Brophy and Comcare
[2001] AATA 644
•11 July 2001
DECISION AND REASONS FOR DECISION [2001] AATA 644
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2001/122
GENERAL ADMINISTRATIVE DIVISION )
Re JOY BROPHY
Applicant
And COMCARE
Respondent
DECISION
Tribunal M J Sassella, Senior Member
Date11 July 2001
PlaceCanberra
Decision The Tribunal has jurisdiction to entertain this application for review.
..............................................
Senior Member
CATCHWORDS
WORKERS' COMPENSATION – whether tribunal can entertain application – return to work program - rehabilitation
Safety, Rehabilitation and Compensation Act, ss 34(1), 36, 37(1)-(4), 38, 60(1), definitions of "decision", "determination", "determining authority", "reviewable decision", 64.
Administrative Appeals Tribunal Act 1975 s 3(3).
Deputy Commissioner of Patents v Board of Control of Michigan Technological University (1979) 2 ALD 711
Re Burt and Commissioner for Safety, Rehabilitation and Compensation (AAT 7578, 6 December 1991)
Re Robertson and Civil Aviation Authority [1999] AATA 608
Comcare v Meng Chang [1996] 927 FCA 1
Hardin v Comcare (1995) 21 AAR 392
Deputy Commissioner of Patents v Board of Control of Michigan Technical University (1979) 43 FLR 9
Hevi Lift PNG Pty Ltd v Civil Aviation Safety Authority (1997) 79 FCR 19
Clancy v Attorney-General of Queensland (1992) 26 ALD 746
Re Secretary, Department of Social Security and Pomersbach (1991) 25 ALD 73
Re Secretary, Department of Social Security and Campbell (1991) 25 ALD 625
Re Wardle and Comcare [1999] AATA 959
REASONS FOR DECISION
10 July 2001 M J Sassella, Senior Member
History of application
Ms Joy Brophy ("the Applicant") sustained a back injury in work accident on 7 October 1993 (T2). She submitted a compensation claim on 22 November 1993 (T4).
The Commonwealth Rehabilitation Service ("CRS") provided a report to either Comcare ("the Respondent") or Qantas ("the employer") which was undated but was prepared some time between 30 June 1994 and 18 July 1994 (T6). This report contemplated that the Applicant would return to work but that ongoing monitoring would be required.
A return to work ("RTW") plan was settled on 3 June 1994 (T8).
A CRS progress report was prepared on 5 August 1994 (T10).
The RTW plan was amended on 25 August 1994 (T12). There were further CRS reports and amended RTW plans.
The RTW plan was closed on 20 April 1995 (T16). The CRS closed the case on 20 April 1995 (T19). She was at work and continuing at that stage.
There were no other developments of note until 10 February 1997 when the employer gave the Applicant notice of possible termination of her employment (T39).
On 1 April 1997 the employer notified the Respondent that the Applicant's employment was terminated as of that date (T41).
On 9 September 1997 the Applicant's solicitor wrote to the employer requesting a rehabilitation assessment for the Applicant pursuant to s 36 of the Safety Rehabilitation and Compensation Act 1988 ("the Act") (T43).
On 26 September 1997 the employer's solicitor responded saying that the Applicant had been previously assessed for rehabilitation and had completed the relevant rehabilitation program in 1995 (as per T16) (T49).
On 27 October 1997 the Applicant's solicitor requested a reconsideration of the refusal to conduct the rehabilitation assessment (T52).
On 18 December 1997 the Respondent decided that the determination not to assess the Applicant for rehabilitation could not be sustained (T56). The determination was revoked and it was decided that an assessment was to be carried out under s 36 of the Act. Full reasons were provided at T57. Essentially it was held that s 36 of the Act requires the rehabilitation authority (here the employer) to undertake a rehabilitation assessment when a request is made in writing. There is no provision to refuse an assessment on the basis that rehabilitation has previously been undertaken and completed.
The employer arranged for a rehabilitation assessment which was provided over a year later, in January 1999 (T64).
The employer has apparently done nothing since that date with the assessment. The Applicant's solicitor has written variously to the employer's solicitor and to the Respondent requesting action several times (T65, 12 November 1999; T66, 12 November 1999; T69, 12 April 2000; T74, 14 August 2000; T80, 31 October 2000; T81, 29 November 2000; T84, 2 January 2001).
The Applicant has received little information back from the employer. On 19 April 2000 the solicitors for Qantas wrote to the Applicant's solicitor saying that Qantas would "be in a position to make its decision on whether an appropriate section 37 of the Safety Rehabilitation and Compensation Act 1988 should be made" (T72). The defective syntax in this excerpt reflects the actual drafting of the solicitor's letter. It appears from this that some thought was being given to action that was to occur in response to the rehabilitation assessment. Nothing further was forthcoming.
The Respondent on 1 February 2001 wrote to the Applicant's solicitor stating that he had asked the Respondent on 29 November 2000 to review, under s 38 of the Act, the employer's refusal to extend to the Applicant a rehabilitation program (T85). The Respondent says in its letter:
"… I do not consider that a determination has been made by QANTAS for the purposes of s 37 of the SRC Act. A refusal to make a decision requires an overt act to make a decision to refuse a request or application; not a mere failure to take any action. The full definition of 'decision' in the AAT Act refers to such overt acts, that is, the actual decision to refuse to make a decision. … In this matter QANTAS has merely not complied with requests to make a decision, or by definition, a decision under section 37 of the SRC Act. Until QANTAS makes such an overt determination, Comcare has no jurisdiction to undertake a review under section 38 of the SRC Act. Section 37 specifically states that QANTAS may make a determination that an employee should undertake a rehabilitation program. As a matter of statutory interpretation the making of a determination by the rehabilitation authority is discretionary. … the above does not constitute a reviewable decision pursuant to section 38 of the SRC Act and as such also consider that this matter is not appealable to the Administrative Appeals Tribunal."
The Respondent wrote to the employer on 1 February 2001 and said, "Whilst it is acknowledged that the making of a determination by a rehabilitation authority is discretionary, it is considered Qantas has an obligation to perform functions within the spirit of the Act and, that serious consideration ought to be given to issuing a determination pursuant to section 37." (T86)
On 15 March 2001 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") an application for review of a decision made on 1 February 2001 (T1).
On 20 March 2001 the employer wrote to the Applicant's solicitor:
"We wish to advise that Qantas has complied with the requirements under the Safety, Rehabilitation and Compensation Act 1988 ("the Act")
"In this regard we confirm that Ms Brophy was made redundant in April 1997. On 7 January 1999, at the request of the worker, a rehabilitation assessment was arranged through CRS pursuant to s36(1) of the Act.
"As you are aware, Qantas are not compelled to make a determination under s37(1) of the Act. We request that you provide the section in the legislation that makes it mandatory for Qantas to make a determination under s37(1)." (T87)
On 21 March 2001 the Applicant's solicitor wrote to the Respondent stating that the employer has refused to make a determination (T88). The writer asked the Respondent to undertake a review pursuant to its powers under s 38 of the Act.
On 17 April 2001 the Respondent's solicitor wrote to the Tribunal seeking that the matter be listed for a preliminary hearing on the jurisdiction of the Tribunal. It was suggested that there may not be a reviewable decision under s 64 of the Act. It was suggested that there had been no decision made under s 37(1) of the Act which could be the subject of a reviewable decision under s 38 of the Act.
Relevant legislationLegislation relevant to this matter is the Safety, Rehabilitation and Compensation Act 1988 ("the Act"), ss 34(1), 36, 37(1)-(4), 38, 60(1), definitions of "decision", "determination", "determining authority", "reviewable decision", 64, and the Administrative Appeals Tribunal Act 1975 ("the AAT Act") s 3(3).
Safety, Rehabilitation and Compensation Act 1988"Part III—Rehabilitation 34 Approved rehabilitation program providers
(1) Comcare may, by instrument in writing, approve, for the purposes of this Act, a person who provides rehabilitation programs.
…"
"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.
(5) The relevant authority shall pay the cost of conducting any examination of an employee and is liable to pay to the employee an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connection with the examination or remaining, for the purpose of the examination, at a place to which the employee has made a journey for that purpose.
(6) In deciding questions arising under subsection (5), a relevant authority shall have regard to:
(a) the means of transport available to the employee for the journey;
(b) the route or routes by which the employee could have travelled; and
(c) the accommodation available to the employee.
(7) Where an employee's right to compensation is suspended under subsection (4), compensation is not payable in respect of the period of the suspension.
(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 and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.
(2) A rehabilitation authority shall not make arrangements with an approved program provider who is not approved by Comcare under section 34.
(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.
…""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.""60 Interpretation
(1) In this Part:
…
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
determination means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.
determining authority, in relation to a determination, means the person who made the determination.
reviewable decision means a decision made under subsection 38(4) or section 62.
…""64 Applications to the Administrative Appeals Tribunal
(1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a) the claimant; or
(b) if the decision affects the Commonwealth—the Commonwealth; or
(c) if the determination affects a Commonwealth authority that is not a licensed authority—the Commonwealth or that authority; or
(d) if the determination affects a licensed authority that holds a Class 1 Licence under Part VIIIA—the licensed authority; or
(e) if the determination affects a licensed authority that holds a Class 2 Licence under Part VIIIA:
(i) the Commonwealth; and
(ii) in the circumstances mentioned in subsection (2)—the licensed authority; or
(f) if the determination affects a licensed authority that holds a Class 3 Licence under Part VIIIA and the circumstances mentioned in subsection (2) apply—the licensed authority; or
(g) if the determination affects a licensed corporation that holds a Class A Licence under Part VIIIB—the licensed corporation; or
(h) if the determination affects a licensed corporation that holds a Class B Licence under Part VIIIB and the circumstances mentioned in subsection (2) apply—the licensed corporation.
(2) The circumstances mentioned in subparagraph (1)(e)(ii) and paragraphs (1)(f) and (h) are that the licence is subject to a condition referred to in subparagraph 107G(3)(d)(ii) or paragraph 108H(4)(d), as the case may be.
(3) Despite section 27 of the Administrative Appeals Tribunal Act 1975 , a person may not make an application to the Administrative Appeals Tribunal for a review of a reviewable decision except as provided by subsection (1) of this section."
Administrative Appeals Tribunal Act 1975
"Section 3 Interpretation
…
(3) A reference in this Act to a decision includes a reference to:
(a) making, suspending, revoking or refusing to make an order or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing.
…"
Hearing and appearances
The Tribunal convened a hearing in this matter on 1 May 2001. Mr Anforth of counsel represented the Applicant. Mr Dube of counsel within the Australian Government Solicitor's office represented the Respondent.
The Tribunal had before it certain documentary evidence:
Exhibit TD1 – Section 37 Statement and associated T documents provided by the Respondent, 17 April 2001.
Exhibit A1 – Letter dated 16 October 2000 from the Commonwealth Ombudsman's office to the Applicant's solicitor.
Exhibit A2 – Letter dated 26 March 2000 from Qantas to the Applicant's solicitors.
Exhibit A3 – Applicant's outline of arguments, 30 April 2001.
Exhibit A4 – Applicant counsel's reply to Australian Government Solicitor, 10 May 2001.
Exhibit R1 – Respondent's outline of submissions on jurisdiction, 30 April 2001.
Exhibit R2 – Respondent's submissions on jurisdiction, 8 May 2001.
The Applicant's case
In Exhibit A3 the Applicant made the following main submissions:
There is a difference between a failure to make a decision and a refusal to make a decision. A failure may occur through inadvertence or oversight or delay through resource problems. However, where a failure occurs because of a conscious decision not to make a decision then it becomes a refusal to make a decision.
Authority is Deputy Commissioner of Patents v Board of Control of Michigan Technological University (1979) 2 ALD 711 and Re Burt and Commissioner for Safety, Rehabilitation and Compensation (AAT 7578, 6 December 1991).
There can be a "constructive refusal" to make a decision where a decision maker is regularly reminded of its duty and an unreasonable time elapses for which the decision maker has any explanation consistent with any intention to make a decision. The Tribunal can infer that the decision maker has no intention of making a decision and can accept that it has refused to do so.
Authority is Re Robertson and Civil Aviation Authority [1999] AATA 608.
Other authorities were cited but are not as cogent.
The use of the word "may" in s 37(1) of the Act does not necessarily mean that the rehabilitation provider has a discretion as to provision of a program.
Given the centrality of rehabilitation in the Act as expressed in the second reading speech by the Minister when the Act was debated in Parliament and the existence of stated criteria in s 38(3) of the Act, there is a duty on a rehabilitation authority to provide rehabilitation in appropriate cases.
The Applicant's representative also submitted Exhibit A4, in response to the Respondent's supplementary submissions (Exhibit R2). New points made in Exhibit A4 are:
Re Wardle and Comcare [1999] AATA 959 is an authority where the Tribunal construed s 38 of the Act as providing a right of review of a determination by Comcare to decline to provide rehabilitation, ie a negative decision. This contradicts a central argument in Exhibit R2.
It is suggested that the Respondent's proposition that there can be no review of a negative determination under ss 36 and 37 raises an ambiguity that should be resolved in favour of a right of review because the Act is beneficial legislation.
Decisions under the similar provision, s 58 of the Act, are not reviewable and are clearly not so, having been omitted from s 60. One would expect the same treatment of s 38 if review rights were to be denied.
The Respondent may be in breach of the Attorney-General's model litigant guidelines in taking the points it has in this matter.
The Respondent's case
The Respondent argued that there is no reviewable decision before the Tribunal. This was expanded as follows in Exhibit R1:
There is no determination for the purposes of s 37(1) of the Act. There has been no refusal to make a decision under s 3(1) of the AAT Act such as to constitute a "determination" under s 60 of the Act.
A failure to make a decision does not constitute a determination for the purposes of s 60 of the Act.
There is thus no determination amenable to a reconsideration by the Respondent under s 38 of the Act.
There is therefore no reviewable decision upon which an application to the Tribunal can be made under s 64 of the Act.
In the absence of a reviewable decision the Tribunal has no jurisdiction to review the purported reviewable decision.
The application should be dismissed.
The Respondent cited the decision in Comcare v Chang (Federal Court, Finn J, Fed No 927/96, 25 October 1996) as authority for the proposition that, even if a positive recommendation is made under s 36 that a rehabilitation program should be provided, a rehabilitation authority is not obliged to make a determination under s 37 of the Act.
The Respondent cited Hardin v Comcare (1995) 21 AAR 392 (Einfeld J) as authority for the proposition that, until a determination is made by a rehabilitation authority under s 36 or s 37 of the Act, the Respondent has no power in respect of arranging a rehabilitation assessment or a rehabilitation program, as the case may be.
The Respondent suggested that the Applicant's remedies are under the Administrative Decisions (Judicial Review) Act 1977 (s 7 because of a failure to make a decision) and the Ombudsman Act 1976 (s 10 because of unreasonable delay in exercising a power under an enactment).
In Exhibit R2 the Respondent made further submissions. In relation to the suggestion that Qantas has engaged in a constructive refusal to make a decision the Respondent says there is no refusal by the rehabilitation authority. The Respondent says that none of the decisions cited in Exhibit A3 are authority for the principle of constructive refusal.
In any event, said the Respondent, there are a number of indicators that the Respondent is not empowered under s 38 to review a refusal to make a determination. Section 60(1) does not apply the definition of "decision" in s 3(3) of the AAT Act to s 38 of the Act. Exclusion of s 38 from Part VI of the Act shows that Parliament intended that the ambit of the s 38 review process is different from the ambit of the reconsideration power in Part VI. This is justified by the unique form of the determinations that can be made under ss 36 and 37 of the Act.
The Respondent raised a fresh argument for there being no jurisdiction in the Tribunal in this matter. The Respondent says that "[e]ven if Qantas has refused rather than failed to make a s. 37 determination (which is denied) there can be no s. 38 decision since s. 38 only comes into play after a positive determination (that an employee should undertake a rehabilitation program) has been made. No review is available under the [Act] on reconsideration or in the Tribunal of a refusal by a rehabilitation authority to make such a determination" [emphasis was Respondent's]. This proposition introduces some subordinate propositions:
There is no obligation on a rehabilitation authority to make a determination under s 37 of the Act. The only decision which is a "s 37 determination" is a positive decision that an employee should undertake a rehabilitation program. If a rehabilitation authority refuses to make a determination under s 37 the Respondent has no power to review that refusal under s 38(2)-(4) of the Act.
Although a statutory provision permitting the making of a determination normally authorises and applies the making of a positive determination and a negative determination, eg a power to determine that compensation will be payable imports a power to determine that compensation is not payable. Normally both versions of the permissible determination will attract review rights. However, that proposition can be overcome in a particular case depending on the drafting of the provision. The wording of s 37 contemplates that the only sort of determination relevant to that section is a determination that an employee should undertake a rehabilitation program.
Section 38 operates so that Comcare's review powers extend only to a request by an employee for a review of a decision that he or she should undertake a rehabilitation program.
Section 38 was placed by Parliament outside the general review powers in Part VI of the Act. This differentiates the s 38 review power from the general review powers.
Removing the review power in s 38 from the general provisions in s 62 and defining "decision" in s 60(1) so that applies only to review powers exercised under Part VI of the Act suggests that the review powers under s 38 are limited in comparison to Part VI.
Inclusion of references to ss 36 and 37 in s 60(1) of the Act where there is a definition of a "determination" was done to permit a "relevant authority" (ie Telstra, Australia Post) to reconsider a determination by it under ss 37 or 38. Section 38 does not permit Comcare to reconsider determinations by such "relevant authorities". Inclusion of references to ss 36 and 37 in the definition of "determination" in s 60(1) was necessary to ensure that an employee of a licensed authority dissatisfied with a determination to undertake a rehabilitation program could seek a review of the determination.
Considerations of law
The submissions by the parties raise a large number of issues. The Tribunal now lists those issues in an order that seems to it to be logical. A finding on a basic issue may mean that it is unnecessary to finalise on some of the more abstract issues.
The relevant issues are:
Does s 38 of the Act allow the review of a decision by a rehabilitation authority to refuse to make a decision under s 37 of the Act?
If the answer relating to issue 1 is "yes", is there a reviewable decision in this case?
If the answer relating to issue 2 is "yes", can Comcare review the decision of Qantas?
If the answer relating to issue 3 is "yes", can Comcare review a failure to make a decision?
Does s 38 of the Act allow the review of a decision by a rehabilitation authority to refuse to make a decision under s 37 of the Act?
This is the most fundamental issue. This relates to the Respondent's argument that s 38 allows no review of a negative decision under s 37 of the Act. The Respondent cited several authorities which may have some bearing on this point. The first is the Federal Court decision of Finn J in Comcare v Meng Chang [1996] 927 FCA 1 where His Honour says:
"Here I would note that, in consequence of the Tribunal's first finding that Mr Chang suffered an injury resulting in an incapacity for work when in 1992 he made his s36(1) request, he was entitled as of right to have the arrangements made for an assessment of his capability of undertaking a rehabilitation program.
"I would further note that s36, while giving such an entitlement then to Mr Chang, does not purport to confer any right actually to undertake a rehabilitation program. Before Mr Chang could undertake such a program the Industry Commission has to make a determination to that effect cf: Hardin v Comcare Australia (1995) 21 AAR 392. Such is the burden of s37 of the SRC Act.
" … It is clear, and the respondent has accepted as much in this Court, that the decision of the Tribunal could only properly relate to the Industry Commission's and Comcare's refusal of the s36 request. There was in the circumstances no basis for the Tribunal concerning itself with the question whether a rehabilitation program should be undertaken, let alone with whether a particular university course was an appropriate one for Mr Chang to undertake. These were not matters before it as no s37 determination was before it: see SRC Act ss38(2), 60 and 64; see also para 7 of the Application for Review of Decision made to the Tribunal.
"To the extent that the Tribunal strayed into a consideration of s37 - and both its reasons (para 75) and the direction given, suggest it did - it fell into error. In the event, though, this is of no particular consequence. However, I would venture this much of the direction itself.
"If it purports to be one that prescribes, and gives content to, a s37 rehabilitation program for Mr Chang for the period to which it refers, it was made without jurisdiction because no s37 decision was before the Tribunal.
" … I would note in passing that the legislation does not in express terms require "a rehabilitation authority" (here the Industry Commission) to make any s37 determination concerning the provision of a rehabilitation program even where a positive s36(8) assessment has been made."
The propositions for which these statements stand are as follows:
An employee who has suffered an injury resulting in an incapacity for work is entitled as of right, on request, to have arrangements made for an assessment of his or her capability of undertaking a rehabilitation. Section 36 of the Act so provides.
Section 36 does not accord to the employee a right to actually undertake a rehabilitation program.
The rehabilitation authority (normally the employer under s 4(1) of the Act) must make a determination to that effect if the employee is to have a right to undertake a rehabilitation program.
The Act does not in express terms require a rehabilitation authority to make any s 37 determination concerning the provision of a rehabilitation program even where a positive s 36(8) assessment has been made.
The Tribunal has no jurisdiction to consider whether a rehabilitation program should be undertaken unless a determination under s 37 of the Act is before it.
Einfeld J in Hardin v Comcare (1995) 21 AAR 392 noted (in paragraph 13) that the rehabilitation authority in that case, the Secretary to the Department of Defence, had never made a relevant determination under s 37(1) of the Act. He went on to say that Comcare could only become involved under s 38 of the Act which permits an employee to make a written request for a review of the decision of the rehabilitation authority. However, as there had been no primary decision by the rehabilitation authority in the case, there was no power for Comcare to make a determination.
This authority reinforces proposition number five from the Chang case (supra).
From these authorities it is clear that there must be a decision by the rehabilitation authority before Comcare can exercise powers under s 38 of the Act and before the Tribunal can exercise any jurisdiction in respect of a decision by Comcare. There is no overt attention given by the Federal Court to the suggestion that a determination under s 37 can only be a determination requiring an employee to undertake a rehabilitation program. However, Finn J in particular, in Chang (supra) would seem to operate on that assumption.
The Tribunal in Re Wardle and Comcare [1999] AATA 959 reviewed decisions by Comcare to the effect that "it was not liable to provide job placement assistance or other rehabilitation services to the applicant in respect of an accepted injury arising out of or in the course of his employment" (paragraph 1 of the reasons for decision). The Tribunal held that the Respondent was liable to provide a rehabilitation program to the applicant. Several observations may be made about this decision:
There were decisions in place not to provide a rehabilitation program. There was no need to resort to arguments of constructive refusal such as the Applicant has raised in the instant case.
Contrary to the submissions put by the Respondent in the instant case, the Tribunal had no reservations about reviewing a negative decision under s 37 of the Act.
The case is of possibly dubious authority, however, because the Tribunal did not differentiate between the obligation of the rehabilitation authority (in that case, the Secretary to the Department of Defence) and any obligation of the respondent (Comcare in that case) to provide a rehabilitation program. This is clearly because of the fashion in which the case was presented to the Tribunal. However, in view of the Federal Court decision in Hardin (supra), a case not argued before the Tribunal in Wardle (supra), the ultimate decision in Wardle (supra) may well be wrong.
From this case survey the crucial issue remains whether the rehabilitation authority has made a decision. This brings us to the arguments in relation to constructive refusal to decide.
The facts in Deputy Commissioner of Patents v Board of Control of Michigan Technical University (1979) 43 FLR 9 are somewhat complex. The University applied for letters patent in respect of an invention, a method for agglomerating steel plant waste dusts. The application was deficient. Under a regulation the Commissioner issued a direction requiring the submission of a proper application by a certain date. The University failed to do this. The University's patent application lapsed. The University could have requested to have the application restored within three months of publication of a notice that the application had lapsed. It did not do this. The University about one year and nine months later sought an extension of time in which to challenge the lapse. The Commissioner reasoned that the legislative provision permitting an extension of time did not apply to a step related to a lapsed patent application. It was not possible to restore the lapsed patent application at the time of the application for an extension of time. The University appealed to the Tribunal. The Tribunal decided that it had jurisdiction to hear the appeal despite an argument that the Commissioner had not made a decision of the relevant type in relation to the application for an extension of time. He had decided that he could not reopen the question of the extension. It was further said that he had made no decision about revoking the decision that the patent application had lapsed. Smithers J held that in deciding that he could not review the decision to treat the application as lapsed, the Commissioner had decided to reject the application.
Franki J in the Michigan University case (supra) held that a decision had been made where the Commissioner decided he had no power to exercise the power conferred on him, in some circumstances, to treat a lapsed application for a patent as not lapsed. Keely J agreed with his brother judges.
With due respect to the Applicant's representative, it is not clear that this case stands for the proposition that there can be a constructive refusal to decide. In the Michigan University case (supra) the decision that there was no decision was taken by the same party as the party making the decision on the merits. In the instant case this would mean that Comcare, the Respondent, which has made the decision under review, that is that Qantas has failed to make a decision, would also have to be the rehabilitation authority. In the instant case the rehabilitation authority is Qantas. In the instant case the decision by Comcare cannot conceptually also be the decision of Qantas. They are different legal entities with different powers.
Counsel for the Applicant referred also to the Tribunal decision in Re Loschiavo and Secretary, Department of Housing and Construction (1980) 2 ALD 757. In this case an applicant for a home savings grant lodged his application but died before the respondent made a decision on the application. The respondent then decided that he could not make a grant to the estate of a deceased applicant. The Tribunal applied the Federal Court decision in Michigan University (supra) to hold that the decision actually made by the respondent in that case necessarily involved the respondent in making a decision to reject the application for the grant. This decision is of little assistance in the present case for the same reasons as applied to the Michigan University case (supra).
Applicant's counsel referred to Re Burt and Commission for Safety, Rehabilitation and Compensation (AAT No 7578, 6 December 1991) in which the respondent had refused to reconsider a rejection of a compensation claim made by the applicant in 1989 in respect of the consequences of an injury in 1959. There was an issue as to whether this refusal was in itself a reconsideration under s 62 of the Act from which the applicant could appeal to the Tribunal. This case is again not really relevant to an argument of constructive refusal to make a decision. The decision-maker made a decision which was reviewed by the Tribunal and held to be in error. In the instant case the Respondent argues that there has been no overt decision by Qantas.
The next case cited was Hevi Lift PNG Pty Ltd v Civil Aviation Safety Authority (1997) 79 FCR 19. This case is problematic as an authority for the proposition that Qantas has engaged in the instant case in constructive refusal. Hevi Lift (supra) is a case brought under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") or, in the alternative, s 39B of the Judiciary Act 1903. It deals with the exercise of powers under the Civil Aviation Act 1988. It is essentially a case where the Civil Aviation Safety Authority was tardy and reluctant in issuing a decision as to grant or refusal of an air operator's certificate. The applicant went to the Federal Court to seek relief for the respondent's failure to make a decision. In the event, by the time of the Federal Court hearing, the respondent had issued a written decision, with reasons. Einfeld J has really nothing to say about any argument of constructive refusal to make a decision. Additionally, there are so many distinctions between the instant case and Hevi Lift (supra) that, even if he had commented favourably on the device, it would be of doubtful relevance to the instant case.
The case, Re Robertson and Civil Aviation Safety Authority [1999] AATA 608, was cited as following Hevi Lift (supra). The applicant wanted to mount an air show with an aerobatics display in 2000. In 1998 he began to write to the respondent seeking approval in principle. He lodged a formal application which was not graced with a substantial reply. He appealed to the Tribunal alleging a constructive refusal to grant him approval. However, after commencing the appeal process he reapplied for approval and was given approval in principle subject to meeting certain conditions. The Tribunal was convened to ascertain whether there was a reviewable decision. The Tribunal said the following about constructive refusal:
"38. Mr Robertson contends that the attitude of the Authority was consistent with it not wanting to give or make a decision. There was no action, he says, on the part of the Authority, despite a number of 'follow up letters', all constituting what he describes as constructive refusal to make a decision referrable to his substantive application. He equated the absence of a decision, or the delay in making a decision, to a denial of permission, and hence a reviewable decision under the Administrative Appeals Tribunal Act 1975.
"39. He submitted that the letter of 6 July 1999 from the Authority was in itself a refusal to grant permission.
"40. In support of his submission, Mr Robertson referred to Hevi Lift PNG Pty Ltd v Civil Aviation Safety Authority (1997) 79 FCR 19 in which the Federal Court made mention of the concept of constructive refusal in the context of relief which may be sought for an alleged failure on the part of an authority to make a decision. Hevi Lift can be distinguished from the present matter in that it is apparent from the reasons given in Hevi Lift that whilst the applicant there applied for relief on the ground of 'constructive refusal', it was urged by the Court upon the Authority to make a decision which 'would aid a speedy resolution of the matter'. This the Authority did, and it was that decision which then became the subject of the application for judicial review.
"41. Irrespective of the concept of constructive refusal being available as in Hevi Lift (supra), the definition of a decision in the Administrative Appeals Tribunal Act 1975 extending as it does to the 'doing or refusing to do any other act or thing' may well enable this Tribunal, in an appropriate situation, to regard a constructive refusal as a refusal to do an act or thing.
"42. In the circumstances of the present application, the Tribunal does not, however, consider that the Authority, even be it that a measurable period of time transpired before a response was received by Mr Robertson, sought to not make a decision on the application for permission pursuant to Regulation 156. It is trite to say that the Authority has cast upon it by the legislation grave responsibility for the safety of air traffic and the civilian population. No doubt there are situations that arise, the same capable of being dealt with over a period, but not without the application of the sometimes limited and extended resources available to the Authority. It is apparent to the Tribunal from the correspondence earlier set forth in these Reasons that once the Authority applied itself to the application of Mr Robertson, the response was one granting approval as sought in principle, but seeking additional information which it considered necessary, prior to a decision being made and permission granted or withheld.
"43. Accordingly, the Tribunal is not satisfied that a constructive refusal to make a decision has been made out."
The Robertson case (supra), then, is also problematic as an authority for constructive refusal in the instant case. Again the entity alleged to have refused to decide is actually a party to the application in Robertson. The Tribunal did not apply the concept of constructive refusal in the Robertson case (supra). The Tribunal refers to the applicability of the definition of "decision" in the AAT Act as being relevant in the context of applications under the Civil Aviation Act. As was seen above in the instant case, that definition is not applicable to rehabilitation decisions under the Act.
Reference was made to other decisions, Clancy v Attorney-General of Queensland (1992) 26 ALD 746, Re Secretary, Department of Social Security and Pomersbach (1991) 25 ALD 73 and Re Secretary, Department of Social Security and Campbell (1991) 25 ALD 625, all of which were said to provide support for the applicability of constructive refusal. However, the Clancy case (supra), in which constructive refusal is mentioned in passing but not applied, is so different in context from the instant case as to be of limited value. The other cases deal with the range of issues that a lower level decision maker can be said to have considered when making the headline decision under review. They are not really about constructive refusal.
The Tribunal can only conclude that the doctrine of constructive refusal, while it may exist in administrative decision making, depending on the context and subject-matter, is not often utilised. This is not surprising given the existence of more direct remedies such as mandamus and s 7 of the ADJR Act. Additionally, provisions such as ss 55(3) and 56(1) of the Freedom of Information Act 1982 and s 3(3) of the AAT Act, which effectively deem a decision to have been made in certain circumstances, render a doctrine of constructive refusal often unnecessary.
The Tribunal could, despite the above, decide that a doctrine of constructive refusal is applicable in relation to s 37 of the Act. The question is whether it should do so. In favour of determining that it does apply is the highly dubious conduct of Qantas in this scenario. It is doubtful that any reader of the chronology in this matter would applaud the behaviour of Qantas. Its behaviour might be regarded as high-handed, unprofessional or devious. The Respondent tried in vain to have Qantas abide by the spirit of the legislation (T86).
However, the Tribunal considers that it may be foolhardy and unnecessary to apply a concept foreign to the Act, the concept of constructive refusal, in this case. In the Tribunal's view it is not actually necessary to resort to constructive refusal to find a decision by Qantas in this scenario. An employee of Qantas with apparent authority wrote on 20 March 2001 as follows (formal sections omitted) (T87):
"We wish to advise that Qantas have complied with the requirements under the Safety, Rehabilitation and Compensation Act 1988 ("the Act").
"In this regard we confirm that Ms Brophy was made redundant in April 1997. On 7 January 1999, at the request of the worker, a rehabilitation assessment was arranged through CRS pursuant to s36(1) of the Act.
"As you are aware, Qantas are not compelled to make a determination under s37(1) of the Act. We request that you provide the section in the legislation that make [sic] it mandatory for Qantas to make a determination under s37(1)."
Applying the approach in the Michigan University case (supra) the Tribunal considers that the employer's attitude to its decision-making power, ie that it refuses to make a decision unless it can be told under what authority it is compelled to make a decision, has the necessary effect of refusing a rehabilitation program to the Applicant. Qantas made a decision. A negative decision, that was communicated in T87.
The Respondent has made a decision, a reviewable decision, effectively affirming that decision by Qantas. At this stage of the analysis the Applicant would appear to have an application for review on foot that the Tribunal can proceed to consider.
The Tribunal therefore finds that the answer to the question posed as issue number one is "yes".
If the answer relating to issue 1 is "yes", is there a reviewable decision in this case?The Tribunal finds that answer to the question posed as issue number two is "yes" for the reasons explained in paragraph 55 of these reasons.
If the answer relating to issue 2 is "yes", can Comcare review the decision of Qantas?This raises the question whether Comcare can review a negative determination under s 37(1) of the Act? The Tribunal notes the arguments put by the Respondent for the proposition that the Respondent, and the Tribunal, cannot review anything other than a positive determination by a rehabilitation authority that a person is required to participate in a rehabilitation program. However, some of those arguments fall away if it is accepted that the rehabilitation authority in the instant case has rejected the Applicant's request to be provided with a rehabilitation program. The Tribunal sees nothing on the face of s 38 to prevent Comcare from reviewing a negative determination. While it is true that s 38(1) imposes on a rehabilitation authority an obligation to provide reasons in writing covering prescribed matters, it would be strange if Qantas (or Comcare) could act to deprive an employee of a right of review because, arguably as here, the rehabilitation authority has failed to abide by the requirements in s 38(1). In any case, it is arguable that the letter from Qantas at T87 is such a notice in writing, albeit defective in form.
The Tribunal finds that the Respondent can review the decision made by Qantas, the rehabilitation authority in this case, not to provide the Applicant with a rehabilitation program.
If the answer relating to issue 3 is "yes", can Comcare review a failure to make a decision?This issue has now fallen away in view of the Tribunal's finding that Qantas has made a decision.
ConclusionThe Tribunal therefore finds that there has here been a decision by Qantas, the rehabilitation authority, under s 37 of the Act. There is a decision under s 37 for the Respondent to review. The Respondent has conducted a review and there is before the Tribunal a reviewable decision.
DecisionThe Tribunal has jurisdiction to entertain this application for review.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed: .....................................................................................
AssociateDate of Hearing 4 July 2001
Date of Decision 10 July 2001
Counsel for the Applicant Mr AnforthCounsel for the Respondent Mr Dube