, should be entitled to appeal to an independent Compensation Review Panel. The range of decisions to be made by the Corporation, even with respect to a single claim, render the imposition of specific time limits on decision-making impracticable. However, the Corporation should be conscious of the need to process all claims promptly. By empowering the Panels to consider complaints of failure to make decisions within a reasonable period, the legislation would establish a practical means of monitoring the Corporation’s performance in this regard and decided appeals will result in useful guidelines on acceptable processing times for the Corporation. The term “person aggrieved” is used in the recommendation because there may be other people, such as service providers, who have been affected adversely by a decision of the Corporation and wish to appeal. The term “claimant’ when used in the text includes a “person aggrieved”. The function of the Panels should be to review the merits of the Corporation’s decision and to determine whether it was the correct or preferable one.

16.40 Compensation Review Panels should be readily accessible to dissatisfied claimants. We agree with the Administrative Review Council that

... the number of independent initiatives required of claimants in pursuing their rights should be kept to the minimum practicable. ³¹

As suggested earlier, the Corporation should be required to notify the claimant in writing of an adverse decision and to advise of appeal procedures that are available. Eight weeks is an appropriate period within which an appeal should be lodged, subject to the Panels having power to extend the period. We recommend that an appeal to a Compensation Review Panel should be lodged within 56 days of the claimant or other aggrieved person being notified by the Corporation of an adverse decision. The Panel should have power to extend the period when there are good reasons for doing so. Notification of appeals should usually be in writing, but the Panels should have authority to accept appeals lodged orally or by telephone in appropriate circumstances.

16.41 The Corporation should not be party to proceedings before a Panel if the Corporation were a party, informality and expedition which are important objectives, would be jeopardised and an unnecessarily adversarial approach might be injected into the appeal at an early stage. It is enough that the Panels should have power, as recommended later, to require the Corporation to provide relevant information and to request the Corporation to explain its policies. Thus, we recommend that the Corporation should not be a party to proceedings before a Compensation Review Panel.

B. Decision-Making Powers

16.42 The Panel’s function should be to review the merits of the Corporation’s decision. A Panel should not be confined to deciding whether the decision was unlawful or manifestly unreasonable. We recommend that Compensation Review Panels should have power to reverse, affirm or vary the decision under review, to substitute their own decision or to remit the matter to the Corporation with or without directions. The panels should have all the powers and discretions conferred on the Corporation and should not be bound by the policies of the Corporation. We refer later in the Chapter to the nature and scope of these powers, in discussing the role of the Accident Compensation Appeal Tribunal (paragraphs 16.57-16.59). We emphasise here that the Panels should have decision-making and not merely recommending powers. When the issues in a case are complex, or raise important policy questions, the Panels should have power to refer the matter directly to the Accident Compensation Appeal Tribunal.

C. Constitution of the Panels

16.43 Compensation Review Panels should include people with expertise in the issues faced by the Corporation and with an understanding of the Scheme. The view expressed by the Administrative Review Council in relation to SSATs also applies to the Panels.

Multi-member panels are necessary if the desirable range of expertise and skills in social security appeals ... is properly to be represented. ³²

We recommend that each Compensation Review Panel should be constituted by three members appointed by the Minister. The Chairperson should be legally qualified, while the other two members should be people with skills or expertise in other relevant disciplines. These disciplines could include medicine, rehabilitation, employment and welfare. Generally, the members of the Panels should serve part-time for terms of three to five years, with an opportunity for re-appointment, although there is room for variation in these matters. Depending on the volume of claims it may be appropriate to appoint some non-legal members on a full-time basis.

16.44 The Administrative Review Council has recently recommended, by a majority, that officers of the Department of Social Security should continue to serve on the SSATS. The Council argued that the Departmental members would provide the SSATs with valuable information about Departmental administration and practices. ³³ Currently, the Departmental members also administer the SSATS. However, in our view, the inclusion of an officer of the Corporation on a Panel would undermine its independence in the eyes of claimants. ³⁴ The independent members of the Panels should quickly acquire a working knowledge of the operations and policies of the Corporation and the Panels will have power to obtain information from the Corporation. Accordingly, we recommend that officers of the Corporation should not be members of Compensation Review Panels. The Panels will require administrative support and full-time staff will have to be provided for this purpose.

D. Procedures

1. Informality and the Rules of Evidence

16.45 In considering the appropriate procedures for Compensation Review Panels we have taken into account

... the importance of balancing the need, on the one hand, for the first tier appeal process to be both speedy and informal, with the need, on the other hand, for the process to maintain an appropriate standard of procedural fairness. ³⁵

The notion of procedural fairness must be adapted to the volume of appeals and the need to ensure that decisions are reached speedily. This is particularly so at the first stage of the appeal process, in which there should be maximum flexibility as to the conduct of the proceedings. We recommend that proceedings before Compensation Review Panels should be conducted with as little formality and technicality, and with as much expedition as fairness to the appellant, the requirements of the legislation and a proper consideration of the subject under review permit. Other than this requirement, the procedures of the Panels should be within their discretion. ³⁶ Furthermore, the Panels should not be bound by the rules of evidence, but should be empowered to inform themselves on any matter in such manner as they think appropriate. ³⁷ Similar recommendations are made later in relation to the Accident Compensation Appeal Tribunal (paragraphs 16.66-16.72).

16.46 It is not appropriate to prescribe in detail the form of the proceedings before the Panels, except to emphasise the need for informality and expedition. In some cases no oral hearing will be necessary, the Panel will be able to act simply on the material in the file and other documents before it. Where there is a hearing, it should generally take the form of an interview or discussion between the appellant, or his or her representative, and the Panel. The material on which the discussion will be based will be the Corporation’s file and any other relevant evidence or argument the appellant may wish to present, such as a further medical report or an explanation of statements made in the claim form. In cases of urgency, or where distance is a problem. telephone hearings may be employed.

2. The File

16.47 Upon the lodging of an appeal, the Corporation should forward the file to the Panel determining the appeal, with a view to a copy being made available to the appellant. ³⁸ If the Corporation considers there are good reasons for withholding documents from the appellant (as where sensitive medical information might be thought harmful to the appellant’s well-being) it should to the Panel for an appropriate order. We recommend that, within 14 days of an appeal being lodged, the Corporation should forward the file to the Compensation Review Panel. Unless there are special circumstances, a copy of the fire should be made available to the appellant. Sensitive medical information should be forwarded to a medical practitioner nominated by the appellant.

3. Open Hearings

16.48 While hearings will not always be held, proceedings before Compensation Review Panels should be subject to scrutiny and therefore should be open to the public. ³⁹ However, Panels should not be required to advertise their sittings. In addition, an appellant should have the right to request that the hearing be closed to the public. The matters which should be taken into account by a Panel in considering such a request could include:

• whether the appellant would be inhibited in presenting his or her case;
• whether personal or sensitive information, particularly relating to the appellant’s physical or mental condition should be protected from disclosure; and
• whether informality and expedition would be secured by such an order.

We recommend that proceedings before Compensation Review Panels should be open to the public uiiless a Panel, on the request of the appellant, orders otherwise.

E. Powers

16.49 The Panels should have powers sufficient to prevent appellants suffering hardship pending the determination of appeals and to ensure that information required to decide appeals is obtained. We recommend that Compensation Review Panels should have power:

(a) to stay or qualify the suspension, reduction or cancellation of compensation and to order the Corporation to accede, wholly or in part, to a claim pending determination of an appeal;

(b) to require the Corporation to provide information relevant to an appeal and to invite the Corporation to present argument or material to the Panels; and

(c) to require an appellant to submit to reasonable examination by a nominated doctor or panel of doctors, or by other nominated professional persons.

F. Representation

16.50 Panels should be prepared to guide appellants as to the evidence or arguments which might be relevant to their case. Despite the informality of the proceedings, many appellants will require additional assistance to present their cases effectively. On occasions this assistance could be provided by friends or relatives. The claimant representatives, to whom we have referred (paragraph 16.14), will also have an important function to perform before the Panels.

16.51 We have considered whether legal practitioners should be prohibited from appearing before the Panels. It can be argued that the presence of lawyers is likely to inhibit the flexibility and informality neccssary in the first stage of the appeal process. ⁴⁰ In particular, their presence could result in adversary atmosphere which is counterproductive and introduces unnecessary delay and expense. While it is essential that speed and informality be preserved, a prohibition on legal representation cannot be justified. Decisions of the Corporation and of the Panels will often have crucial bearing on the lives of transport accident victims. In these circumstances they should be free to seek legal advice and, if they wish, to have legal practitioners present material or appear for them before the Panels. Moreover, the establishment of a system of claimant representatives will not necessarily mean that sources of adequate advice will be readily available to all accident victims in the State. Legal representation is permitted before SSATs and the Administrative Review Council has recommended that this practice be continued. ⁴¹

16.52 Accordingly, we recommend that, in proceedings before a Compensation Review Panel, an appellant should be entitled to be represented by a person of his or her choice, whether or not legally qualified. The Panels should be alert to the dangers of increased formality and should insist that all representatives act in accordance with the procedures the Panels regard as appropriate to the first stage of appeal. In other words, the Panels themselves will bear responsibility for ensuring that they determine appeals without delay or undue formality, taking account of the availability of a second opportunity to seek review on the merits.

G. Witnesses

16.53 We have also considered whether the Panels should be given powers to summon witnesses and to take evidence on oath. The Administrative Review Council has recommended that SSATs should not be given these powers. The Council argued that such powers might tempt some members to duplicate the more formal hearings associated with the AAT ⁴² and lead to delays as the proceedings become unduly formal and adversarial in character. We endorse the views expressed by the Council and suggest that the Panels should not have the power to summon witnesses, take evidence on oath or require the production of documents except by the Corporation.

H. Expenses and Costs

16.54 The accessibility of Compensation Review Panel is so dissatisfied claimants will depend in part on the arrangements made with respect to the expenses of the appeal An appellant, whether successful or unsuccessful, should not be liable for any costs incurred by the Corporation in connection with the proceedings. (The Corporation will not be a party, but may incur costs in compiling and presenting information to the Panel). Where the appellant succeeds, the Corporation should reimburse the expenses reasonably incurred in presenting the appeal. These could include the travel and accommodation expenses of the appellant and of any witnesses appearing before the Panel, the cost of preparing documents or collecting information required in the proceedings and the expenses of medical examinations required or approved by the Panel. We recommend that an appellant should not be liable to meet the costs of the Corporation relating to proceedings before a Compensation Review Panel. A successful appellant should ordinarily be reimbursed for the reasonable expenses of the appeal. The Panels should have power in exceptional circumstances to order the Corporation to reimburse the expenses of an unsuccessful appellant.

16.55 An appellant should be entitled to have a legal representative act on his or her behalf in proceedings before a Panel. The question of the costs of such representation is not an easy one to resolve. If costs are awarded too liberally, the appeal process may become protracted, expensive and adversarial. If they are never available, injustice may be caused to appellants who succeed in overturning a decision of the Corporation, or who are deterred from challenging an adverse decision. We recommend that where a legally represented appellant succeeds, he or she should be awarded costs in accordance with a modest fixed scale which recognises the informal and expeditious nature of proceedings before Compensation Review Panels. In exceptional circumstances, the Panels should be able to award such costs to an unsuccessful appellant. An example of such circumstances would be where a Panel requests advice on policy matters from the Corporation and this advice justifies a response prepared by a legal representative on behalf of the appellant.

1. Reasons for Decision

16.56 Compensation Review Panels should be obliged to give their decisions in writing and provide reasons. A statement of reasons, particularly if it includes findings on material facts, will enable the appellant and the Corporation to assess the soundness of the decision and to decide whether to appeal further. This requirement will also protect both appellants and the Corporation against careless or arbitrary decisions and will encourage the Panels to address “solely ... those issues which should be taken into account in reaching a decision”. ⁴³ We recommend that Compensation Review Panels should be required to give decisions in writing and to provide statements of their findings on material facts and reasons for their decisions. A statement should be reduced to writing within 14 days of a request to that effect by an appellant or by the Corporation.

V. THE SECOND STAGE: THE ACCIDENT COMPENSATION APPEAL TRIBUNAL

A. The Appeal

16.57 Compensation Review Panels are likely to dispose finally of a high proportion of appeals by dissatisfied claimants. Where a Panel allows an appeal and reverses the Corporation’s decision, the appellant s claim will have been successful. Where an appeal is dismissed, the appellant, although unsuccessful, may be satisfied that he or she has had a reasonable opportunity to put the case and that no further appeal is warranted. Some appellants, although remaining dissatisfied, will simply decide not to pursue the appeal. The New Zealand experience under the comprehensive accident compensation scheme is that the great majority of applications for review do not proceed beyond the stage of internal review. ⁴⁴ The experience with social security appeals in Australia also tends to confirm that most appeals will be finalised in the first stage of the appeal process. ⁴⁵

16.58 Nonetheless, it seems clear that a significant volume of appeals under the proposed Scheme will proceed to the second tier. The precise volume is impossible to predict. It may be, for example, that neither the social security nor New Zealand experience will prove to be a reliable indicator in New South Wales which has a reputation for a high rate of litigation. The second tier of appeals is potentially very important, not only in establishing standards to be followed by the Corporation, but in determining the rights of individual claimants.

16.59 An appeal from a decision of a Compensation Review Panel should lie at the instance either of the claimant or the Corporation. The Corporation, although not a party to proceedings before the Panel, may wish to appeal, for example, when a decision has important implications for the administration of the Scheme. The appeal should be to the Accident Compensation Appeal Tribunal and should be brought within three months of the Panel’s decision. We recommend that an appeal from the decision of a Compensation Review Panel should lie to the Accident Compensation Appeal Tribunal. Both the appellant in proceedings before the Panel and the Corporation should have the right to appeal. The Corporation should be a party to the proceedings before the Tribunal. An appeal should be instituted within three months of the Panel’s decision unless the Tribunal extends the time for appeal. An appeal to the Tribunal should be available only from a decision of a Panel-, it should not be possible to appeal directly from a decision of the Corporation to the Tribunal. In our view when the Corporation appeals from a decision of a Panel, the claimant should ordinarily be entitled to continuation of benefits pending the appeal.

B. Decision-Making Powers

16.60 As stated above, the appeal structure for the Scheme should broadly follow that for social security appeals. The Tribunal, as the second tier in the appeal structure, should have a role and powers similar to that of the AAT under Commonwealth law. The AAT has the same powers and discretions as the initial decision-maker. In particular, it has power to review the correctness of the initial decision and to determine, in the circumstances of the case, the preferable decision. The function of the AAT has been described in a leading case as follows.

It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative discretion in a given case or, where a decision has been lawfully made in pursuance of a permissible policy, to candidate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a Judicial function. It is the function which has been entrusted to the Tribunal.

The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. ⁴⁶

16.61 It has been established as a general principle that the AAT is not bound by the policies formulated by the body whose decision is under review. The principle has been expressed by the Federal Court as follows.

The Tribunal was entitled to take into account Government policy which was not inconsistent with the provisions or the objects of the [relevant legislation] ... although it was not under a statutory duty to regard itself as being bound by that policy. However, it was not entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general Government policy might be. ⁴⁷

This expresses the approach which should be taken under the Scheme. The Accident Compensation Appeal Tribunal should not be bound by the policies of the Corporation, but should be free to determine the weight that should be given to policy statements or guidelines. The Corporation’s views, in the ordinary course, would be taken into account. The Review of New South Wales Government Administration took a different view of the proper role of an administrative tribunal, recommending that it should be bound to follow and implement relevant Government policy. ⁴⁸ The Accident Compensation Corporation, however, is to develop its own policies and is not to be subject to the direction or control of the Government, except through legislation. In view of this it is proper that the policies of the Corporation should be subject to scrutiny by appeal tribunals.

16.62 We recommend that the Accident Compensation Appeal Tribunal, like Compensation Review Panels, should have power to reverse, affirm or vary the decision under review, to substitute its own decision or to remit the matter to the Corporation. The Tribunal should have all the powers and discretions conferred on the Corporation and should not be bound by the policies of the Corporation.

C. Constitution of the Tribunal

16.61 The constitution of the Accident Compensation Appeal Tribunal should reflect the importance of its decisions to individual accident victims and to the public generally, the complexity and sensitivity of the subject, and the monetary value of the rights at stake. A Judge of the New South Wales Workers’ Compensation Commission stated in a submission to us that he thought it

... unlikely that the people of New South Wales would accept decisions at a lower level than that [of a judge] in matters of such importance. ⁴⁹

We agree that the Tribunal should be constituted by one or more judges. In this Commission’s 1973 Report on the Right of Appeal from Decisions of Administrative Tribunals and Officers, it was stated that

... public confidence in the competence, independence and impartiality of the [Public Administration] Tribunal could not, in our view, be secured or maintained unless it was presided over by a ... judge. ⁵⁰

16.64 However, the Tribunal should not be constituted by a judge alone. As justice Else-Mitchell warned two decades ago, the training which lawyers have is not always conducive to the development of “the expertise which is necessary to an efficient and expeditious determination of administrative questions” and of an understanding of “the real policy considerations which it is the function of administrative tribunals to apply”. ⁵¹ The AAT is constituted by judges, practising lawyers and other members with appropriate experience, qualifications or skills including knowledge of economics, industrial relations, and public administration. ⁵² The President of the AAT is responsible for constituting the Tribunal for particular cases. ⁵³ The Act provides the President with a range of options in relation to the constitution of the tribunal including multi-member and single-member Tribunals. ⁵⁴ Experts from relevant fields other than law also constitute the New South Wales Land and Environment Court for some purposes. ⁵⁵ While it is clearly inappropriate that non-lawyers should determine issues of law, it is essential that people of relevant experience or qualifications should join the tribunal when other issues are presented. We recommend that the Accident Compensation Appeal Tribunal should generally be constituted by a judge of the status of a District Court judge, sitting with two non-judicial members. In cases raising issues of law only, the Tribunal should be constituted by a judge sitting alone.

16.65 It is desirable that a small panel of people should be available to sit as members of the Tribunal. These people could be expected to develop familiarity with and expertise in the area of accident compensation, which is likely to enhance their contribution to the Tribunal. As suggested earlier (paragraph 16.43), there are several disciplines of particular significance to the decision-making process. We recommend that non-judicial members should be selected from a panel of people with skills or expertise in relevant disciplines. They should serve on a part-time or full-time basis for terms of up to seven years and should be eligible for re-appointment. ⁵⁶ The non-judicial members should have the same vote as the judicial member, except that questions of law should be decided in accordance with the opinion of the judicial member. ⁵⁷

D. Procedures of the Tribunal

1. Informality

16.66 In general, it is expected that the Tribunal will be the forum for reconsidering the more complex cases arising in the Jurisdiction, or those raising issues of policy or practice of general application. We envisage, therefore, that the proceedings will differ from those before Compensation Review Panels in several ways.

• Hearings will tend to be longer, although they should not be prolonged.
• The Corporation will be a party to the proceedings.
• The parties are more likely to be legally represented.
• A greater degree of formality is likely to be observed by the Tribunal.
• The evidence and policy issues will usually be examined in more depth than before the Panels.

16.67 Despite these differences, the general principles stated in the legislation should be the same as those applying to Compensation Review Panels and to the AAT. Thus, we recommend that proceedings before the Accident Compensation Appeal Tribunal should be conducted with as little formality and technicality, and with as much expedition, as fairness to the parties, the requirements of the legislation and a proper consideration of the matters before it permit. Other than this requirement, the procedures of the Tribunal should be within its discretion. ⁵⁸

16.68 There is unlikely to be a standard procedure applicable to every proceeding before the Tribunal. The Tribunal should

... remain flexible in its procedures. making such adaptations as are appropriate in the circumstances of the case. ⁵⁹

Much will depend, for example, on whether the appellant is represented and the approach taken by his or her representative to the proceedings. The Tribunal will also be influenced by the nature and complexity of the issues and whether more information is required in order to review the decision under challenge. It may decide to elicit information on its own initiative, particularly if an appellant (other than the Corporation) is unrepresented, or to go beyond the contentions raised by the parties. The Tribunal will have to accommodate the need to assist a person who might otherwise fail for want of guidance. On the other hand, the Tribunal will be concerned to avoid undue interference in the presentation of a case. ⁶⁰

16.69 There is also room for flexibility in procedural matters such as the question of which party should open the proceedings. The Federal Court has recently addressed the subject of the legal onus of proof in administrative appeals, noting that confusion could arise if strict legal burdens were applied in the proceedings.

There is certainly no legal onus of proof arising from the fact that this is an “appeals” tribunal, because the AAT is required ... to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before the administrator...) make its own decision in place of the administrator’s [T]here is no presumption that the administrator s decision is correct. It is possible to imagine a case where the Act which the administrator is applying places a requirement or onus on one or other of the parties to an issue to establish a particular state of facts on which the administrators decision would be based. If that were so, the same requirement for onus would apply before the AAT. ⁶¹

Thus procedural questions are not necessarily to be answered by reference to the legal onus or burden of proof. The AAT, for example,

... may depart from the accustomed order of openings, evidence, addresses. It may sometimes consider that an applicant in person would be assisted by hearing the respondents opening, and perhaps the respondents evidence, before presenting his or her own case, and direct that the proceedings be ordered accordingly. ⁶²

2. Rules of Evidence

16.70 The AAT is not bound by the rules of evidence. One commentator has observed that

[s]trict general application of the rules of evidence as a whole as they are applied in the courts would hopelessly restrict the ability of the Tribunal to come to rational decisions about the substantive merits of the case. ⁶³

We accept this view and recommend (as we have with respect to Compensation Review Panels) that the Accident Compensation Appeal Tribunal should not be bound by the rules of evidence but should be empowered to inform itself on any matter in such manner as it thinks appropriate.

16.71 This recommendation will permit the Tribunal to accept evidence which would be inadmissible in a court, treating the weakness as influencing its weight rather than its admissibility. The question of what material should be considered should be determined on the basis of fairness to the parties. The leading statement of the practice of the AAT is as follows.

In informing itself on any matter in such manner as it thinks appropriate, the Tribunal endeavours to be fair to the parties. It endeavours not to put the parties to unnecessary expense and may admit into evidence evidentiary material of a logically probative nature notwithstanding that that material is not the best evidence of the matter which it tends to prove. But the Tribunal does not lightly receive into evidence challenged evidentiary material concerning a matter of importance of which there is or should be better evidence. And the requirement of a hearing and the provision of a fight to appear and be represented carries with it an implication that, so far as is possible and consistent with the function of the Tribunal, a party should be given the opportunity of testing prejudicial evidentiary material tendered against him. It is generally appropriate that a party should have an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party. He should be given an opportunity to test the evidence tendered against him provided that the testing of the evidence seems appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much expedition as the matter before the Tribunal permits. ⁶⁴

16.72 Statements made orally to Compensation Review Panels should not be admissible in proceedings before the Tribunal, unless both parties consent. The Panels should determine matters speedily and informally. If evidence of the information presented to the Panels could be given to the Tribunal as a matter of course, there is a danger that Panel hearings could become more formal and that unrepresented persons could find themselves at a disadvantage ill Subsequent proceedings. We recommend that evidence of statements made orally to a Compensation Review Panel should not be admissible in proceedings before the Accident Compensation Appeal Tribunal, unless the parties consent. This recommendation is not intended to exclude reference being made to reasons for decisions given by Panels where these, in turns refer to evidence given before them.

3. Preliminary Conferences

16.7; The Tribunal’s power should include directing the parties to attend a preliminary conference. The objects of such a conference would be

... to clarify the issues; to give some indication of the kind of evidence which the parties will be producing at the hearing; to give some guidance, to all unrepresented applicant or to a practitioner inexperienced in the .jurisdiction, as to the procedure at the hearing and the kind of evidence which will be required, to as ascertain the probable length of the hearing and any other relevant information; and, where appropriate, to encourage the resolution of the matter in issue without the need for an actual hearing. ⁶⁵

The conference would also allow the Tribunal to assess the adequacy of medical evidence, with a view to determining whether a further medical examination should be required. In some circumstances, is where a disabled person cannot easily travel. the preliminary conference (and indeed other proceedings of the Tribunal) could be conducted by telephone.

4. Open Hearings

16.74 As for Compensation Review Panels, we recommend that proceedings before the Accident Compensation Appeal Tribunal should be open to members of the public unless the Tribunal orders otherwise.

E. Powers

16.75 We recommend that the Accident Compensation Appeal Tribunal should have all the powers of a Compensation Review Panel to prevent a party suffering hardship pending determination of the appeal and in obtaining information required to dispose of the appeal (see paragraph 16.49).

F. Representation

16.76 The case for permitting legal representatives to appear before the Tribunal is even stronger than in relation to Compensation Review Panels. The Corporation will be a party to the proceedings and the Tribunal is likely to consider the issues in greater depth than the Panels. We recommend that a party to proceedings before the Accident Compensation Appeal Tribunal should be entitled to be represented by any person whether or not legally qualified.

G. Witnesses

16.77 While Compensation Review Panels should not have the powers to summon witnesses, take evidence on oath or require the production of documents, it is appropriate for the Tribunal to have such powers. We so recommend.

H. Expenses and Costs

16.78 The should have power to award costs. However, in general, an appellant, even if unsuccessful, should not have to pay the costs of the Corporation. An exception could be made where an appeal is regarded as frivolous or vexatious. A successful appellant should normally receive order for costs, including those relating to legal representation in with a scale approved by the Tribunal. Thus, we recommend that:

(a) the Accident Compensation Appeal Tribunal should have power to award costs;

(b) an award of costs should not be made in favour of the Corporation unless the circumstances are exceptional; ⁶⁶

(c) in exceptional circumstances the Tribunal should be able to award costs in favour of an unsuccessful appellant; and

(d) costs of legal representation should be awarded in accordance with a scale approved by the Tribunal.

A factor that the Tribunal Could take into account in considering a costs order is whether an appellant on legal advice or otherwise, failed to participate fully in proceedings before a Compensation Review Panel.

1. Reasons for Decision

16.79 Like Compensation Review Panels, the Tribunal should be required to give decisions in writing and a statement of reasons, either orally or in writing. If delivered orally, the reasons should be reduced to writing within 14 days of the request of a party. This will facilitate the parties consideration of further appeal and the adequate preparation of a case. We recommend that the Accident Compensation Appeal Tribunal should be required to give its decision in writing and to give a statement of the reasons for the decision. We further recommend that at the request of a party the reasons should be reduced to writing within 14 days.

J. Placement of the Tribunal

16.80 Thus far we have referred to the Accident Compensation Appeal Tribunal without relating it to existing court or tribunal structures. The options include vesting the functions of the Tribunal in

• a new and separate Tribunal;
• a division of the new Compensation Court;
• a division of the District Court;
• the Administrative Law Division of the Supreme Court; or
• a State equivalent of the AAT, should one be established.

16.81 We have no doubt that the most satisfactory approach would be to integrate the Accident Compensation Appeal Tribunal within a general system of administrative appeals under State law. This Commission’s 1973 Report on administrative appeals recommended that a Public Administration Tribunal should be established in New South Wales, as a single tribunal with power to review administrative decisions on their merits. ⁶⁷ In 1982 recommendation was supported by the Review of New South Wales Government Administration. ⁶⁸ Such a Tribunal would largely, if not entirely, overcome the fragmentation of review of administrative action which is a characteristic of current State law. With a fragmented system, uniformity and consistency, which are important qualities in administrative decision-making, are very difficult to achieve. The Public Administration Tribunal. If established in accordance with the 1973 Report, would perform a similar, although not identical, role at State level to that now performed by the AAT under Commonwealth Moreover, there would be little difficulty in adapting the Public Administration Tribunal to perform the role and functions suggested for the Accident Compensation Appeal Tribunal. We recommend that, ideally, the role and functions of the Accident Compensation Appeal Tribunal should be performed by a general Administrative Appeals Tribunal established under State law.

16.82 Having regard to the lapse of time since the Commission’s 1973 Report and the 1982 recommendation of the Review of New South Wales Government Administration, it cannot be assumed that a general Administrative Appeals Tribunal will be established in time to perform the role and functions of an Accident Compensation Appeal Tribunal. It is therefore necessary to deal with the interim period until, if ever, an Administrative Appeals Tribunal is established. One member of the Division, Justice Rogers is strongly of the view that existing courts should be used, if possible, to discharge the duties of the Accident Compensation Appeal Tribunal. This view is not shared by other members of the Division and is reported as a minority opinion. According to Justice Rogers, it would be undesirable in the extreme that yet another separate tribunal should be constituted. This would be unsound both from the point of view of the proper administration of justice and as a matter of general administration In his view, the Judicial arm of government should be constituted within the one structure and the long standing tradition of supervision of inferior courts and tribunals by the higher courts should continue. Administratively, it is only by an integrated court system that the best use can be made of both judicial and support staff and the necessary facilities such as court rooms. It would be undesirable and an unnecessary expenditure to create yet another registry with support staff for a separate and distinct tribunal, not to mention court premises and other facilities.

16.83 Justice Rogers argues that on any view, the proposed tribunal will be staffed by lawyers as well as by non-legal members and those lawyers will be drawn from the same pool as District Court judges and the judges of the Workers’ Compensation Commission. To the extent that the criticism is justified that the judges would be affected by being steeped in the tradition of adversary proceedings, the same criticism would apply to any other lawyer tribunal member. Judicial records show that there can be drawn from among judges people prepared to entertain novel functions in the same way as from barristers or solicitors. Under existing legislation, such as the Mental Health Act, 1958 and the Adoption of Children Act, 1965, Judges sit with assessors. In the same way as judges of the Federal Court are able to sit as presidents and deputy presidents of the Trade Practices Tribunal with assessors, Judges of New South Wales courts would be able to sit and adapt themselves to the requirements of the Accident Compensation Tribunal. Justice Rogers proposes that there be established as a Division of the District Court or Compensation Court (succeeding to the judicial functions of the Workers’ Compensation Commission-see paragraph 2.42) an Accident Compensation Appeal Division to which should be seconded judges nominated for that purpose by the Chief Judge of the chosen court. They should give first priority to disposing of the work of the Division but would otherwise be available to carry out the general work of their court.

16.84 The majority of the Division is not persuaded that the use of the existing court system in the manner suggested by Justice Rogers would best serve the aims of the Scheme. In his statement Justice Rogers refers to the long-standing tradition of supervision of inferior courts and tribunals by the higher courts. The maintenance of this tradition is not inconsistent with the majority view that issues of law ultimately should be determined by the Court of Appeal of the Supreme Court of New South Wales (paragraph 16.87) and the acknowledgment that the Supreme Court should have a continuing role in reviewing administrative action (paragraph 16.89). It is not necessarily correct that the lawyers appointed to a separate Tribunal would all be chosen from the same pool as that which provides judges for the District Court and Workers’ Compensation Commission. The latter are almost always drawn from practising barristers steeped in the adversary tradition who have usually had experience in that system as applied to accident compensation. There are highly qualified lawyers with different backgrounds who may be well suited to undertake the special functions of the Tribunal. It is not easy to find analogies to the Tribunal in the court system currently operating in this State. There are significant differences between what is expected of the Tribunal and the functions exercised in the examples used by Justice Rogers, such as jurisdiction under the Mental Health Act, 1958 and the Adoption of Children Act, 1965.

16.85 The majority of the Division takes the view that it is likely to prove extraordinarily difficult for existing courts to perform the functions envisaged for the Tribunal. These functions are quite novel as far as State law is concerned. The Compensation Court, for example, would be faced with the problem of resolving workers’ compensation claims according to one set of rules and procedures, while deciding transport accident claims on a substantially different basis. District Court Judges would be required to make a transition from rigid adherence to rules of evidence in criminal trials or common law negligence actions, to reviewing administrative decisions on their merits in accordance with informal procedures. It would be especially undesirable if the practices associated with adversary litigation in common law claims were applied to the suggested appeal system, which is designed to achieve different objectives. The same problems would apply to Supreme Court Judges. In addition, it ‘s doubtful whether it is appropriate for judges of the Supreme Court to have to decide appeals of the kind which will arise under the Scheme at this level. A further problem is that all existing courts would have to determine the priority which should be accorded transport accident claims in relation to other categories of work. This might create special problems for a Court such as the District Court which has a very heavy workload of criminal cases.

16.86 The majority prefers the establishment of a separate Accident Compensation Appeal Tribunal is an interim measure pending the establishment of a comprehensive system of administrative appeals in the State. The Tribunal should comprise a small group-perhaps only two-full-time Judges with the Status and salaries of District Court Judges. It may be for reasons of economy, to draw on the services of nominated Judges of the District Court or Compensation Court on a part-time basis, ⁶⁹ particularly because of the need to service the State. These Judges should be selected on the basis of their suitability to undertake the special tasks required of the Tribunal. As recommended earlier, the Tribunal should also include non-lawyer members (paragraphs 16.64-16.65). We recommend that, pending the establishment of a general Administrative Appeals Tribunal under State law, the Accident Compensation Appeal Tribunal should be created as a separate body. Membership of the Tribunal should include a small group of judges of District Court status, serving full-time. Nominated judges of the District Court or Compensation Court should be eligible to serve as members on a part-time basis. In accordance with earlier recommendations, membership should include non-lawyers.

VI. FURTHER APPEAL

16.87 The Accident Compensation Appeal Tribunal should be the final arbiter of fact-as it will have the opportunity to review the evidence fully and to observe witnesses. It should not, however, be the final arbiter on issues of law. There is no reason to deny claimants a right of appeal on point of law to the Court of Appeal. ⁷⁰ In addition, the tribunal should have power, on its own motion or at the request of a party, to refer a question of law arising in a proceeding before it to the Supreme Court. This course may be preferred by the tribunal when confronted with a difficult and complex question of law. We recommend that an appeal should be available on issues of law from the Accident Compensation Appeal Tribunal to the Court of Appeal of the Supreme Court of New South Wales, and that the Tribunal should itself have the power to refer a question of law to the Supreme Court. Where a claim arises on a point of law it should be possible for the issue to be presented by leave of the Tribunal or the Court of Appeal directly to the Court of Appeal without the need for a decision by the Tribunal.

16.88 An appeal would be available, by leave, from a decision of the Court of Appeal to the High Court of Australia.

VII. OTHER REVIEW

16.89 The Supreme Court of New South Wales has jurisdiction to review administrative actions in accordance with the general principles of judicial review. The Administrative Law Division of the Court has power to order public bodies or officers to perform certain duties or to refrain from doing certain acts, and power to make declarations regarding the powers of such bodies or officers. ⁷¹ The establishment of an Accident Compensation Appeal Tribunal would not directly affect the existing power of judicial review. The proposed Tribunal will be essentially a body determining administrative appeals and its existence should not prevent claimants approaching the Supreme Court for judicial review of administrative actions in appropriate cases, although that Court in exercising its powers would ordinarily take account of other remedies available to the claimant.

16.90 The Ombudsman Act, 1974 offers a different method of review of administrative actions. Individual decisions of the Corporation could be the subject of complaints to the New South Wales Ombudsman, who has power to investigate and report on complaints as to the administration of public authorities. ⁷² This important additional safeguard will supplement the appeal procedures in individual cases and the general policy review to be undertaken by the Policy Review Committee. It is to be noted, however, that the Ombudsman has a discretion to refuse to investigate a complaint. ⁷³ In exercising this discretion one of the factors which may be taken into account is whether an alternative and satisfactory means of redress is available to the complainant. ⁷⁴ Thus a dissatisfied claimant who has not sought redress by means of the appeal procedures will not necessarily be granted assistance by the Ombudsman.

VIII. SUMMARY

Decision-Making Procedures

16.91 The Corporation will require decision-making procedures to process a large number of claims under the Scheme and to assess the entitlement of incapacitated and disabled people to continuing benefits. It will also need powers to investigate claims and to receive information relating to them. However, in the usual case, the-primary sources of information should be the claimant, the treating doctor and the claimants employer.

16.92 The Corporation should not administer the Scheme on an adversary basis, but should actively attempt to ensure that all injured people receive the benefits to which they are entitled. It should, for example, adopt measures to secure full reporting of accidents likely to lead to claims. Assistance should be provided to claimants in preparing claims and gathering supporting information. Funds should also be provided to outside organisations to enable them to engage claimant representatives, who should provide advice and assistance to .claimants and could act on behalf of people seeking review of Corporation decisions. The policy guidelines formulated by the Corporation should be published, so that claimants and their advisers have the opportunity of responding to the Corporation’s requirements.

16.93 In accordance with the principle of high quality decision-making referred to in Chapter 15 (paragraph 15.11) the assessment of each claim should be the responsibility of a single assessing officer who should have the authority to make the necessary investigations and decisions in relation to claims and continuing entitlements. Decision-making functions should not be delegated to medical boards or to individual medical practitioners, primarily because the statutory criteria do not usually relate to purely medical questions but require a reference to economic, social and vocational considerations. Medical assessments, including those by rehabilitation services, will usually be of considerable importance, but this should not detract from the responsibility of the corporation to determine claims under the Scheme.

The Appeal System

16.94 It is essential that claimants have an opportunity to obtain independent review of Corporation decisions, including an opportunity for a review by a judicial tribunal on the merits. The appeal system should, to the maximum extent practicable, avoid delay, formality and substantial costs, but adhere to high standards of procedural fairness. The appeal tribunals should be readily accessible to dissatisfied claimants, who should be notified of unfavourable decisions by the Corporation and advised of the right to appeal.

16.95 These objectives can best be achieved by adopting the model for social security appeals under Commonwealth law proposed by the Administrative Review Council. There should be a two-tiered system of appeals.

• The first appeal should be to independent bodies known as Compensation Review Panels. They should conduct appeals speedily and informally and should have power to substitute their view of the merits of each case for that of the Corporation.
• The second appeal should be to an Accident Compensation Appeal Tribunal, which should have powers similar to those of the administrative Appeals Tribunal (AAT) under Commonwealth law. These include assessing the merits of claims without being bound by the Corporation’s policies.

An appeal on questions of law should be available from the Accident Compensation Appeal Tribunal to the Court of Appeal.

16.96 Compensation Review Panels should be constituted by three members. The Chairperson should be legally qualified, and the remaining members should have skills or expertise in other relevant disciplines. The Corporation should not be a party to proceedings before the Panels. An appellant should be entitled to be represented by a person of his or her choice, whether or not legally qualified. A Successful appellant should ordinarily be reimbursed for the necessary expenses of the appeal, including legal costs in accordance with a modest fixed scale. The Panels should emphasise speed and informality in decision-making.

16.97 The Accident Compensation Appeal Tribunal should ordinarily be constituted by a judge and two non-judicial members having skills in relevant disciplines. Like the Panels, the Tribunal should not be bound by rules of evidence and should conduct the proceedings with as little formality and technicality as fairness permits. in practice, hearings before the Tribunal will tend to be longer than those before the Panels, partly because it is likely to be concerned with the more difficult issues. The Corporation will be a party to appeals heard by the Tribunal and legal representation is likely to be more common. The Tribunal should have power to award costs.

16.98 Ideally, the Accident Compensation Appeal Tribunal should be integrated within a comprehensive system of administrative appeals for the State. In the absence of such a system, it is proposed that the Tribunal should be established as a new and separate body, although judges could be drawn from existing courts.

1. Administrative Review Council. The Structure and Form of Social Security Appeals (Report No.21, 1984).

2. It should be an offence to fail to report an accident although. in the case of a driver or owner who is also a claimant this obligation could be satisfied by lodging a claim form. Cf. Accident Compensation Act 1982 (NZ), s.93; Motor Accidents (Liabilities and Compensation) Act 1973 (Tas.), s.21.

3. Cf. Motor Accidents Act 1973 (Vic.). s.85.

4. T.G. Ison, Accident Compensation (1980), p.87.

5. T.G. Ison, “Workers’ Compensation-The Canadian Experience”, paper delivered at the conference entitied “Workers’ Compensation-New Directions”, South Australian Ministry of Labour (Adelaide, May 1984). p.15.

6. See note 4 above, p.82.

7. Id.. p.94.

8. Workers’ Compensation Act 1916 (Qld.). s.41C.

9. Submission W60. p.4.

10. Submission S27, p.2.

11. Accident Compensation Corporation, Claims Manual 1983 (New Zealand). para.1.1.

12. See note 4 above. p.105.

13. Cf. Accident Compensation Act 1982 (NZ). ss.59(5), 88.

14. Motor Accidents Act 197 3 (Vic.), s.50.

15. Cf. Administrative Appeals Tribunal Act 1975 (Cth). s.28(1). This formula was approved by the New South Wales Government Administration, Unfinished Agenda (1982), p.57.

16. Limitation Act. 1969, s.14(1).

17. See Submissions W24. p.32: W28, p.3: S32. pp.25-26: and S40. pp.6-7.

18. As a comparison the New Zealand Accident Compensation Commission (as it then was). received over 12,000 applications for review of primary decisions in its first five years of operation. This figure was less than 2 per cent of total claims handled during the period: Accident Compensation Commission, Purpose, Progress (New Zealand, 1980). p.22. During 1982-83 the Corporation received 4.096 applications for review. This number was equal to 2.8 per cent of the number of applications received in the same period: Accident Compensation Corporation, Report of the Accident Compensation Corporation for the year ended 3l March 1983 (New Zealand. 1983), p.9.

19. Administrative Review Council. Social Security Appeals (Report No.8. 1981). para.8.002.

20. Id.. para.8.001.

21. Ibid.

22. See note 1 above. Our proposal differs from the appeal systems implemented in the other Australian no-fault schemes. The Tasmanian and Northern Territory appeal tribunals are judicial tribunals: Motor Accidents (Liabilities and Compensation) Act 1973 (Tas.), s.12(2A) and Motor Accidents (Compensation) Act 1979 (N.T.), s.28. In the Northern Territory, a dissatisfied claimant must direct his or her appeal to the Board of the Territory Insurance Office which administers the no-fault compensation scheme: Motor Accidents (Compensation) Act 1979 (N.T.), s.27. An appeal from the Board’s decision may be taken to the Motor Accidents (Compensation) Appeal Tribunal, constituted by a Supreme Court Judge: s.29(1). In Victoria, the Motor Accidents Act, 1973 provides for internal review of primary decisions when the Board receives a request to provide reasons for an adverse decision: Motor Accidents Act 1973 (Vic.), s.51. The Board may vary or revoke its earlier decision. If the claimant is not satisfied with the Board’s decision, he or she may appeal to the Motor Accidents Tribunal: s.50. The Tribunal is constituted by barristers and solicitors of not less than seven years standing, who sit individually to consider appeals: ss.37(1), 39(1). The Tribunal may substitute its own opinion or belief for that of the Board, or exercise a discretion in a different manner. where the appeal is against a decision dependent on an opinion or belief of the Board, or the exercise of t discretion by the Board: s.52.

23. See note 1 above, paras.112, 118.

24. Social Security Act 1947 (Cth.), s.15A.

25. Administrative Appeals Tribunal Act 1975 (Cth.), s.43(1).

26. See note 1 above, para.104.

27. Accident Compensation Act 1982 (N.Z.), s. 102.

28. See note 4 above. p.109.

29. Commissioner for Employees’ Compensation, Annual Report 1981-1982 (Commonwealth 1982), pp.11-14.

30. See note 1 above, p.13, table 2. The table shows that in the second quarter of 1983, the time from receipt of an application for review to a recommendation by the SSAT accounted for only about one-third the time needed to process such applications. The remaining time was taken up in internal review by the Department and subsequent consideration of the SSATs recommendation.

31. See note 1 above. para.70.

32. Id., para. 122. Cf. Community Welfare Act 1982. Schedule 9, cl.2(1) which provides for Community Welfare Appeals Tribunals.

33. See note 1 above, para.123.

34. Id., paras.195-202. for dissenting views.

35. Id., para.88.

36. Cf. Administrative Appeals Tribunal Act 1975 (Cth.). s.3(1)(a).(b). Id., s.33(1)(C).

38. Submission W27, p.5. Cf. Administrative Appeals Tribunal Act 11)75 (Cth.). s.7.

39. In this we adopt a dissenting view of the Administrative Review, Council: see note 1 above, paras.203-207.

40. D. C. Pearce. “The Australian Government Administrative Appeals Tribunal” (1976) 1 University of New South Wales Law Journal 191. at pp.203-204.

41. See note 1 above, para.146.

42. Id., para. 142.

41. See note 40 above, pp.201-202.

44. Although the figures cannot be directly related, during 1982-83 4,096 applications for internal review were lodged with the Corporation and only 232 appeals were lodged: see Accident Compensation Corporation. Report of the Accident Compensation Corporation for the year ended 31 March 1983 (New Zealand, 1983), p.9. See also earlier Annual Reports of the Corporation.

45. Department of Social Security, 1982-83 Annual Report (Commonwealth, 1983). pp.54-55.

46. Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, at p.589, per Bowen C.J. and Deane J.

47. Id., p.580. See generally M.D. Kirby, “Administrative Review: Beyond the Frontier Marked Policy-Lawyers Keep Out” (1981) 12 Federal Law Review 121.

48. See Review of New South Wales Government Administration, note 15 above, p.59.

49. Submission W27, p.1.

50. New South Wales Law Reform Commission, Report on the Right of Appeal from Decisions of Administrative Tribunals and Officers (LRC 16, 1973). para.149.

51. R. Else-Mitchell, “The Place of the Administrative Tribunal in 1965”, paper reproduced in the Papers of the Third Commonwealth and Empire Law Conference (1965), p.65, at p.74.

52. Administrative Appeals Tribunal Act 1975 (Cth.). s.7.

53. Id., s.20(1).

54. Id., s.21(1).

55. Land and Environment Court Act, 1979. ss.12, 30, 36. and 37. See also Anti-Discrimination Act 1977. s.69B providing that the Equal Opportunity Tribunal established by s.69B is to be constituted by one judicial member and two other members. The Act does not list the qualifications for ordinary membership.

56. Administrative Appeals Tribunal Act 1975 (Cth), s.8(1) (c).

57. Cf. Administrative Appeals Tribunal Act 1975 (Cth.), s.42(1). See also Anti-Discrimination Act 1977, s.108 (2).

58. See para. 16.45 and Administrative Appeals Tribunal Act 1975 (Cth.), s.33(1).

59. A N Hall, “Aspects of Federal jurisdiction: The Administrative Appeals Tribunal (Cth.)” (1981) 57 Australian Law Journal 389, at p.403.

60. Sullivan v. Secretary. Department of Transport (1978) 20 ALR 323. at pp.342-343.

61. McDonald v. Director-General of Social Security, 27 March 1984, Federal Court of Australia, transcript of judgment at pp.6-7. per Woodward J.

62. R. Baimford, “The Administrative Appeals Tribunal in Practice” (1984) 58 Law Institute Journal 799, at p.808.

63. R.K. Todd. “Administrative Review Before the Administrative Appeals Tribunal-A Fresh Approach to Dispute Resolution. Part II” (1981) 12 Federal Law Review 95. at p.96.

64. Re Saverio Barbaro and the Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1, at p.5. per Davies J.

65. See note 62 above. p.807.

66. As to an award of costs against a legally aided person, see Legal Services Commission Act. 1979, s.47.

67. See note 50 above. paras.146, 155.

68. See Review of New South Wiles Government Administration, note 15 above. p.57.

69. See. generally. Submission W27.

70. Section 289 of the Community Welfare Act 1982, gives a right of appeal to the Supreme Court from the Community Welfare Appeals Tribunal. See also Compensation Court Bill, 1983, cl.33. Pursuant to s.48 of the Supreme Court Act, 1970, the appeal would be heard by the Court of Appeal of the Supreme Court of New South Wales.

71. Supreme Court Act 1970, s.53(3B); Supreme Court Rules, 1970, schedule H.

72. See generally Ombudsman Act, 1974. ss.12(1), 13 and 26. For definition of “public authority”. see s.5(1).

73. Id., s.11(3).

74. Id., s.11(4)(b)(v).