New South Wales: Personal Injury Commission Act 2020 (NSW)

Personal Injury Commission Act 2020 No 18 An Act to establish the Personal Injury Commission and provide for its functions; and to make consequential amendments to other legislation. Part 1 Preliminary 1 Name of Act This Act is the Personal Injury Commission Act 2020. 2 Commencement (1) This Act commences on the date of assent to this Act, except as provided by this section. (2) Schedule 5 commences on the establishment day. (3) Schedule 6 commences on a day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act are as follows— (a) to establish an independent Personal Injury Commission of New South Wales to deal with certain matters under the workers compensation legislation, motor accidents legislation and legislation providing for the police officer support scheme and provide a central registry for that purpose, (b) to ensure the Commission— (i) is accessible, professional and responsive to the needs of all of its users, and (ii) is open and transparent about its processes, and (iii) encourages early dispute resolution, (c) to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible, (d) to ensure that the decisions of the Commission are timely, fair, consistent and of a high quality, (e) to promote public confidence in the decision-making of the Commission and in the conduct of its members, (f) to ensure that the Commission— (i) publicises and disseminates information concerning its processes, and (ii) establishes effective liaison and communication with interested parties concerning its processes and the role of the Commission, (g) to make appropriate use of the knowledge and experience of members and other decision-makers. 4 Interpretation and application of Act by reference to objects (1) In the interpretation of a provision of this Act, the Commission rules or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects. (2) In the exercise of a discretion conferred by a provision of this Act, the Commission rules or the regulations, the person exercising the discretion must do so in the way that would best promote the objects of this Act or the provision concerned. 5 Definitions (1) In this Act— Authority means— (a) for the police officer support scheme—the Commissioner of Police, or (b) otherwise—the State Insurance Regulatory Authority constituted under the State Insurance and Care Governance Act 2015. Commission means the Personal Injury Commission of New South Wales established by this Act. Commission Division means— (a) the Workers Compensation Division, or (b) the Motor Accidents Division, or (c) the Police Officer Support Scheme Division. Commission rules—see section 20. Deputy President means a Deputy President of the Commission. Division Head of a Commission Division means the member who is appointed by or under this Act as the Division Head of that Division. Division member, in relation to a Commission Division, means a member who is assigned by or under this Act to that Division. Division Schedule for a Commission Division—see section 13. enabling legislation means— (a) the workers compensation legislation, and (b) the motor accidents legislation, and (c) the Police Act 1990, Part 9B and regulations made under that part. establishment day—see section 6. general member means a general member of the Commission. Independent Review Officer means the Independent Review Officer appointed under Schedule 5. judicial officer has the same meaning as in the Judicial Officers Act 1986. legislation means an Act or statutory rule. mediator means a mediator appointed by the President under this Act. medical assessor means a medical assessor appointed by the President under this Act. member means a member of the Commission. merit reviewer means a merit reviewer appointed by the President under this Act. modification includes variation, addition, exception, omission or substitution. Motor Accidents Division means the Motor Accidents Division of the Commission. motor accidents legislation means— (a) the Motor Accidents Compensation Act 1999, and (b) the Motor Accidents (Lifetime Care and Support) Act 2006, and (c) the Motor Accident Injuries Act 2017, and (d) any other Act prescribed by the regulations, and (e) the instruments under each of those Acts. non-presidential member—see section 8. police officer support scheme has the same meaning as in the Police Act 1990. Police Officer Support Scheme Division means the Police Officer Support Scheme Division of the Commission. President means the President of the Commission. presidential member—see section 8. principal member means a principal member of the Commission. principal registrar means the person employed in the Public Service as the principal registrar of the Commission. procedural directions—see section 21. Public Service employee has the same meaning as in the Government Sector Employment Act 2013. registrar means the principal registrar or any other person employed in the Public Service as a registrar of the Commission. relevant Commission officer means each of the following— (a) the principal registrar or any other registrar, (b) a medical assessor, (c) a merit reviewer, (d) a mediator, (e) any other kind of person prescribed by the regulations who exercises functions in connection with the Commission. Rule Committee means the Rule Committee of the Commission. senior member means a senior member of the Commission. work injury damages has the same meaning as in Chapter 7 (New claims procedures) of the Workplace Injury Management and Workers Compensation Act 1998. Workers Compensation Acts has the same meaning as in the Workplace Injury Management and Workers Compensation Act 1998. Workers Compensation Division means the Workers Compensation Division of the Commission. workers compensation legislation means— (a) workers compensation legislation within the meaning of the Workplace Injury Management and Workers Compensation Act 1998, and (b) any other Act prescribed by the regulations (including instruments under the prescribed Act). Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) A reference in this Act (however expressed) to the exercise by the Commission of its functions in relation to enabling legislation includes a reference both to its functions under the enabling legislation and its functions under this Act or any other legislation in relation to the enabling legislation. (3) Any provisions of this Act or enabling legislation that are expressed to be subject to the Commission rules have effect subject to any exceptions, limitations or other restrictions specified by the Commission rules. (4) Notes included in this Act do not form part of this Act. Part 2 Establishment of Commission Division 2.1 Establishment 6 Establishment of Personal Injury Commission (1) The Personal Injury Commission of New South Wales is established by this Act on the establishment day. Note— Part 3 provides for the functions and constitution of the Commission. (2) The Commission is to have a seal and the seal is to be judicially noticed. Note— Section 20 enables the Commission rules to make provision for or with respect to the form, use and effect of the seal of the Commission. (3) The establishment day is— (a) 1 March 2021, or (b) any later day fixed as the establishment day by a proclamation made under this section. (4) The Governor may, by proclamation published on the NSW legislation website, fix a day later than 1 March 2021 as the establishment day for the purposes of this section. (5) The Governor may, by further proclamation published on the NSW legislation website, revoke a previous proclamation fixing a day as the establishment day and fix a different day later than 1 March 2021 as the establishment day. (6) A proclamation under this section has effect only if published before the establishment day applying for the time being. 7 Appointments and other matters to facilitate establishment of Commission (1) A person may be appointed to any office or other position under this Act before the establishment day. (2) Without limiting subsection (1), the following appointments may be made before the establishment day— (a) appointment as the President or as any other kind of member, (b) appointment as a Division Head of a Commission Division that will be created on the establishment of the Commission, (c) appointment as the Independent Review Officer, (d) appointment as a member of the Rule Committee, (e) appointment as a registrar (including as the principal registrar) or other member of staff of the Commission. (3) To avoid doubt, the provisions of clauses 2–4 of Schedule 5 apply in relation to the appointment of the Independent Review Officer before the establishment day even though those provisions have not commenced. (4) A member appointed before the establishment day may also be assigned by or under this Act to a Commission Division to be created on the establishment of the Commission. (5) Without limiting subsections (1) and (2), the Rule Committee may be constituted before the establishment day and may before that day— (a) meet and transact business as if the Commission (and its Divisions) had been established, and (b) without limiting paragraph (a), make Commission rules that will come into force on or after the establishment day. (6) Any appointment or assignment made before the establishment day has effect on and from the day specified in the instrument of appointment or assignment as the date of appointment or assignment as if the Commission (including its Divisions) had been established. (7) Despite Division 3 of Part 2 of Schedule 1, a person holding an office to which a provision of that Division applies who is appointed as a member of the Commission before the establishment day is not entitled to be paid remuneration as a member of the Commission while the person continues to receive remuneration for the office. Division 2.2 Membership 8 Membership of Commission (1) The Commission is to consist of the following members— (a) the President, (b) Deputy Presidents, (c) principal members, (d) senior members, (e) general members. (2) The President and the Deputy Presidents are referred to in this Act as presidential members. (3) The principal members, senior members and general members are referred to in this Act as non-presidential members. (4) Schedule 2 sets out additional provisions with respect to members (including their maximum terms of office). 9 Appointment of members (1) A person may be appointed as a member if the person is qualified to be appointed as a member of the kind concerned. Note— Section 10 makes general provision with respect to qualifications for appointment. (2) A member is to be appointed by the Minister by written instrument. (3) The instrument of appointment of a member is to specify— (a) whether the member has been appointed as the President or a Deputy President, principal member, senior member or general member, and (b) the term for which the member has been appointed, and (c) any entitlements of the member to annual and other leave, and (d) whether the member is appointed on a full-time basis or on some other basis. 10 Qualifications of members (1) President A person is qualified to hold office as the President only if the person is a judge of a court of record. (2) Deputy Presidents A person is qualified to be appointed as a Deputy President only if the person— (a) is or has been a judicial officer, or (b) is an Australian lawyer of 7 years' standing and has, in the opinion of the Minister, special knowledge, skill or expertise in relation to any class of matter in respect of which the Commission has jurisdiction. (3) Principal members A person is qualified to be appointed as a principal member if the person— (a) is an Australian lawyer of at least 7 years' standing, or (b) has, in the opinion of the Minister, special knowledge, skill or expertise in relation to any class of matter in respect of which the Commission has jurisdiction. (4) Senior members or general members A person is qualified to be appointed as a senior member or general member if the person— (a) is an Australian lawyer of at least 5 years' standing, or (b) has, in the opinion of the Minister, special knowledge, skill or expertise in relation to any class of matter in respect of which the Commission has jurisdiction. (5) Appointment of Public Service employees A Public Service employee who is otherwise qualified for appointment may be appointed as a general member (but not as any other kind of member). 11 Functions of members generally (1) A member has any functions conferred or imposed on the member by or under this Act or any other legislation. (2) Without limiting subsection (1), a member (other than the President or Division Head of a Commission Division) appointed before the establishment day has and may exercise any functions with respect to the establishment of the Commission as may be assigned to the member under section 16(2). (3) Each member must comply with any procedural directions given by the President and the Division Head of the Commission Division to which the member is assigned. Division 2.3 Commission Divisions 12 Divisions of Commission (1) The Divisions of the Commission are— (a) the Workers Compensation Division, and (b) the Motor Accidents Division, and (c) the Police Officer Support Scheme Division. (2) The functions of the Commission in relation to enabling legislation allocated to a Commission Division are to be exercised in that Division. Note— Section 5(2) provides that a reference in this Act (however expressed) to the exercise by the Commission of its functions in relation to enabling legislation includes a reference both to its functions under the enabling legislation and its functions under this Act or any other legislation in relation to the enabling legislation. (3) The functions of the Commission in relation to enabling legislation allocated to a Commission Division are the functions in relation to the legislation allocated to the Division by the Division Schedule for the Division. (4) A Commission Division is composed of the members assigned to it by or under this Act. 13 Division Schedule for Commission Division (1) The Division Schedule for a Commission Division is— (a) for the Workers Compensation Division—Schedule 3, or (a1) for the Police Officer Support Scheme Division—Schedule 3A, or (b) for the Motor Accidents Division—Schedule 4. (2) The provisions of a Division Schedule for the Commission prevail to the extent of any inconsistency between those provisions and any other provisions of this Act or the provisions of the regulations or the Commission rules. 14 Division Heads (1) The President, or a Deputy President or principal member, may be appointed by the Minister as the Division Head of a Commission Division— (a) in the instrument of appointment of the member, or (b) by subsequent instrument. (2) A Division Head ceases to hold office as a Division Head if the person— (a) is removed from office as a Division Head by the Minister, or (b) resigns the office by written instrument addressed to the Minister, or (c) ceases to hold office as a member. (3) However, a person does not cease to hold office as a member simply because the person has been removed, or has resigned, from office as a Division Head under subsection (2). (4) A Division Head has any functions conferred or imposed on the Division Head by or under this Act or any other legislation. 15 Assignment of members to Commission Divisions (1) The President is assigned to each Commission Division. (2) A Division Head is assigned to the Commission Division in respect of which the person is appointed as the Division Head. (3) Subject to this Act (including subsections (1) and (2))— (a) a member is assigned to the Commission Division specified in the member's instrument of appointment, and (b) the Minister may vary the assignment of the member at any time by one or more subsequent instruments, and (c) a member (other than the President) may be assigned to one or more Commission Divisions at a time. (4) An assignment of a member to a Commission Division is subject to any limitations specified in the member's instrument of appointment or assignment (including in respect of the kinds of matters that may be dealt with by the member). Division 2.4 Functions of President and Division Heads 16 Functions of President (1) The functions of the President are— (a) to direct the business of the Commission (including determining the places and times for sittings of the Commission), and (b) to facilitate the adoption of good administrative practices for the conduct of the business of the Commission, and (c) to give directions about, and participate in the development of, the practice and procedure to be followed by the Commission, and (d) to manage members in each of the Divisions of the Commission, and (e) to appoint medical assessors, merit reviewers and mediators for the purposes of enabling legislation and exercise general direction and control over the exercise of their functions, and (f) to advise the Minister about the appointment, reappointment and removal of members and assist in the process of recruitment at the direction of the Minister, and (g) any other functions that are conferred or imposed on the President by or under this Act or any other legislation. (2) Without limiting subsection (1), the President has the following functions if appointed before the establishment day— (a) to assist in the development of the Commission rules for the Commission to use on its establishment, (b) to assign functions to other members appointed before the establishment day (including any Division Head of a Commission Division) with respect to the establishment of the Commission, (c) to assign functions to any registrar or other member of staff appointed before the establishment day, (d) any other functions as are necessary or convenient to facilitate the establishment of the Commission. 17 Functions of Division Heads (1) The functions of a Division Head of a Commission Division are— (a) to direct (subject to this Act, the regulations, the Commission rules and any direction of the President) the business of the Commission in that Division, and (b) to exercise any other functions conferred or imposed on the Division Head by or under this Act or any other legislation. (2) Without limiting subsection (1), a Division Head of a Commission Division appointed before the establishment day has and may exercise any functions with respect to the establishment of the Commission as may be assigned to the Division Head under section 16(2). Division 2.5 Delegations 18 Delegations by the President and Division Heads (1) The President may— (a) delegate to a Division Head of a Commission Division or other member any of the functions of the President (other than this power of delegation), or (b) delegate to a registrar or any other member of staff of the Commission any of the functions of the President (other than this power of delegation) specified by a Division Schedule for a Commission Division or prescribed by the Commission rules. Note— Section 49 of the Interpretation Act 1987 contains general provisions relating to the delegation of functions. (2) Despite subsection (1), the President may delegate a function of the President under section 92 of the Motor Accidents Compensation Act 1999 or section 7.34 of the Motor Accident Injuries Act 2017 only to the Division Head of the Motor Accidents Division. (3) The Division Head of a Commission Division may— (a) delegate to another Division member any of the functions of the Division Head (other than this power of delegation), or (b) delegate to a registrar or any other member of staff of the Commission any of the functions of the Division Head (other than this power of delegation) specified by the Division Schedule for the Division or prescribed by the Commission rules. (4) A delegate may subdelegate a function delegated to the delegate if— (a) for a function of the President—the delegate is authorised in writing to do so by the President, or (b) for a function of a Division Head of a Commission Division—the delegate is authorised in writing to do so by the Division Head. Division 2.6 Commission rules and procedural directions 19 Rule Committee of Commission (1) There is to be a Rule Committee of the Commission. (2) The functions of the Rule Committee are— (a) to make the Commission rules, and (b) to ensure that the Commission rules it makes are as flexible and informal as possible. (3) The Rule Committee is to be composed of the following— (a) the President, (b) each Division Head of a Commission Division, (c) 1 person nominated for the time being by the Authority, (c1) 1 person nominated by the Commissioner of Police, (d) 1 person nominated for the time being by Unions NSW, (e) 1 person jointly nominated for the time being by the following— (i) the Ai Group, (ii) the Australian Federation of Employers and Industries, (iii) the NSW Business Chamber, (f) 2 barristers nominated for the time being by the Council of the New South Wales Bar Association who, in the opinion of the Council, have special knowledge, skill or expertise in relation to any class of workers compensation claims or motor accidents claims, (g) 2 solicitors nominated for the time being by the Council of the Law Society of New South Wales who, in the opinion of the Council, have special knowledge, skill or expertise in relation to any class of workers compensation claims or motor accidents claims, (h) 1 person jointly nominated by the Presidents for the time being of the following— (i) the Royal Australasian College of Physicians, (ii) the Royal Australasian College of Surgeons, (iii) the Royal Australian and New Zealand College of Psychiatrists. (4) The President is to be the Chairperson of the Rule Committee. (5) The President is to appoint one of the other members of the Rule Committee who is a member of the Commission as Deputy Chairperson of the Rule Committee. (6) Unless the regulations provide otherwise, the Rule Committee is to regulate its own procedure. (7) The following provisions apply in relation to meetings of the Rule Committee unless the regulations provide, or the Rule Committee decides, otherwise— (a) the Chairperson of the Rule Committee or, in the absence of the Chairperson, the Deputy Chairperson of the Committee is to preside at a meeting of the Committee, (b) in the absence from a meeting of the Rule Committee of both the Chairperson and Deputy Chairperson, another member of the Committee who is a Division Head of a Commission Division is to be chosen by the members present to preside at the meeting, (c) the quorum for a meeting of the Rule Committee is a majority of the number of the members for the time being, (d) any duly convened meeting of the Rule Committee at which a quorum is present is competent to transact any business of the Rule Committee and has and may exercise all the functions of the Rule Committee, (e) a decision supported by a majority of the votes cast at a meeting of the Rule Committee at which a quorum is present is the decision of the Committee, (f) the person presiding at a meeting of the Rule Committee has a deliberative vote and, in the event of an equality of votes, also has a casting vote. (8) Despite subsections (6) and (7), a Commission rule cannot take effect unless the President consents to the rule being made either by— (a) voting for it at the meeting at which it is proposed to be made, or (b) giving written consent for its making before or after the meeting. (9) The President is to call the first meeting of the Rule Committee in the manner the President thinks fit and (subject to any decision of the Committee) may call any other meetings of the Committee as the President thinks necessary. (10) In this section— motor accidents claims means claims for statutory benefits or damages to which the motor accidents legislation applies. workers compensation claims means claims for compensation or damages to which the workers compensation legislation applies. 20 Commission rules (1) The Rule Committee may make rules of the Commission (referred to in this Act as the Commission rules), not inconsistent with this Act or enabling legislation, for or with respect to the following— (a) the practice and procedure to be followed in proceedings before the Commission, (b) the practice and procedure to be followed in proceedings before medical assessors, merit reviewers or mediators, (c) any matter that is, by this Act or enabling legislation, required or permitted to be prescribed by the Commission rules. Note— The Commission rules are rules of court within the meaning of the Interpretation Act 1987. Rules of court are statutory rules for the purposes of the Interpretation Act 1987. As a result, they can be disallowed by either House of Parliament under Part 6 of that Act. (2) Without limiting subsection (1), the Commission rules may make provision for or with respect to any of the following matters— (a) the way for referring claims or disputes for assessment or determination or for making appeals, (b) the amendment of filed or lodged documents, (c) non-compliance with provisions concerning practice and procedure (including the effect of irregularities on proceedings), (d) the making of assessments and determinations, (e) the way for specifying an amount of damages, statutory benefits or compensation, (f) the parties to proceedings (including the joinder, misjoinder and non-joinder of parties and rights of intervention of third parties such as the Authority in proceedings), (g) the splitting and consolidation of proceedings in the Commission, (h) the documentation to accompany a reference of a claim or dispute for assessment or determination or an appeal, (i) the way for presenting documents and information by parties, including time limits for the presentation of the documents and information, (j) the provision of documents and information by a party to a matter to any other party to the matter, (k) the way for notifying the parties to proceedings of decisions of, or other action taken by, the Commission in the proceedings, (l) the form, use and effect of the seal of the Commission, (m) the specification of exceptions, limitations or other restrictions in relation to a provision of this Act or enabling legislation that is expressed to be subject to the Commission rules. (3) The Commission rules may authorise or require the use of an electronic case management system established under clause 2 of Schedule 1 to the Electronic Transactions Act 2000 in relation to any proceedings in the Commission in respect of which the use of the system is authorised by an order in force under clause 3 of Schedule 1 to that Act. (4) Without limiting the generality of section 42 of the Interpretation Act 1987, the Commission rules may also prescribe different rules for— (a) each of the Divisions of the Commission, and (b) different classes of matters. (5) This section does not limit the operation of section 78 (Rules of court) of the Interpretation Act 1987. 21 Procedural directions (1) The President may give directions (procedural directions) relating to the practice and procedures to be followed in proceedings before— (a) the Commission, or (b) medical assessors or merit reviewers. (2) The procedural directions must be— (a) publicly available, and (b) consistent with this Act and enabling legislation. (3) Without limiting subsection (2)(a), it is sufficient compliance with that paragraph if procedural directions are published on the website of the Commission. (4) Each of the following must comply with any applicable procedural directions— (a) members, (b) medical assessors, (c) merit reviewers, (d) the parties to proceedings and their representatives and agents. Division 2.7 Registrars and other staff 22 Appointment of registrars and other staff (1) Persons (including the principal registrar and other registrars) may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commission to exercise its functions. Note— Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Commission makes use of) may be referred to as officers or employees, or members of staff, of the Commission. Section 47A of the Constitution Act 1902 precludes the Commission from employing staff. (2) This section does not affect the exercise of the functions under the Government Sector Employment Act 2013 of the head of the Public Service agency in which those persons are employed. (3) The Authority or any other Department of the Government as the regulations may specify is to provide for the Commission— (a) facilities (including registry facilities), and (b) any additional staff that may be necessary. (4) Without limiting subsection (3), the President may enter into arrangements with any government agency or other body or person (whether in the public or private sector) for the provision of assistance to the Commission in connection with the exercise of its functions. 23 Functions of registrars (1) A registrar has the functions conferred or imposed on the registrar by or under this Act or any other legislation. (2) The principal registrar has the following additional functions— (a) to assist the President in managing the business and the affairs of the Commission, (b) any administrative and other functions conferred or imposed on the principal registrar by or under this Act or any other legislation. (3) A registrar may exercise any functions of the principal registrar as may be directed by the President or principal registrar. (4) Without limiting subsections (1) and (3)— (a) the President may, from time to time, designate a registrar to be a registrar for one or more Divisions of the Commission, and (b) the designated registrar may (subject to any direction of the President or principal registrar) exercise the functions of the principal registrar in connection with proceedings and legislation allocated to the Division or Divisions concerned. (5) Anything done or omitted to be done by a registrar in exercising a function of the principal registrar has effect as if it had been done or omitted to be done by the principal registrar. (6) The Commission rules may make provision for or with respect to the functions of the principal registrar and other registrars, including authorising registrars to make specified kinds of decisions of the Commission on behalf of the Commission. (7) In addition, a registrar (including the principal registrar) appointed before the establishment day has and may exercise any functions with respect to the establishment of the Commission as may be assigned to the registrar under section 16(2). Part 3 Functions and constitution of Commission Division 3.1 Functions 24 Functions of Commission generally The Commission has the jurisdiction and functions that may be conferred or imposed on it by or under this Act, enabling legislation or any other legislation. Division 3.2 Determination of federal proceedings 25 Definitions In this Division— compensation claim means— (a) a claim for damages to which the Motor Accidents Compensation Act 1999 applies, or (b) a claim for statutory benefits to which the Motor Accident Injuries Act 2017 applies, or (c) a claim for damages to which the Motor Accident Injuries Act 2017 applies, or (c1) a claim under the police officer support scheme, or (d) a claim for compensation or work injury damages to which the Workplace Injury Management and Workers Compensation Act 1998 applies. compensation matter application—see section 26. federal jurisdiction means jurisdiction of a kind referred to in section 75 or 76 of the Commonwealth Constitution. relevant courts legislation means— (a) the District Court Act 1973 and the rules of court under that Act, and (b) the Civil Procedure Act 2005 and the regulations and uniform rules under that Act in their application to the District Court. substituted proceedings—see section 27. usual decision-maker, in relation to determining a matter concerning a compensation claim, means the person or body (whether or not the President or Commission) on which the function is conferred or imposed by this Act or enabling legislation. 26 Applications involving federal jurisdiction may be made to District Court (1) A person with standing to apply to the President or the Commission for a matter concerning a compensation claim to be determined by the usual decision-maker (a compensation matter application) may, with the leave of the District Court, make the application to the Court instead of the President or Commission. (2) The regulations may make provision for or with respect to— (a) who has standing to make an application for leave, and (b) excluding or including applications as compensation matter applications. (3) The District Court may grant leave for a compensation matter application to be made to the Court only if it is satisfied that— (a) an application was first made to the President or Commission, and (b) the determination of the matter by the usual decision-maker would involve an exercise of federal jurisdiction, and (c) the usual decision-maker would otherwise have had jurisdiction enabling the decision-maker to determine the application. (4) An application for leave must be— (a) filed with the District Court along with— (i) an application that has been completed in the form and manner required under this Act or enabling legislation for the kind of compensation matter application concerned, and (ii) if the parties to the compensation matter application have reached a settlement before leave is sought using a resolution process provided under this Act or enabling legislation—a copy of the terms of settlement, and (b) accompanied by the applicable fee (if any) payable for the compensation matter application unless it has already been paid. (5) The District Court may— (a) remit a compensation matter application for determination by the usual decision-maker if the Court is satisfied that the usual decision-maker has jurisdiction to determine it, and (b) do so instead of granting leave or after granting leave. (6) If the District Court remits a compensation matter application to be dealt with by the usual decision-maker, the Court may make such orders that it considers appropriate to facilitate the determination of the application by the decision-maker. (7) The usual decision-maker is to determine any compensation matter application that is remitted to the decision-maker in accordance with any orders made by the District Court. 27 Proceedings after leave granted (1) If the District Court grants leave for a compensation matter application to be made to it instead of the President or Commission— (a) proceedings for the determination of the application (substituted proceedings) are taken to have been commenced in the Court on the day on which the application was first made, and (b) the Court may make such orders (including in relation to the usual decision-maker) as it considers appropriate to facilitate its determination of the application. (2) Subsection (1) applies despite any limitation period under the Limitation Act 1969 or any enabling legislation that applies to the application concerned provided it was first lodged for exercise by the usual decision-maker before the expiry of the period. (3) The District Court has, and may exercise, all of the jurisdiction and functions in relation to the substituted proceedings that the usual decision-maker would have had if they could exercise federal jurisdiction, including jurisdiction and functions conferred or imposed by or under this Act, enabling legislation or any other legislation. (4) Without limiting subsection (3), the District Court may— (a) order that a medical assessment or merit review required by or under enabling legislation (or a review or appeal against the assessment or merit review) be carried out for the Court by a medical assessor, merit reviewer or panel specified by the Court, and (b) make any other orders it thinks fit to facilitate the carrying out of the medical assessment, merit review or the review or appeal before the panel (including with respect to the issuing of certificates), and (c) adopt (whether with or without variation), or refuse to adopt, the decision of the medical assessor, merit reviewer or panel as the Court sees fit. (5) A decision adopted by the Court (whether with or without variation) has effect as a decision of the Court in respect of the matter concerned. (6) This section has effect subject to the provisions specified by section 28. 28 Provisions relating to determining substituted proceedings (1) The following provisions apply in relation to substituted proceedings— (a) the District Court is to be constituted as provided by its relevant courts legislation instead of as provided by this Act or enabling legislation, (b) the legislation applicable to appeals against decisions of the District Court applies to decisions of the Court instead of appeal provisions specified by or under this Act, enabling legislation or any other legislation, (c) the practice and procedure applicable in the District Court under its relevant courts legislation (and any laws applicable in relation to contempt of court) apply to the substituted proceedings instead of the practice and procedure specified by or under this Act, enabling legislation or any other legislation, (d) the District Court may make orders giving effect to any settlement reached by the parties even if that settlement was reached before the substituted proceedings commenced, (e) any other provisions (including by way of modifications to the provisions of this Act, enabling legislation or other legislation) as may be prescribed by the regulations in respect of the substituted proceedings of the kind concerned. (2) Without limiting subsection (1)(e), the provisions that may be prescribed by the regulations for the purposes of the paragraph include provisions for or with respect to the following— (a) the parties to substituted proceedings, (b) fees and costs payable in respect of substituted proceedings, (c) enabling a person or body to determine a matter for the District Court, (d) the updating of references in provisions of this Act, enabling legislation or other legislation conferring or imposing functions exercisable in substituted proceedings by the District Court instead of some other person or body. (3) The Minister is not to recommend the making of a regulation for the purposes of subsection (1)(e) unless the Minister certifies that— (a) if the proposed provisions affect the exercise of jurisdiction or functions by the Commission—the President has agreed to the provisions, and (b) if the proposed provisions affect the exercise of jurisdiction or functions by the District Court—the Chief Judge of the District Court has agreed to the provisions. 29 Commencement of court proceedings The regulations may make provision for or with respect to the modification of provisions of enabling legislation preventing the commencement of proceedings in a court for a compensation claim unless certain preconditions are met, if compliance with those preconditions may involve an exercise of federal jurisdiction or be the subject of substituted proceedings. 30 Relationship of Division to this Act and other laws (1) The provisions of this Division (including of regulations made for the purposes of a provision of this Division) prevail to the extent of any inconsistency between those provisions and any other provisions of this Act, enabling legislation or other legislation. (2) To avoid doubt, subsection (1) applies despite anything in a Division Schedule for a Commission Division. Division 3.3 Constitution 31 Constitution of Commission (1) The Commission is to be constituted by one or more Division members of the Commission Division to which the function of dealing with the proceedings is allocated. Note— A Division Schedule for a Commission Division may, in some cases, make special provision for the constitution of the Commission when exercising functions allocated to that Division (including the qualifications of members to sit in specified kinds of proceedings). It may also provide for certain Division functions to be exercised by a registrar. (2) The President may give directions as to the members who are to constitute the Commission for the purposes of any particular proceedings. Note— The President may delegate the function of constituting the Commission for particular proceedings to a Division Head of a Commission Division or another member. See section 18. (3) The President may give directions (whether for particular proceedings, classes of proceedings or generally) as to which member is to preside at proceedings in the Commission when the Commission is constituted by more than one member. (4) There may be more than one sitting of the Commission at the same time. (5) The President may direct that proceedings be conducted outside the State— (a) if requested by a party to the proceedings, or (b) with the consent of the parties to the proceedings. (6) In deciding whether to make a direction under subsection (5), the President must consider the following— (a) the interests and wishes of the parties to the proceedings, (b) the nature and complexity of the proceedings, (c) if the arrangement is necessary for the timely and cost effective conduct of the proceedings, (d) other matters the President considers relevant. Part 4 Medical assessors, merit reviewers and mediators Division 4.1 Medical assessors and merit reviewers 32 Definition In this Division— decision-maker means a medical assessor or a merit reviewer. 33 Appointment of medical assessors and merit reviewers (1) The President may, in accordance with the regulations, appoint persons to be— (a) medical assessors for the purposes of the Workplace Injury Management and Workers Compensation Act 1998, or (b) medical assessors for the purposes of the Motor Accident Injuries Act 2017 or Motor Accidents Compensation Act 1999 (or both), or (b1) medical assessors for the purposes of the police officer support scheme, or (c) merit reviewers for the purposes of the Motor Accident Injuries Act 2017. (2) Without limiting subsection (1), a member or a Public Service employee may be appointed as a decision-maker. (3) A person is qualified to be appointed as a merit reviewer only if, in the opinion of the appointor, the person has special knowledge, skill or expertise in respect of the motor accidents legislation or administrative decision-making. (4) A merit reviewer is assigned to the Motor Accidents Division. (5) The terms of appointment of a decision-maker may restrict a decision-maker to disputes of a specified kind (including to disputes or assessments under specified legislation). (6) One or more medical assessors may be appointed as a senior medical assessor, either by the assessor's instrument of appointment or by a later instrument executed by the President. (7) The President is to ensure that, as far as reasonably practicable, there are medical assessors in the regional areas of the State. (8) The President may remove a decision-maker from office at any time. (9) A decision-maker who is not a member or Public Service employee is entitled to be paid the remuneration (including travelling and subsistence allowances) that the Minister may from time to time determine. (10) Nothing in this section prevents a person being appointed as a decision-maker of more than one class. 34 Functions of decision-makers A decision-maker has the functions that are conferred on the decision-maker by or under— (a) this Act, and (b) the legislation for which the decision-maker was appointed. 35 Lists of decision-makers (1) The principal registrar may from time to time issue a list of persons who are appointed as decision-makers under this Division. (2) The list is evidence of the appointments concerned. 36 Control and direction of decision-makers (1) Decision-makers are, in the exercise of their functions, subject to the general control and direction of the President. (2) However, a decision-maker is not subject to control and direction by the Commission (or a member), the Authority or any Public Service employee with regard to any of the decisions of the decision-maker that affect the interests of the parties to the merit review or medical assessment concerned. (3) The Commission (or a member), the Authority or any Public Service employee may not overrule or interfere with any decision in respect of any assessment or review. (4) Subsection (3) does not prevent an appeal or review panel from determining an appeal or review for which provision is made under enabling legislation. (5) This section does not affect the exercise of the functions of the head of a Public Service agency under the Government Sector Employment Act 2013 with respect to decision-makers who are members of staff of the agency. 37 Provision of training and information (1) The Commission may make arrangements for the provision of training and information to medical assessors and merit reviewers to promote accurate and consistent decisions by medical assessors and merit reviewers. (2) In providing training for medical assessors, the Commission is to have regard to any relevant material prepared by the Authority. 38 Protection of decision-makers A decision-maker is, in any legal proceedings, competent but not compellable to give evidence or produce documents in respect of any matter in which the decision-maker was involved in the course of the exercise of functions as a decision-maker. Note— See also section 64 (Protection of representatives, witnesses and relevant Commission officers). Division 4.2 Mediators 39 Appointment of mediators (1) The President may, in accordance with the regulations, appoint persons to be— (a) mediators for the purposes of the Workplace Injury Management and Workers Compensation Act 1998 to mediate on claims for work injury damages within the meaning of that Act as and when required to do so by the Division Head of the Workers Compensation Division, or (b) mediators for any other purposes prescribed by the regulations. (2) A person is qualified to be appointed as a mediator only if, in the opinion of the appointor, the person has— (a) special knowledge, skill or expertise in respect of the enabling legislation concerned, and (b) mediation qualifications of a kind prescribed by the regulations. (3) Mediators are, in the exercise of their functions, subject to the general control and direction of the President. (4) Subject to this section, a mediator holds office for the period (not exceeding 5 years) specified in the instrument of appointment of the mediator, but is eligible for reappointment. (5) A mediator is entitled to be paid the remuneration (including travelling and subsistence allowances) in respect of work done as a mediator as the Minister may from time to time determine in respect of the mediator. (6) A mediator vacates office if the mediator— (a) dies, or (b) completes a term of office and is not reappointed, or (c) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or (d) becomes a mentally incapacitated person, or (e) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or (f) resigns the office by instrument in writing addressed to the President, or (g) is removed from office by the President. (7) The President may at any time remove a mediator from office. (8) The provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to a mediator. 40 Protection of mediators A mediator is, in any legal proceedings, competent but not compellable to give evidence or produce documents in respect of any matter in which the mediator was involved in the course of the exercise of the mediator's functions as a mediator. Note— See also section 64 (Protection of representatives, witnesses and relevant Commission officers). Part 5 Practice and procedure Division 5.1 Introduction 41 Application of Part (1) Each of the provisions of this Part (including as applied by the Commission rules under subsection (2)) is subject to enabling legislation and the Commission rules. Note— The Division Schedule for a Commission Division may, in some cases, make special provision for the practice and procedure to be followed in connection with certain proceedings allocated to the Division for determination. The provisions of the Division Schedule prevail to the extent of any inconsistency with the provisions of this Part. See section 13(2). Section 5(3) also provides that any provisions of this Act or enabling legislation that are expressed to be subject to the Commission rules have effect subject to any exceptions, limitations or other restrictions specified by the Commission rules. Enabling legislation may also make provision for matters relating to practice and procedure in relation to functions conferred on the Commission, including (for example) specifying periods within which applications or appeals under that legislation are to be made. (2) The Commission rules may make provision for or with respect to applying provisions of this Part (whether with or without modification) to the following— (a) proceedings before a merit reviewer or medical assessor under enabling legislation, (b) proceedings before a panel under enabling legislation determining an appeal against, or a review of, a decision of a merit reviewer or medical assessor. 42 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings. (2) The Commission must seek to give effect to the guiding principle when it— (a) exercises any power given to it by this Act or the Commission rules, or (b) interprets any provision of this Act or the Commission rules. (3) Each of the following persons is under a duty to co-operate with the Commission to give effect to the guiding principle and, for that purpose, to participate in the processes of the Commission and to comply with directions and orders of the Commission— (a) a party to proceedings in the Commission, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Commission. (4) In addition, the practice and procedure of the Commission should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Commission to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions. 43 Procedure before Commission generally (1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits. (2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits. (3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. Division 5.2 Commencement of proceedings 44 What constitutes an application For the purposes of this Act, an application to the Commission includes a referral or other mechanism (however expressed) by means of which enabling legislation provides for a matter to be brought to the attention of the Commission for a decision. 45 Making of applications and appeals An application or appeal to the Commission is to be made in the time and manner prescribed by enabling legislation or the Commission rules. 46 Service of documents outside the State The Commission may require a document to be served outside the State. Division 5.3 Participation in proceedings 47 Intervention by Authority The Authority— (a) has a right to be heard in any proceedings before the Commission, and (b) may, for that purpose, be represented by an Australian legal practitioner or a member of staff of the Authority or by any other person, and (c) may apply for an order for which any party may apply in those proceedings. 48 Representation before Commission (1) A person who is a party to proceedings before the Commission is entitled to be represented by an Australian legal practitioner or by an agent. (2) The Commission may refuse to permit a party to be represented by an agent if of the opinion that the agent does not have sufficient authority to make binding decisions on behalf of the party. (3) In proceedings in respect of a claim within the meaning of the Workplace Injury Management and Workers Compensation Act 1998, the Commission must refuse to permit an insurer to be represented by an Australian legal practitioner if the claimant is not represented by an Australian legal practitioner unless leave is granted by the Commission under subsection (4). (4) The Commission may, on the application of an insurer, grant leave for an insurer to be represented by an Australian legal practitioner only if satisfied that— (a) the representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter, or (b) it would be unfair not to allow the insurer to be represented because the insurer is unable to represent the insurer effectively, or (c) it would be unfair not to allow the insurer to be represented, taking into account fairness between the insurer and other parties in the proceedings. (5) The Commission may at any time revoke leave it has granted under subsection (4). (6) A party to proceedings before the Commission is entitled to representation or assistance (for example, the assistance of an interpreter) as may be necessary to enable the party to communicate adequately at any conference or hearing. (7) The Commission must take into account any written submission prepared by an Australian legal practitioner acting for a party to proceedings and submitted by or on behalf of the party (whether or not the party is represented by an Australian legal practitioner at any conference or hearing in the proceedings). (8) In this section— agent, in relation to proceedings allocated to the Workers Compensation Division, means— (a) an officer of an industrial organisation of employers or employees registered under the Industrial Relations Act 1996, or (b) an officer of an association of employers or employees registered under the Fair Work Act 2009 of the Commonwealth, or (c) a person employed by a licensed insurer or former licensed insurer or by a self-insurer within the meaning of the Workplace Injury Management and Workers Compensation Act 1998, or (d) a person employed by a law practice within the meaning of the Legal Profession Uniform Law (NSW). 49 Power of Commission to require information (1) The Commission may give a direction in writing to any person (whether or not a party to proceedings before the Commission) requiring the person— (a) to produce, at a time and place specified in the direction, specified documents in the possession of the person, or (b) to provide specified information within a time specified in the direction that the Commission considers relevant to the proceedings, or (c) to give within a time specified in the direction any specified consent, authority or direction that the Commission considers necessary or desirable for the purpose of facilitating the provision by another person of documents or information pursuant to a direction under subsection (2). (2) The direction may require the documents to be produced or the information to be provided— (a) to the Commission or to another party to proceedings before the Commission, in the case of a direction given to a party to the proceedings, or (b) to the Commission in the case of a direction given to a person who is not a party to proceedings before the Commission. (3) A person must not, without reasonable excuse, fail to comply with a direction given to the person. Maximum penalty—50 penalty units. (4) If a person does not, without reasonable excuse, produce a document or provide information in compliance with a direction given to the person under this section, the person cannot as a party to proceedings before the Commission or a court have the document or information admitted in the proceedings. (5) The Commission may exercise powers under this section at the request of a party to proceedings before the Commission or of the Commission's own motion. (6) A Division Head of a Commission Division or the principal registrar has and may exercise any power of the Commission under this section. (7) The regulations or the Commission rules may make provision for or with respect to any of the following matters— (a) exempting specified kinds of documents or information from the operation of this section, (b) specifying cases and circumstances in which the Commission is required to exercise the Commission's powers under this section, (c) specifying cases and circumstances in which the Commission is not to exercise the Commission's powers under this section. 50 Power of Commission to provide documents and information to a party (1) If documents or information relevant to proceedings before the Commission are produced or provided to the Commission by a party to the proceedings or another person (whether or not in compliance with a requirement under this Act), the Commission may produce or provide the documents or information to— (a) any other party to the proceedings, or (b) any Australian legal practitioner representing any party, or (c) a medical practitioner (including a medical assessor). (2) The Commission may, when producing or providing information or documents to an Australian legal practitioner or medical practitioner, direct that the person must not cause or permit disclosure of the information, or the information in the documents, to another party. (3) An Australian legal practitioner or medical practitioner must not contravene the Commission's direction under this section. Maximum penalty—50 penalty units. (4) The regulations or the Commission rules may make provision for or with respect to any of the following matters— (a) exempting specified kinds of documents or information from the operation of this section, (b) specifying cases and circumstances in which the Commission is required to exercise the Commission's powers under this section, (c) specifying cases and circumstances in which documents or information produced or provided to the Commission may not be produced or provided by the Commission to another party to the proceedings or to an Australian legal practitioner or medical practitioner. 51 Summons to appear at conference or hearing (1) Subject to subsection (2), the Division Head of a Commission Division may issue a summons, in circumstances prescribed by the Commission rules, requiring the attendance of a