....................[sgd]....................................................

STAY OF DECISION - application for stay of operation or implementation of decision under review - decision ceasing entitlement to specific compensation amounts - nature of statutory regime under review - separate determinations needed to confer specific benefits after initial decision to accept liability - continuing benefits require further determinations - Tribunal not the repository of primary decision-making powers - stay application denied.

Administrative Review Tribunal Act 2024 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Brian Lawlor Automotive Pty Ltd and Collector of Customs [1978] AATA 49; (1978) 1 ALD 167

Civil Aviation Safety Authority v Hotop [2005] FCA 1023; (2005) 145 FCR 232

Comcare v Lofts [2013] FCA 1197; (2013) 217 FCR 220

Commonwealth of Australia v Ford [1986] FCA 94; (1986) 9 ALD 433

Lees v Comcare (1999) 54 ALD 84

Liu and Comcare [2004] AATA 617; (2004) 79 ALD 119

Scott and Australian Securities and Investment Commission [2009] AATA 798; (2009) 51 AAR 114

Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

XTrade.AU Pty Ltd and Australian Securities & Investments Commission [2024] AATA 1372

1. Ms Ashleigh Best has sought review of three decisions made by her employer, Cleanaway Operations Pty Ltd (Cleanaway), the holder of a license to accept and mange claims for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Those applications are as follows:

(a) 2026/0623 - The reviewable decision of 29 December 2025[1] affirmed an earlier decision of 1 December 2025[2] which found that Ms Best had an 'ability to earn' in 'suitable employment', as those expressions are used in subsections 19(2) and (4) of the SRC Act, equivalent to the earnings she would have were she to work 8 hours per day for 4 days per week. On 7 April 2025 liability was accepted pursuant to section 14 of the SRC Act in respect of 'Industrial Trauma to left arm' sustained on 24 March 2025 in the course of her employment with Cleanaway when her left arm was sucked into an industrial vacuum hose. > > (b) 2026/0668 - The reviewable decision of 17 February 2026[3] affirmed an earlier decision of 27 January 2026[4] which found that at the date of the determination there was no present liability to pay any of the costs of medical treatment 'in relation to' the injury pursuant to sections 16 of the SRC Act and no present liability to pay weekly payments of compensation for incapacity resulting from the injury of 'Industrial Trauma to the left arm' pursuant to section 19 of the SRC Act. > > (c) 2026/0686 - The reviewable decision of 17 January 2026[5] affirmed an earlier decision of 12 January 2026[6] which fond that there was no liability to pay compensation in respect of a claimed psychological injury pursuant to sections 14, 16 and 19 of the SRC Act.

2. The reviews were commenced in mid to late February 2026, following which the Respondent has provided a bundle of Tribunal Documents in answer to the Tribunal's notice under section 23 of the Administrative Review Tribunal Act 2026 (ART Act).
3. Ms Best, made application on 22 February 2026 pursuant to subsection 32(2) of the ART Act in relation to the operation or implementation of the decisions (the stay application):

Specifically, I seek: > > - Reinstatement of weekly incapacity payments under section 19 of the SRC Act. > > - Continuation of medical and treatment expenses under section 16 of the SRC Act. > > - Suspension of the deemed earning capacity determination.

4. The parties provided detailed written submissions prior to an Interlocutory Hearing convened by telephone on 27 March 2026 to consider the application.

1. The Tribunal has jurisdiction to review certain matters defined as reviewable decisions. Section 12 of the Administrative Review Tribunal Act 2024 ('ART Act') provides:

12 Reviewable decisions > > (1) A decision is a reviewable decision if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision.

2. A reviewable decision is one that is made pursuant to section 62(1) of the SRC Act.

62 Reconsideration of determinations > > (1) A determining authority may, on its own motion: > > (a) reconsider a determination made by it; or > > (b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination; > > whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination. > > (2) A request to a determining authority to reconsider a determination made by it may be made by: > > (a) the claimant; or > > (b) if the determination affects the Commonwealth - the Commonwealth; or > > (c) if the determination affects a Commonwealth authority - that Commonwealth authority.

3. The terms 'decision', 'determination' and 'reviewable decision' and 'determining authority' are defined in section 60(1) of the SRC Act as follows:

60 Interpretation > > (1) In this Part: > > "claimant" means a person in respect of whom a determination is made. > > "decision" has the same meaning as in the Administrative Review Tribunal Act 2024. > > "determination" means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 29A, 30, 31, 34, 36, 37, 39 or 57, under paragraph 114B(5)(a) or under Division 3 of Part X. > > "determining authority", in relation to a determination, means the person who made the determination. > > "reviewable decision" means a decision made under subsection 38(4) or section 62.

4. Section 32 of the ART Act provides that the reviewable decision subject of the review continues to operate unless the Tribunal orders otherwise. So much of section 32 of the ART Act as is relevant to the application states as follows:

32 Reviewable decision continues to operate unless Tribunal orders otherwise > > General rule > > (1) The making of an application to the Tribunal for review of a reviewable decision does not affect the operation of the decision or prevent the taking of action to implement the decision. > > Exception - Tribunal may stay operation or implementation > > (2) However, on application by a party to a proceeding for review of a reviewable decision, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review. > > (3) The order is subject to any conditions specified in the order. > > (4) The order has effect until the decision of the Tribunal on the application for review comes into operation. > > (5) Despite subsection (4), if:

(a) the order states that it applies for a period; and

(b) the period ends before the decision of the Tribunal on the application for review comes into operation; the order has effect until the end of the period.

(6) On application by a party to the proceeding, the Tribunal may, by order, vary or revoke the order.

1. The provisions of the SRC Act to which the stay application is directed are those concerning the provision of compensation for the cost of medical treatment and incapacity leave payments. Section 16 of the SRC Act provides for compensation for medical treatment:

16 Compensation in respect of medical expenses etc. > > (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

2. Weekly compensation payments for lost income due to incapacity for work resulting from injury are provided for by section 19 of the SRC Act:

19 Compensation for injuries resulting in incapacity > > (1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies. > > (2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula: > > NWE - AE > > where: > > AE is the greater of the following amounts:

(a) the amount per week (if any) that the employee is able to earn in suitable employment;

(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.

NWE is the amount of the employee's normal weekly earnings.

1. The 'ability to earn' part of the formula for weekly payments of compensation for incapacity refers to 'suitable employment' which is defined in section 4 of the SRC Act:

suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:

(a) in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed - employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:

(i) the employee's age, experience, training, language and other skills;

(ii) the employee's suitability for rehabilitation or vocational retraining;

(iii) where employment is available in a place that would require the employee to change his or her place of residence - whether it is reasonable to expect the employee to change his or her place of residence; and

(iv) any other relevant matter; and

(b) in any other case - any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).

1. The primary ground for Ms Best's application for an order staying the operation of the reviewable decisions is hardship occasioned by the cessation of compensation payments. She frankly states that she has no alternative income, no current capacity for any work and has the financial demands of housing, utilities, food and school related costs for herself and her children, as well as the cost of ongoing medical treatment which, she says, is essential for her to continue to live independently. To avoid severe financial hardship upon herself and her children she requests the Tribunal to grant the stay 'to preserve my position while the substantive review is determined.'
2. I accept that Ms Best's financial position is presently precarious. She has two children and three stepchildren and lives with her partner who performs shift work. The income is not sufficient to meet her family's needs as well as her treatment regime and she is relying on financial assistance from other family members.
3. Ms Best stated that her request for a stay was modified so as to maintain the continuing weekly payments of compensation pursuant to section 19 of the SRC Act. She said that without such payments she could not afford her medications.
4. I was assisted by the Respondent's detailed written submissions supplemented by the oral submissions made by Ms Slack who appeared for the Respondent.
5. For the reasons set out below, the application to a stay on the operation of the decision pursuant to section 32(2) of the ART Act is denied.
6. The power has been described as 'exceptional, in the sense that the Tribunal must be satisfied it is appropriate to make an exception to the usual state of affairs' as contemplated in subsection 32(1) of the ART Act (XTrade.AU Pty Ltd and Australian Securities & Investments Commission [2024] AATA 1372 (XTrade)[7]). The stay decision does allow the Tribunal to make 'an order which is "positive" in effect, in the sense of making an order that, pending the hearing of the application, a review applicant may continue to enjoy a statutory benefit, which the impugned decision would otherwise have denied' (Civil Aviation Safety Authority v Hotop [2005] FCA 1023; (2005) 145 FCR 232 (Hotop)).[8] It is well accepted that in considering the operation of a stay it is appropriate to weigh a range of factors such as the prospects for success, the consequences for the Applicant were the stay refused, the public interest, the consequences for the Respondent in carrying out its statutory functions, whether the ultimate review decision be rendered nugatory were a stay refused and any other relevant matters as set out in Scott and Australian Securities and Investment Commission [2009] AATA 798; (2009) 51 AAR 114 (Scott).[9]
7. However, in doing so, the Tribunal is affecting the operation of the decision under review as part of 'a decision-making continuum...[w]e step into the shoes of the primary decision-maker and re-make the decision under review' on the basis of the material before it at the time of the hearing (XTrade).[10] The capacity to step into the shoes of the primary decision-maker as part of a decision-making continuum depends upon the nature of the statutory scheme under review.
8. This Tribunal is empowered to review a large variety of reviewable decisions under various statutory schemes, and each of those schemes provides not only for the precise decisions to be capable of review, but the preconditions for internal review. The statutory regime in the Hotop decision provided for review of a decision to cancel an Air Operator's Certificate and the decision in Scott was in review of the banning of a director from managing a corporation. In both cases, but for the reviewable decision, the applicants would have continued to exercise their rights to operate a civil aviation service or manage a corporation. Their right to continue to do so did not depend upon continued decision-making by the respondent.
9. The scheme of the SRC Act is different to the licensing regimes. When a claim for compensation is made by an employee in respect of an employment injury a decision is made by the relevant authority, either Comcare or a licensed authority or a licensed corporation such as Cleanaway, may accept liability for compensation pursuant to section 14 of the SRC Act. This does not establish continuing payments of weekly compensation for income loss resulting from injury, though that is a test for the acceptance of liability. Indeed, it has been noted that such a decision may never give rise to any specific compensation. It is useful to recall the statements to this effect in Liu and Comcare [2004] AATA 617; (2004) 79 ALD 119 at 120 [11]:

(1) Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) creates a general liability for the payment of compensation to injured workers covered by the Act. It does not address categories of compensation. It does not address quantification. That is left to other sections of the Act. An initial determination of entitlement to compensation under the Act will normally incorporate a finding in favour of the claimant both under s 14 and also under one of the other sections of the Act: for example, ss 16, 19 or 24. > > (2) A positive determination under s 14 is a determination of the existence of a compensable injury. The nature and amount of the compensation is to be determined under other provisions of the Act. Compensable injuries may not always result in the payment of compensation. They may give rise to intermittent entitlements to compensation. There may be periods when there is no present entitlement to compensation under any of the sections of the Act relating to the nature and amount of compensation. But during such periods an injury which has been determined to be a compensable injury under s 14 will not cease to be a compensable injury. It will simply be correct to say during some periods that at the present the compensable injury does not give rise to an entitlement to compensation. Such periods may be long. The compensable injury may never give rise to any future entitlement to compensation. But this can not be known or determined in advance. No determination, whether by consent of the parties or not, can preclude the making of a future application for compensation with respect to a compensable injury determined to exist under s 14. This was made clear in Plumb v Comcare [1992] FCA 595; (1992) 39 FCR 236 at 240.

10. Once there is an accepted liability pursuant to section 14 of the SRC Act, even though no benefits have ever been paid, or have not been paid for some time, it is for the relevant authority to consider the specific entitlements and 'to make such determinations from time to time as were necessary to confer upon [the injured employee] the particular benefits to which [he or she] was, on the facts as they may be from time to time entitled' and to do so 'without the intervention of a fresh claim, once it became clear that additional benefits were payable.' (Commonwealth of Australia v Ford [1986] FCA 94; (1986) 9 ALD 433 (Ford)).[12]
11. It is in the nature of the particular specific compensation benefits that they require determination from time to time. As medical treatment costs are incurred, the details of such invoices or receipts must be put before a decision-maker of the relevant authority so that the statutory task prescribed by section 16 of the SRC Act may be completed. This requires an assessment of the 'specific and identifiable amounts' for 'specific and identifiable medical treatment' in order to assess the relationship between the treatment and the injury and to determine the appropriateness of the treatment and the reasonableness of the cost (Comcare v Lofts [2013] FCA 1197; (2013) 217 FCR 220 (Lofts)).[13] Compensation for loss of income due to incapacity for work resulting from injury is paid on a weekly basis and must be assessed afresh each week in accordance with section 19 of the SRC Act by weighing the evidence of incapacity, its relationship to injury, and the ability to earn in suitable employment against the normal weekly earnings determined pursuant to sections 8 and 9 of the SRC Act.
12. All such decisions involve discrete decisions from time to time to provide 'progressively for ongoing relief' by way of 'decision-making concerning consequential relief that may be required in the light of evolving circumstances' (Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253.[14] Because these are separate and ongoing decisions, they are made by a delegate of the 'determining authority' (in this case, the licensee, Cleanaway) pursuant to section 61 of the SRC Act. Such decisions are not reviewable by the Tribunal unless they are made by the determining authority pursuant to section 62 of the SRC Act by reconsideration of the original determination either of its 'own motion' or on request in writing by the applicant in accordance with subsection 62(2) and (3) of the SRC Act.
13. There are three such 'reviewable decisions' for which the Applicant has sought review in proceedings numbers 2026/0623, 2026/0668 and 2026/0686. While in reviewing such decisions, it is said that the Tribunal 'stands in the shoes' of the primary decision maker, that does not confer power to make new determinations pursuant to sections 16 and 19 of the SRC Act. The Tribunal 'is not the original repository of powers and discretions under an enactment (Brian Lawlor Automotive Pty Ltd and Collector of Customs (1978) 1 ALD 167.[15] In Lees v Comcare (1999) 54 ALD 84[16] the Federal Court reviewed the statutory framework provided in the SRC Act to conclude that an exercise by the Tribunal of powers reserved to the primary decision-maker that had not been the subject of any internal review was beyond the Tribunal's power:

[39] In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions - that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination: s 61(1). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers "[f]or the purpose of reviewing" the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.

14. To give effect to the desire of Ms Best to have compensation payments continue would require the Tribunal to make continuing determinations pursuant to section 16 and 19 of the SRC Act where it has no power to do so. The Tribunal may only review a reviewable decision. The reviewable decisions in the present case do not interrupt a continuing license or qualification so that an application for stay of the decision would permit the continued exercise of the license or qualification while the preview proceeded. The reviewable decisions do not deal with the entitlement to compensation for particular weeks or particular medical expenses incurred after the date that benefits terminated. No order to 'stay' the operation of the reviewable decisions will result in continuing compensation.
15. The only way to alleviate the hardship occasioned by the loss of income and entitlements to compensation for the cost of medical treatments is to speed the process of review. The parties advised that not all evidence has been obtained so far and that this matter cannot yet be timetabled to hearing. It would be best if the preparation for hearing by making requests for summons and arranging witness statements and medical reports were done with all deliberate speed.
16. The application for a stay of the operation of the reviewable decisions pursuant to section 32(2) of the SRC Act is denied and the matter is to be managed to a hearing by the Tribunal through its conference registrars.

[1] T56, 294-303. References commencing with the letter 'T' are references to Tribunal documents that are lodged with the Tribunal pursuant to a Notice to the respondent pursuant to s 23 of the Administrative Review Tribunal Act 2024 (ART Act), requiring a decision-maker to give to the Tribunal all documents within its control relevant to the review. They are generally known as 'T-Documents', sequentially numbered, with subsequent page references.

[7] [2024] AATA 1372 [14] per Deputy President McCabe, Senior Member Benk.

[8] [2005] FCA 1023; (2005) 145 FCR 232 at 240 [43] per Siopsis J.

[9] [2009] AATA 798; (2009) 51 AAR 114 at 115 [4] per Downes J, President.

[10] [2024] AATA 1372 [14].

[11] [2004] AATA 617; (2004) 79 ALD 119 at 120 [1]- [2] per President G Downes J, Deputy President R P Handley and Senior Member M D Allen

[12] [1986] FCA 94; (1986) 9 ALD 433 at 437 per Wilcox J.

[13] [2013] FCA 1197; (2013) 217 FCR 220 at 224-5 [13]- [15] per Mortimer J.

[14] (2006) 151 FCR 253 at 273 [56] per Conti J with whom Heerey and Dowsett JJ agreed.

[15] [1978] AATA 49; (1978) 1 ALD 167 at 175 per Brennan J, President.

[16] (1999) 54 ALD 84 at 93 [39] per Wilcox, Branson and Tamberlin JJ.