DVFW and Comcare (Compensation)

This matter concerned an application by DVFW for review of a decision by Comcare to suspend compensation entitlements. Comcare had issued a notice requiring DVFW to undergo a medical examination by a psychiatrist on 3 June 2024, pursuant to section 57 of the *Safety, Rehabilitation and Compensation Act 1975* (SRC Act). DVFW failed to attend this examination. Subsequently, on 20 June 2024, Comcare issued a decision formally suspending DVFW's compensation rights under section 57(2) of the SRC Act until the examination took place, on the basis that DVFW had failed to undergo the examination without reasonable excuse. The Administrative Appeals Tribunal (Tribunal) was required to determine its jurisdiction in relation to this matter.

The primary legal issues before the Tribunal were whether the amendments introduced by the *Fair Work Legislation Amendment (Closing Loopholes) Act 2023* were applicable to the present circumstances, and consequently, what jurisdiction the Tribunal possessed to consider the reasonableness of DVFW's excuse for failing to attend the medical examination. The Tribunal was tasked with determining whether it had the authority to evaluate the reasonableness of DVFW's failure to undergo the examination, or if its jurisdiction was limited to reviewing a decision that was itself reviewable under the SRC Act.

The Tribunal reasoned that its jurisdiction is conferred by statute, specifically section 25 of the *Administrative Appeals Tribunal Act 1975*. It found that the *Fair Work Legislation Amendment (Closing Loopholes) Act 2023* did not apply retrospectively to the circumstances of this case. The Tribunal concluded that the decision to suspend compensation under section 57(2) of the SRC Act was not a reviewable decision in itself. Instead, the Tribunal's jurisdiction was conditioned by the existence of a reviewable decision made under the SRC Act. As the suspension decision was not a decision that DVFW was entitled to have reviewed by the Tribunal, the Tribunal lacked the authority to evaluate the reasonableness of DVFW's excuse for not attending the medical examination.

Consequently, the Tribunal ordered that the proceedings be stayed until DVFW complied with the notice to undergo the medical examination.