Terms of Reference - Independent inquiry - State Insurance Regulatory Authority (SIRA)

The Hon Alan Robertson SC (the inquirer) is appointed to conduct a special inquiry under section 82 of the Government Sector Employment Act 2013 (GSE Act) into certain matters relating to the State Insurance Regulatory Authority (SIRA), a NSW government agency within the meaning of section 82 of the GSE Act (s17(2) State Insurance and Care Governance Act 2015 (SICG Act)).

The staff of SIRA are employed in the Department of Customer Service (DCS), a government sector agency within the meaning of section 82 of the GSE Act.   Other staff employed by DCS also provide services to SIRA, as part of the DCS portfolio of agencies.

The inquirer may examine the conduct of the staff of SIRA, and the conduct of other staff of DCS, to the extent necessary to inquire into the matters relating to SIRA.

Terms of reference

The inquirer is to inquire into SIRA’s handling of and response to complaints made to SIRA as follows:

(a) Current complaints: Three complainants who are named in the Annexure have made a series of complaints to SIRA arising from their claims for workers compensation. These complaints are ongoing and long-running and have not been resolved. The inquirer is to inquire into SIRA’s handling of and response to these current complaints and is to:

(i) identify the relevant facts and circumstances of the complainants’ workers compensation claims from which their complaints initially arose;

(ii) identify how the complaints to SIRA in relation to the complainants’ workers compensation claims were responded to;

(iii) identify the relevant facts and circumstances of the complainants’ subsequent complaints in relation to how SIRA responded to their initial complaints, including complaints alleging conflicts of interest, breaches of privacy or any other conduct;

(iv) identify how the complainants’ subsequent complaints were responded to by SIRA and, where relevant, DCS;

(v) make findings as to the allegations made by the complainants in relation to SIRA, including the SIRA board, any former or current members of the SIRA board, any former or current chief executive or former or current senior executive of SIRA, and DCS;

(vi) make findings as to the adequacy or otherwise of SIRA’s response to each complainant’s complaints; and

(vii) make recommendations as to any actions that SIRA or DCS should now take in response to any complainant’s complaints.

(b) Other complex complaints: SIRA commissioned a review of its policies, procedures, guidelines and training for the management of complaints about SIRA, which was completed in March 2022 (the 2022 Review). This review included consideration of 11 case studies involving complaints in relation to workers compensation and motor accidents where SIRA identified the complaint as a complex case and/or where the complaint included allegations of corrupt conduct on the part of SIRA or SIRA staff. The names of the complainants in the case studies are listed in the Annexure, together with an additional complainant identified by SIRA as having made a similar complaint.

The inquirer is to inquire into SIRA’s handling of and response to these other complex complaints and is to:

(i) identify the relevant facts and circumstances of the complainants’ complaints to SIRA; and

(ii) identify how the complainants’ complaints were responded to by SIRA.

(c) Complaints handling by SIRA and SIRA’s role in relation to complaints: Taking account of the inquirer’s inquiry into SIRA’s handling of and response to the current complaints and the other complex complaints, the inquirer is to:

(i) make recommendations as to any reforms that the inquirer considers would improve how SIRA and, to the extent relevant, DCS handle complaints in the nature of the complainants’ complaints in future;

(ii) examine SIRA’s role in relation to complaints arising from the handling and determination of workers compensation claims generally, including SIRA’s oversight of the handling of complaints by ICNSW and scheme agents;

(iii) make recommendations as to:

A. any reforms that the inquirer considers would improve how SIRA ensures compliance with the workers compensation legislation in relation to complaints made by injured workers in relation to matters arising under the workers compensation scheme;

B. any procedures that the inquirer considers SIRA should establish for dealing with complaints made by injured workers in relation to matters arising under the workers compensation scheme; and

C. any reforms that the inquirer considers would improve the use SIRA makes of complaints to inform the identification of improvements to the oversight and regulation of the workers compensation system.

In relation to the current complaints, the inquirer will invite the three complainants who made the current complaints to contribute to the inquiry in the manner and circumstances that the inquirer considers will be of assistance to the inquiry. The complainants may choose whether to contribute to the inquiry.

In relation to the other complex complaints, the inquirer will take account of the case studies in the 2022 Review and documents relating to these case studies and the complaint made by the additional complainant identified by SIRA. The inquirer may conduct such further inquiries as the inquirer considers necessary in relation to these other complex complaints.

Some of the complainants’ claims for workers compensation predate the establishment of SIRA on 1 September 2015. Some of the complainants made complaints arising from their claims for workers compensation to the WorkCover Authority of New South Wales (WorkCover), which was the predecessor to SIRA and Insurance and Care NSW (icare or ICNSW). Some of the complainants also made complaints to ICNSW, scheme agents, the Independent Review Officer (IRO) and its predecessor, the Workers Compensation Independent Review Officer (WIRO). This inquiry is to focus on SIRA’s handling of and response to the complainants’ complaints. However, the inquirer may need to take account of the involvement of WorkCover, ICNSW, relevant scheme agents, IRO and WIRO in establishing the facts and circumstances relevant to this inquiry.

Some of the complainants’ complaints to SIRA and allegations arising from those complaints have been, or are currently, the subject of other processes of inquiry or review, including the 2022 Review. The inquirer is to take account of these other processes and their outcomes, if any. However, the inquirer need not adopt any factual findings of these other processes, but may if the inquirer considers it appropriate to do so.

The inquirer is not to redetermine or purport to redetermine the liability under workers compensation legislation or at common law of the insurer or employer to a complainant or to any other person nor to examine the legal validity of any payment or payments made to a complainant or to any other person.

Report of the inquiry

The inquirer is to prepare a report on the conduct and findings, and any recommendations, of the inquiry by Friday, 6 December 2024, or by such later date as the Minister allows, and is then to provide the Minister with a copy of the report.

If the inquirer wishes to recommend that SIRA or DCS take any actions under paragraph (a)(vii) of the Terms of Reference during the course of the inquiry, the inquirer may make those recommendations to the Chief Executive of SIRA or the Secretary of DCS, as appropriate. The inquirer is to include those recommendations in the report of the inquiry provided to the Minister.

Section 82(10) of the GSE Act requires the Minister to cause a copy of the report, together with information as to any action taken or proposed to be taken in relation to the subject of the report, to be laid before each House of Parliament within 30 sitting days of that House after the day on which the Minister was provided with a copy of the report.

As the report is required to be tabled in Parliament, and as a House of Parliament may resolve to make the report public, the inquirer is to endeavour to minimise the disclosure of sensitive information in relation to the complainants as far as is reasonably possible and the complainants are to be identified in the report by the pseudonyms ‘Complainant 1’, ‘Complainant 2’ etc., or such other pseudonyms as the inquirer prefers.

If the inquirer considers it necessary to include material in the report that the inquirer considers should not be made public, the inquirer should include that material in an annexure to the report and should recommend that that annexure not be made public but should be restricted to Members only (recognising that this will be a recommendation only and that it is within the power of each House of Parliament to determine that the full report be published, regardless of the inquirer’s recommendation).

[Annexure not included for privacy reasons].