Hardin v Comcare Australia

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 provides (inter alia): "Provision of rehabilitation programs 37. (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."

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. The respondent has not sought to uphold the direction on this basis. Rather it has been submitted that, while perhaps unfortunate in expression, it represents a non-binding indication to the Industry Commission as to who would be "appropriate persons" to be appointed under s36(2) to conduct an assessment. If this was its intent - which I doubt - one can only say that it was couched in terms which were oracular indeed. Given the particular view I have taken of this appeal, it is unnecessary to make further comment at this stage on the direction. The Effect of the Tribunal's Incapacity Finding As the hearing before me progressed it became apparent that, whatever the various grounds of challenge to the Tribunal's decision on the rehabilitation matter, there was in substance only one significant question of law separating the parties. It was a consequence of the Tribunal's finding that Mr Chang was relevantly incapacitated when he made his written s36(1) request on 1 September 1992. On that date Mr Chang had a statutory entitlement to have the Industry Commission arrange for the assessment of his capability because he then satisfied the requirement of the subsection. If that assessment was then made it may have been favourable to him and it may have led to a s37 program of the type he undertook in his University degree, though the University would need to be an approved rehabilitation provider under s34 of the SRC Act. But none of this occurred in 1992.

What, in effect, Mr Chang seeks now is to have this happen retrospectively. He wishes an assessment to be made of his 1992 capability for the purpose then of his notionally being provided with a rehabilitation program. And if the program so "provided" happened to be his University of New South Wales course, then the cost of that program would have to be paid by Comcare under s37(4). Comcare, in contrast, urges a construction of the SRC Act which would only admit of an assessment of capability as at the time that assessment actually is made, so that if the matter is, in the end, remitted to the Industry Commission, Mr Chang is to be assessed now and presumably in the light of whatever his present incapacity might be. The short issue is whether s36 ought to be construed so that it can operate retrospectively as well as prospectively. The Construction Question I would have to say at the outset that I can see no attraction - or merit - in a construction of s36 that would require the contrived assessment that Mr Chang advances. It is not at all obvious to me why parliament would wish to establish a legislative regime which would allow the incurring of expenditure in 1996 for the purpose of determining Mr Chang's capability of undertaking a rehabilitation program in 1992. It is even less obvious to me what public purpose parliament would wish to pursue by allowing the s36 procedure to be so used as to lead possibly (via a like anachronistic use of s37 and, if necessary, s34) to the retrospective metamorphosis of a privately undertaken activity into an officially mandated rehabilitation program. Having regard to the interrelationship of sections 34, 36, 37 and 38 and in particular to the language of s36(1) and of s36(8) (which relates to the actual assessment to be given by the nominated assessors), Comcare has submitted that the section is concerned with a process leading to an assessment which is to have effect in the future only, if it has actual effect at all. 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. Comcare's submission is, then, that an applicant for a rehabilitation program must await completion of the processes set out in sections 36 and 37 before embarking on any program. Even if Mr Chang had obtained approval for the assessment of his capability prior to undertaking his university course, he could not, under the legislative scheme, commence the course as a rehabilitation program, until the Industry Commission had determined that that particular course was in its view the most appropriate rehabilitation program to undertake, having regard to all the possible rehabilitation programs which might have been identified by a section 36(8) report from the assessor. This is clear from paragraph 37(3)(g) of the SRC Act. Any delay by the rehabilitation authority, Comcare or the Tribunal in making the appropriate decision and review decisions would be reflected in lengthened incapacity payments. Mr Chang's written submissions invite me to conclude that if s36(1) is construed as operating prospectively only it would produce a "manifestly absurd or ... unreasonable" result: cf Acts Interpretation Act 1901 (Cth), s15 AB(1)(b)(ii). It is then said that when regard is had to the clear purpose of the SRC Act to promote effective rehabilitation of injured employees - a purpose evidenced in the Minister for Social Security's second reading speech on the Commonwealth Employees Rehabilitation and Compensation Bill (the precursor to the SRC Act) - the general language of the statute is consonant with it having both a prospective and a retrospective operation. Further, it is said, that it was not in keeping with the goals of the SRC Act for an employer to be able to avoid liability for rehabilitation until the issue of eligibility for compensation had been determined. I am mindful that s15AA of the Acts Interpretation Act 1901, enjoins the adoption of a purposive construction of statutes. This said, I do not see how the language of the section and the purpose of the legislation provide any comfort at all to Mr Chang. Section 36 is, in my view, merely a part of what the legislation envisages may be an ongoing process that seeks to secure an injured employee's rehabilitation with a view to securing a return to work in suitable employment. This process is set out conveniently in diagrammatic form in Ballard, Annotated Commonwealth Employees' Rehabilitation and Compensation Act 1988, Federation Press, 1991, 78. Within its setting, s36 is then clearly prospective in character. What Mr Chang seeks, though, is a construction which allows for an anachronistic contriving of the setting of a s36 assessment so that it be conducted in 1996 as if in a 1992 setting. It doubtless is the case that circumstances existed in 1992 which gave the Industry Commission a clear interest in having Mr Chang assessed - albeit the Industry Commission did not appreciate this at the time. What purpose, though, would be served now in the constitution of a group of assessors and the expenditure of resources in 1996 to ascertain Mr Chang's capability in 1992 is not at all obvious. Indeed, it would in my view be an abuse of their function if assessors appointed in 1996 made a past, not a present, assessment of the employee they were appointed to examine. The question to be decided here is not whether Mr Chang did nor did not have the basis of a good claim in 1992 to be considered for a rehabilitation program of the type he undertook on his own behalf - a claim which was, in error, not acknowledged. Rather it is with whether he can, so to speak, freeze time and still insist that s36(1) gives him a 1992 right that can be satisfied now in 1992 terms - albeit satisfied by the production of a report of historical interest only. I can see no justification in either the ameliorative purpose of Part III of the SRC Act or in the terms of s36 in its setting in that Part, which would require or allow such an extraordinary construction to be given the section. I am being asked in effect to adopt a construction which, given the discrete function of s36, would seem to serve no other purpose than a waste of public resources. I decline to do so given that the language of the section does not compel me to do so. My conclusion is, then, that s36 cannot be used retrospectively in the way Mr Chang has advocated. This, though, leaves a question as to the appropriate form my orders should take. It is the case that the decisions of the Industry Commission and of Comcare to refuse the s36(1) request in 1992 and 1993 respectively were incorrect and properly found to be so by the Tribunal. It equally is the case, in light of the construction I have placed on s36, that the direction given by the Tribunal could have no possible relevance at all to any reconsideration of the matter. Whether or not any useful purpose at all would be served by the 1992 request finally being put into effect now is not a matter upon which I can express an opinion. In these circumstances the appropriate course to be taken would seem to be that (1) the direction given by the Tribunal in A93/79 in setting aside the decision of Comcare dated 24 June 1993, be set aside but that (2) the decision of the Tribunal is otherwise affirmed. I certify that this and the preceding 13 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate Dated: 23 October 1996 Counsel for the applicant : G Lunney Solicitors for the applicant: Clayton Utz Counsel for the respondent : J Bonsey Solicitors for the respondent : Australian Government Solicitor Date of hearing : 1 July 1996 Date of judgment : 25 October 1996