Comcare v Banerji - [2019] HCATrans 51

Replacement Transcript

[2019] HCATrans 051

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C12 of 2018

B e t w e e n -
COMCARE
Appellant
and
MICHAELA BANERJI
Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 21 MARCH 2019, AT 9.47 AM

(Continued from 20/3/19)

KIEFEL CJ: Yes, Mr Solicitor.

MR BLEBY: I addressed yesterday on the identification of the purpose of section 13(11), often a construction that connected the focus on integrity and good reputation with the objective of furthering responsible government. I propose to say a few things on the extent of the burden, which we address from paragraph 37 of our written submissions, and that of course is relevant in particular to the second and third stages of proportionality testing.

What we are looking at, as your Honour Justice Gageler described it in Brown at paragraph 188, is the incremental effect of the law on the real world ability of a person or persons to make or to receive communications which are capable of bearing on electoral choice.

BELL J: Mr Solicitor, I am sorry to interrupt but just before you move to the extent of the burden can I ask you one thing arising from paragraph 6 of your outline. The Commonwealth’s principal argument focuses on section 13(11) and its intersection with section 10(1)(a).

MR BLEBY: Yes.

BELL J: It says the inquiry, in essence, comes to a stop at that point.

MR BLEBY: Yes.

BELL J: Do you disagree with the principal way that the Commonwealth puts its submission in that respect?

MR BLEBY: I do not disagree, your Honour; I expand only in this way. Sections 15(3) to (5) are directed not at sanctions but, if you look for example at subsection (3):

An Agency Head must establish procedures for determining whether an APS employee in the Agency has breached the Code of Conduct.

. . .
(4)The Commissioner must issue directions in writing for the purposes of subsection (3).
(5) . . . to ensure . . . ready access to the documents –

I am going to come to in a minute the integers of the burden are integers of what I might describe as content and process. That has been touched on in particular by New South Wales that, insofar as 15(3) to (5) actually establish procedures that surround the substantive burden created by 13(11), they are relevant to the extent of the burden. So it is not a disagreement; it is perhaps just an expansion of what must be necessarily incorporated in that primary burden.

BELL J: But the essential argument that the Commonwealth puts is that one is not in the area of looking at the exercise of the discretion; when one looks at this scheme a person either contravenes the Code or they do not. That is an evaluative judgment and the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Comcare v Banerji

Details

AGLC: Comcare v Banerji [2019] HCATrans 51
Case: [2019] HCATrans 51
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *Comcare v Banerji*, a dispute concerning the interpretation of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (the SRC Act) and the extent of an employer's liability for an employee's injury. The case involved an employee who suffered a psychological injury, which the employer, Comcare, argued was not compensable under the SRC Act.

The central legal issue before the High Court was whether the employee's psychological injury, which arose from a workplace dispute and the employer's management of that dispute, constituted an "injury" for the purposes of the SRC Act. Specifically, the Court had to determine if the injury was caused by the employee's "employment" or by "the reasonable administrative action taken in a reasonable manner by the employer in connection with the employee's employment."

The High Court, in a majority decision, held that the employee's psychological injury was compensable. The Court reasoned that the employer's actions, while administrative, were not taken in a reasonable manner. The SRC Act distinguishes between injuries caused by employment and those caused by reasonable administrative action. In this instance, the Court found that the employer's conduct in managing the workplace dispute was unreasonable, thereby falling outside the exclusion for reasonable administrative action and bringing the injury within the scope of compensable employment-related injuries. The appeal was dismissed.

Orders