Federal Court of Australia

Hooley v Comcare [2020] FCA 1880

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal filed 27 December 2019 is dismissed.

2.    The applicant is to pay the respondent’s costs of the appeal to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    In 2009, while he was employed by the Commonwealth Scientific and Industrial Research Organisation (the CSIRO), Mr Andrew Hooley made a claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) that he suffered from a psychological condition to which his employment had made a significant contribution. He subsequently obtained a determination from Comcare, the respondent in this appeal, in respect of that claim and received compensation.

2    In February 2011, Mr Hooley was involuntarily made redundant from his employment with the CSIRO. In early 2016, a delegate of Comcare determined that Mr Hooley was no longer entitled to receive compensation in respect of the psychological condition the subject of his 2009 claim. Mr Hooley unsuccessfully sought reviews of that determination which eventually resulted in the decision of the Administrative Appeals Tribunal (the Tribunal) to which the present appeal relates.

3    In this appeal, Comcare does not dispute that Mr Hooley continues to suffer psychological symptoms. However, it claims that his employment with the CSIRO no longer contributes to those symptoms to a significant degree. The issues of law Mr Hooley seeks to raise in this appeal revolve around the definition of the expression “disease” in s 5B of the SRC Act and the rehabilitation provisions of Part III of that Act.

4    For the reasons that follow, this appeal will be dismissed.

FACTUAL BACKGROUND

5    Mr Hooley commenced work with the CSIRO in 2002. He had a pre-employment history of obsessive compulsive disorder (OCD) in his early teenage years and, what he described as, a short-lived episode of depression in his final years at school.

6    In September 2005, he saw Dr Khoo, his treating psychiatrist, complaining of an intensification of his OCD symptoms associated with a depressed mood. However, by the end of 2006, following a series of consultations with Dr Khoo and a course of medication, those symptoms resolved.

7    In mid 2007, Mr Hooley’s work manager at the CSIRO was replaced and his new manager made significant changes to his work pattern and adopted, what the Tribunal described as, a “forthright and domineering managerial style”. This led to a series of tense interactions between them and eventually to Mr Hooley pursuing a formal grievance process.

8    During this period, Mr Hooley suffered an increase in his anxiety levels and a reoccurrence of his psychological symptoms. That led, in turn, to him submitting the claim for compensation mentioned earlier. He did that on 27 February 2009 and in it he claimed to be suffering from the following conditions:

(a)    an adjustment disorder (with anxiety and depression);

(b)    major depression; and

(c)    a deterioration of his stabilised OCD.

9    In its determination accepting liability for that claim, made on 8 September 2009, Comcare categorised Mr Hooley’s condition as a “disease” under s 5B of the SRC Act and described it as an “adjustment reaction with disturbance of emotions” and “aggravation of [OCD]”. It also identified the date of his “injury” as 11 September 2008, being the date upon which he first sought treatment for the conditions set out in his claim.

10    As already noted, in February 2011, Mr Hooley was involuntarily made redundant from his employment at the CSIRO. Later that year, he was employed by the University of Queensland.

11    In March 2014, he ceased that employment and in May 2014, he commenced employment with Griffith University. He ceased that employment in November 2014.

12    On 6 August 2015, Comcare issued a notice to Mr Hooley that it may determine that the compensation he was receiving would no longer be payable. At that time, his medical expenses were being paid by Comcare and he was continuing to receive payments for incapacity pursuant to ss 16 and 19 of the SRC Act, respectively. Prior to finalising that determination, Comcare afforded Mr Hooley an opportunity, of which he availed himself, to obtain and present further medical evidence.

13    On 27 January 2016, Comcare determined that Mr Hooley was not entitled to continue receiving compensation with respect to his ongoing psychological condition. On 11 February 2016, Mr Hooley sought to have that determination reconsidered and, on 11 March 2016, it was affirmed.

14    On 20 March 2016, Mr Hooley applied to the Tribunal for a review of that determination as a “reviewable decision” under s 64 of the SRC Act. The Tribunal dismissed that application on 29 November 2019.

TRIBUNAL’S DECISION

15    Before the Tribunal, Mr Hooley claimed that his ongoing psychological condition was contributed to by both the treatment he had received from his work manager from 2007 and by his employer’s failure to provide proper rehabilitation, professional development and career support to him. He also claimed that the failure to provide that rehabilitation and support caused him to fail in his subsequent two periods of employment: first at the University of Queensland and subsequently at Griffith University.

16    For its part, Comcare claimed that Mr Hooley’s condition, after approximately 2010, was the result of the “natural course of [his] pre-existing underlying condition”. It also contended that any depressive episodes and/or deterioration in his OCD subsequent to that time were caused by “the compensation claims process” and were not contributed to by his employment.

17    In the introductory paragraphs of its decision, the Tribunal considered, among other things, the legislative framework to the issues it had to decide (reasons at [11]-[24]). Its consideration of that framework included the definitions of “injury” and “disease” in ss 5A and 5B of the SRC Act respectively. In particular, it highlighted the phrase “was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee” in the latter definition. With respect to the expression “employee’s employment” that appears within that phrase, the Tribunal made the following observations (reasons at [19]-[22]):

19.    The concept of “employment”, in terms of its use in s 5B of the SRC Act, is not defined anywhere in that legislation. With reference to historical authority, [Comcare] submits that the concept of “employment” “…should be construed to mean the actual work (or duties or service) an employee is engaged to do (or required to perform) and what is reasonably incidental to that work.”

20.    I agree with that contention because it is consistent with more recent authority from this Tribunal, where the concept was given a narrow construction. The Tribunal authority to which I refer is Re Pettiford v Comcare (2014) 139 ALD 411. In Pettiford, the Tribunal had regard to more historical High Court authority, where the High Court found that establishing a threshold for determining that “employment was a contributing factor” for an asserted injury involved identifying or demonstrating “some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed.” …

21.    Further, to demonstrate that “employment was a contributing factor”, it was necessary to be able to point to “some event or occurrence in the course of [Mr Hooley’s] employment or some characteristic of the work performed or the conditions in which it was performed.” In Pettiford, the Tribunal inferred from the abovementioned quoted passages from earlier High Court authority that the concept of “work” could not be regarded as a “neutral term”. As noted by [Comcare]: “Rather, the emphasis was upon the actual work performed by the employee…”

22.    As will be noted from the following discussion and analysis of the medical evidence, certain factors that were either reported by [Mr Hooley] to his medical experts and/or identified by those experts in his symptomatology do not necessarily qualify as “employment” for the purposes of the determinative exercise required by s 5B(2) of the SRC Act. For example:

(i)    the detection or presence of symptoms for which he was previously compensated during a course of rehabilitation will not meet the threshold of “employment”. Rehabilitation is not an incident or state of affairs to which [Mr Hooley] was exposed “in the performance of his duties,”; [sic]

(ii)    whether or not his employer omitted, overlooked or failed to provide him with training opportunities cannot be regarded as “employment”. Any such shortfall on the part of the employer could not possibly comprise a component of [Mr Hooley’s] work duties, nor was it something reasonably incidental to those work duties; and

(iii)    the fact that [Mr Hooley] had to traverse the uncertainties and exigencies of a claims or litigation process in his claim for compensation for injuries he asserted related to his employment could not possibly comprise “employment” for the purposes of s 5B of the SRC Act. This Tribunal has noted that:

“Reactions – or indeed overreactions – to events in the workplace, if they are properly regarded as sequelae of an applicant’s employment, are part and parcel of the original injury, but it is well established that anger and frustration towards a respondent in resolving a legal claim for that injury is not.”

(Emphasis in original; footnotes omitted)

I interpose to note that, in oral submissions in this appeal, Mr Hooley’s counsel was particularly critical of the Tribunal’s observations at [22] of its reasons above.

18    The Tribunal then outlined the issues it had to decide in the following terms (reasons at [25]):

(a)    whether [Mr Hooley] continues to suffer from an ‘injury’ as defined in the SRC Act; and if so

(b)    whether [Mr Hooley] has an ongoing need for treatment for the injury; and/or

(c)    whether [Mr Hooley] has an ongoing incapacity for work.\

(Emphasis in original)

19    After determining a jurisdictional issue, an evidentiary matter connected with the Full Court decision in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253; [2006] FCAFC 87 and identifying the areas of common ground between the parties (reasons at [30]-[45]), the Tribunal turned to conduct a detailed analysis of Mr Hooley’s evidence (reasons at [46]-[74]) and the medical evidence that was placed before it (reasons at [75]-[130]). In its final conclusion, it referred back to the issues it had identified earlier (see at [18] above) and then posed, and answered in the negative, the following question (reasons at [131]):

Does [Mr Hooley] continue to suffer from the compensable conditions which are properly characterised as (1) major depressive disorder (aggravation) and (2) obsessive-compulsive disorder (aggravation), which conditions are said to constitute the ‘injury’ pursuant to ss 5A and 5B of the SRC Act? …

(Footnote omitted)

20    Immediately thereafter it made the following findings as the basis for that answer:

I find on the evidence before me that:

(i)    to the extent that [Mr Hooley’s] ongoing psychological symptomatology following the period of syndromal remission he experienced proximate to the time of his involuntary redundancy from the CSIRO, those symptoms and any diagnosis arising therefrom are properly characterised as a new and separate injury;

(ii)    it is beyond the scope of the Tribunal’s jurisdiction deriving from this application to make a determination of liability regarding any such new and separate injury;

(iii)    to the extent that the accepted compensable conditions continued after the period of syndromal remission and involuntary redundancy from CSIRO referred to in (a) [sic – (i)] above, I find that on the evidence before me, [Mr Hooley’s] “employment” (for the purposes of s 5B of the SRC Act) no longer contributes, to a significant degree, to his ongoing psychological symptomatology;

(iv)    during the period following [Mr Hooley’s] involuntary redundancy from the CSIRO (February 2011), any asserted “employment” - related factors are now a spent force in [Mr Hooley’s] overall clinical presentation;

(v)    that any asserted “employment” – related factors have now been “crowded out” or supplanted by non-compensable factors such as:

•    episodes/challenges at [Mr Hooley’s] new workplaces;

•    his having to deal with the Comcare claims/litigation process;

•    financial stringency arising from not being able to hold down long-term employment;

•    uncertainty about future employment prospects; and

•    the co-morbid nature of his [major depressive disorder] and OCD conditions.

…

(Emphasis in original)

21    The Tribunal therefore affirmed Comcare’s reviewable decision (reasons at [132]).

GROUNDS OF APPEAL

22    Mr Hooley’s notice of appeal from the Tribunal’s decision contained the following grounds of appeal:

1.    The Tribunal erred in law in approaching the issues on the basis that [Mr Hooley’s] “employment” for the purposes of s.5B of the SRC Act did not extend to –

(a)    the provision of rehabilitation to [Mr Hooley] under a rehabilitation program determined under Part III of the SRC Act for an accepted injury, or

(b)    a failure to provide rehabilitation, or adequate rehabilitation, to [Mr Hooley] under a rehabilitation program determined under Part III of the SRC Act for an accepted injury, or

(c)    a failure to provide professional development and training to [Mr Hooley], whether or not under a rehabilitation program determined under Part III of the SRC Act for an accepted injury, or

(d)    the provision of inadequate professional development and training to [Mr Hooley], whether or not under a rehabilitation program determined under Part III of the SRC Act for an accepted injury.

2.    The Tribunal erred in law in failing to find that because the “rehabilitation authority” was the CSIRO, and the CSIRO was [Mr Hooley’s] employer, then –

(a)    the provision of a rehabilitation program by the CSIRO, or

(b)    a failure by the CSIRO to provide any, or any adequate, rehabilitation program, or

(c)    the failure by the CSIRO to provide adequate professional development and training,

following an accepted “injury”, was in each case an event or occurrence in the course of [Mr Hooley’s] employment with the CSIRO.

23    In addition, he identified the following three questions of law which, he contended, fell to be determined:

1.    On the proper construction of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”), does the scope of the phrase “the employee’s employment” in s.5B extend to –

(a)    participation in a rehabilitation program provided to an employee for an accepted injury under Part III of the SRC Act, or

(b)    the impact on the employee of a failure to provide any rehabilitation program, or any adequate rehabilitation program, to an employee for an accepted injury under Part III of the SRC Act,

such that the suffering of an ailment (or the aggravation or acceleration of an ailment) contributed to, to a significant degree, by the content of the rehabilitation program, or by the manner in which it was provided, or by a failure to provide any rehabilitation program, or any adequate rehabilitation program, may be a compensable “disease” under s.5A of the SRC Act?

2.    On the proper construction of the SRC Act, does the scope of the phrase “the employee’s employment” in s.5B of the SRC Act extend to –

(a)    a failure to provide professional development and training to an employee, whether or not under a rehabilitation program determined under Part III of the SRC Act for an accepted injury,

(b)    the provision of inadequate professional development and training to an employee, whether or not under a rehabilitation program determined under Part III of the SRC Act for an accepted injury, or

such that the suffering of an ailment (or the aggravation or acceleration of the ailment) contributed to, to a significant degree, by the failure to provide professional development and training to the employee, whether at all, or to an inadequate level, may be a compensable “disease” under s.5A of the SRC Act?

    (Emphasis in original)

THE RELEVANT LEGISLATIVE PROVISIONS

24    As is already noted above, s 5A of the SRC Act defines the expression “injury” to include “disease”. The expression “disease” is then defined in s 5B as follows:

5B    Definition of disease

(1)     In this Act:

disease means:

(a)    an ailment suffered by an employee; or

(b)    an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

(2)    In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

(a)    the duration of the employment;

(b)    the nature of, and particular tasks involved in, the employment;

(c)    any predisposition of the employee to the ailment or aggravation;

(d)    any activities of the employee not related to the employment;

(e)    any other matters affecting the employee’s health.

This subsection does not limit the matters that may be taken into account.

(3)    In this Act:

significant degree means a degree that is substantially more than material.

(Underlining added)

25    The position Mr Hooley adopted before the Tribunal, and which he has adopted in this appeal, focused on the words of s 5B(1) which have been underlined above. In addition, as appears from Mr Hooley’s grounds of appeal above, he has focused on the rehabilitation provisions of Part III (ss 34 to 41D) of the SRC Act. For present purposes, the three pivotal provisions of that Part are in Division 3: ss 36 to 38. In brief summary, s 36 provides for an assessment of an employee’s capability to undertake a rehabilitation program, s 37 provides for a rehabilitation authority to make a determination whether an employee should undertake a rehabilitation program and s 38 provides for notice of a determination made under ss 36 or 37 and the opportunity for an employee to seek a review of such a determination. Since those sections are particularly important to the determination of this appeal, it is appropriate to set them out verbatim, as follows:

36 Assessment of capability of undertaking rehabilitation program

(1)    Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee’s capability of undertaking a rehabilitation program.

(2)    An assessment shall be made by:

(a)    a legally qualified medical practitioner nominated by the rehabilitation authority;

(b)    a suitably qualified person (other than a medical practitioner) nominated by the rehabilitation authority; or

(c)    a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the rehabilitation authority.

(3)    The rehabilitation authority may require the employee to undergo an examination by the person or panel of persons making the assessment.

(4)    Where an employee refuses or fails, without reasonable excuse, to undergo an examination in accordance with a requirement, or in any way obstructs such an examination, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.

(4A)    However, subsection (4) does not operate to suspend the employee’s right to compensation for the cost of medical treatment that is payable under section 16.

…

(8)    Where an examination is carried out, the person or persons who carried out the examination shall give to the rehabilitation authority a written assessment of the employee’s capability of undertaking a rehabilitation program, specifying, where appropriate, the kind of program which he or she is capable of undertaking and containing any other information relating to the provision of a rehabilitation program for the employee that the rehabilitation authority may require.

37 Provision of rehabilitation programs

(1)    A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.

(2)    If a rehabilitation authority makes a determination under subsection (1), the authority may:

(a)    provide a rehabilitation program for the employee itself; or

(b)    make arrangements with an approved program provider for that provider to provide a rehabilitation program for the employee.

(2A)    A determination under subsection (1) is not a legislative instrument.

(3)    In making a determination under subsection (1), a rehabilitation authority shall have regard to:

(a)    any written assessment given under subsection 36(8);

(b)    any reduction in the future liability to pay compensation if the program is undertaken;

(c)    the cost of the program;

(d)    any improvement in the employee’s opportunity to be employed after completing the program;

(e)    the likely psychological effect on the employee of not providing the program;

(f)    the employee’s attitude to the program;

(g)    the relative merits of any alternative and appropriate rehabilitation program; and

(h)    any other relevant matter.

(4)    The cost of any rehabilitation program provided for an employee under this section shall be paid by the relevant authority in relation to that employee.

(5)    Where an employee is undertaking a rehabilitation program under this section, compensation is not payable to the employee under section 19 or 31 but:

(a)    if the employee is undertaking a full‑time program—compensation is payable to the person of an amount per week equal to the amount per week of the compensation that would, but for this subsection, have been payable under section 19 if the incapacity referred to in that section had continued throughout the period of the program; or

(b)    if the employee is undertaking a part‑time program—compensation is payable to the employee of such amount per week as the relevant authority determines, being an amount not less than the amount per week of the compensation that, but for this subsection, would have been payable to the employee under this Act and not greater than the amount per week of the compensation that would have been payable under paragraph (a) if the employee had been undertaking a full‑time program.

(7)    Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.

(7A)    However, subsection (7) does not operate to suspend the employee’s right to compensation for the cost of medical treatment that is payable under section 16.

(8)    Where an employee’s right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.

38 Review of certain determinations by Comcare

(1)    As soon as practicable after a rehabilitation authority (other than a relevant authority) makes a determination under section 36 or 37, the authority shall cause to be served on the employee to whom the determination relates a notice in writing setting out:

(a)    the terms of the determination;

(b)    the reasons for the determination; and

(c)    a statement to the effect that the employee may, if dissatisfied with the determination, request Comcare for a review of the determination under this section.

(2)    An employee in respect of whom a determination under section 36 or 37 is made by a rehabilitation authority (other than a relevant authority) may, by notice in writing given to Comcare, request Comcare to review the determination.

(3)    A request shall:

(a)    set out the reasons for the request; and

(b)    be given to Comcare within 30 days after the day on which the determination first came to the notice of the employee, or within such further period (if any) as Comcare, either before or after the expiration of that period, allows.

(4)    On receipt of a request, Comcare shall review the determination and may make a decision affirming or revoking the determination or varying the determination in such manner as Comcare thinks fit.

26    The expressions “rehabilitation authority”, “rehabilitation program” and “relevant authority” that variously appear within those sections are defined in s 4 of the Act in the following terms:

rehabilitation authority, in relation to an employee, means:

(a)    where the employee is employed by an exempt authority—Comcare; and

(b)    where the employee is employed by a licensed authority—the principal officer of that authority; and

(ba)    if the employee is employed by a licensed corporation—the principal officer of that corporation; and

(c)    if the employee is employed by an Entity or a Commonwealth authority, other than an exempt authority—the principal officer of the Entity or the Commonwealth authority in which the employee is employed.

rehabilitation program includes medical, dental, psychiatric and hospital services (whether on an in‑patient or out‑patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training.

relevant authority means:

(a)    in relation to an employee who is employed by a licensee—the licensee; and

(b)    in relation to any other employee—Comcare.

CONTENTIONS

27    The essential elements of Mr Hooley’s case in this appeal are set out in his grounds of appeal above. The position that he has adopted in this appeal is subtly different to that which he adopted before the Tribunal. In this appeal, he has placed greater emphasis on the rehabilitation provisions of Part III of the SRC Act. He appears to have done that because, in order to succeed, he appears to accept that he needs to establish a link between his employment with the CSIRO, based on his construction of the words in s 5B highlighted earlier (see at [24] above), and its alleged failure to provide a rehabilitation program, or professional support, to him. That, in turn, requires him to establish that the CSIRO, as his employer, had a responsibility or obligation to provide that program or support to him. Hence, his focus on the provisions of Part III of the SRC Act in this appeal.

28    In oral submissions, his counsel made a number of significant concessions about those provisions. First, he said it was common ground that Mr Hooley had not made a written request for an assessment under s 36(1). Secondly, he accepted that, in the absence of such a written request, there was no provision of the SRC Act that placed an express obligation on an employing agency, such as the CSIRO, to provide a rehabilitation program or professional support to an injured employee. Thirdly, he agreed that the only provision of Part III of the Act that placed any express obligation on an employing agency, with respect to such an employee, was s 40 as follows:

40    Duty to provide suitable employment

(1)     Where an employee is undertaking, or has completed, a rehabilitation program, the relevant employer shall take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment.

(2)    In this section:

relevant employer means:

(a)    in relation to an employee employed by a Commonwealth authority—that authority; and

(aa)    in relation to an employee employed by a licensed corporation—that corporation; and

(b)    in relation to any other employee—the Commonwealth.

As can be seen from the opening words of this provision, it is premised on the employee undertaking, or having already completed, a rehabilitation program.

29    Nonetheless, Mr Hooley contended that it was implicit from the “overall objectives” of the Act, as reflected in the rehabilitation provisions in Part III, that an employing agency, such as the CSIRO, had a general responsibility or obligation to provide the support mentioned above to an injured employee. In advancing this submission, he placed particular reliance on the following passages from the Minister’s second reading speech on the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 (which subsequently became the SRC Act):

A significant factor in the escalation of compensation costs which I described earlier is the length of time that employees remain on compensation. It is obvious to this Government that the only way to reduce the period spent on compensation is by the effective rehabilitation of injured employees. To this end, the Bill will encourage the speedy rehabilitation of employees who are injured by enabling employing agencies or the Commission to arrange for the assessment of the rehabilitation needs of the employee and the type of work which that person could perform following appropriate retraining.

Consistent with the goal of minimising incapacity and impairment, employing agencies and the Commission will have much broader powers in relation to the provision of rehabilitation programs than were previously available. The Commission will be able to approve persons and organisations as rehabilitation program providers and to arrange directly with them for the provision of rehabilitation programs tailored to the individual needs of employees. If an employee refuses to undertake a rehabilitation program, his or her rights to compensation will be suspended. On the other hand, employing agencies will be required to take all reasonable steps to provide suitable employment for employees who have undertaken rehabilitation programs. The Commission will also examine the introduction of a new system of work trials for injured employees to enable them to participate fully in the work force. The Commission will have the power to arrange for the provision of necessary aids and appliances, and home, vehicle or work place modifications.

30    Mr Hooley claimed that various statements in this speech, including those about providing “effective rehabilitation of injured employees” and encouraging “the speedy rehabilitation of employees who are injured”, reflected the overall objective of the Act mentioned above. He contended that, since the CSIRO, as his employing agency, had the general responsibility or obligation incumbent in that objective, and since it did not provide the requisite support to him, in circumstances where, he claimed, that support was indicated, and since that failure led to a claimed worsening of his pre-existing condition, then that outcome should be treated as having been “contributed to, to a significant degree, by [his] employment” within the terms of s 5B of the SRC Act.

31    In summary, Comcare contended that no such responsibility or obligation was imposed on the CSIRO under the SRC Act and that, in the circumstances of Mr Hooley’s case as outlined above – particularly the fact that he had not even made a written request for an assessment under s 36(1) of the SRC Act – any necessity to construe the provisions of s 5B of the Act became a “hypothetical” exercise.

CONSIDERATION

32    The critical question raised by these contentions is whether an employing agency, such as the CSIRO, has a general responsibility or obligation as outlined above arising from the “overall objectives” of the SRC Act. For the purposes of answering this question, I will assume, without deciding, that Mr Hooley is correct in the assertion which appears from his second ground of appeal that the “rehabilitation authority” as defined in s 4 of the SRC Act and his employing agency were one and the same entity, namely the CSIRO. However, with respect to this assumption, it is worth noting that there is at least one situation where the apposite rehabilitation authority will not be the employing agency, namely in the case of an exempt authority under cl (a) of the definition of the expression “rehabilitation authority” (see at [26] above). This would appear to present a difficulty for Mr Hooley’s construction of the definition of the expression “rehabilitation authority” in s 4 of the SRC Act because there can only be one proper construction of that definition (see Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192 at [115] citing Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [25]).

33    The answer to the critical question above essentially involves an exercise in statutory construction. It is well-established that such an exercise calls for a consideration of the text, context and evident purpose of the legislative provisions concerned (see Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) 381 ALR 601; [2020] HCA 29 at [13]-[14] and the authorities there cited).

34    As regards the evident purpose of the provisions of the SRC Act, the Minister’s second reading speech is a convenient starting point. That is so, at least in part, because Mr Hooley relied on it almost exclusively to define the “overall objectives” of those provisions of the Act. The pertinent passages of that speech are set out above (see at [29]). In my view, the parts of those passages that Mr Hooley has highlighted have been taken out of context. When those passages are read as a whole, the salient features of them that emerge are as follows. Firstly, the Minister stated that he had concerns about “the escalation of compensation costs” associated with “the length of time that employees remain on compensation”. Secondly, the solution that the Minister identified to address those concerns was the “effective rehabilitation of injured employees”. Thirdly, he said that solution was to be achieved, in part, by providing Comcare (formerly the Commission) with “much broader powers in relation to the provision of rehabilitation programs than were previously available”. And, finally, the measures which he proposed to employ to support that solution included a provision that: “If an employee refuses to undertake a rehabilitation program, his or her rights to compensation will be suspended”; together with a provision that “employing agencies will be required to take all reasonable steps to provide suitable employment for employees who have undertaken rehabilitation programs”.

35    I interpose to note that, in the context of a case concerning the extinguishment of the right to sue for common law damages, a measure that was also implemented by the SRC Act, McHugh J drew similar themes from these passages in Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 322-323, as follows:

… According to the second reading speech explaining the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988, the purpose of the proposed Act was to “provide incentives for injured employees to return to work as soon as possible” and to “provide greater powers in relation to rehabilitation”. These objectives were said to be the Commonwealth's response to a 700 per cent increase in government expenditure on workers’ compensation over the decade between 1976 and 1986. The Minister attributed the increase to inefficiencies in the 1971 Act and to long delays in the court system in bringing negligence actions on for hearing. Both factors were said to provide disincentives for injured workers to return to work and to encourage them to maximise the extent and duration of their injuries. The Minister stated that the new Act was an attempt to reverse this position by encouraging speedy rehabilitation.

(Footnote omitted)

36    Hence, when it is read as a whole and in its proper context, I do not consider the Minister’s speech reflects the overall objectives of the SRC Act for which Mr Hooley contends. That is so for the following reasons. Firstly, the provision of “effective rehabilitation” was advanced by the Minister as a means to achieve the ultimate goal of reducing escalating compensation costs. It was therefore not, itself, advanced by him as an objective of the Act, let alone an “overall objective”.

37    Secondly, the Minister said that cost reduction goal was to be achieved by granting extra powers to Comcare and by including at least two new provisions in the Act. One of those provisions effectively forced an employee to undertake a rehabilitation program if that were the determined course (cf s 37(7) at [25] above). The other provision required employing agencies to provide suitable employment to employees who had already undertaken, or were undertaking, a rehabilitation program (cf s 40 at [28] above). It is to be noted that neither of these express obligations required employing agencies to provide a rehabilitation program to an injured employee. To the contrary, the obligation in the former provision was applied to employees, not to employing agencies; and while the latter provision did apply to employing agencies, it only arose where the employee concerned was already undertaking a rehabilitation program, or had already undertaken such a program.

38    Finally, and most importantly, the Minister did not anywhere, in his remarks, suggest that the proposed legislation was intended to make employing agencies generally responsible to provide a rehabilitation program and/or professional training to an injured employee. In this respect, it is to be recalled that all of the employees concerned worked in the public sector and their ultimate employer was the Commonwealth, through one of its Departments, agencies or corporate entities. That being so, if the Commonwealth Government were proposing legislation to the Commonwealth Parliament which effectively imposed a general responsibility, or obligation, on itself to provide effective rehabilitation to all its injured employees, one would have expected that important policy objective to emerge clearly from the Minister’s speech.

39    This conclusion about the evident purpose of the pertinent provisions of the SRC Act is also supported by the absence of any indication to that effect in their text or context and particularly the scheme established by those provisions. A number of aspects of their text and context have already been mentioned above. Others include the following. Firstly, as already noted, s 36(1) imposes an obligation on a rehabilitation authority to act only if an employee makes a written request. In the absence of such a written request, the rehabilitation authority has a broad discretion whether to cause an assessment to be undertaken. Neither of these courses is consistent with an employing agency, like the CSIRO, even assuming it is also the rehabilitation authority, having a general responsibility to provide rehabilitation support to an injured employee.

40    Secondly, the action required of the rehabilitation authority once it receives a written request, or exercises its discretion under s 36(1), is to cause one of the persons described in s 36(2) to conduct an assessment whether the employee concerned is capable of undertaking a rehabilitation program. Hence, even a written request, or an exercised discretion, does not directly activate an obligation to provide a rehabilitation program to the employee concerned. That can only occur after a determination to that effect has been made by the rehabilitation authority under s 37 after having regard to the matters set out in s 37(3).

41    Finally, it is to be noted that only the employee concerned has a right under s 38 to seek a review of a determination made under s 37. This suggests that the obligations that arise from such a determination are visited on the employee, not the rehabilitation authority nor, more importantly, the employing agency involved.

42    To sum up, this review of the text, context and purpose of the pertinent provisions of the SRC Act does not support the existence of the general responsibility or obligation to provide rehabilitation support to an injured employee for which Mr Hooley contends. Since there is no such general responsibility in the SRC Act, it follows that the CSIRO was under no obligation to provide such support to Mr Hooley. It follows further that Mr Hooley has failed to establish the link between his employment with the CSIRO and its failure to meet its responsibility or obligation to provide a rehabilitation program or professional support to him. It is therefore unnecessary to decide whether the expression “employment” in s 5B extends to include participating in such a program or support. Comcare is therefore essentially correct in characterising the questions of law raised by Mr Hooley in this appeal as “hypothetical”.

CONCLUSION

43    For these reasons, there is no merit in Mr Hooley’s first ground of appeal, even assuming, in his favour, the proposition which appears to be advanced in his second ground of appeal. He has therefore failed to establish any relevant error in the Tribunal’s decision with the result that his appeal must be dismissed. The orders will be:

1.    The notice of appeal filed 27 December 2019 is dismissed.

2.    The applicant is to pay the respondent’s costs of the appeal to be taxed if not agreed.

Associate:    

Dated:    24 December 2020