Personal Injury Commission Act 2020

The Act casts a wide net. Its primary users are:

• Injured persons: workers with claims under the Workplace Injury Management and Workers Compensation Act 1998 and the Workers Compensation Act 1987, persons injured in motor accidents who claim statutory benefits or damages under the Motor Accident Injuries Act 2017 or the Motor Accidents Compensation Act 1999, and police officers or their dependents entitled to benefits under the police officer support scheme.

• Insurers and employers: licensed insurers, self-insurers, the Nominal Insurer, the Nominal Defendant and government employers who must respond to claims, participate in conciliation, produce documents on direction (s 49) and comply with Commission orders.

• Legal representatives and agents: Australian legal practitioners and approved agents (s 48). Insurers appearing in the Workers Compensation Division may only be represented by lawyers if the claimant is also legally represented or leave is granted after a three-limb fairness test (s 48(4)).

• Medical and allied health professionals: medical assessors, merit reviewers and mediators appointed by the President (ss 33, 39). The President must ensure reasonable availability of assessors in regional areas (s 33(7)).

• Public officials: the President, Division Heads, the Independent Review Officer (Schedule 5), registrars and the Rule Committee (which includes nominees from Unions NSW, employer peak bodies, the Bar Association, the Law Society and medical colleges – s 19(3)).

• The District Court: when federal jurisdiction is engaged, the Court becomes the substituted decision-maker and may remit matters back to the Commission with directions (s 26(5)–(7)).

• The State: the Act binds the Crown (s 61) and the Authority (State Insurance Regulatory Authority) has a statutory right of intervention in all proceedings (s 47).

Transitional provisions (Schedule 1) affect anyone who had proceedings on foot in the abolished Workers Compensation Commission, DRS, MAS or CARS on the establishment day (1 March 2021). Those proceedings continue under modified rules that treat the new Commission as the successor body.

Duties

• The Commission and all participants must give effect to the guiding principle in s 42. Parties and their lawyers are under an explicit duty to cooperate, participate in Commission processes and comply with directions (s 42(3)).
• The President must direct business, manage members, develop practice and procedure, appoint and supervise assessors and mediators, and advise the Minister on appointments (s 16). Division Heads direct the business of their Division subject to Presidential oversight (s 17).
• Insurers must respond to information requests (s 49), produce documents, and face potential notification obligations to the Authority if regulations so provide (s 8(6)–(7) of Schedule 5).
• Medical assessors and merit reviewers must act independently of the Commission, the Authority and the parties when making decisions that affect interests (s 36(2)–(3)).
• The Independent Review Officer must investigate complaints, manage ILARS, and report annually (Schedule 5 cll 6, 13).

Rights

• Parties have a right to be represented by a lawyer or agent (subject to the insurer-representation restriction in the Workers Compensation Division) and to reasonable adjustments for communication (s 48).
• Claimants may complain to the Independent Review Officer about insurer conduct (Schedule 5 cl 8).
• Parties may seek internal reconsideration for obvious errors (s 57) and, where enabling legislation permits, appeal medical assessments or merit reviews.
• In federal-jurisdiction cases, parties may apply to the District Court for leave to commence substituted proceedings (s 26).
• Members enjoy the same protection and immunities as a Supreme Court judge (Schedule 2 cl 4); representatives, witnesses and relevant Commission officers receive analogous protections (s 64).
• The Commission may sit outside New South Wales if the President so directs after considering party interests, complexity and cost (s 31(5)–(6)).

The Act creates relatively few direct offences. The principal sanctions are:

• Failure to comply with a direction to produce documents or information or to give a consent or authority (s 49(3)) – 50 penalty units.
• Failure to comply with a summons to appear at a conference or hearing (s 51(3)) – 50 penalty units.
• Contravention by a legal practitioner or medical practitioner of a direction not to disclose material supplied by the Commission (s 50(3)) – 50 penalty units.
• Offences under the enabling legislation (e.g. fraud) continue to apply and may be prosecuted summarily before the Local Court (s 60). Proceedings for Act offences may be brought only by the Minister or a person authorised in writing (s 60(2)).

Enforcement of monetary orders is straightforward: the principal registrar certifies the amount and the certificate operates as a judgment of any court with jurisdiction for a debt of that amount (s 59). Decisions are otherwise enforced through the enabling legislation (e.g. recovery of weekly payments, cessation of benefits for non-compliance) or through contempt proceedings in the District Court when it exercises substituted jurisdiction.

The Independent Review Officer may notify the Authority of insurer contraventions (Schedule 5 cl 8(6)), which may trigger licensing or penalty consequences under the State Insurance and Care Governance Act 2015.

The Act is deliberately parasitic on its enabling legislation. “Enabling legislation” is defined to mean the workers compensation legislation, the motor accidents legislation and Police Act 1990 Part 9B (s 5(1)). Functions exercised “in relation to” enabling legislation include both functions under that legislation and functions under the Act itself (s 5(2)). Division Schedules prevail over the Act in case of inconsistency (s 13(2)).

The Interpretation Act 1987 applies to the Commission rules as if they were rules of court (s 20 note). The Government Sector Employment Act 2013 governs staff but not members or the Independent Review Officer (ss 22, Schedule 5 cl 5, Schedule 2 cl 16).

The federal-jurisdiction provisions (ss 25–30) expressly prevail over any inconsistent provision of the Act or enabling legislation (s 30(1)) and override limitation periods in the Limitation Act 1969 provided the original application was lodged in time (s 27(2)). They also modify preconditions to court proceedings that would otherwise bar commencement (s 29).

The Act interacts with the Electronic Transactions Act 2000 by authorising use of the NSW electronic case management system (s 20(3)). It preserves the Supreme Court’s jurisdiction to review for jurisdictional error (s 56(3)) while purporting to oust other forms of appeal or review (s 56(2)).

Amendments to the enabling Acts (e.g. 2024 No 60 inserting police-scheme provisions) are reflected in the definitions and objects of the Act, ensuring seamless operation across the three schemes.

The most significant recent change is the addition of the Police Officer Support Scheme Division by the Personal Injury Commission Amendment Act 2024 (No 60). That Act inserted s 5(1) definitions for the Police Officer Support Scheme Division and enabling legislation, amended the objects clause (s 3), added Schedule 3A, and made consequential changes to ss 12, 13, 19, 25, 33, 56, 58 and 66. The change brings disputes about “disputed decisions” under Police Act 1990 Part 9B into the Commission’s jurisdiction, aligning police injury support with the existing workers-compensation and motor-accidents pathways. The stated policy reason was to reduce fragmentation, achieve economies of scale in tribunal administration and ensure consistent decision-making for public-sector first responders.

Other amendments have been more technical: updates to cross-references after repeal of spent provisions (2023 No 7), insertion of s 43A (tutors for persons under legal incapacity) in 2025, and refinements to publication and non-publication orders (s 58A and the new s 69 review obligation inserted by 2026 No 1). These changes respond to operational experience: the need for clearer federal-jurisdiction routing, better protection for vulnerable claimants, and improved transparency around suppression orders.

The 2024 expansion also required updating the Rule Committee composition to include a nominee of the Commissioner of Police (s 19(3)(c1)) and extending medical-assessor appointments (s 33(1)(b1)). The cumulative effect is that the Commission is no longer a workers-and-motor-accidents-only body; it is now the unified dispute-resolution gateway for all three no-fault and fault-based compensation schemes administered by the State Insurance Regulatory Authority and the NSW Police Force.

Because the Act is largely procedural, most litigation has concerned the limits of the Commission’s jurisdiction and the interaction with federal jurisdiction. The leading controversy remains the constitutional validity of the Commission’s power to determine matters that, but for the District Court gateway in ss 26–30, would engage Ch III of the Commonwealth Constitution. The substituted-proceedings regime was drafted precisely to avoid the constitutional difficulties identified in Burns v Corbett (2018) 265 CLR 304 and subsequent decisions concerning State tribunals exercising federal jurisdiction. No reported challenge has yet invalidated the gateway, but practitioners continue to test its boundaries, particularly the leave test in s 26(3) and the breadth of “compensation claim” in s 25 (now expanded to include police-scheme claims).

Another live issue is the scope of “obvious error” reconsideration under s 57. Presidential decisions altering certificates for clerical mistakes, accidental slips or inconsistencies between reasons and orders have been challenged on the basis that the power is being used to re-agitate substantive merits. The Commission has emphasised that the power is narrow (examples in s 57(6)), but the distinction between “obvious” and “arguable” error remains fertile ground for judicial review.

Controversy also surrounds the insurer-representation restriction in s 48(3)–(5). Insurers argue that the three-limb leave test creates unfairness when complex legal or medical issues arise; claimants counter that the provision prevents inequality of arms in a jurisdiction intended to be informal. The Commission’s published procedural directions attempt to balance these tensions, but the provision continues to generate interlocutory disputes.

Finally, the non-publication powers in s 58A (inserted 2026) have attracted attention from media and civil-liberties groups concerned that overly broad suppression orders could shield systemic insurer misconduct from public scrutiny. The mandatory review of s 58’s operation in workers-compensation matters (new s 69) is a direct legislative response to these concerns.

Most practitioners miss three subtle but high-impact features. First, the Act’s definition of “federal jurisdiction” (s 25) and the substituted-proceedings regime operate before any hearing on the merits; a party can force the matter into the District Court simply by satisfying the three preconditions in s 26(3). Because the District Court then exercises all the Commission’s powers (including adopting medical assessments under s 27(4)), early identification of a Commonwealth-party or diversity-of-citizenship element is critical. Failure to apply for leave in time can leave a claimant without a remedy if the Commission’s decision is later found to be a nullity.

Second, the prevailing effect of Division Schedules (s 13(2)) means that a provision in Schedule 3, 3A or 4 can displace a seemingly clear rule in the body of the Act. For example, the constitution requirements for costs appeals in the Workers Compensation Division (Schedule 3 cl 5(3)) require a presidential member even though s 31(1) would otherwise permit a single non-presidential member. Similarly, the Police Officer Support Scheme Division’s conciliation obligation (Schedule 3A cl 5) mirrors the workers-compensation rule but applies to a different class of “disputed decisions”.

Third, the ILARS guidelines issued by the Independent Review Officer under Schedule 5 cl 10 are legislative instruments subject to disallowance (cl 11). Many solicitors assume they are mere policy; in fact they control approval as an ILARS-funded practitioner, the hourly rates payable and the categories of disbursements. A practitioner who incurs costs outside the guidelines risks non-payment even after successful resolution of the underlying claim. The guidelines are amended more frequently than the Act itself; practitioners must monitor the NSW legislation website rather than relying on outdated precedent.

Another trap is the interaction between s 57 reconsideration and appeal rights under the enabling legislation. A party who seeks reconsideration for “obvious error” may inadvertently extend time or create an issue estoppel that complicates a later statutory appeal. The Commission’s power to issue replacement certificates (s 57(3)) can also affect the finality of medical-assessment certificates relied on in damages proceedings.

Finally, the protection-and-immunity provisions (s 64 and Schedule 2 cl 4) do not extend to conduct outside the exercise of statutory functions. A medical assessor who provides an expert report in separate Supreme Court proceedings loses the statutory shield for that report even if the same injury is in issue.

Compliance begins with triage. On receipt of any new claim or dispute, classify it by enabling legislation and Division, then check whether federal jurisdiction is engaged. If a Commonwealth entity or out-of-State party is involved, prepare the s 26 leave application concurrently with the Commission application so that time limits are preserved.

File all documents through the Commission’s electronic case management system in the form and within the time prescribed by the Commission rules and the relevant Division Schedule. Serve the Authority in every matter (s 47) and be ready to justify any refusal to provide information or documents when directed under s 49; the exclusionary rule in s 49(4) is absolute absent reasonable excuse.

When appearing in the Workers Compensation Division, assume leave will be required for insurer legal representation unless the claimant is also legally represented. Prepare evidence and submissions on the three statutory criteria in s 48(4). In all Divisions, comply with the duty to cooperate (s 42(3)) by exchanging material early, attending conciliation with realistic settlement authority, and avoiding interlocutory skirmishes that do not advance the real issues.

If a medical assessment or merit review is adverse, consider whether an obvious error exists on the face of the certificate before launching a full appeal; the President’s reconsideration power under s 57 is faster and narrower. Monitor ILARS guidelines if funded by the Independent Review Officer; maintain accurate time records and obtain prior approval for unusual disbursements.

For insurers and self-insurers, implement internal complaint-resolution processes that feed into the Independent Review Officer’s jurisdiction (Schedule 5 cl 6(c)) and respond to information requests within the time specified; persistent non-compliance risks licence conditions or notification to the Authority.

Finally, maintain a watching brief on Presidential procedural directions and Commission rules. Because the Act expressly contemplates different rules for each Division and class of matter (s 20(4)), a practice that is acceptable in the Motor Accidents Division may be prohibited in the Workers Compensation Division. Annual review of the President’s annual report (s 66) provides an early warning of emerging compliance hotspots.

By treating the Act as the procedural constitution for three separate compensation schemes rather than a self-contained code, practitioners who map every step against the relevant Division Schedule, the guiding principle in s 42 and the federal-jurisdiction gateway will avoid the most expensive gotchas and discharge their statutory duty to facilitate the just, quick and cost-effective resolution of the real issues.