Guidelines for Rehabilitation Authorities 2019

Rehabilitation authority - defined in the SRC Act, but the instrument clarifies that it may delegate its Part III powers and functions to an officer or person, provided that delegate has “appropriate skills and capabilities” and is supported with resources and training (section 7). The authority remains responsible for monitoring the delegate. This concept is central because all obligations under the instrument fall on the rehabilitation authority, not on the delegate directly.

Rehabilitation assessment - an assessment of the employee’s capability to undertake a rehabilitation program. Section 8 outlines when an assessment is required. Notably, the authority may issue a determination under subsection 37(1) of the SRC Act without undertaking a formal section 36 assessment if it already has advice from the employee’s medical practitioner, a workplace rehabilitation provider, the employer, or the employee. This gives the authority flexibility, but also creates a risk that an assessment is skipped when it would be prudent to conduct one. The instrument does not require a documented reason for dispensing with the assessment, only that the authority has “advice, information or recommendations”.

Rehabilitation program - the structured plan under section 37 of the SRC Act. Section 9 of the instrument requires the program to include the details of the rehabilitation case manager, supervisor (if applicable), workplace rehabilitation provider, review dates, and any reasonable steps the employer is taking to provide suitable employment under section 40 of the SRC Act. The authority must consult the employee about the program, consider the employee’s injury, circumstances, and communication needs, and provide a written copy of both the program and the determination to the employee (or first to the employee’s medical practitioner if that is necessitated by the employee’s medical condition).

Workplace rehabilitation provider - defined as an “approved program provider” under the SRC Act. The instrument uses the term interchangeably. Section 10 requires the authority to effectively monitor the provider’s performance and to inform Comcare of any concerns. This is a light‑touch oversight obligation: no performance benchmarks, no requirement to compare multiple providers, and no obligation to re‑tender or justify the choice of provider.

Consultation - defined in section 5 as “the process of sharing relevant information with a person in a timely manner, providing that person with an opportunity to express their views and considering those views when making decisions.” This is a procedural definition; it does not require the authority to adopt the employee’s views, only to consider them. The definition is important because it appears in sections 9(3) and (4) and is not otherwise defined in the SRC Act.

Employee non‑compliance - section 11 creates a structured process for when an employee refuses or fails without reasonable excuse to undergo an examination under subsection 36(3) or to undertake a rehabilitation program under section 37. The authority must notify the employee in writing of the potential suspension of compensation rights (except medical treatment costs under section 16 of the SRC Act) and of proceedings. If non‑compliance continues, the authority must request reasons, consider whether they constitute a reasonable excuse, and if satisfied there is no reasonable excuse and the refusal prevents effective rehabilitation, must notify the employee that rights are suspended and request the relevant authority to implement the suspension. The suspension is lifted immediately when the employee complies.

The primary duty‑bearer under the instrument is the rehabilitation authority. In the Commonwealth jurisdiction, this is typically the agency or authority that is the relevant employer under the SRC Act, or a person nominated by that employer. However, the SRC Act also allows the relevant employer to be a different entity in some circumstances (for example, when the Australian Government is not the employer). The instrument applies to any rehabilitation authority under the SRC Act, regardless of which Commonwealth or licensed authority it is.

Employees who have made a claim for compensation under the SRC Act and who are covered by Part III are directly affected. They have procedural rights: to request a rehabilitation assessment in writing under subsection 36(1) (which the authority must then arrange - section 8(1)); to be consulted about the rehabilitation program; to receive a copy of the assessment and program; and to be notified in writing of any suspension of compensation rights. The instrument also protects employees by requiring the authority to consider their communication needs and medical condition when providing documents.

Medical practitioners and other health professionals are referenced as sources of advice on the employee’s capability, and as recipients of documents where the employee’s medical condition necessitates it. They are not direct duty‑bearers under the instrument, but the instrument assumes they will cooperate with the authority.

The relevant employer (which may be the same as the rehabilitation authority in many Commonwealth agencies) has obligations under section 40 of the SRC Act to provide suitable employment or assist the employee to find it. The instrument requires the rehabilitation program to include the reasonable steps the employer is taking in this regard (section 9(5)(c)). The employer must also take steps to implement a suspension decision (section 11(3)(b)), which means it must stop paying compensation and halt proceedings.

Workplace rehabilitation providers are subject to oversight by the authority under section 10. They must perform under the contract with the authority, and any concerns about their service delivery must be reported to Comcare. The instrument does not give them rights or obligations directly.

Comcare is the issuer of the instrument and the regulator under the SRC Act. Under section 10, Comcare must receive reports of concerns about provider service delivery. Comcare also has a broader role in approving program providers, but that is not addressed in this instrument.

The Administrative Appeals Tribunal and courts are indirectly affected because the instrument sets procedural requirements that may be judicially reviewed. The note to section 11 references review rights under subsections 38(2) and 62(2) of the SRC Act.

Practically, the instrument affects any Commonwealth public servant or employee of a licensed authority who is injured at work and enters the rehabilitation system. The procedures apply to potentially thousands of workers each year, and the compliance burden falls on HR and rehabilitation case managers within government agencies.

Duty to ensure delegate competence - Under section 7(1), if the rehabilitation authority delegates its Part III powers, it must ensure the delegate has appropriate skills and capabilities and is supported with resources and training. This is an ongoing duty, not a one‑off check. The authority must also monitor the delegate’s exercise of those powers (section 7(2)). Failure to do so could expose the authority to criticism on review if the delegate makes a flawed determination.

Duty to arrange rehabilitation assessment on written request - Section 8(1) requires the authority to arrange an assessment if the employee makes a written request under subsection 36(1) of the SRC Act. This is absolute: the authority cannot refuse to arrange an assessment if the employee asks in writing.

Right to issue determination without assessment - Section 8(2) gives the authority a discretion to issue a determination under subsection 37(1) without undertaking a formal section 36 assessment, provided the authority already has alternate advice (section 8(3)). This is a permissive provision, but the authority should document its reliance on it to avoid review.

Duty to provide copies and advise employee - After receiving a written rehabilitation assessment, the authority must provide a copy to the employee (or to the employee’s medical practitioner if the employee’s condition necessitates it) and to the relevant authority. It must also advise the employee of findings and next steps (section 8(5)). This ensures transparency but creates an administrative cost.

Duty to consult on rehabilitation program - Section 9(3) mandates consultation with the employee regarding the proposed program. The authority must consider the employee’s injury, circumstances, and communication needs (section 9(4)). Consultation is defined as sharing information, providing opportunity to express views, and considering those views - a procedural rather than substantive right.

Right to written program - The employee has the right to receive a written copy of the rehabilitation program and the determination (section 9(6)). This is subject to the same medical‑practitioner gateway if the employee’s condition necessitates it.

Duty to monitor progress - The authority must monitor the employee’s rehabilitation program (if provided) or the employee’s capability to undertake a program (if not provided). Monitoring includes seeking information on work capacity, injury, and availability of suitable employment (section 9(8)). This is ongoing and open‑ended.

Right to program alteration - The authority may consider providing or altering a program if there are changes in work capacity, injury, circumstances, or suitable employment availability (section 9(9)). This is a permissive power, not a duty.

Right to suspend compensation for non‑compliance - Section 11 provides a structured mechanism for suspension. The employee has the right to be notified in writing before any suspension, to provide reasons for refusal or failure, and to have those reasons considered. The suspension lasts only until the employee attends the next available appointment (for an examination) or commences the specified activity (for a program). Once the employee complies, the suspension must be lifted immediately. The employee also retains the right to medical treatment compensation under section 16 of the SRC Act during suspension - this is expressly preserved (section 11(1)).

Right to review - The notes to sections 8, 9, and 11 reference review rights under section 38(2) (review of rehabilitation determinations) and section 62(2) (review of other determinations) of the SRC Act. The instrument does not create its own review mechanism, but its procedural requirements are relevant to the merits of any review.

The instrument does not itself impose monetary penalties. Enforcement is indirect, through the suspension of compensation rights under section 11 of the instrument and through the review and appeal provisions of the SRC Act. The coercive power is significant: an employee who refuses without reasonable excuse to undergo an examination or undertake a rehabilitation program can lose all compensation other than medical treatment costs (section 16 of the SRC Act) and cannot institute or continue proceedings under the Act. This is a powerful lever because most injured employees rely on weekly incapacity payments to replace lost wages. The suspension can be lifted only by compliance.

The process for suspension is set out in section 11. It requires the authority to:

1. Give a written warning that rights may be suspended (subsection 11(1)). This warning must be given when the authority requires the employee to undergo an examination or undertake a program.
2. After the refusal or failure, request reasons from the employee and consider whether they constitute a reasonable excuse (subsection 11(2)).
3. If satisfied there is no reasonable excuse and the refusal prevents effective rehabilitation, notify the employee in writing that rights are suspended until compliance occurs (subsection 11(3)(a)).
4. Request the relevant authority to implement the suspension (subsection 11(3)(b)). This step is separate - the instrument does not directly authorise the relevant authority to stop payments; it requires the rehabilitation authority to make a request, and the relevant authority presumably has legal authority to act on that request under other provisions of the SRC Act.
5. Once the employee complies, immediately notify the employee in writing and request the relevant authority to recommence compensation and reinstate proceedings (subsection 11(4)).

The instrument does not set a maximum period for suspension. It continues until compliance. This could create perverse incentives: an employee with a genuine dispute about the reasonableness of the rehabilitation program might feel compelled to comply to avoid losing income, even if the program is unsuitable. The only safeguard is the requirement to consider a “reasonable excuse”. The instrument does not define “reasonable excuse”, leaving it to the authority’s discretion and ultimately to the AAT or court on review.

For the rehabilitation authority, failing to follow the procedural steps in section 11 could render a suspension invalid. If the authority skips the warning or fails to request reasons, the employee could challenge the suspension and potentially recover arrears of compensation. The instrument does not specify consequences for the authority’s non‑compliance, but the SRC Act’s review provisions would likely allow a suspension decision to be set aside for procedural error.

Comcare has an oversight role under section 10: it must be informed of concerns about workplace rehabilitation providers. There is no penalty for failing to inform Comcare, but it may be relevant to Comcare’s regulatory functions under the SRC Act.

The primary interaction is with the Safety, Rehabilitation and Compensation Act 1988 (Cth) itself. The instrument is expressly made under section 41 of that Act and must comply with its parent Act. Part III of the SRC Act (sections 34-51) deals with rehabilitation. The instrument supplements that Part by specifying how rehabilitation authorities must perform functions under sections 36 (rehabilitation assessments), 37 (rehabilitation programs), 38 (review of determinations), 40 (duty of employer to provide suitable employment), and 62 (review of certain decisions). The instrument also references subsection 38(1) (notice of rights) and subsection 61(1) (service of notices) in notes to sections 8, 9, and 11, reminding authorities that the instrument does not limit those requirements.

The instrument does not override any provision of the SRC Act; it adds procedural detail. For example, the SRC Act’s subsection 37(3) lists matters the authority must have regard to when making a rehabilitation determination (e.g., the employee’s age, skills, work experience, and the nature of the injury). Section 9(1) of the instrument requires the authority to have regard to all those matters and to refer to them in the determination. This makes the determination more reviewable because a failure to mention a subsection 37(3) factor would be evidence of non‑compliance.

The instrument also interacts with the Administrative Appeals Tribunal Act 1975 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) indirectly, because decisions under the SRC Act can be reviewed. Failure to comply with the instrument’s procedural requirements could be grounds for setting aside a decision.

The Privacy Act 1988 (Cth) applies to the handling of employee health information. The instrument requires the authority to provide copies of assessments and programs to the employee’s medical practitioner or other health professional “where the employee’s medical condition necessitates the rehabilitation assessment first being released to that person” (sections 8(4)(b) and 9(6)(b)). This implies the employee may not be capable of receiving the information directly. The authority must ensure disclosure to third parties complies with privacy laws. The instrument does not address consent or authorisation, so the authority must rely on other legal bases.

The Work Health and Safety Act 2011 (Cth) imposes duties on employers to ensure, so far as is reasonably practicable, the health and safety of workers. Returning an injured worker to work through rehabilitation can be part of that duty. However, the instrument only addresses the compensation and rehabilitation side, not WHS obligations.

The Fair Work Act 2009 (Cth) may be relevant if a rehabilitation program includes a return to work that involves modifications to duties, hours, or location. An employee’s refusal to participate in a rehabilitation program could affect their employment status, but the instrument does not address employment law consequences.

State and territory workers’ compensation laws are largely displaced by the SRC Act for Commonwealth employees, but some overlap remains for workers who are not purely Commonwealth‑covered.

The instrument was made on 9 July 2019 and commenced on 15 August 2019. It repealed and replaced the Guidelines for Rehabilitation Authorities 2012 in their entirety (Schedule 1). The 2012 Guidelines are not reproduced in the source, so we cannot identify specific changes. However, the transitional provisions (sections 12 and 13) give clues: the new instrument requires that any rehabilitation assessments and programs commenced under the old regime continue as if the new sections 8(4)-(6) and 9(1)-(7) had been met. This suggests the 2019 instrument introduced more prescriptive requirements for providing copies of assessments, advising employees of findings and next steps, and consulting on programs. The 2012 Guidelines may not have had explicit provisions on these points, or may have been less detailed.

The instrument also introduces a specific definition of “consultation” (section 5) that was not present in the 2012 version (or at least not in the text provided). The definition is important because it imposes a procedural standard that the authority must share information, give the employee an opportunity to express views, and consider those views. This likely tightens the obligation compared to the 2012 Guidelines.

The Safety, Rehabilitation and Compensation (Legislative Instruments) Act 2002 may have governed the making of this instrument; it is a legislative instrument registered on the Federal Register of Legislation. There is no indication of subsequent amendments. As of the user‑provided text, the instrument is current (2019). Practitioners should check for any amendments after 2019.

The repeal of the 2012 Guidelines is straightforward; no savings except the transitional provisions. The instrument does not amend any other instruments.

The user‑provided source text does not name any litigation. The instrument itself references review rights under sections 38(2) and 62(2) of the SRC Act, indicating that its decisions are reviewable by the AAT and then by the courts. While no cases are cited, it is reasonable to expect that the instrument’s procedural requirements have been the subject of AAT decisions where employees have challenged rehabilitation determinations or suspensions.

Common areas of challenge likely include: whether a rehabilitation authority gave proper consideration to an employee’s views during consultation; whether a refusal to undergo an examination constituted a “reasonable excuse”; whether the authority properly considered the employee’s medical condition before releasing documents to a medical practitioner; and whether a suspension was validly imposed. The instrument’s requirement that the authority “must consider” the employee’s injury, circumstances, and communication needs (sections 8(6) and 9(4)) provides a basis for review if the authority cannot demonstrate that consideration occurred.

The instrument also requires that a rehabilitation determination refer to the matters in subsection 37(3) of the SRC Act (section 9(2)). If the determination is silent on one factor, a reviewing body could find the authority failed to have regard to it. This makes the instrument a tool for employees and their representatives to force more thorough decision‑making.

There are no reported federal court decisions interpreting this specific instrument because of its limited scope. Most litigation would be at the AAT level and not always reported. Practitioners should search AAT databases for decisions involving the 2019 Guidelines or the earlier 2012 Guidelines to understand interpretative trends.

The note to section 11 preserves the right of review under sections 38(2) and 62(2), meaning an employee can challenge a suspension decision on its merits. The instrument does not affect the standard of review or the powers of the AAT.

No assessment required before mandatory program - Section 8(2) allows the rehabilitation authority to issue a determination under section 37 of the SRC Act without any formal rehabilitation assessment under section 36. The authority can rely on advice from a medical practitioner, a workplace rehabilitation provider, the employer, or even the employee. This means an employee could be directed into a rehabilitation program without a structured, independent assessment of their capability. The only safeguards are that the authority must have some advice and must still comply with the consultation and program content requirements. But a savvy authority could use this to bypass a potentially inconvenient assessment.

Definition of “medical practitioner” is narrow - Section 5 defines “medical practitioner” as a person registered with AHPRA, consistent with the term “legally qualified medical practitioner” in the SRC Act. This excludes many allied health professionals unless they are also registered medical practitioners. However, the instrument separately allows “other health professional” to provide advice, and that term includes AHPRA‑registered professionals (e.g., physiotherapists, psychologists). The distinction matters for section 8(3): the authority may rely on advice from a medical practitioner or other health professional, but the definition of “other health professional” is not entirely co‑extensive with all health providers. A counsellor not registered with AHPRA would not qualify.

Consultation is not consent - The definition of consultation in section 5 requires the authority to share information, provide an opportunity to express views, and consider those views. It does not require agreement. An employee can be consulted, express strong opposition, and still be placed into a rehabilitation program they object to. The authority simply must consider the views; it can reject them. This may not be obvious to an employee who thinks consultation means veto power.

Suspension can extend to proceedings - Section 11(1) says suspension can apply to “institute or continue any proceedings under the Act in relation to compensation”. This is broader than just stopping payments. If an employee has a review application on foot with the AAT, the authority can request suspension of that proceeding. The instrument does not specify what the AAT must do; it says the rehabilitation authority must request the relevant authority to take steps to implement the suspension. This could create a jurisdictional tangle.

Transitional provisions only cover programs that commenced - Section 13 only preserves programs where a determination was made and the program had commenced before commencement. If a determination was made but the program had not yet started, the new instrument applies in full. Authorities that had a backlog of determinations under the 2012 Guidelines had to re‑comply with the 2019 requirements if the program had not started by 15 August 2019.

No definition of “reasonable excuse” - Section 11 uses “reasonable excuse” multiple times but does not define it. This leaves significant discretion to the authority, and inconsistency between agencies is likely. An employee could be suspended in one agency for a reason that would be accepted in another. The only recourse is review, which is costly and time‑consuming.

Copying to medical practitioner can bypass employee - Sections 8(4)(b) and 9(6)(b) allow the authority to provide the assessment or program to the employee’s medical practitioner first if the employee’s medical condition necessitates it. The authority decides when this “necessitates it”. There is no requirement to obtain independent medical opinion. An authority with a paternalistic bent could delay providing documents directly to the employee indefinitely.

No requirement to fund the employee’s chosen provider - Section 10 only addresses use of a workplace rehabilitation provider; it does not give the employee a choice. The authority selects the provider and must monitor performance. An employee who wants a specific private provider has no right under this instrument to demand that provider.

Delegation without qualification - Section 7 requires the delegate to have “appropriate skills and capabilities”. This is vague. An authority could delegate to a junior officer with minimal training and argue the skills were appropriate. The requirement for ongoing support and training is positive, but the instrument does not set minimum standards.

Compliance requires the rehabilitation authority to integrate the instrument’s procedural steps into its case management systems. The following practical steps are necessary:

1. Delegation management - If delegating powers under Part III, the authority must maintain a register of delegates, assess their skills and capabilities before delegating, provide initial and ongoing training, allocate resources, and monitor their performance. A documented training plan and periodic reviews of delegate decisions are advisable.

2. Rehabilitation assessment process - Upon receipt of a written employee request, the authority must arrange an assessment immediately (section 8(1)). If issuing a determination without an assessment, the authority should document the source of advice relied upon (e.g., a medical certificate, a provider report) and why an assessment is not necessary. The authority must keep a copy of any written assessment received and provide a copy to the employee (or their medical practitioner if necessary) and to the relevant authority. The employee must be advised of findings and next steps. The authority should have template letters for this purpose, with fields for the employee’s communication needs.

3. Rehabilitation program development and consultation - Before making a determination under subsection 37(1), the authority must have regard to all matters in subsection 37(3) of the SRC Act and refer to those matters in the determination. The determination should list each factor and briefly state what consideration was given. The authority must consult the employee about the proposed program. This consultation should occur before the determination is finalised. The authority should prepare a consultation record documenting what information was shared, when, how the employee responded, and how those views were considered. The written program must include the case manager details, review dates, and steps for suitable employment. The authority must provide a copy to the employee and the relevant authority. If the employee’s condition prevents direct receipt, the provider must first give the copy to the medical practitioner.

4. Monitoring - The authority must assign a case manager to monitor the employee’s progress. Monitoring should occur at regular intervals and include seeking updated medical information, checking on work capacity, and liaising with the employer about suitable employment availability. If circumstances change (e.g., deterioration in health, new job available), the authority should consider altering the program and re‑consulting the employee.

5. Workplace rehabilitation provider oversight - If the authority engages an approved program provider, it must set up a monitoring system (e.g., regular reports, case conferences). Any concerns about service delivery (delays, poor communication, inappropriate recommendations) must be reported to Comcare. The authority should keep a log of provider performance and evidence of monitoring.

6. Non‑compliance procedure - Before requiring an examination or program, the authority should issue a written notice under section 11(1) warning of potential suspension. The notice should be clear and include the specific requirements. If the employee refuses or fails, the authority must formally request reasons in writing (section 11(2)). Those reasons must be assessed against a “reasonable excuse” standard. If the authority decides there is no reasonable excuse and the refusal prevents effective rehabilitation, it must notify the employee in writing stating the suspension and its duration (until compliance). It must then request the relevant authority to implement the suspension. When the employee complies, immediate notice of lifting must be given. All steps should be documented with dates and copies of correspondence.

7. Record keeping - The authority should retain all assessments, programs, consultation records, monitoring notes, and correspondence with employees, providers, and Comcare. This is essential for defending review applications and demonstrating compliance.

8. Transitional cases - For assessments commenced but not concluded before 15 August 2019, the new requirements apply to the remainder. For programs already started, the monitoring, alteration, and suspension must now follow the 2019 instrument. Authorities should audit their caseload to identify any cases that straddle the commencement date.

9. Coordination with relevant authority - The rehabilitation authority and the relevant authority (often the same agency but sometimes different) must cooperate on copies of documents, monitoring, and implementation of suspension. Clear communication protocols should be established.

10. Staff training - All staff handling Part III functions should be trained on the instrument’s requirements, particularly the consultation definition, the non‑compliance process, and the requirement to consider communication needs. Regular refreshers are advisable as staff turn over.