AAT … Liberal appointment makes a hash of it … Failed to engage with submissions … Misapplication of the law … Start again … Pre-election festival of appointments … 12 years after a compensation claim was filed there’s still no final determination … Obstruction and errors
This came shortly after the senate legal and constitutional affairs reference committee’s “performance review” recommended winding up the AAT and starting again with a new federal administrative review “system”.
The majority of the senate committee called for an improved appointments regime with an independent panel to consider the suitability of applicants and to limit the discretionary powers of the AG to appoint party cronies.
Liberal senators, Sarah Henderson (Vic) and Paul Scarr (Qld) were in dissent, expressing support for the current (unprincipled) selection “protocol”, yet adding:
“We are concerned about a number of the AAT’s internal processes and procedures which have given rise to inaccurate and incomplete information about a range of matters including the benchmarking of members’ work performance, case-loads and completion rates.
We also support the implementation of a consistent remuneration framework for all members.”
About a fortnight before the starting gun was fired for the election campaign a decision from the Full Federal Court was delivered – a judgment that once again exposed the tribunal’s underwhelming performance.
Nicole Wuth worked in the Commonwealth Department of Health and Ageing where she developed the Epstein-Barr virus in late 2005 – it was not alleged to be work related.
She transferred to the Department of Finance and Administration in late 2006, working on a part-time basis.
On April 29, 2010 Wuth made a claim for statutory compensation, submitting she suffered “entrenched chronic daily headache (intractable migraine) arising from an exacerbation of post-viral fatigue”. This was attributed to working longer hours than agreed.
On May 27, 2010 she was invalided out of the public service. Over three years later (August 2013), Comcare calculated her compensation on the basis of the shorter hours she worked under the part-time arrangement.
By August 2010, Comcare rejected her claim that she had suffered an injury and this was affirmed in July 2011. Over a year later, following an ADR process, the tribunal set aside Comcare’s decision, finding that chronic daily headaches were a disease that was “significantly contributed to by the applicant’s employment with the Department of Finance …”. The deemed date of injury was February 27, 2007.
In February 2014, there were further appeals relating to an application for lump sum payments and an assessment of permanent impairment and calculation of the average number of weekly hours worked. By this stage Rares J was involved and he dismissed Comcare’s appeal relating to the impairment assessment.
That went to the Full Court, where again it was rejected (April, 2018). The impairment assessment was remitted back to the tribunal for proper assessment.
In May 2018, Comcare decided to reject Rares’ calculation of 36.75 as the average number of weekly hours worked, deciding that the figure should be 29.4 hours, or $1,260.38.
In July 2018, Wuth applied to the tribunal to review Comcare’s decisions on impairment and the calculation of normal weekly earnings.
On September 3, 2020 AAT deputy president Gary Humphries AO decided that the applicant had not suffered a compensable injury for the purposes of s.14 of the Safety Rehabilitation and Compensation Act.
Humphries found that the applicant suffered from chronic daily headaches, materially a consequence of her work for the government, but added they were not supported by “identifiable physiological change”.
This was despite the fact that the tribunal had already previously established the applicant suffered an identifiable disease.
On September 14, 2012 the tribunal had determined, with the agreement of the parties, that Comcare was liable to pay compensation to the applicant for her chronic daily headaches, which necessarily entailed a finding of compensable injury.
Having assumed there was no compensational injury, Humphries did not review Comcare’s calculation of Wuth’s normal weekly earnings in order to determine her weekly payments.
Justice Michael Wheelahan said:
“[Humphries’] reasons in relation to the calculation of normal weekly earnings, albeit not operative reasons, were inadequate, misapprehended the issue that was to be determined on review, failed to address submissions that were put to the tribunal by both parties, and misapplied the reasons for decision of Rares J and of the Full Court in the previous proceedings.
Because the tribunal failed to discharge its review function, the matter will have to be remitted to the tribunal so that a review can be undertaken.”
It has taken 12 years since Nicole Wuth make her claim, with the failure to arrive at an amount for her weekly payments attributable to repeated tribunal errors and obstructions from Comcare.
Yet, the issue in dispute “… is simple, narrow, and ought to be capable of being determined by the tribunal without any further evidence, and upon the basis of concise and focussed submissions of the parties that avoid false issues and technicalities, and which squarely address the merits”.
Justice John Griffith added:
“Based on my own judicial experience the sorry history of Ms Wuth’s application is not an isolated matter. In my respectful view there is an urgent need to conduct a detailed review of the operation of the SRC Act with the objective of producing reforms which simplify and make more efficient substantive, procedural and review aspects of the present statutory regime.”
Humphries is by no means the worst of Bookshelves Brandis’s AAT appointments. He does have legal qualifications but even bigger political connections being a former Liberal member of the ACT Legislative Assembly, former chief minister of the capital territory and then in February 2003 he filled a casual senate vacancy.
He was the first Liberal senator to vote against the Howard government – in opposition to overturning the ACT’s legislation for civil unions. Subsequently Abbott appointed him to the opposition frontbench.
In October 2020, The Canberra Times reported that Humphries would step down from the AAT at the end of that year – yet here he is, still alive and kicking.
On the day the election was called (April 10), Madam Cash announced the appointment of Michael Hawkins as the new registrar of the AAT.
He replaces Sian Leather, who resigned from the post in January.
Hawkins, a well-connected Queenslander, seems to be a government favourite He had been appointed as a part-time AAT member in May 2016 and already holds a position, courtesy of the previous minister Mitch Fifield, on the board of Screen Australia – being a former CEO of Multiplex Cinemas.
He’s also Queensland’s honorary consul for Sweden, a member of the Queensland State Library Foundation, and the governing board of Queensland Business Leaders Hall of Fame. He’s also a past president of the Brisbane Club.
Sources also say he’s Peter Dutton’s neighbour.
While the AAT itself is comprehensively stacked, it would be a crying shame if the public service side of the organisation met the same fate.