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Canít we discuss this like grown-ups? Meaningful debate about Comcare reform

By Wendy Bonython - posted Monday, 30 March 2015


Echoing the torts crisis of the early 2000’s, the Honourable Senator Eric Abetz has waded into the fray of negligence law in Australia once more, and announced that Comcare, the workers compensation scheme covering federal public servants and others, is in need of reform.

This should hardly come as a surprise to anyone. Indeed, a number of reports, including one commissioned by Bill Shorten in 2012, have already told us this. As have countless media articles, and the withdrawal of a number of policy holders, including the ACT government, who walked away from the scheme earlier this year.

The explanatory memorandum to the Bill refers to economic sustainability of the scheme and long-term outcomes for claimants in justifying the reforms. Did the Minister use the same arguments to justify his reform agenda to the public? No, instead, he reverted to the old tactic of victim shaming.

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The hapless victim in this instance is a woman who had the misfortune of being injured by a light fitting in a motel room she was staying in while she was travelling for her employment with a Commonwealth department. What apparently justifies public humiliating her for having the temerity to pursue a legal claim was the nature of the activity she was engaged in. At the time of the injury, she was…. Gasp!.... having sex!

It is this particular factor in her claim that makes her a target for political ridicule. Had she suffered her injury while slipping in the shower or by being mugged in the car park while returning to her accommodation from watching sport in a nearby pub, chances are no one would have commented. But the nature of her activity is such that the Minister sees fit to refer to her claim as ‘the infamous “hotel room sex case”’, which ‘highlights in lurid terms’ the defects in the Comcare system which support the ‘spurious claims’ of ‘libidinous claimant(s)’.

Such rhetoric echoes the negligence ‘crisis’ of the early 2000s, when money-hungry plaintiffs, spurred on by blood-sucking lawyers and undisciplined bleeding heart judges were wantonly victimising the poor helpless yet noble occupiers of premises, public authorities, and members of the medical profession. Of course, the truth was a little more complicated than that- subsequent analysis showed that structural issues with insurance practices accounted for far more of the perceived ‘crisis’ than the acts of individual plaintiffs or judges.

Her claim, incidentally, was by no means ‘spurious’. It worked its way from the Administrative Appeals Tribunal, who initially dismissed it, through to the Federal Court, on to the Full Court of the Federal Court, through to a Special Leave to Appeal Application to the High Court, and ultimately resulted in a 4:2 split decision of the High Court. If the claim lacked a legal basis, it would not have progressed to a hearing, much less all the way to the High Court, where the senior judges of the country were divided on its resolution. The fact that all of the High Court judgements refer to the legal uncertainty  in determining which activities will be deemed to be ‘in connection with employment’ should at the very least be sufficient to persuade the Minister that there was a live legal issue present in the case. Comcare’s willingness to bear the costs associated with its appeal to the High Court also demonstrate that it had an interest in seeing the uncertainty resolved, one way or the other.

The Minister is in no position to accuse anyone of ‘spurious’ activity. If the Bill he introduced to Parliament this week passes unamended, the provisions of the SRC Act which were most pertinent to the woman’s claim would remain the same. Passage of the reforms will not prevent similar cases from arising, and it is overreaching for him to claim otherwise. Even if the legal costs incurred by the Commonwealth in defending the claim are the Minister’s motivation for referring to it in the context of the proposed reforms, it is clear that the claimant had a legitimate legal argument. As such, the public flogging of a woman who simply exercised her legal right to have the court determine whether she was entitled to compensation from her employer for her injuries is unjustified.

Workers Compensation is a significant issue for taxpayers and employees alike. It is too important to reduce to mere rhetoric or overly simplistic good defendant vs. bad complainant scenarios. Voters – who ironically include both employees and taxpayers – deserve better. The Minister, in discussing the case in the terms he has in a bid to drum up popular support for what is a problematic reform agenda has simply pandered to the ‘sex sells’ philosophy. Reform is necessary; public humiliation of claimants exercising their legal right to resolution of their claims is not. 

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About the Author

Wendy Bonython is Assistant Professor in Law at the University of Canberra.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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