Does Comcare allow the Commonwealth to discriminate with impunity?

To address this mischief, Parliament passed the Comcare Act in 1988, which extinguished the right to sue the Commonwealth in negligence and replaced it with a more generous workers' compensation scheme administered by a government authority.

This substitution of rights is enshrined in section 44 of the act, which relevantly reads: "an action or other proceeding for damages does not lie against the Commonwealth in respect of an injury sustained by an employee in the course of their employment". In effect, it precludes a public servant from suing the Commonwealth following a workplace injury and, in return, they receive the right to ample compensation granted by the remainder of the act. However, the section's wording does not restrict its application to negligence claims alone, but rather any action for damages "in respect of an injury".

This brings us to the four federal discrimination acts (the Racial Discrimination Act, Sex Discrimination Act, Disability Discrimination Act and Age Discrimination Act), which are intended to eliminate discrimination against vulnerable members of society. They expressly apply to the Commonwealth as an employer.

Under these discrimination acts, an aggrieved public servant can sue the Commonwealth for unlawful discrimination and, if they succeed, the court can make "any order it thinks fit", which would generally include damages. There are two broad heads of damages: compensation for economic loss (such as lost wages) and compensation for non-economic loss, known as "general damages". The latter takes the form of a sum of money the court determines would adequately compensate for the hurt, humiliation, distress and loss of enjoyment of life caused by the person's experience of unlawful discrimination.

In the landmark 2014 decision of Richardson v Oracle, the full Federal Court flexed its muscle by substantially increasing the general damages that could be awarded under the discrimination acts. Rebecca Richardson had been sexually harassed by a colleague, causing her to develop anxiety and depression. At first instance, Richardson was awarded just $18,000 in general damages; on appeal, the full Federal Court increased this to $100,000. Richardson was hailed as the start of a new era, giving teeth to discrimination law.

However, if she had worked for the Commonwealth, the outcome of her claim might have been different: her employer might have claimed that section 44 of the Comcare Act precluded her from maintaining an action against it "in respect of an injury sustained by her in the course of her employment".

I have seen firsthand the Commonwealth raise this defence on several recent occasions, and it is unknown how many other claims it has sought to quash on this basis. Without a court decision or legislative clarification, the Commonwealth can continue to raise section 44 to rebuff claims of unlawful discrimination that result in injury, and for which it would otherwise be liable. This persisting uncertainty compromises public servants' bargaining position.

It would, in my opinion, be absurd for the Comcare Act to override the discrimination acts in this way, because it would mean public servants could only sue for unlawful discrimination if it either caused them permanent impairment (for which the Comcare Act provides an exception to section 44), or no injury at all – but not for anything in between. One can easily imagine some obscene outcomes if this interpretation was applied in practice: for instance, a public servant is raped at work by their boss and suffers a psychological injury because of it, but because they are not permanently impaired, they are precluded from recovering any compensation from the Commonwealth for their pain and suffering, despite the Commonwealth's clear liability otherwise.

My view is that the section 44 defence should fail, because a claim brought under the discrimination acts is a claim brought in respect of unlawful discrimination, not "in respect of injury". The claim would be a complete cause of action whether the claimant had been harmed by way of injury or not. The injury is not the focus or subject of the claim. The claim is not one in respect of injury.

This conclusion is supported by the Comcare Act's second reading speech, which says section 44 was specifically directed towards common law negligence claims, and several High Court decisions to the effect that an implied repeal of another statute, particularly one that confers an individual right, requires "very strong grounds" and "clear words", neither of which are found in the Comcare Act.

Until the matter is resolved, the Commonwealth may unlawfully discriminate against any one of its roughly 250,000 employees, and then raise section 44 in its own defence to settle claims for much less than what they are worth. There is also a real question, in my opinion, whether reliance on such a defence is consistent with the Commonwealth's model-litigant guidelines. Accordingly, I implore government lawyers to think carefully before arguing this defence in the future.

Unless Parliament acts or the Commonwealth's lawyers desist from this tactic, it will be left to a brave victim to run the matter to a court hearing and have the issue decided. But when there is a significant risk of having to pay tens of thousands of dollars to cover the Commonwealth's costs if unsuccessful, most victims would prefer to simply settle for a much smaller sum and put the traumatic matter to rest. Who could blame them.

John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks his colleagues Ian Brettell and Kieran Pender, and barrister James Macken of Henry Parkes Chambers, for their help in preparing this article. john.wilson@ballawyers.com.au