Each of the four federal discrimination laws, which together prohibit discrimination on the basis of sex, race, age and disability, explicitly state that they bind the government. It would seem, therefore, an open and shut case: if an Australian Public Service employee is discriminated against in the course of their employment - say, by being sexually harassed by a manager, or denied a promotion because of their race - they could sue the government for damages.
Regrettably, because of a quirk of overlapping statutes and the government's ever-present desire to avoid liability, the answer is not so simple. We have written about this issue once before, but as it has not gone away, and we continue to argue about it with government lawyers, we thought it worth revisiting.
The problem arises because section 44 of the Safety, Rehabilitation and Compensation Act 1988 limits the ability of public servants to sue the government for injury arising in the course of employment. Prior to the introduction of the SRC Act, an injured public servant could either file an application for workers' compensation under a general scheme, or sue the government for negligence. The latter was costly and complex, involving protracted and often uncertain litigation. To address this, the government created Comcare via the SRC Act to offer specialised workers' compensation for injured public servants. So far, so good.
The government did not want public servants receiving payments from Comcare and also suing it for negligence. Section 44 therefore gives the Commonwealth immunity from suit for workplace injuries, unless the public servant elects to sue, in which case no Comcare payments are payable. Accordingly, an injured public servant must make a choice, Comcare or a long, windy and uncertain litigious path for damages. Again, so far, so reasonable. Moreover, if an injured public servant receives Comcare payments, and subsequently gains alternative compensation - whether by judgment or settlement - they must pay back Comcare.
Comcare's primary limitation, however, is that it does not provide compensation for non-economic loss (often described as damages for hurt, humiliation and distress). Except for limited cases of permanent impairment, where set amounts are payable, Comcare's payments are restricted to wages, medical expenses etc. Equally problematic is the fact that, while section 44 was evidently intended to exclude negligence claims (and thereby prevent "double-dipping"), it is broadly worded and potentially bars any action at all linked to a workplace injury.
What happens, then, when a public servant experiences discrimination? Under anti-discrimination laws, an employee who suffered discrimination at work, in circumstances where the employer did not take reasonable steps to prevent it, can sue the employer for economic and non-economic loss. Since the landmark 2014 case of Richardson v Oracle, damages for the hurt, humiliation and distress of discrimination have risen considerably. This has occurred on the basis that, as a society, we now accept that discrimination (particularly sexual harassment) can take a significant toll on an individual, and that therefore they should be fairly compensated. Post-Richardson, damages awards of $100,000 or more have become more common - and matters often settle for even more.
The government should not be able to discriminate with impunity.
All of which leaves public servants who experience discrimination in a bit of a pickle. Take Georgina as an example (a compound character based on various real scenarios we have experienced - not, herself, a real individual). Say Georgina develops a disability and is overlooked for a promotion by the Department of Widgets, because of her disability. This leaves Georgina distraught - she experiences an anxiety disorder and her doctor advises her against returning to work. Georgina lodges a Comcare claim, which is accepted.
Georgina then comes to see us. We suggest she sue the department for disability discrimination, seeking damages for the immense distress caused by the discrimination. But the department defends the claim, arguing that it is barred by section 44 of the SRC Act. In other words, the department says it is not liable for Georgina's suffering because she has already received payments under Comcare. After some litigious sparring, Georgina and the department ultimately settle, with an amount paid for non-economic loss. A few weeks after receiving the settlement monies, Georgina receives a letter from Comcare seeking repayment of the payments they have made to her.
In practice, we have frequently seen the government rely on the SRC Act to deny liability, or raise the spectre of repayment in settlement negotiations. If this position is correct, federal public servants who endure discrimination are not entitled to compensation for the hurt, humiliation and distress - unless they forgo their entitlement to Comcare. This is not a matter of double-dipping: Comcare explicitly does not provide for non-economic loss in these circumstances. So the federal government, by a legislative quirk, robs its public servants from damages that they would otherwise be entitled to, having endured the indignity and distress (or even worse) of discriminatory treatment.
We say "if" because, in our view, this position is not correct. Firstly, the SRC Act was plainly intended to give immunity from common law negligence claims (as much was said in the second reading speech). No intention was evinced to oust discrimination claims. On the other hand, anti-discrimination law is beneficial legislation intended to provide remedies for targets of discrimination - it would take express language in the SRC Act, in our opinion, to repeal those remedies. It would also be contrary to policy for the federal government to be able to avoid its liability under anti-discrimination law.
While there is no direct litigation on this point (to our knowledge), the full bench of the Federal Court reached a similar conclusion in a 2014 case, Romero v Farstad Shipping. There, the employer argued discrimination and contract claim were barred by a specialised maritime workers' compensation claim established by statute, with similarities to the Comcare scheme. The Federal Court held that "clearly" damages for discrimination did not constitute compensation "payable under" the workers' compensation scheme, such that the bar could not apply. They added: "there could not possibly be any discernible policy reason to exclude such claims."
More recently, in July 2020, the NSW Court of Appeal considered whether a payment to settle an anti-discrimination complaint precluded a workers' compensation claim, in Gardiner v Laing O'Rourke. Justice of Appeal John Basten (with his colleagues agreeing) held that it did not: "A purposive construction of the two separate and independent schemes of regulation does not support the proposition that a payment resulting from a complaint of discriminatory conduct ... should foreclose any claim for workers' compensation or work injury damages."
While this bodes well, until there is a judgment directly on the issue, or the government concedes the point, uncertainty will prevail over the ability of public servants to recover damages in discrimination claims, if they are already on Comcare. That, in our view, is a rather unsatisfactory state of affairs.
The government should not be able to discriminate with impunity. If the government's preferred position prevails, it is tantamount to it saying that there is no difference between a workplace accident (say tripping over a stack of copy paper) and being racially abused or sexually harassed at work. There is a gulf of difference, and the law should reflect that. We say that it already does.