Commonwealth Employees' Compensation Tribunal [1981] AdminRC 13

	Home \| Databases \| WorldLII \| Search \| Feedback Administrative Review Council Reports

1. The Council has adopted a project on Commonwealth administrative tribunals. The objects of that project are to identify all such tribunals, to consider the appropriateness of a draft Code of Procedures which the Attorney-General has forwarded to the Council, and to consider the matters dealt with in s.51 of the Administrative Appeals Tribunal Act 1975 ('AAT Act') in relation to particular tribunals.

2. The Council is first concentrating on review tribunals and has now completed its study of the Commonwealth Employees' Compensation Tribunal ('Tribunal' or 'CECT') established under s.64 of the Compensation (Commonwealth Government Employees) Act 1971 ('Act').

3. Apart from the matters mentioned in paragraph one, the following particular points were identified as requiring consideration:

4. The Secretariat of the Council sought the views of the Tribunal, the Public Service Board, the Commissioner for Employees' Compensation, Council of Australian Government Employee Organisations (CAGED), the Law Council of Australia and Law Societies and Bar Associations on the points in paragraph 3. Their responses have been taken into consideration by the Council in the preparation of this Report.

BACKGROUND

5. The Compensation (Commonwealth Government Employees) Act 1971 identifies in ss.7 and 7A the persons to whom the Act applies. Included are not only all persons employed by Commonwealth Government departments and prescribed authorities, (whether they are employed under a law of the Commonwealth or of a Territory of the Commonwealth or under a contract of service or apprenticeship) but also members of the Defence Force, Federal Police, holders of statutory offices and persons who constitute, or are members of, authorities established by the Commonwealth Government. The Act may also extend, by prescription, to other classes of persons, for example, voluntary workers. The number of persons covered is therefore much greater than the number of persons employed solely under the Public Service Act 1922; on an average monthly basis, about 515 000 persons. There were 31 350 accidents or diseases in respect of which determinations were made (and in pursuance of which payments were made) during the period 1 July 1979 to 30 June 1980. The total amount of compensation paid under the Act during the period was $50 206 895. In 1978-79 the figure was $41 215 045.

6. The Act provides that the Commonwealth is liable to pay compensation in the following circumstances:

Part IV Incorporation of Commonwealth Employees' Compensation Tribunal into the Administrative Appeals Tribunal

PART II‑PRIMARY DECISION MAKING

8. This Part explains the existing Commonwealth employees compensation system. It describes both the office of the Commissioner for Employees' Compensation, who is the primary decision maker in the compensation system, and the existing rights of employees (claimants) to have the initial decision reconsidered by the Commissioner and, if necessary, reviewed by the Commonwealth Employees' Compensation Tribunal or a prescribed Court.

9. Section 20 of the Act provides that the Commissioner for Employees' Compensation is to determine all matters and questions arising under the Act and is empowered to do all things necessary for the carrying out of that function. The decisions of the Commissioner and his delegates (of whom there are about 700 throughout Commonwealth departments and authorities) are therefore the primary decisions in compensation cases. Delegates can determine an employee's claim within the limit of their delegated powers. Under existing delegations a claim for compensation cannot be disallowed by any person other than the Commissioner or a delegate on his staff in Canberra. Decisions may be reconsidered of the Commissioner's own motion (whether or not a reference has been sought to the Compensation Tribunal or a prescribed Court, see below paragraphs 25 et seq.); he is to be guided by equity, good conscience and the substantial merits of the case without regard to technicalities; he is not required to hold a formal or oral hearing and is not bound by the rules of evidence, but is required to give any person who will be directly affected by the determination a fair opportunity of presenting his case. The Commissioner is to reconsider his decision if requested by a party. On reconsideration he may, if he thinks fit, vary or revoke the first determination.

10. Pursuant to s.58, the Commissioner may require an employee to undergo an examination by a qualified medical practitioner and submit himself for an examination by a medical referee nominated by the Commissioner. If an employee fails or refuses to submit himself to such an examination his right to compensation and his right to institute proceedings are suspended until the examination takes place. Where an examination is carried out pursuant to s.58 the Commissioner is required to be given a medical certificate. When the Commissioner has made a determination he is to inform the claimant that if the claimant is dissatisfied with the determination the Commissioner will on request furnish him with a copy of the medical certificate.

11. The initial claim for compensation is processed through the department or authority for which the claimant works in accordance with public service procedures. A matter proceeds to litigation where a party to a determination initiates such action under Part V of the Act if he is dissatisfied with that determination. At that point, under s.62, the Commonwealth becomes a party as the employer.

12. The term 'Commonwealth' is not defined in the Act. In practice, for the purposes of the Act, it means the employing department or authority, but it is to be noted that the Department of Social Security has assumed, on the basis of Administrative Arrangements, the responsibility of all government departments in relation to requests for reconsideration by the Tribunal or for judicial review. It is understood that some prescribed authorities, although their cases have also been managed by the Department of Social Security, are now considering handling their own cases. It is noted that s.s7(6) provides that for the purposes of the application of the Act in relation to a person employed by a prescribed authority, references in the Act to the Commonwealth shall be read as references to that prescribed authority. (See also paragraph 50 et seq. below.)

13. Under s.61 of the Act where the Commissioner makes a determination he is required to cause the determination to be served on the Commonwealth and the claimant; if the reasons for the determination are not set out in the determination a notice is supplied telling the claimant that he is entitled to request the Commissioner to furnish a statement setting out the reasons for the determination; the claimant is also informed of his rights to apply to a Compensation Tribunal or a prescribed Court. Under s.s61(2) the Commissioner is also required to inform the claimant that he has a right to receive the documents the Commissioner had before him in making the initial determination.

14. In his response to the Council's questionnaire on the Commissioner's operations (8 January 1980), Mr B. J. Dwyer, the Commissioner for Employees' Compensation, referred to a number of problems in the present system of administration:

I am particularly concerned about the problems experienced by delegates and compensation clerks outside this Office and have taken action in the hope of improving the situation, for example, a training and inspection program has been introduced and work has begun on a Manual of Instructions and Procedures, which I expect will be issued in the not too distant future.

More significantly, however, there is clearly a need for regional offices of this Office to be established in each capital. I believe that this arrangement would have the advantage of providing ready access to specialist officers for both claimants and the Commonwealth, reducing the time taken to process claims and allowing more direct control over staff and the management of claims generally in departments and authorities.

15. Delays in Commissioner's Office. In his Annual Report 1978-79 the Commissioner published a table on delays in cases involving examination by medical referees (Table 1 below). The average period to elapse from the date of request from his office for examination to date of decision was 20 weeks, although more than half of the claims were decided within 17 weeks. During that year 1642 examinations were requested from the Commissioner's Office compared with 1392 the previous year.

Time elapsed in weeks between		Cumulative
date of request and date	Percentage	percentage
of decision	of claims	of claims
0-4	1.69	1.69
5-8	9.76	11.45
9-12	19.66	31.11
13-16	17.97	49.08
17-20	13.15	62.23
21-24	13.3	75.53
25-28	7.77	83.3
29-32	5.09	88.39
33-36	2.54	90.93
37-40	2.68	93.61
41-44	2.12	95.73
45 and over	4.27	100

16. Time Limit for Commissioner's determinations. Council considers that a time limit is desirable within which the Commissioner or his delegates should determine matters and questions under the Act. It is noted that in New South Wales, pursuant to section 53A of the Workers' Compensation Act 1926, an employer is required, in the event of his refusal to pay compensation, to give notice to the worker in writing of such refusal within 14 days after the receipt of the claim. The Council recognises that there are significant differences between the provisions of and procedures under the Act and the corresponding aspects of State Workers' Compensation legislation. However, it also notes that hardship for claimants and dependants may arise when delays occur in the making of a compensation determination. Claimants should, when they cannot get a determination from the Commissioner within a reasonable time, be able to pursue their claim in another forum. Although sick leave credits are very often used by claimants to ensure income does not suffer it is considered that this may not be sufficient protection against delays in certain cases, for example, a widow's claim on the death of her husband. Furthermore it appears that an employee may have no legal right to have such sick leave recredited upon the finding of liability for his condition, even though it is understood that in practice this is done. Also, of course, some employees may have no sick leave credits at all at the time of the injury or illness.

17. The Council recognises that there are cases where difficulties arise in the gathering of evidence, especially medical evidence, before a determination is made. The Council is also aware that some delays in the Commissioner's Office are said to be due to an acute staffing shortage in the light of the growing number of claims, and other factors beyond his immediate control such as his necessary reliance on the close co-operation of employing departments. It has also been suggested to the Council that problems have arisen because of staff ceilings in other departments in that the shortfall in manpower involved in compensation work in departments and authorities has led to those bodies referring cases to the Commissioner's Office before satisfactory investigation of claims has been undertaken.

18. It is nevertheless most important in the Council's view for determinations in relation to compensation claims to be made in the minimum possible time. The Council considers that the present system results in hardship, mainly due to delays, to some claimants and their dependants. The Council has therefore recommended below a time limit within which decisions of the Commissioner's Office are to be made. It is hoped that the time limit will be met in the great majority of cases. It is considered that it would be unreasonable to suggest a longer period than that contained in Recommendation 1. The Council recognises that the imposition of a time limit may well necessitate a review of the administrative organisation and processes by which compensation decisions are made under the Act.

19. The existing provisions of the Administrative Appeals Tribunal Act 1975 already provide for appeals where a decision is not made within a prescribed time. The effect of s.s25(5) of the AAT Act is to provide that a person may apply to the Administrative Appeals Tribunal ('AAT') for a review of a decision in circumstances where another person is required to do an act or thing within a prescribed period and has failed to do that act or thing. That failure is deemed to constitute the making of a decision by that person at the expiration of the prescribed period not to do that act or thing. In the present context, if Recommendations 1 and 2 were adopted and the Commissioner failed to determine a claim for compensation within 60 days, he would be deemed, pursuant to s.s25(5) to have decided to determine that there was no liability for compensation. It would be against that deemed decision that an appeal to the AAT would lie.

20. The Council is aware of the possibility that in some cases the Commissioner will be unable, for good reasons, to make a determination within 60 days and that the delay involved in obtaining a decision on review may be greater than that which might occur if a determination were made by the Commissioner after the expiration of the 60 day period. It should therefore be made clear in legislation that the Commissioner may reconsider his deemed decision notwithstanding that a person has appealed to the AAT (as is currently provided in s.s 20(4) of the Act). This will then not prevent the Commissioner from further investigation of the case or prevent the subsequent determination and payment of a claim where this is appropriate. In those circumstances the Council considers siders that s.s20(5) should also continue to apply whereby the Commonwealth would be liable to reimburse the claimant for any costs reasonably incurred by him in connection with that proceeding.

There should be a legislative provision requiring the Commissioner for Employees' Compensation to determine a matter as soon as practicable, but in any case, within 60 days of lodgment of a claim with the Commissioner.

22. The Council also notes s.7 of the Administrative Decisions (Judicial Review) Act 1977 ('AD(JR) Act') which provides that where a person has a duty to make a decision and there is no law that prescribes a period within which he is required to make that decision and he has failed to make that decision, a person who is aggrieved by that failure may apply to the Federal Court for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision. Where a person is required by law to make a decision within a prescribed time an application for an order of review may also be made to the Court on the ground that the decision maker had a duty to make a decision notwithstanding the expiration of that period.

23. Section 16 of the AD(JR) Act provides that on an application for review in respect of a failure to make a decision, whether or not that decision was subject to a time limit, the Federal Court may make an order directing the making of the decision, declaring the rights of the parties in relation to the making of the decision or directing any of the parties to do or refrain from doing any act or thing which the Court considers necessary to do justice between the parties.

PART III‑CURRENT REVIEW PROCESS

24. Where a person has requested the Commissioner to reconsider under s.s20(4) the time prescribed for that reconsideration is 120 days from the date of service of the initial determination. The number of requests for reconsideration by the Commissioner increased from 208 in 1976-77 to 252 in 1979-80. Details of requests received and finalised for the last 4 years are set out in Table 2.

	1976-77	1977-78	1978-79	1979-80
Total requests received	208	229	229	252
Determinations varied	52	59	66	47
Determinations not varied	151	144	136	152
Requests withdrawn	1	9	6	9
Total requests finalised	204	212	208	208

25. Whether or not the claimant has made a request for reconsideration by the Commissioner, he may request the Commissioner to refer the determination to a Compensation Tribunal for reconsideration, or apply to a prescribed Court for review of the determination. The Commissioner may, of his own motion, reconsider a determination. In practice, this is done in all cases where a claimant requests a reference or applies for review by a Court.

26. Constitution Powers and Procedures of the Tribunal. Section 64 provides that the Governor-General may establish and appoint one or more Commonwealth Employees' Compensation Tribunals which shall be constituted by a person. Only one Tribunal (Mr J. O. Ballard) has been appointed. The procedure for reference to a Compensation Tribunal is set out in Division 3 of Part V of the Act. Section 76(1) provides that a request by a party to a determination for the reference of a matter or question to a Compensation Tribunal for reconsideration shall be in writing signed by or on behalf of the person making the request, and shall set out the grounds for the request. The request is to be lodged with the Clerk of the Compensation Tribunal within 60 days after the date of service of a copy of the determination on the person making the request. A copy of the request is required to be served on the Commissioner by the person making the request and on every other party to the determination. Sub-section 76(3) provides that if a person making a request has, within 15 days of the receipt of the determination, asked the Commissioner for the reasons for the determination, the period of 60 days shall be read as a reference to 60 days from the date of service of the statement setting out the reasons.

27. Sub-section 79(2) provides that, unless the Compensation Tribunal otherwise orders, the date for reconsideration of a matter or question shall not be less than 60 days after the day on which the request for reconsideration was lodged with the Clerk. A similar provision applies to the Courts (s.s90(5)). It seems that the intention of these provisions is to enable the Commissioner to reconsider under s.20 during that period and avoid a conflict between the procedures under s.20 and those under Part V. Section 77 empowers the Compensation Tribunal to extend the time for serving a request under s.76. Upon receipt of a copy of a request for reconsideration by a Compensation Tribunal, the Commissioner is required by s.78 to send to the Clerk of the Tribunal a copy of the determination and the documents the Commissioner had before him when the matter was determined. The Practice Note issued by the Tribunal indicates that the Tribunal does not of its own motion take into consideration those documents provided to it in cases where the parties are legally represented. In such cases the Tribunal ensures that both parties have seen all documents forwarded under s.79 and then leaves it to the parties to exhibit those documents as part of their cases if they wish. When the claimant is not legally represented the Tribunal reads the documents and uses them for questioning the claimant.

28. As soon as practicable after the Commissioner has sent the documents referred to in s.78 to the Clerk of the Compensation Tribunal, the Clerk is required by s.79 to fix a time and place for reconsideration of the matter or question by the Tribunal. In the past the average time between receipt of the request by the Tribunal and decision has been of the order of six to eight months but an increasing number of cases now being referred to the Tribunal in Melbourne will make it impossible to adhere to this timetable there.

29. The provisions of Division 5 of Part V of the Act which relate to hearings before the Tribunal are very similar to those of the Administrative Appeals Tribunal under Part IV of the Administrative Appeals Tribunal Act 1975. The Tribunal is, of course, an administrative tribunal and not a court. It is not bound by the rules of evidence (s.80(c)).

30. The Tribunal may excercise all the powers that are conferred on the Commissioner and in doing so may, for example, order a further medical examination. It may also issue directions (s.83(2)(e)); on a request for reconsideration initiated by the Commonwealth this may involve a direction ordering that payment under the Commissioner's or a delegate's determination be stayed pending reconsideration by the Tribunal: Re Carmen Piris and Commonwealth of Australia (1979) 1 CCN No. 34.

31. The Tribunal may affirm the Commissioner's determination, vary it or set it aside. When the Commissioner's determination is set aside, the Tribunal may make a determination in substitution for the determination set aside or remit the case for redetermination by the Commissioner in accordance with directions of the Tribunal. These powers of the Tribunal are very similar to the powers of the AAT, see s.43, AAT Act 1975.

32. A party may appear before the Tribunal in person or be represented by another person (s.82). Thus a party need not be legally represented although in approximately 90% of the cases before the Compensation Tribunal the parties are legally represented.

On some occasions a claimant has been represented by a Trade Union Officer. Mr Ballard has indicated that he considers that legal representation is desirable when dealing with a death or incapacity matter.

33. A Compensation Tribunal may sit in any place which may be a place outside Australia. On a number of cases sittings have been held with part of the evidence taken interstate. For example, in a case in Darwin where an employee had been referred to a medical referee in Brisbane, evidence was taken in Darwin and Brisbane. Evidence has also been given on a conference telephone. Where possible the Tribunal endeavours to make itself available to claimants. Apart from State capitals and Canberra, the Tribunal has sat in Ballarat, Bendigo, Coffs Harbour, Kalgoorlie, Southport, Townsville, Mackay, Newcastle, Rockhampton, Wangaratta, Warwick, Bundaberg and Gladstone. The Tribunal sits in these places mainly to avoid having to call medical witnesses to State capitals. Where for reasons of economy it is easier for a claimant to be brought to a State capital city or Canberra rather than for the Tribunal (with accompanying officers), to travel, public funds are provided to bring the claimant to the Tribunal. Section 88 provides that witnesses are to be paid a prescribed fee by a party if that party summoned the witness and by the Commonwealth in any other cases.

34. Number of Requests for referral. Requests for referral to a Compensation Tribunal increased from 86 in 1976-77 to 138 in 1979-80. Figures for the last 4 years are set out below in Table 3.

Number of requests	1976‑77	1977‑78	1978‑79	1979‑80
Requests made	86	107	87	138
Carried over from previous year	21	48	78	62
TOTAL	107	155	165	200

Upheld	25	30	35	59
Dismissed	13	8	15	5
Settled without proceeding to hearing	8	23	4	8
Withdrawn or not proceeding	13	16	49	24
TOTAL	59	77	103	96

In the calendar year 1980, 185 requests were received; as at 1 March 1981, 148 requests had been received for the year 1980-81.

35. As stated above an applicant may choose to have his determination reconsidered by a Compensation Tribunal or seek review in a prescribed Court. Prescribed Courts are defined in s.s5(1) and in practice are:

36. Sub-section 92(1) provides that the hearing of an application for review in a prescribed Court is in the nature of a rehearing. The powers of the prescribed Courts under s.92 are similar to those of the Tribunal. Note should, however, be taken of the different provisions relating to costs between those in a Compensation Tribunal under s.85 and those in a prescribed Court under s.93. Where a matter is taken to the Compensation Tribunal an unsuccessful claimant will have to bear his own costs but will not have to bear the costs of the Commonwealth; if a matter is taken to a prescribed Court an unsuccessful claimant may be required to pay the costs of the Commonwealth as well as his own costs (although in practice these are not awarded in the Workers Compensation Commission of New South Wales). The question of costs on a successful application before the Tribunal by the Commonwealth was considered in Re Langridge (unreported) (79/13) and Re Pegg (unreported) (78/93) which may indicate that an award of costs to an unsuccessful claimant is left to the discretion of the Tribunal in such 'a case. When costs are awarded, they have always been awarded on the scale that would be appropriate in the relevant prescribed Court.

37. The procedures of the CECT, the prescribed Courts and the AAT have marked similarities. All operate by way of hearing; have power to call witnesses; have experience with legal representation etc. As referred to above, a request by a party for reference to the CECT or application for review by a prescribed Court shall be lodged within 60 days after the date of service of a copy of the Commissioner's determination. It is not proposed to recommend a change to that time limit although it is noted that under the AAT Act the period for requesting a review is normally 28 days.

38. In determining the question whether the Tribunal should be incorporated into the AAT the Council has considered whether the existing alternative appeal to the prescribed Courts should be ,retained. This matter is dealt with in Part VI.

39. Applications for review by prescribed Courts. Section 63 determines the jurisdiction of the Compensation Tribunal and prescribed Courts. As mentioned above either forum may be chosen by an employee or employer who is dissatisfied by a determination of the Commissioner. Under paragraph 63(1)(a) the procedure for reference to the Compensation Tribunal is that a party to the determination requests the Commissioner to refer 'all or any of the matters or questions to which the determination relates'. In relation to a prescribed Court, the application is for 'judicial review' of the determination.

40. During 1979-80, 70 applications for review by prescribed Courts were lodged, compared with 53 in the previous year. Details of applications finalised over the last 4 years are given below in Table 4.

	1976‑77	1977‑78	1978‑79	1979‑80
Total applications received	89	71	53	70
Upheld	7	13	22	28
Dismissed	8	6	2	2
Withdrawn or not proceeding	38	18	16	12
Struck out	8	8	1 1	3
Settled after appeal lodged	29	23	4	1
Total of applications finalised	90	68	55	46

1979‑80	N. S. W.	Vic.	S. A.	Qld	Tas.	N. T.	A. C. T	Total
Applications received	50(29)	15(11)	3(11)	‑(1)	‑(‑)	‑(1)	2(‑)	70(53)
Upheld	21(18)	4 (2)	2 (‑)	1(2)	‑(‑)	‑(‑)	‑(‑)	28(22)
Dismissed	1 (2)	‑ (‑)	1 (‑)	‑(‑)	‑(‑)	‑(‑)	‑(‑)	2 (2)
Withdrawn	8 (8)	3 (6)	‑ (1)	1(1)	‑(‑)	‑(‑)	‑(‑)	12(16)
Struck out	3 (8)	‑ (2)	‑ (1)	‑(‑)	‑(‑)	‑(‑)	‑(‑)	3(11
Settled after appeal lodged	‑ (2)	‑ (2)	1 (‑)	‑(‑)	‑(‑)	‑(‑)	‑(‑)	1(4)
								46(55)

41. Applications to prescribed Courts for the last two years on a State basis, are set out in Table 5. Figures in brackets are for 1978-79.

42. Division 5 of the Act dealing with References and Appeals from the Compensation Tribunal and prescribed Courts is set out in full below:

43. Section 94A was inserted in 1979. As a result the Federal Court is now the venue for reference of points of law from the Tribunal and prescribed Courts. Apart from the constitutional right of appeal to the High Court, the Federal Court is also the venue for appeals on matters of law from the Tribunal and the prescribed Courts. These roles are in addition to its general jurisdiction under the AD(JR) Act.

44. The present role of the Federal Court in matters before both the Commonwealth Employees' Compensation Tribunal and the AAT is similar, and it is noted that ss.44 of the AAT Act and 94A of the Act provide that an appeal from a decision of a non-presidential bench or the CECT may be heard by a Full Court of the Federal Court. The majority of responses indicate that no problems have arisen in this regard and it is submitted that no good reason exists why the role of the Federal Court should be changed whether or not the CECT is to be incorporated into the AAT, or the alternative appeal rights are abolished. The Council has concluded that no change to the role of the Federal Court is required and consequently no recommendation on this matter is made.

PART IV‑INCORPORATION OF COMMONWEALTH EMPLOYEES' COMPENSATION TRIBUNAL INTO THE ADMINISTRATIVE APPEALS TRIBUNAL

45. One of the major questions the Council has considered is whether the Tribunal should be incorporated into the Administrative Appeals Tribunal. The Council considers that incorporation into the AAT is appropriate for the following reasons. Incorporation would be consistent with the principle of the Kerr and Bland Committees that there should be a general Commonwealth Administrative Tribunal. The case would be reinforced if the Council's recommendation concerning the abolition of the existing alternative appeal rights to prescribed Courts were accepted (Recommendation 5 below, paragraph 78). The Council is of the opinion that the growth in the number of cases is such that the existing Tribunal can no longer be expected to cope with the caseload. That being the case, incorporation into the AAT could assist in resolution of the large number of pending cases, because of the availability of more than one member to hear cases. Other practical advantages would also flow: the availability of presidential members of the AAT in appropriate cases, and savings in costs relating to hearing rooms and administration staff as the AAT now has a permanent presence in State capitals.

46. At present the AAT hears appeals from decisions under both Superannuation and Defence Force Retirement and Death Benefits legislation, being reviews of all decisions of the DFRDB Authority under the Defence Force Retirement and Death Benefits Act 1973 and all decisions under the Superannuation Act 1976. The issues in these jurisdictions are often determined solely or principally by reference to medical evidence.

47. Having concluded that the AAT is the appropriate Tribunal, the Council considered the appropriate constitution of that Tribunal for CECT cases. In the Superannuation jurisdiction, the AAT is required to be constituted by a Presidential member and two non-presidential members (at least one to be an eligible employee or a pensioner), or three non-presidential members (at least one to be an eligible employee or a pensioner and at least one to be a senior non‑presidential member). The AAT has adopted the practice of having medical members on tribunals which deal with Defence Force Retirement and Death Benefits and Superannuation matters. Mr Ballard is of the view that if the CECT were to become part of the AAT it should be provided that the AAT would be constituted by a single person and that Part III of the AAT Act should not be used as a way of bringing about a three man tribunal. He referred to two other tribunals with similar functions where it appeared that the presence of members other than the Chairman contributed little to the proceedings but added to expense and delay in the conduct of cases. The AAT Act allows for flexibility in the constitution of its tribunals; this has been seen as a desirable feature by the Council. Whether a particular case would require the presence of a member qualified in medicine would be for the President to decide. This matter is discussed further in paragraphs 59-64.

48. The expected increase in the number of cases (increasing further if existing alternative appeal rights to prescribed State Courts were abolished) should be able to be handled by the existing AAT registries in capital cities. The procedures, proceedings, legal representation and powers of the CECT are similar to those which may be expected to be adopted or followed under the existing provisions of the AAT Act if this jurisdiction were incorporated.

The jurisdiction currently exercised by the Commonwealth Employees' Compensation Tribunal should be conferred on the Administrative Appeals Tribunal.

50. The current legislative scheme does not provide for the Commissioner for Employees' Compensation to be a party to proceedings before the Commonwealth Employees' Compensation Tribunal. The Council recommends above that the jurisdiction currently exercised by that Tribunal should be vested in the Administrative Appeals Tribunal. Under section 30(1)(b) of the Administrative Appeals Tribunal Act 1975 the person who made the decision, against which an appeal lies, is a party to proceedings before the AAT. As it has been recommended that the AAT assume the jurisdiction of the CECT the Council has considered whether the Commissioner should be a party before the AAT.

51. The scheme of the Act gives rise to divergent considerations as to the role of the Commissioner in the review system. On the one hand the Commissioner has an office of independent status, and review of his decisions may be sought by both the Commonwealth as employer and by employees. This suggests that he should not be put in a position of having to defend his determination before a review body. He determines the matter initially and may reconsider his determinations; that is where his role in the system ends. Furthermore as the costs of compensation are borne by the employing department or authority it is that body which should be primarily concerned to be a party if the matter goes on appeal. The position might be different if compensation were paid out of a central fund administered by the Commissioner.

52. On the other hand the Commissioner is required by the Act to be the primary decision maker. He is not merely an adjudicator in cases of dispute between an applicant and the employing department or authority. An employee must ,get a determination from the Commissioner in the first instance. That being the case the Commissioner's participation as a party to review proceedings would be likely to be of assistance to the review authority. The Commissioner will be familiar with the facts of the case and the reasons for his initial determination. He would in turn benefit by being a party to the extent that he would have a fuller appreciation of the reasons for the reviewing body's decisions, and the confidence of knowing that his submissions had been taken into account.

53. A choice must be made between these conflicting considerations, and the Council has concluded, on balance, that the appropriate course is for the Commonwealth, rather than the Commissioner, to be a party to all review proceedings, whether initiated by an employee or by the Commonwealth. As this conclusion is not consistent with the existing provisions of the AAT Act in determining who is a party to proceedings before the AAT, it will be necessary for legislation to provide that the Commonwealth and not the Commissioner be a party to such proceedings.

Legislation should provide for the Commonwealth to be a party in proceedings for review of decisions of the Commissioner.

55. The AAT Act presently provides that a party to proceedings before the Tribunal is the person who made the decision. As this would not be the case if Recommendation 3 is accepted, certain consequential amendments may need to be made to some provisions of the AAT Act, e.g. an amendment to clarify the Commissioner's role under sub-section 41(4) which currently provides that the AAT shall not make a stay order unless the person who made the decision to which the relevant proceedings relate has been given a reasonable opportunity to make a submission on the application for such an order.

Creation of a Commonwealth Employees' Compensation Division in the Administrative Appeals Tribunal

56. The Council considered whether it would be desirable to recommend that, within the AAT, there should be created a Commonwealth Employees Compensation Division. In its Third Annual Report the Council recommended to the Attorney-General the creation of a separate A.C.T. Division of the AAT. The Council further recommended (paragraph 83) that an alternative divisional organisation to that presently appearing in s.s19(2) was desirable. The structure recommended was to provide for the following:

It was recommended that s.s19(4) be amended to provide that a non-presidential member who is not assigned to a special Division should not exercise or participate in the exercise of the powers of the Tribunal in that Division, and that subject to s.s(4), a non-presidential member may exercise, or participate in the exercise of, the powers of the Tribunal in any Division to which he is assigned and with the concurrence of the President in any general Division to which he has not been assigned.

57. The Council considers that the creation of a Special Division for this jurisdiction is not desirable in the present circumstances. Section 19 provides that a non-presidential member shall exercise the powers of the Tribunal only in the Division or Divisions of the Tribunal to which he is assigned in the instrument of appointment. The creation of a Division may therefore place a limitation on the AAT's current flexibility of constitution. In fact all members of the AAT have been appointed to the General Administrative Division; this allows complete flexibility of constitution of the AAT for particular jurisdictions by virtue of the power in the President to arrange the business of the Tribunal (s.20). If a Special Division were created the Council can see no basic distinction between the jurisdiction in question and some other existing jurisdictions such as Superannuation and Defence Force Retirement and Death Benefits. The Council considers that if such a Division were created it would be logical to group those jurisdictions in one Division.

58. The Public Service Board favoured the creation of a Division so that the need to retain the Compensation Tribunal's power to award costs could be severed from the rest of the AAT which would not have such a power. The Council considers that the creation of a Division for this purpose alone creates an inconsistency in principle as it can see no reason why the power to award costs in the AAT should be limited to Commonwealth Employees' Compensation cases, bearing in mind the similarity of the other jurisdictions mentioned above. The Council therefore does not recommend the creation of a Division within the AAT in relation to the exercise of jurisdiction in Commonwealth Employees' compensation matters.

59. The Council has recommended (reported in Second Annual Report, paragraph 63) that the statutory provisions for the constitution of the Tribunal should be made in accordance with the following set of principles:

60. In existing jurisdictions involving similar issues there is no consistency in the present requirements concerning the constitution of the AAT, e.g. three man tribunal for Superannuation, Presidential member alone or three man tribunal for Repatriation, no specific requirement for Defence Force Retirement and Death Benefits (D.F.R.D.B.) (but as a matter of practice the AAT has been constituted by a three man tribunal).

61. The Council considers that a one‑man tribunal would normally be appropriate for the hearing of cases in this jurisdiction. Apart from the obvious cost savings of a one man tribunal in relation to staffing and travelling costs etc., the Council is aware of the fact that Mr Ballard, the existing CECT tribunal, has fulfilled his functions well. If a three man tribunal were constituted presumably one member would have medical experience. The Council recognises the danger that could possibly develop of a medical member having his individual assessment of the medical evidence generally prevail.

62. As referred to above, it has been suggested that the AAT should be constituted by a single person for the following reasons:

(a) Experience of some other tribunals indicates that members other than the Chairman contribute little to proceedings but add to expense and delay.

(b) If it is necessary to sit outside capital cities, a three man tribunal would be ponderous and expensive to run.

63. On the other hand it has been suggested that the present flexibility in the AAT Act allowing for the Tribunal to be constituted by a three man or a one man tribunal is desirable. If difficult points of law or medical evidence arise it is open to the President of the AAT to constitute the Tribunal appropriately (e.g. with a presidential member or a member who is medically qualified). The Council understands that the fact that in D.F.R.D.B. cases the Tribunal continues to contain a medical member (without there being any provision requiring this) is indicative of the sort of issues which have been involved, and that no policy to constitute a three man tribunal in D.F.R.D.B. cases has been adopted by the President of the Administrative Appeals Tribunal.

64. In summary the Council expects that the AAT would usually be constituted by one member. However, it recognises that in special cases there may be a need for a three man tribunal. The person best able to determine that question is the President of the AAT. Consequently the Council recommends no change to the Administrative Appeals Tribunal Act 1975 concerning the AAT's constitution should it be invested with this jurisdiction.

PART V‑MODIFICATIONS TO AAT PROCEDURES

65. The general view from respondents was that there would be no need for major modification to existing AAT procedures. The Law Societies and Bar Associations appear to be happy with the way the existing Commonwealth Employees' Compensation Tribunal is functioning and would like to see the AAT, if it were to be given the jurisdiction, operate in a similar fashion. Other than on the question of costs it is suggested that no alteration of the existing powers of the AAT is necessary. As referred to in Part III there is great similarity in the existing powers of both Tribunals and no change is recommended in relation to the role of the Federal Court.

66. One major point of difference between the CECT (see paragraph 36 above) and the AAT concerns the power to award costs. All respondents indicated that the AAT, if it were to be given this jurisdiction, should have power to award costs. The Public Service Board suggested the creation of a separate Commonwealth Employees Compensation Division of the AAT; the Board opposed the extension of power to award costs outside that Division. The Council has already considered the question of costs in the AAT on more than one occasion.

Administrative Review Council Reports

Commonwealth Employees' Compensation Tribunal [1981] AdminRC 13

PART 1‑INTRODUCTION

BACKGROUND

PART II‑PRIMARY DECISION MAKING

PART III‑CURRENT REVIEW PROCESS

PART IV‑INCORPORATION OF COMMONWEALTH EMPLOYEES' COMPENSATION TRIBUNAL INTO THE ADMINISTRATIVE APPEALS TRIBUNAL

PART V‑MODIFICATIONS TO AAT PROCEDURES