McKenzie; Australian Electoral Commission and (Compensation)

McKenzie; Australian Electoral Commission and (Compensation) [2022] AATA 1359 (25 May 2022)
Division:GENERAL DIVISION
File Number(s): 2021/2680
Re:Australian Electoral Commission
APPLICANT

ComcareAnd
RESPONDENT

David McKenzieAnd
OTHER PARTY

INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:25 May 2022
Place:Canberra

Application for dismissal refused.
Catchwords
PRACTICE AND PROCEDURE – application for dismissal – accepted claim for compensation – application for review of decision affecting compensation entitlement – decision-maker relied on expert reports obtained by employer – employee compelled to attend examination by experts – power to compel limited by scope and purposes of legislation – meaning of improper purpose – solicitation and disclosure of personal information – requirement for consent or legal authorisation – improper purpose not made out - no abuse of process – dismissal application refused
Legislation
Administrative Appeals Tribunal Act 1975, ss 25, 42B
Privacy Act 1998, ss 6, Schedule 1
Safety Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14, 19, 36, 37, 41, 62
Public Service Regulations 1999, reg 3.2
Cases
CUB Australia Holding Pty Ltd v Commissioner of Taxation [2021] FCAFC 171
REASONS FOR INTERLOCUTORY DECISION
Mr S. Webb, Member
25 May 2022

David McKenzie was injured in his employment by the Australian Electoral Commission (AEC). He claimed and was paid compensation. Comcare accepted a claim for payment of compensation for incapacity during two periods. The AEC requested reconsideration of this decision. It relied upon expert reports it obtained and provided to Comcare. In the result, Comcare affirmed its primary decision. The AEC applied for review of the reconsideration decision by the Tribunal.
In the course of the proceedings, Mr McKenzie’s solicitor, Thomas Maling of Elringtons Lawyers, requested dismissal of the application on grounds of abuse of process. The parties provided extensive submissions addressing this request and each were heard at an interlocutory hearing.
It is this matter, alone, that is the subject of this decision.
Relevant facts
On 13 November 2019, Mr McKenzie lodged a compensation claim.[1]
[1] T25.17.
Mr McKenzie was engaging in a graduated return to work at the time, about which he expressed concern.[2] It appears there was a deal of disputation between Mr McKenzie and the AEC about this and other matters.
[2] T20, folio 70, for example.
The principal officer of the AEC is the rehabilitation authority[3] in Mr McKenzie’s case.
[3] The term ‘rehabilitation authority’ is defined in s 4(12) of the Safety, Rehabilitation and Compensation Act 1988.
On 6 December 2019, Mr McKenzie informed the AEC he was concerned that personal information of his, which had been generated during return to work processes, was not being stored securely.[4] He stated:
To be clear about my consent to use personal information; I revoke any and all previous authority that the AEC may believe it holds, to use or collect personal information about me. The only exception being information specifically required for the purposes of my employment, management of my injury and return to work. I do not authorise any person inside or outside the AEC to use or view my information without an explicit business reason. Should the AEC believe there is a valid reason for collection or use of my personal information in addition to that above, please let me know.[5]
[4] T17.
[5] Ibid, folio 53.
On 23 January 2020, Mr McKenzie provided a statement to Comcare,[6] in which he responded to the AEC’s assertion his injuries did not arise out of or during the course of his employment.[7] Among other things, Mr McKenzie stated:
[6] T20; see also Mr McKenzie’s earlier statement in T8, folios 28-33.
[7] T3.
Throughout the submission the employer contradicts the professional opinion of Dr Donald Grant as to the cause of my illness. The statements used by the employer to justify ignoring the advice of Dr Grant are based on assessments of my behaviour by colleagues with no formal training in psychology.[8]
[8] T20, folio 61.
…
The employer submission is very selective in quoting Dr Grant the consulting psychiatrist who examined me. In the Executive Summary on page 3 of the report, Dr Grant states “Mr McKenzie’s Adjustment Disorder has come on in the context of significant stress in the workplace. This was first evident in 2013 during a very stressful electoral process on the Sunshine Coast which did not produce a clinically significant condition at that time…”
He goes on to say at the next point that “Mr McKenzie was precipitated into his current Adjustment Disorder by having to work in an upgraded position in Brisbane which involved long hours, high stress and a lot of travel.”
Dr Grant continues to link my illness to my work throughout the section of his report headed ‘History of Present Illness’. There are multiple references to stressful work and the connection between my work and my condition. In response to the specific questions posed to Dr Grant, he advises at Q.1(b) and (f), Q.4(b), and Q5 a connection between my employment and my condition.
Dr Grant is the Independent Medical Advisor used by the AEC to conduct a fitness for duty assessment. His report has been provided to Comcare.
Reference: Page 6. Performance, personal leave usage and personal matters. Paragraph 23
“Having regard to the above, the employee had a number of significant personal challenges in late 2017 and 2018, the AEC respectfully contends these personal / family matters caused his injury not an incident from 2013 relating to his employment.”
The AEC does not provide factual support for the hypotheses they have presented. The report by Dr Grant indicates a connection between my workplace stress and the development of my condition.
His expert advice was obtained by the employer.
The employer is choosing to make an unsubstantiated link that contradicts medical experts. My General Practitioner, Dr Cooke as well as Dr Clive Fraser (psychiatrist), and a number of counsellors have all concurred with Dr Grant as to the causation of my illness. These reports have been supplied directly to Comcare by Dr Cooke.
Dr Grant suggested in his report that the AEC may lack necessary understanding of mental illness. His response to specific Question #10 states This Question appears to me to indicate a lack of understanding on the part of Mr McKenzie’s employer as to the effects of mental illness and the necessary approach to the management of someone with a mental illness”.[9]
[Original emphasis].
[9] Ibid, folio 80.
I note that the AEC refers to a report by Dr Grant, Mr McKenzie’s treating psychiatrist at the time, in the statement it provided Comcare.[10]
[10] T3, folios 12 and 13.
On 26 February 2020, Comcare determined to accept Mr McKenzie’s compensation claim.[11] The decision-maker accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for an injury in the form of an adjustment reaction with mixed emotional features which developed as a result of work stressors in 2018.[12] The deemed date of the injury was 12 October 2018. The decision-maker stated:
• You raised workplace stressors from the 2013 and 2016 elections. The medical evidence supports you were stressed during these periods; however, you did not seek treatment and were not considered to have been suffering from a clinically significant condition during that period of time.
• The AEC contends that your personal stressors were significantly contributing to your claimed condition. However, while you reported suffering other stressors, the medical evidence from Dr Roger Morris and Dr Jenny Cooke, Treating General Practitioners, and Dr Donald Grant, Consultant Psychiatrist, supports the workplace stressors, particularly in 2018, have significantly contributed to your claimed condition.[13]
[11] T24.
[12] Ibid, folios 103-104.
[13] Ibid, folio 103.
On 3 March 2020, the AEC requested reconsideration of this decision,[14] and also requested an extension of time:
I have arranged a new S36 assessment (IME) as the previous FFD report (May 2018) appears to be a retelling of Mr McKenzie’s story, rather than an independent, objective assessment.
The S36 assessment is scheduled for 3 April 2020. Given it will take approximately 2 weeks plus post-assessment to receive the S36 report, I would like to request an extension of time to 24 April 2020 to request a reconsideration and provide all of the supporting documentation[15].
[14] ST2.
[15] ST1, folio 1.
On 4 March 2020, Mr McKenzie sent an email to Comcare expressing concern about such a referral.[16]
[16] T44.
On 23 March 2020, the AEC sent a briefing letter to Dr Prabal Kar, a consultant psychiatrist.[17] The letter sets out extensive information about Mr McKenzie and it is headed in the following terms:
Independent Medical Assessment – Mr David McKenzie
Issued in accordance with Section 36 Safety, Rehabilitation and Compensation Act 1988
I am writing to you in relation to a medical assessment of the above-named employee of the Australian Electoral Commission (AEC). As Mr McKenzie’s employer, the AEC is committed to ensuring all reasonable steps are taken to ensure he is supported to undertake a safe and durable return to work in an appropriate workplace. Your assessment and report will be used as a basis for coordinating the rehabilitation actions needed to achieve this.[18]
[17] T25.
[18] Ibid, folio 106.
The letter included a Schedule of Questions and 26 attachments to the letter and posed the following questions for the doctor to address:
1. In the Fitness for Duty Report from Dr Donald Grant, Dr Grant states Mr McKenzie is suffering from an Adjustment Disorder with anxiety and depression, which reportedly “became evident during 2018” (page 20 of 34). Given it has been 18 months since the onset of this condition, please provide your professional medical opinion on the following
- Please advise what event or situation Mr McKenzie is struggling to adjust to?
- Please advise the reason/s preventing Mr McKenzie’s return to work? Noting there is no upcoming federal election and Mr McKenzie is not required to undertake higher duties?
- Is Mr McKenzie still suffering from an Adjustment Disorder or, has another condition/s superseded this diagnosis?
- If another condition has superseded the original diagnosis of Adjustment Disorder, please provide a short description of the new medical condition, and the impact on Mr McKenzie’s ability to return to work?
2. Dr Grant’s report states Mr McKenzie has obsessional personality traits. Please elaborate on the impact of these traits on Mr McKenzie’s ability to participate in a rehabilitation program and how to manage these traits in the workplace?
3. Is Mr McKenzie receiving the appropriate treatment for his condition? If no, what treatment should he be receiving to progress his recovery and subsequent return to a workplace?
4. Please advise if Mr McKenzie’s condition affects his ability to comprehend and comply with directions from his superiors in the workplace, while undertaking a rehabilitation program?
5. Noting the incident on 4 December 2019 (page X) in which Mr McKenzie’s behaviour caused his co-worker to feel threatened and intimidated, does Mr McKenzie’s condition affect his ability to adhere to APS values and code of conduct (attachment Z), and communicate respectfully with his colleagues and the wider AEC?
6. Are Mr McKenzie’s personal stressors or other external factors affecting his ability to progress his recovery and participate in a rehabilitation and return to work program? If yes, please advise of any strategies the AEC or Mr McKenzie can implement to address these factors, where possible?
7. The key function of the Australian Electoral Commission (AEC) is to prepare for and deliver elections. Noting Mr McKenzie is claiming both the 2013 and 2016 elections caused him significant distress, should the AEC be supporting Mr McKenzie to return to work in a different APS agency to prevent further aggravation to or future relapse of his condition/s. Please note: there are no alternate roles at AEC for Mr McKenzie that do not require engaging in election related work or increased workload and deadlines during electoral events.
8. Does Mr McKenzie’s condition make him a candidate for invalidity retirement?
9. Please provide any other relevant comments regarding management of Mr McKenzie and his ability to participate in a rehabilitation program.[19]
[19] Ibid, folios 113-113.
On 3 April 2020, Dr Kar provided the AEC a report.[20] It was the doctor’s opinion Mr McKenzie was not suffering from an adjustment disorder or a current active psychiatric condition or impairment that would prevent him from returning to his normal duties, although the doctor referred to excessive alcohol use in psychiatric terms.[21]
[20] T27.
[21] Ibid, folios 255-256.
On 27 April 2020, at Mr McKenzie’s request, Dr Chris Martin (treating psychiatrist) provided a report to Comcare addressing aspects of Dr Kar’s report.[22]
[22] T31.
On 5 and 6 May 2020, Mr McKenzie provided written submissions to Comcare addressing Dr Kar’s report.[23]
[23] T33 and T34.
On 11 May 2020, Dr Jenny Cooke provided a report to Comcare, referencing Dr Kar’s report as well as materials from Dr Grant, Dr Martin (treating psychiatrists) and Peter Esser (treating psychologist).[24]
[24] T35.
On 15 May 2020, Mr McKenzie sent Comcare an email in which he was critical of Dr Kar’s report and he expressed concern about a supplementary report being obtained from the doctor.[25]
[25] T37.
On 19 May 2020, Comcare issued a reconsideration decision affirming its primary determination on 26 February 2020.[26]
[26] T38 and T39.
On 8 June 2020, Mr McKenzie questioned the AEC’s procedure for referring him to Dr Kar and its authority to release Dr Grant’s report to that doctor.[27]
[27] T42.
On 12 and 13 June 2020, Mr McKenzie sent a number of emails to Comcare expressing concerns about the AEC referral to Dr Kar and Dr Kar’s report.[28]
[28] T43, T44 and T45.
Issues arose in respect of the suitability, management and delivery of a rehabilitation program determined for Mr McKenzie.
On 13 October 2020, the AEC informed Mr McKenzie of impending changes to his rehabilitation arrangements and that a new rehabilitation assessment would be required.[29] Mr McKenzie raised concerns about the changes to his rehabilitation program and arrangements.[30]
[29] T60, folio 407.
[30] T62 and T64.
On 2 November 2020, the AEC sent a briefing letter to Dr Johan Scheepers (a consultant psychiatrist). The briefing contained a large number of attachments and it was headed as follows:
Independent Medical Assessment – Mr David McKenzie
Issued in accordance with Regulation 3.2 of the Public Service Regulations 1999
I am writing to you in relation to the medical examination that has been scheduled for the above-named employee of the Australian Electoral Commission (AEC).
As Mr McKenzie’s employer, the AEC has a duty of care to ensure all reasonable steps are taken to provide a safe and supportive workplace for Mr McKenzie and his colleagues. Your assessment and report will be used as a basis for coordinating the rehabilitation actions needed to achieve this.[31]
[31] AEC briefing letter to Dr Scheepers dated 2 November 2020 and filed in the Tribunal on 9 December 2021.
The briefing letter attached a Schedule of Questions in the following terms:
1) Please provide your professional medical opinion on whether Mr McKenzie continues to suffer from his compensable condition – an Adjustment disorder with anxiety and depression resulting from electoral stress and acting in higher duties in October 2018? If yes, please advise:
- What is Mr McKenzie’s prognosis for recovery and return to work at the Australian Electoral Commission, given the nature of his condition relates to the core function of the agency and all roles are required to support electoral events?
2) What medical treatment is Mr McKenzie currently receiving to manage
his stated medical condition/s?
- In your professional medical opinion, what are the results of any treatment and medication currently undertaken by Mr McKenzie in managing his condition/s?
3) In correspondence to Comcare on 6 August 2020 Mr McKenzie stated he has not returned to work due to the rehabilitation process and not his accepted compensable injury. Please provide your professional medical opinion on whether Mr McKenzie has sustained a new non-compensable psychological injury as a result of the workers compensation claims and or rehabilitation process (for example, S36 referral, receipt of employer or reconsideration statements, receipt of freedom of information requests regarding the claims process, attendance of workplace rehabilitation providers at medical reviews?) If yes,
4) Please provide a short description of the medical condition/s, including severity of the condition and prognosis for recovery?
5) Please advise if Mr McKenzie is receiving appropriate treatment for his condition and provide your recommendations for any further treatment to progress his recovery and return to a workplace?
6) Please provide your professional medical opinion on whether Mr McKenzie’s excess alcohol use is affecting his behaviour and conduct and provide advice to the agency regarding how to manage this issue and mitigate the risk to Mr McKenzie and his colleagues in the event of his return to work to AEC or another Commonwealth agency?
7) Please provide your professional medical opinion on whether Mr McKenzie is receiving the appropriate treatment for his excess alcohol use? Please provide advice regarding what sort of treatment Mr McKenzie would benefit from to assist him manage his excess alcohol use and feelings of being “compelled” to drink, as reported by his Treating Psychiatrist?
8) In your professional medical opinion, are there any motivational or attitudinal factors impacting on Mr McKenzie’s ability to make a return to work to his pre-injury duties or new employment?
9) Please provide your professional medical opinion as to whether Mr McKenzie’s medical condition/s, whether compensable or non-compensable preclude him from meeting the inherent requirements of his role, as per his position description, APS6 work level standards and APS leadership positions? (attachments A, A1 & A2) If yes, please advise?
- Does his condition preclude him from making a return to work in another Commonwealth agency? If no:
- Please advise if you recommends any restrictions in terms of the type of roles or duties he can safely undertake?
- Please identify what supports can be offered to assist Mr McKenzie make a return to the workforce (vocational assessment? Transferrable skills assessment?, work trial? Job-seeking assistance and support?)
- Please provide an anticipated timeframe as to when Mr McKenzie is expected to be fit to participate in vocational rehabilitation and return to work activities?
On 10 November 2020, Comcare wrote to the AEC in response to issues raised in respect of Mr McKenzie’s compensation claim and, in part, stated:
Currently, Comcare has insufficient medical evidence to determine that David doesn’t have a present liability for incapacity payments from 12 August 2020. The medical evidence from David’s treaters supports he has continued to suffer from the accepted condition with his incapacity for work as a result of his accepted condition.
To assist with the ongoing management of the claim and to clarify concerns regarding David’s condition and resulting incapacity for work, I will request an updated report from David’s General Practitioner and provide AEC Injury Management with a copy once received.[32]
[32] T65, folio 431.
On 17 November 2020, Dr Scheepers provided a report to the AEC.[33]
[33] T66.
Soon thereafter, Mr McKenzie raised questions following his examination by Dr Scheepers.[34]
[34] T67, T68 and T69.
Disputation continued.
On 22 January 2021, Mr McKenzie raised a number of his concerns with Jayne Cawley, a psychologist employed by Mr McKenzie’s rehabilitation provider, Procare, and stated:
I feel it is clear from information that I have recently received that the AEC have not changed their approach towards me. The AEC sought external legal advice that I believe was for the purpose of cancelling my compensation entitlements and then raising an overpayment of around $40,000. I believe they arranged for the FFD with Dr Scheepers to support this action.
The AEC have refused to give me a copy of the documents that were provided to Dr Scheepers, claiming legal professional privilege. The AEC says that releasing the documents would enable me to put together a mosaic that would disclose the legal advice received. If the intent behind the legal advice and the reason why I was sent to the FFD were genuine, I do not see a reason not to provide the referral to me. Refusing the referral documents suggests to me that the intent of the legal advice is another attempt to work against my claim and income payments.[35]
[35] T74, folio 480.

On 27 January 2021, Comcare issued a determination setting out Mr McKenzie’s entitlements to compensation for incapacity in the periods 28 July 2020 to 5 August 2020 and 15 October 2020 to 28 October 2020.[36]
[36] T75.
On 16 February 2021, the AEC requested reconsideration of the 27 January 2021 determination.[37] Among other documents, the AEC attached the report of Dr Scheepers and a report by Mr Esser (dated 7 August 2020).
[37] T76; see also T84.
On 22 February 2021, Mr McKenzie provided Comcare a detailed response to the AEC’s request for reconsideration.[38] In the response, Mr McKenzie addresses medical issues in some detail in reference to opinions expressed by Dr Scheepers, Dr Grant, Dr Kar, Dr Morris, Dr Cooke and Mr Esser.[39]
[38] T77.
[39] Ibid, see folios 491-496 for example.
On 11 March 2021, Comcare issued a reconsideration decision affirming its primary determination on 27 January 2021.[40]
[40] T78.
On 28 March 2021, Mr McKenzie signed a new rehabilitation program determination for the purposes of s 37(1) of the SRC Act.[41] The stated goal of the program was as follows:
Mr McKenzie to engage with his treating professionals to enable him to decrease his symptoms and increase his daily functioning. It is envisaged that Mr McKenzie will be monitored and supported during this period with a view to participation in a mediation process with his employer and return to his substantive work role at the AEC.[42]
[41] T80, folio 525.
[42] Ibid, folio 521.
On 28 April 2021, the AEC lodged an application for review of Comcare’s 11 March 2021 reconsideration decision by the Tribunal.
In the course of the resulting proceedings, on 18 March 2022, through his solicitor, Mr McKenzie provided written submissions with attached materials in respect of the following requested orders:
(a)Dismissal of the application under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act);
(b)or in the alternative, exclusion of the reports of Dr Kar and Dr Scheepers from evidence pursuant to s 25(4A) of the AAT Act ; and
(c)for the AEC to pay Mr McKenzie’s costs and disbursements associated with the matter.
On 11 April 2022, the AEC provided submissions in reply, resisting the orders requested.
I heard further oral submissions of the parties at an interlocutory hearing on 26 April 2022.
Dismissal
The first issue to determine is the matter of dismissal under s 42B(1) of the AAT Act.
Mr McKenzie asserts that allowing the Tribunal proceedings to continue would be an abuse of process and it will bring the administration of justice into disrepute. He alleges:
(a)under s 36 of the SRC Act, he was compelled to be examined by Dr Kar for an improper and substantial purpose beyond the scope of that section;
(b)under regulation 3.2 of the Public Service Regulations 1999 (Regulations), he was compelled to be examined by Dr Scheepers for an improper and purpose beyond the scope of that regulation; and
(c)having regard to the meaning of personal information and sensitive information in s 6(1) of the Privacy Act 1988 (Privacy Act), under Australian Privacy Principle (APP) 3, the AEC unlawfully solicited and collected personal information about him; and
(d)under s 6 of the Privacy Act and APP 6, the AEC unlawfully used and disclosed personal information about him.
Mr McKenzie argues that the AEC’s application relies on information it improperly obtained and then used unlawfully. The impropriety of the AEC, so the argument goes, infects the application for review and this amounts to an abuse of process which invalidates the Tribunal proceedings and, if the proceedings are allowed to continue, will undermine public trust and bring disrepute to the administration of justice.
Comcare maintained a neutral position, offering assistance to the Tribunal without making submission for or against Mr McKenzie’s requests.
The AEC urged the Tribunal to reject Mr McKenzie’s request for dismissal. In the AEC’s submission, Mr McKenzie was not compelled to undergo examinations by Dr Kar and Dr Scheepers for any improper purpose, rather those examinations were undertaken for the purposes of the legislation that compelled Mr McKenzie’s attendance.
The AEC asserts, where an employee sustains an injury under s 5A of the SRC Act and, subsequently, a question arises whether the employee continues to suffer from the injury or the injury gives rise to an entitlement to payment of compensation under s 14, an assessment may properly be obtained under s 36 of the SRC Act. The AEC argues it was for these purposes Mr McKenzie was required to undergo a medical examination by Dr Kar and the doctor produced a report.
The AEC submits the requirement for Mr McKenzie to undergo a fitness for duty assessment by Dr Scheepers was authorised under r 3.2 of the Regulations and the doctor properly provided a report. A fitness for duty assessment, the AEC argues, should address all aspects of the employee’s state of health that affect work performance, attendance, safety or conduct. It was for these purposes relating to fitness for duty Mr McKenzie was referred to Dr Scheepers and the doctor provided a report.
It is the AEC’s submission, in each case, the power to compel Mr McKenzie to attend a medical examination was properly exercised, for a proper purpose, and it did not improperly solicit, use or disclose personal information about Mr McKenzie contrary to s 6 of the Privacy Act and APP 3 or 6.
The AEC argues there are no grounds for dismissal on grounds of abuse of process.
Section 42B of the AAT Act is in the following relevant terms:
(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
It may be accepted where it is established by evidence a statutory power has been exercised in excess of authority for an improper purpose, and the improper exercise is a material factor in a decision that is the subject of an application for review by the Tribunal, the improper exercise may amount to an abuse of process for the purposes of s 42B.
In order to determine if a statutory power has been exercised without authority or for an improper purpose in the particular circumstances, it is necessary to consider the limitations of the power by reference to the text, subject matter, scope and purpose of the particular statute.[43]
[43] CUB Australia Holding Pty Ltd v Commissioner of Taxation [2021] FCAFC 171 at [16].
Rehabilitation assessment by Dr Kar
Section 36 of the SRC Act is in the following terms:
(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.
(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.
As can be seen, the power conferred by s 36(1) is to arrange an assessment of the employee’s capability of undertaking a ‘rehabilitation program’ – a term defined in s 4(1). It is complementary to the power conferred on a rehabilitation authority to determine an employee should undertake a rehabilitation program under s 37(1).
The power is enlivened in circumstances where an employee suffers an injury which results in incapacity for work or an impairment. The word injury is a given meaning in s 5A of the SRC Act. It may include a disease under s 5B, being an ailment suffered by the employee to which the employment contributed to a significant degree. The phrase ‘incapacity for work’ is given meaning under s 4(9) of the SRC Act. Impairment is defined in s 4(1).
The meaning of these terms should be kept steadily in mind when considering the purposes of s 36. The section is concerned with assessment of the employee’s capability to undertake a rehabilitation program relating to incapacity or impairment arising from an injury. Where the employee suffers other ailments beyond the scope of the injury or experiences circumstances outside the employment which may bear upon his or her capacity to undertake a rehabilitation program, those are relevant matters for assessment within the scope of s 36.
It is in this context, matters relating to causation may be relevantly considered for the purposes of s 36(1) when assessing the capability of an employee to undertake a rehabilitation program. This is especially so where the employee’s injury is in the form of a disease in which the contribution of the employee’s employment might be but one causal factor among others and the persistence of the injury or its effects may be unclear.
I am not persuaded the AEC’s referral of Mr McKenzie to Dr Kar for assessment under s 36, or the letter of instruction the AEC provided to Dr Kar, were for an improper purpose that exceeded the power conferred by s 36(1). The terms of the letter of instruction do not exceed the broad scope of matters relating to Mr McKenzie’s capability of undertaking a rehabilitation program which were legitimately able to be addressed under s 36(8).
Once the AEC obtained the report from Dr Kar, under s 8(4) of the Guidelines for Rehabilitation Authorities 2019 (Guidelines) issued under s 41 of the SRC Act, the AEC was required to give it to Comcare, being the relevant authority. Furthermore, subsequently, to the extent Dr Kar’s report was relevant to Mr McKenzie’s compensation claim relating to incapacity for work in the periods Comcare addressed in its determination on 27 January 2021, the AEC was at liberty to rely upon it in submissions to Comcare for the purposes of reconsideration of that determination. Doing so was not contrary to APP 3 or APP 6 under the Privacy Act.
The bar on collecting sensitive information about a person under s 3.3 of APP 3 in Schedule 1 of the Privacy Act is disapplied by s 3.4(a) where the collection of the information is required or authorised by or under an Australian law. The collection of Mr McKenzie’s personal information was authorised by s 36(1) of the SRC Act in respect of the rehabilitation assessment undertaken by Dr Kar and reported to the AEC under s 36(8).
By operation of s 6.2(b) in APP 6, the bar on using or disclosing personal information set out in s 6.1 of APP 6 does not apply if use or disclosure of the information is required or authorised by or under an Australian law. Thus it can be seen, the bar did not prevent the AEC from disclosing Dr Kar’s report to Comcare or using it for the purposes of s 62(2) of the SRC Act when requesting reconsideration of Comcare’s 27 January 2021 determination.
Furthermore, in his compensation claim form, Mr McKenzie expressly agreed to the following:
I authorise and consent to the collection, use or disclosure of my relevant personal
and medical information by Comcare and any relevant parties, including those listed
above, for purposes connected with the assessment and management of my
compensation claim, and by Comcare to carry out its regulatory functions.[44]
[44] T25.17, folio 201.
The relevant parties nominated in the compensation claim form include Mr McKenzie’s employer, as well as any health professional related to his claim and his rehabilitation case manager. Mr McKenzie’s purported revocation of consent on 6 December 2019 is expressly confined to the AEC and it is subject to the following exclusion: information specifically required for the purposes of my employment, management of my injury and return to work.[45]
[45] T17.
From this it follows the AEC had authority to obtain, disclose and use personal health information about Mr McKenzie for the purposes of assessing and managing the injury for which he claimed compensation. Management of Mr McKenzie’s injury includes matters relating to rehabilitation and compensation in respect of the injury. For those purposes, the AEC was able to disclose and use Dr Kar’s report in its related dealings with Comcare and as a party in these proceedings.
Fitness for duty assessment by Dr Scheepers
Under r 3.2 of the Regulations which is set out below, power is conferred on the Agency Head to direct an employee to undergo an examination by a nominated medical practitioner for an assessment of the employee’s fitness for duty in certain circumstances:
(1) This regulation applies if:
(a) an Agency Head believes that the state of health of an APS
employee in the Agency:
(i) may be affecting the employee’s work performance; or
(ii) has caused, or may cause, the employee to have an extended
absence from work; or
(iii) may be a danger to the employee; or
(iv) has caused, or may cause, the employee to be a danger to
other employees or members of the public; or
(v) may be affecting the employee’s standard of conduct; or
(b) an APS employee is to be assigned new duties and the Agency
Head believes the employee’s state of health may affect the
employee’s ability to undertake the duties; or
(c) an APS employee is to travel overseas as part of the APS
employee’s employment.
Note:          Examples of absences that could be treated as extended absences are:
(a)    an absence from work of at least 4 continuous weeks; and
(b)    a combined total of absences from work, within a 13 week period, whether based on a single or separate illness or injury, of at least 4 weeks.
The examples are consistent with the former Public Service Regulations 1935.
(2) The Agency Head may, in writing, direct the APS employee to do either or both of the following within a specified period:
(a) undergo an examination by a nominated medical practitioner for
an assessment of the employee’s fitness for duty;
(b) give the Agency Head a report of the examination.
(2A) The nominated medical practitioner may give the Agency Head a report of the
examination.
(3) In this regulation:
nominated medical practitioner has the meaning given by subregulation 3.1(3).
Note:          The Privacy Act 1988 has rules about keeping records of personal information.
The primary purpose of this regulation and the power it confers upon an Agency Head is to assess the employee’s fitness for duty. In order to make such an assessment, the state of health of the employee and their duties in employment must be considered. In that consideration, regard may be had to all relevant factors affecting or potentially affecting the employee’s state of health and his or her fitness to undertake employment duties, including all of the matters set out in r 3.2(1)(a).
Mr McKenzie’s incapacity for work and the alleged persistence of his compensable injury provide context for the AEC’s exercise of power under r 3.2. In that context, directing Mr McKenzie to undergo an examination by Dr Scheepers, and the letter of instruction the AEC provided to Dr Scheepers with the schedule of questions it posed for the doctor to address, do not exceed authority and they are within the power conferred upon the Agency Head.
As I have said, in his compensation claim form, Mr McKenzie expressly consented to his employer, as a relevant party, to collect, use and disclose relevant personal medical information in the assessment and management of his compensation claim. His purported revocation of consent on 6 December 2019 excluded management of his injury and his return to work. From this it follows, the AEC was authorised to obtain, disclose and use personal health information about Mr McKenzie from Dr Scheepers for purposes related to his employment and his fitness for duty. It was authorised to disclose and use Dr Scheepers’ report in the ongoing assessment and management of Mr McKenzie’s injury-related compensation claim, including in its dealings with Comcare and in this Tribunal.
Mr McKenzie’s case for dismissal on grounds of abuse of process under s 42B of the AAT Act is not made out and it is rejected.
I am satisfied Mr McKenzie’s submissions relating to the undermining of public trust should the proceedings continue are not made out. Furthermore, I am not persuaded that allowing the application to proceed to a hearing would bring the administration of justice into disrepute. Rather, even though the Tribunal is not a court, the administration of justice would be better served should the application proceed to be heard and determined on its merits.
Exclusion of medical reports
At this time, no proper grounds have been made out for exclusion from evidence of the report of Dr Kar or the report of Dr Scheepers.
Consequently, it is not appropriate to make the ruling Mr McKenzie seeks under s 25(4A) of the AAT Act.
Costs
Mr McKenzie’s application for an order of costs cannot be acceded to. His application for dismissal under s 42B is rejected. Should the matter proceed to a hearing and be determined in a manner favourable to Mr McKenzie, the issue of orders for costs may be revisited.
Decision
Mr McKenzie’s application for dismissal is refused.
I certify that the proceeding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Member S Webb
………………………[sgd]…………………..
Associate
Dated:   25 May 2022
Date of Hearing:   26 April 2022
Representative for the Applicant:                 Ms Athena Cains, McInnes Wilson Lawyers
Representative for the Respondent:            Mr Ben Mason, Moray & Agnew Lawyers
Representative for the Other Party:          Mr Thomas Maling, Elringtons Lawyers

[2022] AATA 1359

25 May 2022

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Legal Concepts

Abuse of Process

Consent

Judicial Review

Procedural Fairness

Standing

Statutory Construction