Napthine Government erodes separation of powers

3rd Mar 2014

Everyday Victorians may soon find themselves struggling to seek compensation for injuries suffered in road accidents, as a result of legal changes introduced last year.

On 16 October 2013, the Victorian Government introduced the Transport Accident Amendment Bill 2013 into Parliament. The Bill sought to make various amendments to the Transport Accident Act 1986 (TAA), which is the legislation governing claims and compensation for road accident victims in Victoria. Within a month of being introduced, the Bill was passed into law, in November 2013.

The Bill was introduced without any consultation or warning, with representatives of road accident victims  given no opportunity to provide any  commentary on the proposed laws.

The amendments have significantly restricted the legal rights of those injured in transport accidents who have suffered psychological injuries —pedestrians, drivers, passengers and spectators.

Interference with the doctrine of separation of powers

However, the impact of the amendments upon the doctrine of separation of powers is an issue of significant concern.

A person suffering permanent injuries in a transport accident is entitled to have the level of their whole person impairment determined. The legislation requires this to be conducted as an assessment under the American Medical Association’s (AMA) Guide to Permanent Impairment, 4th edition. This assessment must be conducted by a qualified medical practitioner. Further, the practitioner must have successfully completed a training course approved by the Minister. The clear intent of such prerequisites is to ensure the assessment of an injured person’s permanent impairment is established by an objective process conducted by appropriately trained medical practitioners.

If there is a dispute relating to the interpretation of the Guides, the Transport Accident Commission (TAC) or the injured person may seek redress through the judicial process. This initially involves an Applicant’s administrative review at the Victorian Civil and Administrative Tribunal, and following, either party may seek judicial review at the Supreme Court or the Court of Appeal of the Supreme Court of Victoria.

However, the above mentioned Bill (now Act) facilitates the substantial alteration of this process. Section 14 specifically states it is intended to ‘modify or override’ the AMA Guides.

It empowers TAC, upon approval of the Minister, to create a ‘Guides Modification Document’. This document may 'amend, substitute, interpret, exclude or replace part or all of the AMA Guides'.

This empowers the TAC to effectively alter the outcomes of an assessment conducted under the AMA Guides.

This legislation authorises TAC, a Victorian statutory body and compulsory government monopoly insurer, to override, modify or abolish judicial interpretation of the AMA Guides. Such provisions are a complete affront to the doctrine of  separation of powers.

The legislation does not incorporate any notions of checks or balances.  It provides absolute power to the TAC to blatantly ignore, disregard or cast aside the current rulings of up to three Justices of the Supreme Court’s Court of Appeal.

The TAC makes a determination of a person’s level of impairment. The person may review that decision in the VCAT. Either party may seek to review the Tribunal’s interpretation of the Guides in the Supreme Court. Should the TAC be unsatisfied with the Court’s judicial interpretation of the Guides, it can now use the 'Guides Modification Document' to override the Court’s determination.

The principle of the rule of law which underpins our political system depends on the idea that whilst the Parliament is supreme in making the laws, the Courts have the responsibility for interpreting legislation and assessing whether it is within the guidelines established by the Constitution.

The new law  seeks to override this principle. Effectively, we now have the judicial oversight of the Courts being outsourced to an unidentified employee at the TAC.

The ALA engaged in significant lobbying activities once the Bill was introduced. Whilst it appears some politicians have an aversion 'that quaint notion' of separation of powers, we will remain vigilant in agitating on the issue, in a Victorian election year.

Geraldine Collins
is the National President of the Australian Lawyers Alliance, principal at Maurice Blackburn Lawyers, and is an accredited specialist in personal injury law. She tweets at @gerac_mb.


 The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

Learn about how you can get involved and contribute an article.


Tags: Compensation Victoria Transport accidents Transport Accident Commission Geraldine Collins