A win for the people! Comcare statutory time frames now exist (from 1 April ‘24)

I received an email today.

Those who have been following me, particularly on X, have probably noticed in previous months I have been heavily campaigning for Minister Bourke, as the Minister responsible for Comcare, to introduce statutory time limits so that Comcare can’t just sit on claims indefinitely and never make a decision.

For a recap on the situation as it currently stands, and as it exists before these regulations come into force 1/4/24, I have found this article which does a great job of explaining it.

At first, I was wondering if it was a joke, because the date is literally April fools’ day, but alas no, the new amendment to the regulations can be found here, so they are very much real.

I don’t know why the amendments don’t commence until April 2024; however, I assume there is a good reason for it. It’s only 4 months away so it’s not a significant delay in my view anyway.

These amendments are updating the existing regulations (Safety, Rehabilitation and Compensation Regulations 2019)

Part 2

In Part 2 of the existing regulations, there will be a new section, section 11A titled Period for determining claim for compensation or request for reconsideration of a determination.

In this new section, subsection (1) is a clear pointer back to section 61(1A) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). This is the specific time limit that many people had been campaigning for the Minister to introduce, even under the previous Government.

Under section 61(1A) of the SRC Act, thanks to these regulation amendments, Comcare will now need to make a decision to accept (or deny) liability, under section 14 of the SRC Act within 20 days for an injury, or 60 days for a disease. Definitions for injury and disease fall under section 5A and section 5B respectively in the SRC Act.

The new section 11A subsection (2) is a clear pointer back to section 62(6) of the SRC Act, and this new amendment means that redeterminations requested under section 62 will now have to be completed by Comcare within 30 days.

What this means is that for an initial determination of liability, assuming you lodge your reconsideration request on the same day you get a denial of liability notice, you are looking at 50 days before being able to lodge for adjudication with the AAT, or 90 days, depending on whether you have an injury or disease. This is a very reasonable time period.

The new section 11A subsection (3) provides Comcare delegates with a pause period for certain actions. For example, let’s say that the Comcare delegate decides they require more information before making a decision. The Comcare delegate books an IME examination and asks the doctor to provide a report back to Comcare within 28 days. Obviously, 28 days is longer than the 20 days that Comcare needs to make a decision, so it would not be logical for the 20-day time frame to expire while Comcare is still waiting for the IME report. As such, subsection (3) allows the Comcare delegate to “pause the clock”, and any days that pass while waiting for the IME report are not counted towards the days with which Comcare must make a decision. Once Comcare receives the IME report, the clock resumes and the days start counting down again.

Part 5

In Part 5 of the existing regulations, there will be a new section, section 37 titled Application of period for determining claim for compensation or request for reconsideration of a determination.

This section is interesting for a few reasons. The time frames and the administrative actions that allow Comcare delegates to “stop the clock”, are scheduled in section 11A as we saw above.

This new section 37 is an enabling section, it is what states that these time frames will be used. At first glance, I’d argue that an enablement clause such as this is not necessary, because section 61(1A) and section 62(6) already enable the use of these time frames, they simply needed to be prescribed in the regs. However, on further inspection, it became clear to me why this clause was put in.

There are actually other types of reconsiderations in the SRC Act that are not covered by section 62(6), these are for reconsiderations of rehabilitation programs and things to do with rehabilitation which are handled by the rehabilitation delegate (who is usually your former employer). Section 38 of the SRC Act, unlike section 62, does not have a subsection which points to a time frame for a decision to be made! As such, this new enablement clause, section 37 of the regulations, specifies that the time period of 30 days will apply to both reconsiderations done under section 62, as well as reconsiderations done under section 38. Essentially, this new section 37 clause in the regulations is allowing a time frame to be added to reconsiderations done under section 38 of the SRC Act, without needing to amend the SRC Act to point to the period in the regulations first.

What’s still missing?

Determinations made under section 19 to pay incapacity, section 16 to pay medical costs, section 24 relating to payment for permanent impairment, and there may be others as well, are all still without any statutory time limit, allowing Comcare the opportunity to sit on these determinations indefinitely. Comcare can and will do this, me, I had a 2.5 year+ period in between section 19 determinations were Comcare and my former employer were colluding together, trying to find ways to disentitle me (they stuffed up and provided me the evidence of this under FOI). As such, it is clear something needs to be done about this too, but alas, as the email at the beginning of the article states, there is an SRC Act review coming up, and we will have the opportunity to lodge our submissions for that, and so I will be lodging my experiences and making recommendations for time limits to be added for these remaining determination types as well, among other grievances that come to mind.

Thanks

If I only ever criticise when things are bad, and never say thanks when things are good, then I would consider myself to be as low-quality of a human as the majority of the people who I have dealt with at Comcare.

As such, I thank the Minister Tony Bourke MP for these amendments to the regulations, they actually exceed what I was campaigning for. I was simply campaigning for the period that section 61(1A) was pointing to in the regs, and so this actually goes above and beyond what I was seeking by including times for reconsiderations as well!

The world (well at least Australia) is a better place as a result of these changes. And it is going to reduce a lot of stress and uncertainty from injured workers who now know (from April ’24) that Comcare must make a decision within these time frames, and they can proceed to the AAT on the basis that Comcare has refused to make a decision, should Comcare take too long.