Background

5.1 This question and the three following questions arise only if the provisions for commissioners are to be retained in the Court Bill and, in particular, if they have judicial or quasi-judicial functions.

5.2 The Court Bill provides that the qualifications for appointment as a commissioner are the same as for a judge or, if in the opinion of the Minister, the appointee has had sufficient experience in workers’ compensation or in other fields of compensation considered by the Minister to be relevant to the functions of a commissioner, or the appointee has satisfactorily completed studies in the field of law or industrial relations or some other field of study considered by the Minister to have substantial relevance to the functions of a commissioner.¹ As we mention below, there is also a provision that proceedings before a commissioner shall be conducted with as little formality and technicality as the proper consideration of the matter before the commissioner permits.² A party may be represented before a commissioner by a solicitor or by a person who is not qualified to practise law but who belongs to a class of persons prescribed by the rules for this purpose.³

5.3 It is clear from the background documents that there have been varying ideas concerning the intended function of commissioners. In the form in which the Court Bill has been drafted, the functions of commissioners are virtually identical with those of a judge, deciding cases in the usual way albeit with some jurisdictional limitation as to the class of case. Alternative ideas have been that the commissioner would function more as a conciliator or that he or she would provide a speedy adjudication on whatever materials were quickly available but in either case, with a right to subsequent determination of the case by a judge in the ordinary way if either party was dissatisfied with the result. Some elements appropriate to such alternative approaches have been carried into the proposed legislation with what we would regard as unsatisfactory results, for reasons which we mention below.

Submissions

5.4 The submissions which have been received overwhelmingly argue against the idea of unqualified commissioners. The Legal Panel for the Labor Council of New South Wales in its submission⁴ said that the qualifications for appointment as a commissioner were misguided and were an invitation to appoint persons who have not worked and practised in the workers, compensation jurisdiction. According to the Legal Panel, the proposal “invites future administrations to make political appointments which may prove disastrous both for the administration of the system and for the appearance of justice”.⁵

5.5 The Chairman of the Workers’ Compensation Commission in his submissions⁶ said that these provisions would seriously lower the level of qualification, practical experience, and expertise which the community has come to regard as essential in judges and subordinate judicial officers in a court which deals with one of the most important areas of the law for members of the work force. Points made in the submission included the following:

• the appointment of unqualified Commissioners would seriously impede the realisation of the Government’s desire that the new court work smoothly and expeditiously and be capable of discharging its judicial functions in a manner which would retain the confidence of the people appearing before it;
• any ineptitude on the part of commissioners, because of the lack of legal skills would increase the number of appeals;
• the community was entitled to expect that legal rights would be adjudicated upon by judges and judicial officers with legal qualifications;
• a court of high calibre will have fewer of its decisions upset on appeal, and consequently the jurisdiction it exercises will be held in high regard, thereby increasing the consistency and acceptability of its decisions;
• the introduction of a mixed bench of judges and members without legal qualifications could operate to lower judicial morale.

5.6 The Insurance Council of Australia in its submission⁷ stated that commissioners ought to be experienced barristers or solicitors. The proposed legislation could result in the appointment of commissioners with no experience and training in the principles of the common law and its concepts of justice.

5.7 His Honour Judge Manser⁸ indicated that the assumption that cases arising under the Act were simple as to fact and law and were therefore capable of being dealt with by unqualified persons, was misconceived. His Honour saw it as wrong for the Government to appoint persons not qualified in law to judicial office.

5.8 The Law Society of New South Wales⁹ was opposed to the appointment of commissioners without legal qualifications because of the nature of the work of the Commission.

5.9 The New South Wales Bar Association¹⁰ said that a function which required the administration and, from time to time, interpretation of the law, and which affected legal rights, was a judicial function which should only be exercised by legally qualified persons. The appointment of unqualified commissioners was against the trend requiring higher qualifications for lower ranking judicial officers such as magistrates and would set a dangerous precedent.

5.10 The Compensation Department of the Labor Council of New South Wales in its submission¹¹ noted that the appointment of commissioners in accordance with the Bill would require them to perform a judicial rather than a conciliation function but the Council did not specifically address the question whether commissioners, as judicial officers, should be legally qualified.

5.11 The New South Wales Society of Labor Lawyers said in its submission¹² that there were objections in relation to the qualifications of commissioners since the essential characteristic of appointments of this kind was not only relevant legal training but also a practical knowledge of relevant medical treatment and a technical understanding of workers’ compensation.

Issues Involved

5.12 As we mention below, commissioners would be bound to conduct proceedings in accordance with legal principle. They would be bound by the precedent of decided cases of higher authority and they would be bound by the rules of evidence. This is so notwithstanding the provision that proceedings before a commissioner should be conducted with as little formality and technicality as the proper consideration of the matter permits.¹³

5.13 The idea of a commissioner without legal qualifications would be consistent with a conciliation function, or with a speedy adjudication of disputed claims which was not binding on the parties. In the context, however, of the questions which arise for determination under the Act, it would not be satisfactory for disputed claims for compensation to be determined with finality by a person without legal qualifications. Whatever may be said in favour of a non-legally qualified tribunal in other areas, the criteria prescribed by the Act for the receipt of compensation are technical and often difficult concepts, which frequently raise intricate questions of law. We take, for example, the first substantive provisions of the Act. In section 6, the definition section, it is provided that “Dependant” includes a person to whom the worker stands in loco parentis. This is a legal concept. “Worker” is defined by reference to a contract of service which also involves a legal concept and is the subject of voluminous case law. The law of contracts is also involved in section 6(3)(a) which extends coverage under the Act to employees of contractors in some circumstances. The same is the case in relation to section 6(3A) which extends coverage to contractors themselves in certain circumstances, and section 6(5)(a) which concerns certain rural workers. Section 6(11) requires a determination as to whether there has been a contract of bailment. As one proceeds through the Act, such legal concepts arise again and again. In order to achieve consistency in the application of the Act it is unavoidable that determinations must be made in accordance with legal principle, including the rulings of appellate courts which have binding force. The determination of disputes under this legislation by commissioners without legal qualifications would, in our view, lead to unsatisfactory and inconsistent results, with the likelihood of a spate of appeals. It is no answer that errors of law, whether as to matters of principle or procedure, including the admission or rejection of evidence, can be corrected on appeal, since appeals will frustrate any savings of time or costs.

5.14 In our view, the court’s jurisdiction in interlocutory applications should also be administered only by legally qualified judicial officers. The case law relating to such matters as particulars, discovery, interrogatories and subpoenaes (with the complication, in many instances, of legal professional or other privilege) requires legal training and experience to understand and apply satisfactorily. This is the inevitable consequence of the adversary process in relation to proceedings required to be decided in accordance with legal principle, a situation the proposed amendments are not designed to displace.

Summary

5.15 For these reasons, if there is to be provision for commissioners and if they are to perform judicial or quasi-judicial functions, we recommend that they should be legally qualified.

FOOTNOTES

1. Court Bill, cl.12(2)(b).

2. Court Bill, cl.26(1).

3. Court Bill, cl.26(2).

4. Schedule: Item 22.

5. Ibid., p.2.

6. Schedule: Items 18, 19.

7. Schedule: Item 20.

8. Schedule: Item 26.

9. Schedule: Item 27.

10. Schedule: Item 30.

11. Schedule: Item 34.

12. Schedule: Item 33.

13. Court Bill, cl.26(1).