Australian Electoral Commission and Comcare

This matter concerned an application by the Australian Electoral Commission (AEC) to the Tribunal for review of a reconsideration decision by Comcare. Comcare had affirmed its determination that Mr McKenzie was entitled to compensation for incapacity for work during a specified period, arising from an adjustment disorder with anxiety and depression accepted as an injury under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). The AEC had contested Comcare's initial acceptance of liability, asserting that Mr McKenzie's condition was the result of personal stressors outside his employment. Numerous issues arose between Mr McKenzie and the AEC concerning rehabilitation, work performance, and payroll matters after his accepted injury date, and Mr McKenzie had been off work since 2019.

The Tribunal was required to determine whether Mr McKenzie suffered an 'injury' as defined by the SRC Act from a particular date, whether he had suffered 'incapacity for work' as a result of that injury during the relevant periods, and if compensation was payable. Central to these determinations was the need to establish a causal nexus between Mr McKenzie's adjustment disorder and the circumstances of his employment with the AEC, requiring consideration of whether his employment contributed to his ailment to a significant degree, as well as any other factors outside of employment that may have contributed. The Tribunal also needed to assess the existence and causes of incapacity for work, applying the statutory definition, which commonly relies on medical evidence, including clinical notes of treating therapists and doctors, particularly when disentangling multifactorial causes of incapacity.

In considering the production of psychological treatment records, the Tribunal acknowledged the potential for these records to be crucial in establishing the causes of incapacity, especially in cases where the ailment and incapacity may be multifactorial. The Tribunal applied principles relating to the legitimate forensic purpose and apparent relevance of such records, balancing these against the right to privacy and the therapist's duty of care. The Tribunal found that the summons for production of psychological treatment records was not oppressive or speculative, and that the obligation to ensure each party is given a reasonable opportunity to present their case necessitated their production.

Consequently, the Tribunal refused the objection to the summons issued for the production of psychological treatment records. As the original production date had passed, the Tribunal extended the deadline for Mr de Beer, Salt and Light Psychology, to produce the documents to 18 February 2022. The Tribunal noted that Mr McKenzie retained the right to object to the disclosure of any produced records on legal grounds at a later stage.