Workers Compensation Regulation 2002

Evidence-based methodology is the cornerstone of medical assessments under the Regulation. Section 8 defines it as the application by a doctor of the doctor’s clinical expertise, any relevant approved medical guidelines or clinically relevant research, to identify aetiology, diagnose the injury, give a prognosis and make treatment recommendations. Section 9 requires every doctor performing a medical assessment of an injured worker to use this methodology and to record those four matters. For a later medical assessment (other than an initial or second assessment, or the first assessment by a new nominated treating doctor), the doctor need only record a matter if the doctor considers it has changed (section 9(3)). Approved medical guidelines are guidelines approved by the Minister under section 5, which may cover diagnosis, prognosis, treatment or assessment of permanent injury under Part 4.4 of the Act. Clinically relevant research is research recognised as clinically relevant by a specialist medical college or approved by the Minister under section 7 (section 6). Medical specialists are doctors with specialist qualifications recognised by the relevant Australian specialist medical college and who practise within the specialty (Dictionary). Medical referees are appointed to review medical evidence during conciliation or arbitration; they must review the evidence, any relevant guidelines or research, apply their clinical expertise and assess the worker unless they consider it unnecessary (section 14). Conciliation is a dispute resolution process under Part 6 where a conciliator helps injured workers and employers reach agreement on matters in issue arising from a claim (section 37). Conciliation must precede arbitration only if the parties agree and a conciliator is available, except where the matter is an insurer’s rejection of a claim (section 38). Arbitration is conducted either by a representative committee or by the Magistrates Court, under Part 7, and the Commercial Arbitration Act 2017 does not apply (section 49). Licensed insurers and licensed self-insurers are entities licensed under the Act to provide workers compensation insurance or to self-insure. The Regulation imposes conditions on their licences, including requirements for reinsurance, record-keeping, provision of information to the regulator, and compliance with audits. Total wages are worked out in accordance with the ACT Wages and Earnings Guide (section 8A). Diseases related to employment are those listed in Schedule 1, which links specific diseases (such as mesothelioma, noise-induced hearing loss, occupational asthma) to particular kinds of employment (for example, exposure to asbestos, persistent noise above 85dB(A), or sensitising agents). Reviewable decisions are listed in Schedule 3, Part 3.1, and include decisions by the regulator to refuse or cancel licences, to impose conditions, to determine recovery amounts, and to take regulatory action. Certain decisions in Part 3.2 are declared internally reviewable.

The Regulation directly affects every participant in the ACT workers compensation system. Injured workers are affected by the medical assessment requirements (section 9), by their ability to request a medical specialist assessment (section 10(2)(a)), by the conciliation and arbitration processes (Parts 6 and 7), and by the requirement that a doctor’s medical certificate must comply with the Regulation (see Act, section 118(2)). Workers must also receive notices from insurers about court applications to end weekly compensation (section 99). Employers are affected by the compulsory insurance policy requirements (Part 8), including the duty to provide information to the insurer (sections 62 and 62A) and the consequences of under-reporting wages (section 66). Employers must comply with the Act’s injury management process (section 65). Employers who wish to self-insure must apply for a self-insurer licence (section 84A) and comply with ongoing conditions (sections 85-91). Insurers (licensed insurers) are heavily regulated: they must meet licensing criteria (sections 68 and 69), maintain reinsurance (section 71), keep records for at least 5 years (section 77), provide information to the regulator (sections 72, 74, 76), comply with premium-setting principles (section 75), pay for conciliations (section 45), and face possible suspension or cancellation of their licence (sections 80-82). Self-insurers bear similar obligations, including unlimited reinsurance for a single event (section 85), a bank guarantee of at least $1 million plus a 50% prudential margin (section 84A(4)), an occupational health and safety management system (section 91), and record-keeping (section 87). Doctors, particularly nominated treating doctors and medical specialists, must perform assessments using evidence-based methodology (section 9) and must record the required matters. Medical specialists must provide reports when requested (section 11). Medical referees must review medical evidence and prepare reports for conciliations and arbitrations (sections 14 and 15). Rehabilitation providers require approval by the Minister for up to 3 years (section 16) and must be appointed or replaced if their approval is suspended or revoked (sections 78 and 88). Conciliators appointed by the Minister (section 36) facilitate settlement of disputes. The Magistrates Court arbitrates matters when no committee exists, a party objects, or a committee refers a matter (section 51). The regulator (defined in the Act but referred to throughout) issues licences, conducts audits, and takes enforcement action. The Minister approves medical guidelines, clinically relevant research, protocols, and rehabilitation provider approvals. The DI fund manager receives notices and pays compensation from the fund. The Work Health and Safety Council may give advice on the appointment of medical referees and conciliators (sections 13 and 36(3)). Finally, any person applying for a licence or approval (insurer, self-insurer, rehabilitation provider) is directly affected by the application requirements and criteria.

The Regulation imposes numerous duties and confers corresponding rights. Doctors have a duty to use evidence-based methodology when assessing an injured worker and to record aetiology, diagnosis, prognosis and recommended treatment (section 9(1) and (2)). For later medical assessments, the duty to record is limited to changes (section 9(3)). Medical specialists must prepare a report when requested under section 10; if their assessment differs from existing medical evidence, the report must state how and why, and why the specialist’s assessment is preferable (section 11(2)). Medical referees must review medical evidence, apply clinical expertise, and assess the worker unless unnecessary (section 14). Their report must state results and explain any differences from the medical evidence (section 15). Parties to a conciliation must attend (section 41) and make a genuine effort to reach an agreement that allows injury management to continue (section 42). Each party must give written details of matters in issue at least 7 days before conciliation (section 40). The conciliator may decide a matter is not suitable for conciliation (section 44(1)) and may make a recommendation if matters remain unresolved (section 44(3)). Evidence and things said during conciliation are inadmissible in arbitration, except a conciliator’s recommendation (section 44(4) and (5)). Insurers must meet all costs and disbursements of conciliation (section 45). They must indemnify the employer under the compulsory insurance policy (section 60) and notify the employer of renewal at least 30 days before expiry (section 61). The insurer must inform the employer of its obligations under specified sections of the Act (section 62). The policy must include a statement that cancellation can only occur in accordance with an approved protocol (section 64). If the employer under-reports wages by 10% or more, the employer must pay the insurer double the difference in premium (section 66). Licensed insurers have conditions including maintaining reinsurance (section 71), giving information to the regulator on request (section 72), paying audit costs (section 73), and keeping records for 5 years (section 77). They must also arrange another rehabilitation provider if the current provider’s approval is suspended or revoked (section 78). Self-insurers have similar conditions: unlimited reinsurance (section 85), information provision (section 86), records for 5 years (section 87), replacement of rehabilitation providers (section 88), audit compliance (section 89), maintenance of a bank guarantee (section 90), and an occupational health and safety management system (section 91). Workers have the right to request a medical specialist assessment (section 10(2)(a)) and to attend conciliation with a representative (section 41). An insurer intending to apply to the Magistrates Court to end weekly compensation under Act section 132 must give the worker notice (section 99(2)); failure to do so is a strict liability offence (section 99(4)). The court must not grant leave to end payments less than 8 weeks after the notice (section 99(5)).

The Regulation creates specific offences and enforcement mechanisms. Section 99 deals with court-approved termination of weekly compensation. If an insurer intends to apply to the Magistrates Court for leave to end payments under Act section 132, the insurer must give the worker notice and provide a copy to the DI fund manager as soon as practicable. Contravention attracts a maximum penalty of 5 penalty units (section 99(3)). At the republication date, a penalty unit is $160 for an individual and $810 for a corporation (see Legislation Act 2001, section 133). The offence is one of strict liability (section 99(4)), meaning no fault element needs to be proved; the defence of reasonable mistake of fact would still be available under the Criminal Code. Part 9, Division 9.3 sets out enforcement against licensed insurers. If an insurer contravenes the Act, is unable to meet liabilities, lacks unlimited reinsurance, or fails to comply with a licence condition, the regulator may, after giving notice and considering representations, impose a financial penalty of up to $1,000, impose a condition, censure the insurer, order remedial action, or suspend the licence (section 80(2)). A suspended licence means the insurer is taken not to be a licensed insurer and is disqualified from applying for a licence during the suspension (section 82(3)). The regulator may also cancel the licence if the matter continues or recurs, or if immediate action is required because of a serious circumstance such as failure to establish an injury management program or a personal injury plan (section 81(1)(b)(ii) and (3)). Cancellation generally does not affect existing compulsory insurance policies unless the reason for cancellation is the winding-up of the insurer; in that case policies cease to be compulsory 7 days after cancellation takes effect (section 83). Part 10, Division 10.3 contains parallel provisions for self-insurers, with the same maximum financial penalty of $1,000 (section 93(2)(a)(i)), and powers to impose conditions, censure, order remedial action, suspend or cancel the licence (sections 93 and 94). The regulator must give written notice of the proposed action with at least 14 days for representations (section 92). A suspension or cancellation cannot take effect earlier than 7 days after the licensee is told (sections 82(2) and 95(2)). Part 10A provides for compliance audits (section 95A) and financial audits (section 95B). If a licensee fails to comply with audit requirements, the regulator can use the enforcement powers in Parts 9 and 10. The regulator may appoint auditors for up to 3 years (section 95C). The Criminal Code applies to all offences against the Regulation (section 2), importing principles of criminal responsibility, burdens of proof and general defences. The maximum penalty for an offence is expressed in penalty units, which are converted to dollar amounts under the Legislation Act 2001.

The Regulation is made under and operates as a subordinate instrument to the Workers Compensation Act 1951. Every provision in the Regulation is expressed to be for the purposes of a specific provision of the Act, and the Dictionary notes that terms used in the Regulation have the same meaning as in the Act. For example, section 4A prescribes contracts for the purposes of Act section 11(2)(c) (regular contractors and casuals). Section 8A prescribes the ACT Wages and Earnings Guide for working out total wages under Act section 7A. Section 96 prescribes diseases related to employment for Act section 28. Schedule 3 prescribes reviewable decisions for Act sections 199, 199A and 199B. The Criminal Code 2002 (ACT) applies to offences against the Regulation by virtue of section 2, meaning the general principles of criminal responsibility, including defences such as mistake of fact, apply. The Legislation Act 2001 governs the making, interpretation and republication of the Regulation, including the status of notes (section 4), the application of definitions (Dictionary notes), and the effect of editorial changes. The Commercial Arbitration Act 2017 is expressly excluded from applying to arbitrations under the Regulation (section 49). Instead, arbitration is governed by the Act, the Regulation, and the procedural rules of the Magistrates Court or the relevant committee. The Work Health and Safety Act 2011 is relevant because a self-insurer must maintain an occupational health and safety management system that complies with relevant Australian/New Zealand Standards (section 91), and the Work Health and Safety Council may advise on appointments of medical referees and conciliators. The LTCS Act (Lifetime Care and Support (Catastrophic Injuries) Act) is referenced in section 75(3) regarding the exclusion of treatment, care and support costs of LTCS participants from claims liabilities for premium calculation purposes. The Insurance Act 1973 (Cth) is relevant because an applicant for an insurer licence must include evidence of authorisation under that Act (section 68(1)(a)). The Road Transport (Public Passenger Services) Act 2001 is referenced in section 4A to define terms like bookable vehicle driver and transport booking service for the prescribed contracts. Schedule 1 (Diseases related to employment) is derived from the publication Deemed Diseases in Australia published by Safe Work Australia in August 2015. The Guide,Nationally Consistent Approval Framework for Workplace Rehabilitation Providers is incorporated by reference in section 17. The Minister may approve protocols under sections 47, 100 and 101, which are notifiable instruments under the Legislation Act and may incorporate other instruments. These interactions are explicit and ensure the Regulation is read together with the primary Act and other legislation in the ACT legal framework.

The Regulation was originally made as SL2002-20 and notified on 28 June 2002, with the substantive provisions commencing on 1 July 2002. It has been amended extensively. Notable amendments include the Workers Compensation Amendment Regulation 2002 (No 1) (SL2002-29) which substituted section 7 and made other changes. The Workers Compensation Amendment Act 2003 (No 2) (A2003-49) inserted a new section 2 regarding application of the Criminal Code. The Health Professionals Legislation Amendment Act 2004 (A2004-39) amended section 22 (since omitted). The Workers Compensation Amendment Act 2006 (A2006-4) made numerous changes, including inserting section 62A (required information from employer in policy) and amending sections 5, 13 and others. The Work Health and Safety (Consequential Amendments) Act 2011 (A2011-55) updated references from work safety to work health and safety. The Workers Compensation Amendment Act 2016 (No 2) (A2016-27) inserted section 8B (doctor that may provide medical certificate for imminently fatal asbestos-related disease) and amended sections 9, 10 and Schedule 1. The Workers Compensation Amendment Regulation 2021 (No 1) (SL2021-29) rewrote Parts 9 and 10 substantially, replacing the previous licensing provisions with new conditions and enforcement mechanisms. The Workers Compensation Amendment Regulation 2022 (No 1) (SL2022-4) further refined the licensing framework, adding new sections 84A (application for self-insurer licence), 84B (criteria for issuing self-insurer licence), and omitting many former provisions. The Statute Law Amendment Act 2025 (A2025-29) made editorial amendments to sections 5, 7, 47, 80, 81, 93, 94, 95A, 95B, 100, 101 and Schedule 3, effective 26 November 2025. The amendment history in endnote 4 shows that from 2002 to 2025, the Regulation has evolved from a relatively simple instrument into a comprehensive code covering medical assessments, dispute resolution, insurance and self-insurance licensing, audits and reviewable decisions. Many earlier parts, such as the detailed provisions on rehabilitation providers (former Division 5.3 and 5.4) and transitional provisions (former Part 12 and Part 13), have been omitted or expired. The current version reflects the latest policy settings for the ACT workers compensation scheme as at 26 November 2025.

The Regulation itself does not cite or refer to any specific court cases or litigation. It is a subordinate instrument and does not purport to document judicial interpretations. However, the Regulation creates rights and obligations that are enforceable through the disputes resolution mechanisms it establishes. Part 7 provides for arbitration of matters in issue arising from a claim, including an insurer’s rejection of a claim (section 48). Arbitration may be conducted by a representative committee or by the Magistrates Court. The Magistrates Court has the same powers to require attendance of witnesses and production of documents as in an action (section 53). The court must act according to equity, good conscience and the substantial merits without regard to technicalities (section 56(5)). Costs are awarded to the successful party at two-thirds of the Supreme Court scale unless the court orders otherwise (section 57). A worker who is paid compensation on arbitration may have a lawyer’s costs awarded only by the court or committee (section 58). Decisions made under the Regulation that are listed in Schedule 3, Part 3.1 are reviewable decisions. Those decisions include refusal to issue an insurer licence (item 2), inclusion of conditions on licences (items 3-5, 7-9), refusal to approve rehabilitation providers (item 13), and regulatory action against licensees (items 15-18). Section 98B declares certain decisions (determinations of recovery amounts under Act sections 149(4) and 162A(3)) to be internally reviewable. An affected person may seek internal review followed by external review, potentially in the ACT Civil and Administrative Tribunal or the Supreme Court, depending on the applicable legislation. The Regulation also sets out procedural steps that, if not followed, could give rise to judicial review on administrative law grounds, such as failure to give adequate notice of proposed action (sections 79 and 92) or failure to give a reviewable decision notice (sections 80(3) and 93(3)). While the Regulation does not name any litigated cases, its provisions on conciliation and arbitration evidence an intention to keep disputes out of the formal court system where possible, with the Magistrates Court acting as a fallback. The exclusion of the Commercial Arbitration Act 2017 (section 49) confirms that arbitrations under the Regulation are a distinct, statutory process.

Practitioners should watch for several traps in the Regulation. Notice periods for medical specialist assessments: Section 10(3) requires at least 2 weeks written notice before the assessment unless the parties agree to a shorter period. The notice must contain reasons, the choice of specialist, and the matters to be assessed (section 10(5)). Additionally, all medical evidence must be given to the specialist at least 2 working days before the assessment (section 10(6)). Missing these deadlines could delay the assessment. Evidence-based methodology is mandatory: Section 9(1) requires every doctor performing a medical assessment to use evidence-based methodology. If a medical certificate does not refer to relevant approved medical guidelines or clinically relevant research, the insurer may notify the worker of the deficiency, and the claim is not considered made until the deficiency is fixed (see Act, section 119). The patient’s doctor must record aetiology, diagnosis, prognosis and recommended treatment. For initial and second assessments, all four matters must be recorded. For later assessments, only changes need be recorded. Strict liability offence for insurer: Section 99 makes it a strict liability offence punishable by up to 5 penalty units for an insurer to fail to give a worker notice of an intention to apply to the Magistrates Court to end weekly compensation. The notice must be given before the application, and a copy must go to the DI fund manager. The court cannot grant leave until at least 8 weeks after the notice (section 99(5)). Under-reporting of wages by 10% or more: Section 66 of the Regulation (mirroring Act provisions) requires the compulsory insurance policy to provide that if the employer under-reports actual wages by 10% or more, the employer must pay the insurer double the difference in premium. This is a contractual penalty, not a criminal fine, but it can be substantial. Conciliation is voluntary for most disputes: Under section 38(1), conciliation must precede arbitration only if the worker and employer agree to participate. If they do not agree, the matter can proceed directly to arbitration. However, for an insurer’s rejection of a claim, conciliation is not required at all (section 38(2)). Parties should not assume conciliation is always a compulsory step. Record-keeping for 5 years: Licensed insurers and self-insurers must keep records about their policies, processes and decisions for at least 5 years after the day the record is made (sections 77 and 87). The records must be kept in accordance with any protocol. Failure to maintain records could be a breach of a licence condition, leading to regulatory action. Rehabilitation provider approval only 3 years: Section 16(2) provides that the Minister may approve a rehabilitation provider for not longer than 3 years. A provider must reapply; there is no automatic renewal. If an approval is suspended or revoked, the insurer or self-insurer must arrange another provider (sections 78 and 88). Self-insurer bank guarantee: Section 84A(1)(f) requires a bank guarantee from an authorised deposit-taking institution in favour of the DI fund for an amount at least equal to the greater of $1 million or an actuarial estimate of outstanding claims liability plus a 50% prudential margin (section 84A(4)). This is a significant financial commitment. Proposed action notices require 14 days: Before imposing a financial penalty, condition, censure, suspension or cancellation, the regulator must give written notice stating the proposed action, grounds, and an invitation to make representations within a period of not less than 14 days (sections 79 and 92). The regulator must consider any representations before deciding. The action must not take effect earlier than 7 days after the licensee is told (sections 82(2) and 95(2)). Licensees should use this window to respond.

Compliance strategies differ by stakeholder. Employers must ensure they have a compulsory insurance policy that contains all the provisions required by Part 8, particularly the indemnity clause (section 60), the renewal notice obligation (section 61), the obligation information clause (section 62), and the wage information clause (section 62A). Employers must provide accurate wage information to the insurer; a 10% error can trigger a double premium penalty (section 66). Employers must comply with the Act’s injury management process (section 65) and must notify the insurer promptly of injuries. If the employer wishes to self-insure, it must apply for a licence under section 84A, which requires audited financial statements, an actuarial report, unlimited reinsurance, a bank guarantee of at least $1 million plus 50% of claims liability, and an occupational health and safety management system. Doctors must use evidence-based methodology for every medical assessment (section 9). They should obtain and apply the current approved medical guidelines and clinically relevant research relevant to the injury. The doctor must record aetiology, diagnosis, prognosis and recommended treatment. For an initial or second assessment, all four must be recorded. For later assessments, only changes need be noted. The doctor should be aware that if a medical certificate is deficient, the insurer may notify the worker, who must then remedy the deficiency. Medical specialists must provide a report when requested under section 10. The report must state how and why their assessment differs from existing medical evidence, or if there is no difference, state that (section 11). The specialist must give the report to the requesting person within a reasonable time; the requesting person must then give copies within 5 working days (section 11(4)). Licensed insurers must maintain reinsurance (section 71), keep records for 5 years (section 77), and provide information to the regulator on request (sections 72, 74, 76). They must comply with the premium-setting principles in section 75, which require sufficient but not excessive income to fund liabilities, minimise cross-subsidisation, and follow actuarial advice. Insurers must also pay for conciliations (section 45) and, if a worker’s rehabilitation provider has their approval suspended or revoked, must arrange a replacement (section 78). Self-insurers must similarly maintain unlimited reinsurance (section 85), provide information to the regulator (section 86), keep records for 5 years (section 87), and maintain a bank guarantee (section 90) and an occupational health and safety management system (section 91). All licensees must cooperate with compliance and financial audits under Part 10A, including giving access to information and paying reasonable fees (sections 73, 89). Conciliators must follow the protocol approved under section 47 and must encourage agreements that allow injury management to continue (section 37). Parties to conciliation must prepare a written details document at least 7 days before conciliation (section 40) and must attend and make a genuine effort to agree (sections 41, 42). Anyone affected by a reviewable decision listed in Schedule 3 should seek internal review (if applicable under Part 3.2) and then external review. The regulator’s notice must comply with Act section 199A. Finally, all persons subject to the Regulation should monitor the ACT legislation register for amendments to approved medical guidelines, clinically relevant research approvals, and protocols made under sections 47, 100 and 101, as these instruments have legal force and may change from time to time.