Public servants and defence personnel face rough justice when they challenge the might of their Commonwealth employers in the main federal tribunal, new research reveals.
The Administrative Appeals Tribunal has ruled in favour of government employers in two-thirds of compensations cases in the past two-and-half years and many Tribunal members have 100 per cent records in deciding cases in the government's favour.
But the AAT says that most of its cases are resolved without an adversarial hearing.
Workers taking cases to a tribunal hearing in Queensland are in real trouble, according to the research commissioned by Canberra barrister and legal academic Allan Anforth, with the tribunal in Brisbane coming down on the government's side in 80 per cent of case since 2012.
Mr Anforth said he commissioned the research from a postgraduate student at the Australian National University after he and fellow lawyers came to the belief that justice in the Tribunal was dependent on the "luck of the draw".
He said that the research project, in which young lawyer Ting Yeo examined decisions in 368 cases, showed the chances of success or failure depended a lot on where the case was heard and by whom.
While some tribunal members recorded decisions for individuals half the time or more, 17 of the tribunal's members were found to have 100 per cent records in finding for the Commonwealth.
One Brisbane-based senior member heard 21 appeals for military or public service workers' compensation during the research period – and knocked back 19 of them.
One of his Queensland colleagues sent 21 out of 25 applicants packing.
"The research tells us there's not consistency between the registries in the way they deal with the merits of cases and it tells you that even within some registries, there's not consistency," Mr Anforth said.
"I had the numbers compiled because I felt that that was the case from my anecdotal experience appearing around the registries and other practitioners who act for injured workers or applicants with whom I've had discussions, share that anecdotal experience.
"There is a luck of the draw element."
The veteran barrister, who has acted in hundreds of public sector compensation cases, said he believed Tribunal members did their best to be impartial but Mr Anforth said he was worried that unconscious prejudice might be playing a part in too many cases.
"This area, workers' compensation, is one of the areas where people's social prejudices exist in quite a significant way," Mr Anforth said.
"I think they are areas that bring to the fore social attitudes from the Tribunal and people might determine things, perhaps unwittingly, on their social attitudes."
Mr Anforth said he and other lawyers believed that recruiting Tribunal members from more diverse professional backgrounds might help redress the imbalance.
"I'd like to see a better spread of people as members, people from different walks of life," he said.
"There are too many career bureaucrats who are looking for the next step up in their career."
But Philip Kellow, AAT Chief Executive, said that members made rulings or judgments in only a small minority of tribunal cases – 13 per cent - and that members made their decisions based on the law.
"The Tribunal's members, whether reviewing a decision alone or as part of a multi-member panel, must reconsider the decision that is before them," Mr Kellow said.
"The outcome of each review is determined by the evidence that is before the Tribunal and how the law applies to the facts of that case in the context of the issues to be decided.
"We note that Mr Anforth's figures relate only to cases decided by the Tribunal following a hearing.
"Most applications were finalised during the pre-hearing process with a majority of those cases resolved by way of an agreement reached by the parties."
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