Forests (Forest Firefighters Presumptive Rights Compensation) Regulations 2022

The Regulations introduce and define several key concepts, all derivative of the Forests Act 1958.

Application for special consideration: Defined in regulation 4 by cross-reference to section 72N of the Act. This is a separate application mechanism available to a forest firefighter who is dissatisfied with an initial decision on a presumptive rights compensation claim. Regulation 5 prescribes the manner and form: it must be in writing and include “any relevant supporting information”. The phrase “any relevant supporting information” is not further defined, leaving content determination to the applicant. No form template is prescribed, and no signature or witness requirements are imposed.

Expert opinion: Defined in regulation 4 as an opinion provided by the advisory committee under sections 72G, 72J or 72O of the Act. Section 72G relates to initial claims; section 72J relates to requests for reconsideration; section 72O relates to special consideration applications. The Regulations do not define the substantive content of an expert opinion but do specify that it must be signed by at least two of the three nominated members (regulation 15(3)) and be in a form approved by the Authority or self-insurer (regulation 15(5)). The advisory committee is not bound by any advice or information it receives (regulation 15(2)), giving it substantial discretion in forming its view.

Advisory committee: Established under Part 3 of the Regulations. The Minister must establish the committee (regulation 6) and appoint at least three and no more than 15 eligible persons (regulation 7(1)). Eligibility criteria (regulation 7(2)) require the Minister to be satisfied the person can make an informed and independent assessment, and the person must have significant and substantial expertise in at least one of: forest firefighting and fire management; scientific research on the relationship between firefighters’ occupational exposure and cancers; or Australian law, public administration or another relevant field. Members serve terms of up to three years (regulation 8(1)) and are eligible for reappointment (regulation 8(3)). The Minister appoints a chairperson and deputy chairperson from among the members (regulation 9). A member may resign by written notice to the Minister (regulation 11). The Minister may remove a member at any time for any reason (regulation 12) , this is an unfettered removal power with no stated grounds or procedural fairness requirements.

Conflict of interest: Regulation 14 imposes a duty on the chairperson to declare any conflict to the Minister before nominating members for an expert opinion request. If the chairperson and deputy chairperson both have conflicts, the chairperson must nominate another member to act as chairperson for that request. Each nominated member must declare any conflict to the chairperson before considering the request, and the chairperson must nominate an alternate if a declaration prevents the member from providing an opinion.

Confidentiality: Regulation 17 provides that materials and information provided to the advisory committee in the course of its functions must be treated as confidential. If the committee distributes materials to another person (for example, when seeking information under regulation 15(1)), the committee is responsible for managing that confidentiality. This does not derogate from obligations under the Privacy and Data Protection Act 2014.

The Regulations affect several distinct groups, each with different compliance obligations.

Forest firefighters: These are the ultimate beneficiaries of the presumptive rights compensation scheme. Under the Regulations, a forest firefighter who wishes to apply for special consideration under section 72N must submit a written application with supporting information (regulation 5). The Regulations do not prescribe a time limit for making that application, though the Act may. The firefighter also has the right, after their claim under the Workplace Injury Rehabilitation and Compensation Act 2013 is determined, to request a copy of the expert opinion and reasons from the Authority or self-insurer, who must provide it within seven days of receiving the request (regulation 15(6)-(7)). The firefighter may also be asked to provide information relevant to an expert opinion request when the advisory committee is considering the matter (regulation 15(1)(a)).

The Minister: The Minister is responsible for establishing the advisory committee (regulation 6), appointing its members (regulation 7(1)), specifying the terms and conditions of appointment and remuneration (regulation 8(2)), appointing the chairperson and deputy chairperson (regulation 9), and may remove any member at any time (regulation 12). The Minister may also give directions to the chairperson about the procedures of the advisory committee, including the form and content of procedural rules (regulation 18). The Minister does not participate in individual expert opinions.

The Authority and self-insurers under the Workplace Injury Rehabilitation and Compensation Act 2013: These bodies administer workers’ compensation claims, including claims under the presumptive rights scheme. They make requests for expert opinions to the advisory committee under sections 72G, 72J and 72O. They must provide relevant documents to the chairperson when making a request (regulation 13(1)(b)). They are obliged to provide “any necessary administrative support” to the advisory committee on the request of the chairperson (regulation 16). They also approve the form of the expert opinion (regulation 15(5)). After a firefighter’s claim is determined, they must provide a copy of the expert opinion and reasons to the firefighter within seven days of a request (regulation 15(7)).

Members of the advisory committee: Members are appointed by the Minister (up to three-year terms) and may be reappointed. They must have expertise in specified fields. They must declare conflicts of interest before considering requests, and must comply with confidentiality requirements. When nominated to provide an expert opinion, they must act reasonably to provide the firefighter with an opportunity to provide information, may seek advice from others, and must sign the opinion (at least two of three). They are not bound by any advice received. The committee has no power to compel evidence; it relies on voluntary provision.

Self-insurers (as distinct from the Authority) and fire services agencies: The Regulations treat them as sources of information that the advisory committee may consult. Regulation 15(1)(b) explicitly allows the committee to seek advice or information from the relevant fire services agency. The committee may also seek information from the forest firefighter, the Authority or a self-insurer. However, no obligation is imposed on these entities to respond.

The Regulations impose relatively few duties and confer limited rights, consistent with their procedural character.

Duties on the Minister: The Minister must establish the advisory committee (regulation 6). The Minister must appoint at least three and no more than 15 eligible persons (regulation 7(1)). The Minister must appoint a chairperson and deputy chairperson (regulation 9). The Minister must specify the terms and conditions of appointment and determine remuneration (regulation 8(2)).

Duties on the chairperson: Upon a request for an expert opinion, the chairperson must, as soon as reasonably practicable, nominate three members to provide the opinion and provide them with the relevant documents (regulation 13(1)). Before doing so, the chairperson must declare any conflict of interest to the Minister (regulation 14(1)). If the chairperson and deputy chairperson both have conflicts, the chairperson must nominate another member to act as chairperson for the purpose of making the nomination (regulation 14(2)). The chairperson must nominate an alternate member if a nominated member declares a conflict that prevents them from providing an opinion (regulation 14(4)). The chairperson may nominate themselves as one of the three members (regulation 13(2)). The chairperson must comply with any direction from the Minister regarding procedures (regulation 18(2)).

Duties on nominated members (the three members selected for a particular expert opinion): They must, as far as reasonably practicable, provide the forest firefighter with an opportunity to provide relevant information (regulation 15(1)(a)). They must declare any conflict of interest to the chairperson before considering the request (regulation 14(3)). At least two of the three must sign the expert opinion (regulation 15(3)). They are not bound by any advice or information received (regulation 15(2)). They may seek advice or information from other persons at their discretion (regulation 15(1)(b)-(c)).

Duties on the advisory committee as a body: The committee must treat all materials and information provided to it as confidential (regulation 17(1)). If it distributes materials to another person (when seeking information under regulation 15(1)), it is responsible for managing confidentiality (regulation 17(2)). The committee must provide the expert opinion and reasons to the Authority or self-insurer within 10 days for requests under sections 72G or 72J, and within 60 days for special consideration applications under section 72O (regulation 15(4)).

Duties on the Authority or self-insurer: They must provide any necessary administrative support on the request of the chairperson (regulation 16). Upon a firefighter’s request after claim determination, they must provide a copy of the expert opinion and reasons within seven days (regulation 15(7)).

Rights of the forest firefighter: The firefighter has the right to be given an opportunity to provide relevant information before an expert opinion is finalised (regulation 15(1)(a)). After the claim is determined, the firefighter may request a copy of the expert opinion and reasons (regulation 15(6)), and the Authority or self-insurer must provide it within seven days (regulation 15(7)). The firefighter also has the right to make an application for special consideration in the manner and form prescribed (regulation 5).

No right of review or appeal: The Regulations do not confer any right for the firefighter to challenge the expert opinion itself, nor do they give the firefighter a right to be present when the committee deliberates, to be represented, or to make oral submissions. The opportunity to provide information is the only participatory right explicitly stated.

The Regulations themselves contain no penalty provisions. There are no fines, infringement notices, or criminal offences for non-compliance with any regulation. Enforcement of the procedural requirements relies on the underlying Act and on general administrative law mechanisms. For example:

• If the chairperson fails to nominate members within a reasonable time, or if the committee fails to provide an expert opinion within the prescribed timeframe, the interested party (likely the Authority or self-insurer, or possibly the firefighter) may seek a remedy from the Victorian Civil and Administrative Tribunal or the Supreme Court by way of mandamus or an order for the performance of a statutory duty.
• If the Minister fails to establish the advisory committee or to make appointments, that could be challenged as a failure to exercise a power under the Act.
• If the Authority or self-insurer fails to provide the expert opinion copy within seven days of the firefighter’s request (regulation 15(7)), that failure may be enforceable through the same mechanisms, though the Regulations do not specify consequences.
• Breach of confidentiality obligations (regulation 17) may give rise to civil liability or disciplinary action, but no specific penalty is prescribed. The Privacy and Data Protection Act 2014 has its own enforcement mechanisms, including complaints to the Commissioner, and those are expressly preserved by regulation 17(3).
• The unfettered removal power of the Minister under regulation 12 (“The Minister may remove a member of the advisory committee at any time”) is not subject to any penalty or constraint; it is an executive power that does not require grounds or notice.

The absence of penalties in the Regulations means the primary incentives for compliance are the desire to avoid litigation, reputational harm, and the risk of a decision being quashed on procedural grounds. The tight timeframes for providing expert opinions (10 days for initial and reconsideration requests, 60 days for special consideration) create a compliance burden that, if missed, could delay a claim determination and expose the Authority or self-insurer to legal challenge. Because the Regulations are subordinate legislation, non-compliance with a procedural requirement does not necessarily invalidate a decision unless the requirement is mandatory (rather than directory). The Regulations do not specify which provisions are mandatory. Courts would assess the language: “must” appears in regulations 6, 7(1), 9, 13(1), 14, 15(4), 15(6)-(7), 16, and 18(2), suggesting those duties are mandatory. “May” is used for permissive powers (e.g., regulation 7(3) on reappointment, regulation 13(2) on chairperson self-nomination). The practical enforcement burden falls on the firefighter or the Authority to notice procedural failures and take action, which may require legal resources that individual claimants lack.

The Regulations do not operate in isolation. They are made under the Forests Act 1958 and give effect to Part 2A of that Act. The substantive presumptive rights compensation scheme is in the Act; the Regulations merely supply the procedural details that the Act left to prescription.

Workplace Injury Rehabilitation and Compensation Act 2013: The presumptive rights scheme operates within the framework of the Victorian workers’ compensation system. The Authority and self-insurers referred to in the Regulations are those defined under that Act. The firefighter’s underlying claim is determined under that Act, and the expert opinion from the advisory committee feeds into that determination. Regulation 15(6) explicitly references the determination of the claim under the Workplace Injury Rehabilitation and Compensation Act 2013 as the trigger for the firefighter’s right to request a copy of the expert opinion. The Regulations do not alter any substantive entitlement or burden under that Act; they add a specific evidentiary mechanism.

Privacy and Data Protection Act 2014: Regulation 17(3) expressly provides that the confidentiality obligations of the advisory committee do not derogate from the committee’s obligations under the Privacy and Data Protection Act 2014. This means that the committee must comply with the Information Privacy Principles and any relevant codes of practice under that Act when handling personal information about the firefighter or others. The interaction is a source of potential complexity: the committee must both treat materials as confidential under regulation 17(1) and comply with privacy law, which may require disclosure in certain circumstances (e.g., access requests by the individual). The committee is responsible for managing confidentiality when distributing information under regulation 15(1) (regulation 17(2)), which implies the committee must consider privacy obligations before sharing information with third parties.

Subordinate Legislation Act 1994: The Regulations are subject to the sunset provisions of that Act. The endnote states the Regulations will sunset 10 years after the day of making, i.e., 6 September 2032. If not remade before that date, they will expire, and the procedural provisions for the advisory committee, the form of applications, and expert opinions will cease to have effect. This means the presumptive rights scheme would lose its supporting procedural machinery unless the Act itself contains alternative default provisions, which it may not. The interaction imposes a timeline for review and renewal.

Forests Act 1958: The Regulations are made under section 100C of that Act, which is a general regulation-making power. The Regulations implement specific sections of Part 2A: sections 72G, 72J, 72N, 72O and 72R. Any inconsistency between the Regulations and the Act would be resolved in favour of the Act. No such inconsistency is apparent.

No interaction with Commonwealth laws: The Regulations do not reference any Commonwealth legislation, though the scheme may interact with the Safety, Rehabilitation and Compensation Act 1988 (Cth) for Commonwealth firefighters or with the Military Rehabilitation and Compensation Act 2004 (Cth) for Defence Force members. The Regulations are specific to Victorian forest firefighters and the state workers’ compensation scheme. Any Commonwealth firefighter would not be subject to these Regulations.

The endnotes confirm that there are no amendments to the Forests (Forest Firefighters Presumptive Rights Compensation) Regulations 2022 made by statutory rules, subordinate instruments or Acts. The Regulations were made on 6 September 2022 and came into operation on 14 September 2022. They are in their original form. This means the procedural architecture described above has not been adjusted, clarified, or expanded in the period since commencement. The absence of amendments could indicate that the Regulations have operated without identified defects, or that they have not been subject to practical challenge in a way that would prompt amendment. However, because the presumptive rights scheme itself may be relatively new (the Regulations implement Part 2A of the Forests Act 1958, which was itself likely inserted by recent amendment), the lack of amendment history may simply reflect the short time since commencement.

The Regulations have no identifiable litigation history. No cases are mentioned in the source, and no notable judicial decisions are cited. This is unsurprising for procedural regulations that have been in force for only a short period. The Regulations themselves are unlikely to be the subject of direct judicial review; rather, any litigation would likely challenge decisions made under the Act or the Workplace Injury Rehabilitation and Compensation Act 2013, with the Regulations forming part of the procedural background. Potential grounds for challenge include: failure to provide a firefighter with an opportunity to provide information (breach of regulation 15(1)(a)); failure to comply with the time limits for expert opinions (regulation 15(4)); failure to provide a copy of the opinion (regulation 15(7)); or improper appointment of advisory committee members (regulation 7). However, no such challenges have been recorded in the source.

The absence of litigation does not imply the Regulations are free from ambiguity. For example, the standard for “any relevant supporting information” in an application for special consideration could be litigated if the Authority rejects an application as insufficient. The phrase “as far as reasonably practicable” in regulation 15(1)(a) (the duty to provide the firefighter an opportunity to provide information) invites disputes about whether the committee took reasonable steps. The Minister’s unfettered removal power under regulation 12 could be challenged on administrative law grounds such as improper purpose or unreasonableness, though the breadth of the power makes any such challenge difficult.

The Regulations contain several features that may catch out practitioners, claimants and administrators unfamiliar with their detail.

Minister may remove any member at any time (regulation 12): This is an entirely discretionary removal power with no stated grounds. A member who gives an opinion unfavourable to the Authority or to the government could theoretically be removed. There is no right to a hearing or to reasons. The provision creates a chilling effect on independent assessment, despite regulation 7(2)(a) requiring the Minister to be satisfied the person is able to make an “independent assessment”. The power to remove at will is difficult to reconcile with independence.

No prescribed form for special consideration application (regulation 5): The application need only be in writing and include “any relevant supporting information”. This is a very low bar, but it also creates uncertainty. An Authority or self-insurer could argue that certain information is not “relevant” or that the application is incomplete. The absence of a checklist may lead to inconsistent treatment of applicants. It also means there is no formal right to have an application accepted; the decision-maker must assess the content.

Tight timeframes with no extension mechanism (regulation 15(4)): The committee must provide an expert opinion within 10 days for requests under sections 72G or 72J, and 60 days for special consideration. The Regulations do not allow for extensions, even if the committee needs more time to obtain information or if the firefighter provides additional material late. This creates a risk that the committee will produce an opinion without full information, or that the opinion will be provided late, potentially rendering the process ineffective or exposing the Authority to legal challenge.

Confidentiality vs. disclosure (regulation 17): The committee must treat materials as confidential, but it may distribute materials to others under regulation 15(1). The committee is responsible for managing confidentiality (regulation 17(2)). This places a practical burden on the committee to decide what can be shared and what must remain confidential, without clear guidance and with potential privacy law consequences.

Chairperson may be a nominated member (regulation 13(2)): The chairperson may nominate themselves to provide the expert opinion. Combined with the broad removal power, this concentration of authority could be seen as reducing the independence of the opinion, particularly if the chairperson has been appointed by the Minister and may be removed at will.

No right of reply after recommendation: The firefighter is given an opportunity to provide information before the opinion is finalised, but there is no right to respond to the committee’s reasoning or to challenge facts gathered from other sources. The committee may seek advice from the fire services agency or others, and may inform itself as it sees fit (regulation 15(1)(c)-(2)). The firefighter may not know what information the committee considered.

Sunset date: The Regulations expire on 6 September 2032. If not remade, the entire procedural infrastructure for presumptive rights compensation collapses, potentially leaving firefighters without a mechanism for special consideration or expert medical opinions unless the Act contains fallback provisions.

No appeal mechanism: The Regulations provide no internal review or appeal against an expert opinion. If the opinion is adverse, the firefighter cannot challenge it through the Regulations; they must rely on the Act’s own review mechanisms, which may not correspond exactly.

Compliance burden on the Authority: The Authority must provide administrative support on request (regulation 16), which is an open-ended obligation. The cost and scope are not defined. This could be used to require the Authority to provide expensive services (e.g., transcription, expert fees, research assistance) for which there is no budget guarantee.

Compliance obligations under the Regulations fall on four primary actors: the Minister, the advisory committee (chairperson and members), the Authority and self-insurers, and forest firefighters (claimants). Practical steps for each follow.

For the Minister: The Minister must establish the advisory committee promptly and maintain it. That means developing a list of eligible persons with the expertise specified in regulation 7(2). The Minister should establish transparent appointment criteria to minimise legal challenge risk. The Minister must appoint at least three and no more than 15 members, designate a chairperson and deputy chairperson, and specify each member’s term (no longer than three years). The Minister should issue instruments of appointment that include terms, conditions and remuneration entitlements (regulation 8(2)). The Minister should also provide directions on committee procedures under regulation 18 if desired. The Minister must be prepared to receive and act on conflict declarations from the chairperson under regulation 14(1). The Minister should also monitor the sunset date (6 September 2032) and begin the remake process in advance.

For the chairperson: Upon receiving any request for an expert opinion, the chairperson must first declare any conflict of interest to the Minister (regulation 14(1)). If a conflict exists, the deputy chairperson acts (regulation 10(1)(c)). If both have conflicts, the chairperson nominates another member (regulation 14(2)). The chairperson must then nominate three members to provide the opinion, ideally representing the fields most relevant to the request (regulation 13(3)). The chairperson may nominate themselves (regulation 13(2)). The chairperson must provide the nominated members with all relevant documents from the Authority or self-insurer (regulation 13(1)(b)). The chairperson must also request administrative support from the Authority or self-insurer if needed (regulation 16). The chairperson must ensure any procedural directions from the Minister are implemented (regulation 18(2)).

For nominated members: Before considering the request, each member must declare any conflict to the chairperson (regulation 14(3)). If a conflict prevents participation, the chairperson will nominate an alternate. The three members must then, as far as reasonably practicable, give the forest firefighter an opportunity to provide relevant information (regulation 15(1)(a)). They may seek advice or information from other persons, including the firefighter, the Authority and the relevant fire services agency (regulation 15(1)(b)). They are not bound by any advice. They must inform themselves as they see fit. The committee should keep records of what it considered. At least two of the three must sign the opinion (regulation 15(3)). The opinion (with reasons) must be provided within 10 days for initial and reconsideration requests, and 60 days for special consideration (regulation 15(4)). The opinion must be in the form approved by the Authority or self-insurer (regulation 15(5)). The committee must treat all materials as confidential and manage confidentiality when sharing information (regulation 17). Privacy law compliance is mandatory.

For the Authority or self-insurer: When making a request for an expert opinion, the Authority must provide the chairperson with all relevant documents (regulation 13(1)(b)). The Authority must provide administrative support when requested (regulation 16). The Authority must approve the form of the expert opinion (regulation 15(5)). Most critically, after a firefighter’s claim is determined, the Authority must, within seven days of receiving a request from the firefighter, provide them with a copy of the expert opinion and the reasons (regulation 15(7)). The Authority should establish a system to track request dates and ensure timely production. The Authority should also ensure that its approved form for expert opinions is not so restrictive as to hinder the committee’s ability to provide meaningful reasons.

For the forest firefighter: To make an application for special consideration, the firefighter must put it in writing and include any relevant supporting information (regulation 5). This is the only requirement. The firefighter should keep a copy and preferably request an acknowledgment of receipt. The firefighter may be contacted by the advisory committee to provide information; it is advisable to respond promptly, as the committee is not required to wait indefinitely (the duty is to do so “as far as reasonably practicable”). After the claim is determined, the firefighter may request the expert opinion and reasons. The firefighter should do so in writing and keep a record of the request date to ensure the seven-day timeline is met. If the opinion is not provided, the firefighter may need to seek legal advice about enforcement options under the Act. The firefighter has no further procedural rights under the Regulations; any challenge to the opinion’s content must be pursued through the Act’s own review mechanisms.