Firefighters' Presumptive Rights Compensation Regulations 2019

The Firefighters’ Presumptive Rights Compensation Regulations 2019 (the Regulations) are a subordinate instrument made under section 22 of the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019 (the Act). They perform two discrete mechanical functions. First, they prescribe the manner and form of an application for “special consideration” under section 13(2) of the Act. Regulation 4 requires that such an application must be made in writing and include any relevant supporting information. This is a minimalist specification: the Regulations do not mandate a particular form template, nor do they set a statutory time limit for the applicant, nor list the specific evidence that must be attached. The content is left largely to the applicant’s discretion, subject to the requirement of relevance.

Second, and more significantly, the Regulations establish and govern the advisory committee that provides expert opinions to the Authority (presumably WorkSafe Victoria or the claims administrator) in relation to presumptive rights claims. Part 3 (regulations 5 to 17) sets out the committee’s membership, appointment, conflict-of-interest procedures, and the process for delivering expert opinions. The committee must be established by the Minister and can have up to 15 members. Members must satisfy strict independence requirements: they cannot be employed by, volunteer with, or hold a position in any fire services agency, nor with any industrial body that covers fire services employees, nor with Volunteer Fire Brigades Victoria or the Victorian Volunteer Firefighters Association (regulation 7(2)(a)). The Regulations also require that members be free from insolvency and not have been convicted of an indictable offence. Eligible members must demonstrate the ability to make informed and independent assessments and meet at least one of three criteria: substantial expertise in firefighting or fire management, scientific research expertise on occupational exposure and cancers, or qualification as an Australian lawyer (regulation 7(1)). The practical effect is to create a panel of independent experts drawn from outside the operational fire services and their industrial organisations, which is intended to reduce perceived bias in the assessment of disease causation.

The Regulations also specify the timelines for providing expert opinions. For requests made under sections 12 or 12C of the Act (which relate to initial and subsequent claims for compensation), the committee must provide its opinion within 10 days of receiving the request. For applications for special consideration under section 16, the period is 60 days (regulation 14(5)). The opinion must be signed by at least a majority of the three nominated members and must be accompanied by reasons. The committee may seek advice from other persons, including the firefighter, the Authority, and the relevant fire services agency, and may inform itself as it sees fit. However, it is not bound by any advice it receives. The regulations also impose a confidentiality obligation on materials provided to the committee, subject to the Privacy and Data Protection Act 2014, and require that the committee manage confidentiality when distributing information further. The Authority must provide administrative support on request (regulation 15). These provisions operationalise the expert-opinion mechanism that underpins the presumptive rights framework: certain diseases are presumed to be work-related for firefighters (and, after the 2022 amendments, vehicle and equipment maintenance employees), and the committee’s opinion may assist the Authority in assessing whether the presumption is rebutted or supported in a given case.

The Regulations introduce and define several key concepts that are essential to understanding how the presumptive rights compensation system works in practice.

Application for special consideration: Defined in regulation 3 by reference to section 13(2) of the Act. This is a request made by a firefighter (or, after the 2022 amendments, a vehicle and equipment maintenance employee) for the Authority to apply a special consideration test in determining their claim. The Regulations do not spell out what “special consideration” entails substantively; that is defined in the Act itself. The Regulations simply prescribe the manner and form: it must be in writing and include relevant supporting information. The term “relevant supporting information” is not defined, giving the applicant considerable latitude but also creating uncertainty about what is sufficient.

Expert opinion: Defined in regulation 3 as an opinion provided by the advisory committee under sections 12, 12C, or 16 of the Act. “Section 12” concerns the initial determination of a claim by the Authority, where the Authority may request an opinion. “Section 12C” was added by the 2022 amendments (along with references to vehicle and equipment maintenance employees) and relates to certain claims by that cohort. “Section 16” concerns applications for special consideration. The expert opinion is a formal written opinion, signed by at least a majority of the three-nominated panel, and must include reasons. It is provided to the Authority within a fixed timeframe: 10 days for standard requests, 60 days for special consideration requests. The opinion is not binding on the Authority, but it is a mandatory step in the process when the Authority requests one. The committee’s procedures allow it to seek further information (regulation 14(1)), access brigade records, CFA data, employer data and local knowledge (regulation 14(2)), and inform itself as it sees fit. The opinion must be in the form approved by the Authority (regulation 14(6)), giving the Authority indirect control over format and perhaps content scope.

Advisory committee: The body established under Part 3 to provide expert opinions. It consists of up to 15 members appointed by the Minister. The committee is not a permanent adjudicative body; rather, for each request for an expert opinion, the chairperson nominates a panel of three members to consider that specific request (regulation 12(1)). The three members should, to the extent reasonably practicable, represent the fields of expertise most relevant to the request (regulation 12(3)). This ad hoc panel is then referred to as “the advisory committee” for the purpose of that opinion, which is a potentially confusing use of the term because it could suggest the whole committee is deciding, when in fact only a subset is.

The Regulations directly affect several distinct groups of persons and entities.

Firefighters: As the primary beneficiaries of the presumptive rights compensation framework, firefighters are the most directly affected. They may make applications for special consideration (regulation 4) and may be requested to provide information to the advisory committee (regulation 14(1)(a)). After their claim is determined, they may request a copy of the expert opinion and reasons from the Authority (regulation 14(7)(8)). The Regulations do not impose any duties on firefighters themselves, but the process of providing information and waiting for opinions can affect the speed and outcome of their claims. The tight 10-day deadline for committee opinions may benefit claimants by accelerating decisions, but it also creates a risk of superficial analysis.

Vehicle and equipment maintenance employees: Added by the 2022 amendments (S.R. No. 71/2022), this group now falls within the scope of the expert opinion process. References to “firefighter” in regulations 14(1)(a), 14(2), 14(7), and 14(8) were amended to include “or vehicle and equipment maintenance employee.” These employees work on firefighting vehicles and equipment and were previously outside the presumptive rights scheme. Their inclusion expands the pool of potential claimants and the workload of the advisory committee.

The Authority (presumably WorkSafe Victoria): The Authority initiates requests for expert opinions under sections 12(1) and 12C(1) of the Act, and also under section 16(2) for special consideration. The Authority must provide relevant documents to the chairperson (regulation 12(1)(b)), provide administrative support to the committee on request (regulation 15), and provide the claimant with a copy of the opinion and reasons within 7 days of a post-determination request (regulation 14(8)). The Authority must also approve the form of the expert opinion (regulation 14(6)), giving it control over the template.

Fire services agencies: Defined by reference to the Emergency Management Act 2013, these are the operational fire services in Victoria (e.g., CFA, FRV, Forest Fire Management Victoria). The advisory committee may seek advice or information from a fire services agency (regulation 14(1)(b)) and may access its records, brigade records, CFA data, employer data, and local knowledge (regulation 14(2)). However, persons employed by or volunteering for a fire services agency are ineligible to serve on the committee (regulation 7(2)(a)(i)). This creates a deliberate separation: the committee is independent of the agencies whose records it may need to examine.

The Regulations impose specific duties on the advisory committee, its chairperson, and the Authority, and confer limited rights on firefighters and vehicle and equipment maintenance employees.

Duty of the chairperson to nominate members promptly: Upon receiving a request for an expert opinion under section 12(1), 12C(1), or 16(2) of the Act, the chairperson must, as soon as reasonably practicable, nominate three members to constitute the committee for that opinion and provide them with the relevant documents (regulation 12(1)). The chairperson may nominate themselves. The nomination must, to the extent reasonably practicable, represent the fields of expertise most relevant to the request (regulation 12(3)).

Duty to declare conflicts of interest: Each nominated member must declare any conflict of interest to the chairperson before considering a request (regulation 13(1)). The chairperson must declare any conflict to the Minister (regulation 13(4)). If a conflict prevents a member from providing an opinion, the chairperson must appoint an alternate (regulation 13(3)). If the chairperson is conflicted, the Minister must appoint an acting chairperson for that request (regulation 13(5)). This duty is prospective and self-policing; there is no independent verification mechanism.

Duty to provide the firefighter/employee with an opportunity to provide information: The advisory committee must, as far as reasonably practicable, provide the firefighter or vehicle and equipment maintenance employee with an opportunity to provide information relevant to the request (regulation 14(1)(a)). This is a procedural fairness right, though it is qualified by “as far as reasonably practicable,” which may allow the committee to proceed without the claimant’s input if time or circumstances prevent it.

Duty to provide a signed opinion with reasons within timeframe: The committee must provide an expert opinion and reasons to the Authority. For requests under sections 12 or 12C, the deadline is 10 days after receiving the request; for section 16 (special consideration), it is 60 days (regulation 14(5)). The opinion must be signed by at least a majority of the three members (regulation 14(4)) and be in the form approved by the Authority (regulation 14(6)). The 10-day period is notably short, especially if the committee needs to seek additional information or hear from the claimant.

Duty of confidentiality: Materials and information provided to the committee in the course of its functions must be treated as confidential (regulation 16(1)). When the committee distributes information to third parties under regulation 14(1)(b), it is responsible for managing that confidentiality (regulation 16(2)). This duty does not override the Privacy and Data Protection Act 2014. This confidentiality may limit what the claimant sees during the process.

The Regulations themselves do not create any new criminal offences or civil penalties. They are a procedural instrument; enforcement mechanisms are left to the Act and to general law. However, several provisions create obligations whose breach could have consequences indirectly.

Conflict of interest non-disclosure: If a member fails to declare a conflict of interest that later comes to light, this could lead to removal by the Minister under regulation 11(1) (the Minister may remove a member at any time, for any or no reason). Additionally, if an opinion is tainted by an undisclosed conflict, the Authority might disregard it or a claimant could challenge the decision based on procedural unfairness. The decision of the Minister to remove a member is not subject to any stated review mechanism in these Regulations, though judicial review under the common law would remain available.

Breach of confidentiality: Regulation 16(1) requires that materials and information be treated as confidential. Breach of confidentiality could expose a committee member to civil liability (e.g., breach of confidence or defamation) if protected information is disclosed. Additionally, since the committee’s functions involve handling personal and health information, the Privacy and Data Protection Act 2014 applies (regulation 16(3)). A breach of that Act could result in complaints to the Victorian Information Commissioner, potential orders for remediation, or in serious cases, prosecution for specific offences under that Act (e.g., misuse of personal information). The Regulations do not, however, impose a specific penalty for breach of regulation 16 itself.

Failure to provide opinion within timeline: Regulation 14(5) requires the committee to provide its opinion within 10 or 60 days. There is no penalty for missing the deadline in the Regulations. The Authority could potentially treat the delay as a failure to comply with a statutory requirement and take administrative action, such as appointing a different panel or making a decision without the opinion. The chairperson could be removed by the Minister if the delays are persistent. For the claimant, a delay might slow the determination of their claim, but there is no right to damages for delayed opinion under these Regulations.

Removal of members: Regulation 11(1) gives the Minister an unfettered power to remove a member at any time. This is a strong enforcement tool, but it also means committee members have no security of tenure. The only automatic cessation is if a member later becomes an insolvent under administration or is convicted of an indictable offence (regulation 7(2) applied via regulation 11(2)). There is no right of appeal or review of removal specified.

The Firefighters’ Presumptive Rights Compensation Regulations 2019 do not exist in a vacuum; they interact with at least four other identified statutes and with the Act itself.

Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019: This is the primary Act. The Regulations are made under section 22 of that Act and serve to “support and further the purposes” of the Act (regulation 1). The Regulations flesh out sections 12, 12C, 13, 15, 16, and 20 of the Act by prescribing procedural details that the Act left to regulation. For example, the Act provides that the Authority may request an expert opinion from the advisory committee (s. 12(1)); the Regulations establish how the committee is constituted, how opinions are provided, and the timeline. The Act also provides for applications for special consideration (s. 13(2)); the Regulations specify that such applications must be in writing and include relevant supporting information. The Regulations implement the enabling legislation without modifying its substantive provisions.

Workplace Injury Rehabilitation and Compensation Act 2013: Referenced in regulation 14(7). That Act is the general workers’ compensation statute for Victoria (for most workers, though firefighters have presumptive provisions in their own Act). The regulation provides that the firefighter or vehicle and equipment maintenance employee may request a copy of the expert opinion “following the determination of their claim under the Workplace Injury Rehabilitation and Compensation Act 2013.” This means that the presumptive rights compensation claims are processed under that Act, but with the special features (presumptions, expert opinions) grafted on by the 2019 Act. The Regulations thus facilitate the interface between the presumptive rights scheme and the standard compensation framework.

Emergency Management Act 2013: This Act defines “fire services agency” (regulation 3), which is used to determine who is ineligible to be a committee member (regulation 7(2)(a)(i)). The definition likely includes the Country Fire Authority, Fire Rescue Victoria, and Forest Fire Management Victoria. This interaction ensures that the committee is independent of the operational agencies whose employees and volunteers are affected by the scheme.

Privacy and Data Protection Act 2014: Regulation 16(3) provides that the confidentiality obligations in that regulation do not derogate from obligations under this Act. The Privacy and Data Protection Act sets out the Victorian public sector’s information privacy principles. The advisory committee, as a body established by statutory regulation, is likely a “public sector agency” or “organisation” subject to those rules. This means that the committee must handle personal information (e.g., health records of firefighters) in accordance with those principles, even beyond the specific confidentiality duty in regulation 16. If the committee discloses personal information without authorisation, it could breach both the Regulations and the Privacy Act, potentially exposing the committee or its members to complaints and enforcement actions by the Victorian Information Commissioner.

The Regulations were originally made on 9 July 2019 as S.R. No. 62/2019 and commenced on that same date. They have been amended once, by the Firefighters’ Presumptive Rights Compensation Amendment Regulations 2022 (S.R. No. 71/2022), made on 30 August 2022 and commencing on 1 September 2022.

The 2022 amendments expanded the scope of the Regulations (and the underlying Act) to include “vehicle and equipment maintenance employees.” Specifically, the following changes were made:

• Regulation 1(c) was amended to add a reference to “12C”, so that the objectives now include prescribing the form and process of providing an expert opinion under sections 12, 12C, and 16 of the Act (previously only sections 12 and 16).
• The definition of “expert opinion” in regulation 3 was amended to include opinions under section 12C.
• Throughout Part 3, references to “firefighter” were amended to read “firefighter or vehicle and equipment maintenance employee” wherever the context involved providing information, seeking advice, accessing records, or the right to obtain a copy of the opinion. Specifically, regulations 14(1)(a), 14(1)(b), 14(2), 14(7), and 14(8) were amended.
• Regulation 14(5)(a) was amended to include section 12C alongside section 12.

These amendments reflect the extension of the presumptive rights compensation scheme to a new class of workers who maintain firefighting vehicles and equipment but were not previously covered. The explanatory details in the endnotes are noted as having no entries at the date of publication, meaning no further guidance was provided on why the amendments were made or what policy considerations drove them. The amendment was likely prompted by recognition that maintenance employees face similar occupational exposure risks to firefighters, such as asbestos from brake linings or diesel exhaust, and that their exclusion was an anomaly.

There are no other amendments. The Regulations are relatively new, and the single amendment suggests the scheme is still being adjusted. The sunset date of 2029 means further amendment or replacement is likely before then.

The Regulations themselves have not been the subject of reported litigation in Victorian courts or tribunals, based on the source provided. The source makes no mention of any cases considering the validity, interpretation, or application of these Regulations. This is unsurprising given they are procedural in nature and have only been in operation since 2019, with one amendment in 2022. However, the absence of litigation does not mean challenges are impossible.

Challenges could arise in several forms. First, a decision of the Authority that relies on an expert opinion could be challenged under the Workplace Injury Rehabilitation and Compensation Act 2013 or under the Act itself. If the opinion was procured in breach of the Regulations (e.g., the committee did not give the claimant an opportunity to provide information, or the opinion was not signed by a majority), a tribunal or court could set aside the decision or remit it. The regulations on conflict of interest (regulation 13) could also be a basis for challenge if it emerges that a committee member had an undisclosed conflict. The 10-day timeline for opinions could raise issues of procedural fairness if the claimant is not given enough time to provide information, although the committee is only required to do so “as far as reasonably practicable” (regulation 14(1)(a)). There may be room for disputes about what is reasonably practicable.

Second, the eligibility criteria for committee membership (regulation 7) could be challenged if a disqualified person were appointed. The bar of being “engaged in any paid employment, is a volunteer or holds a position with” a fire services agency is broad. It would include, for example, a paid administrative employee of the CFA who has no involvement in firefighting. The Minister’s appointment power is wide, but judicial review for jurisdictional error might lie if the Minister appointed someone who fell within the disqualification.

Third, the Minister’s power to remove a member “at any time” (regulation 11(1)) is apparently unfettered. If removal were for a prohibited reason (e.g., political affiliation or whistleblowing), a member might bring an action for relief under administrative law or, if the member is a public servant, under employment law. But the Regulations provide no specific protections.

Fourth, the confidentiality provisions could lead to disputes about what information is confidential and whether the committee’s disclosure to third parties (e.g., a fire services agency) was proper. The committee is responsible for managing confidentiality when distributing information, but this is vague. If a claimant’s medical records are leaked, that could give rise to a civil claim for damages or a complaint under the Privacy and Data Protection Act 2014.

Several aspects of the Regulations could catch out practitioners and claimants if read too quickly.

The 10-day deadline for committee opinions under sections 12 and 12C is extremely tight. Regulation 14(5)(a) requires the committee to provide its opinion within 10 days “after receiving a request from the Authority.” Given that the committee members are likely busy professionals with other commitments, three members must be nominated, conflicts checked, information gathered, an opportunity given to the claimant to provide information, and reasons drafted and signed , all within 10 days. Practicably, the committee may be forced to rely heavily on documents already provided by the Authority and may be unable to properly investigate. Claimants should not expect a deeply considered opinion in that timeframe. The 60-day period for special consideration under section 16 is more reasonable, but still tight.

The right of the claimant to obtain a copy of the opinion only arises “following the determination of their claim under the Workplace Injury Rehabilitation and Compensation Act 2013” (regulation 14(7)). This means the claimant cannot see the opinion during the claims process. If the opinion is adverse, the claimant cannot address its contents before the Authority makes its decision. This is a significant procedural limitation. While the committee must provide the claimant with an opportunity to provide information (regulation 14(1)(a)), the claimant does not know what the committee is considering. The opinion might rely on medical or scientific evidence the claimant was unaware of. After the determination, the claimant can request the opinion and probably challenge the decision, but that adds time and cost.

Conflict of interest management is self-policing. The Regulations do not require any independent check on whether a member has a conflict. The chairperson is responsible for assessing conflicts and appointing alternates. There is no provision for the claimant to be told who the committee members are or to object to a member. A claimant may never know that a member had a connection to the Authority or a fire service until later. The Minister is only involved if the chairperson themselves is conflicted. This lack of transparency could undermine trust in the process.

The ability of the Authority to approve the form of the expert opinion (regulation 14(6)) gives the Authority significant influence. The form could dictate the structure of the opinion, the questions to be answered, and the level of detail required. If the Authority restricts the form, the committee may be unable to provide a full analysis. This is a subtle control that shifts power from the independent committee to the Authority.

Compliance with the Regulations involves distinct obligations for different parties. The following guidance is based on the text of the instrument and assumes the underlying Act is in force.

For claimants (firefighters and vehicle and equipment maintenance employees): If you wish to apply for special consideration under section 13(2) of the Act, your application must be in writing. Regulation 4 does not prescribe a specific form, but it must include “any relevant supporting information.” You should gather medical records, exposure history, and any scientific literature that supports your claim. There is no statutory time limit to submit the application, but the underlying Act may impose one. You are entitled to be given an opportunity to provide information to the advisory committee if the Authority requests an expert opinion (regulation 14(1)(a)). You should respond promptly to any request from the committee or the Authority. After your claim is determined, you may request a copy of the expert opinion and reasons from the Authority (regulation 14(7)(8)). The Authority must provide this within 7 days. Keep a record of all communications.

For the Authority: When requesting an expert opinion, you must provide the relevant documents to the chairperson of the advisory committee (regulation 12(1)(b)). You should also ensure that the form of the opinion is approved in advance (regulation 14(6)). You must provide administrative support to the committee when requested by the chairperson (regulation 15). When a claimant requests the opinion post-determination, you must provide it within 7 days (regulation 14(8)). You should have procedures to track these timelines.

For the advisory committee members and chairperson: Upon appointment, ensure you are not disqualified under regulation 7(2) (no employment with fire services agencies, industrial bodies, volunteer organisations; not insolvent; no indictable convictions). Before each request, the chairperson must nominate three members as soon as reasonably practicable (regulation 12(1)). Each nominated member must declare any conflict of interest to the chairperson before considering the request (regulation 13(1)). If a conflict exists, the chairperson must appoint an alternate (regulation 13(3)). The chairperson must declare any conflict to the Minister (regulation 13(4)). The committee must provide the claimant with an opportunity to provide information, but only “as far as reasonably practicable” (regulation 14(1)(a)). In practice, you should contact the claimant or their representative at the earliest opportunity. You may seek advice from others and access relevant records (regulation 14(1)(b), (2)). The opinion must be signed by at least a majority of the three members (regulation 14(4)), include reasons, and be provided within 10 days (for sections 12/12C requests) or 60 days (for section 16 requests) from receipt of the request (regulation 14(5)). The opinion must be in the form approved by the Authority (regulation 14(6)). Maintain confidentiality of all materials (regulation 16). If distributing information to third parties, manage confidentiality; you may have privacy obligations under the Privacy and Data Protection Act 2014 (regulation 16(2)(3)). You may resign by written notice to the Minister (regulation 10). Note that you can be removed at any time by the Minister (regulation 11(1)).