Minority Report by Nick Xenophon, Independent Senator for South Australia
The Barry Crush Case
1.1
In 1988, Mr Barry Crush was Master and
Chief Engineer of the MV Candela, a Federal Department of
Transport and Communications lighthouse support vessel.
1.2
During a severe gale, Mr Crush fell 10 metres onto the deck of MV
Candela while trying to secure equipment.
1.3
Mr Crush suffered severe injuries to his back, neck, ankles, hips, left
knee, left arm and elbow, broken ribs, as well as massive soft tissue damage to
his entire body.[1]
1.4
Upon eventually returning to Adelaide, Mr Crush’s injuries were
assessed. As Mr Crush states in his submission:
“...after many medical procedures and operations, the treating
orthopaedic surgeon, in an initial 8 page written report, and many subsequent
reports to Comcare, advised Comcare that he had diagnosed me as having a 90%
whole of body disability.
These injuries and disabilities were clearly noted on my
Comcare file for all to see in early 1989.”[2]
1.5
Mr Crush began receiving payments from Comcare in 1989, however these
payments had been miscalculated and he was being grossly underpaid. Over the
next 13 years, Mr Crush contacted Comcare on a weekly basis to request a review
of his case.
1.6
Comcare was unwilling do this, as Mr Crush details in his submission:
“Comcare continually told me, that they were either too
understaffed, or too under-resourced to investigate my claim, but advised me to
keep writing.”[3]
1.7
He continues:
“My requests continued in writing until 1999, and still
Comcare did nothing.
In 1999 I again applied to Comcare in writing and resent a
large bundle of documents containing my Masters qualifications, areas of
operations, and other details.
... Comcare misplaced or lost this bundle of documents on five
separate occasions.”[4]
1.8
In August 2001, Comcare accepted the material provided to them by Mr
Crush and determined that he had been underpaid and provided him with two back
payments.
1.9
On 10 September 2003 Mr Crush wrote to the then CEO of Comcare, Mr Barry
Leahy requesting $450,000 in compensation in relation to the financial losses
and expenses Mr Crush incurred due to the underpayment.
1.10
In a letter dated 12 November 2003 Mr Leahy advised:
“Comcare has not, however, any capacity to pay you more than
the amount already paid. The SRC Act makes no provision for payment of interest
or other recompense where the amount originally determined is subsequently
discovered to have been less than the entitlement. The only possible avenue
available to you is to apply for an act of grace payment by writing to the Hon
Peter Slipper MP, Parliamentary Secretary to the Minister for Finance and
Administration...”[5]
1.11
Three different Ministers and Parliamentary Secretaries considered
separate act of grace payment applications by Mr Crush; each one was refused.
The basis for the refusals did not rest in a technicality but rather on the
fact that:
“Comcare... provided incorrect information to the Department of
Finance and Deregulation, stating that Barry had received $1 million in
entitlements, was paid $50,000 a year, and that there was no underpayment,
amongst other incorrect statements”[6]
1.12
It was only in the Ombudsman’s Report (04/2010) did the fact that an
“act of grace payment ‘is generally not available’ in relation to the actions
of an agency established under the CAC Act” [7]
become apparent to Mr Crush.
A CDDA-type Scheme
1.13
As discussed in the majority report, employees of government agencies
covered under the Financial Management Accountability Act 1997 can apply for
compensation for maladministration under Compensation for Detriment caused by
Defective Administration (CDDA) Scheme.
1.14
The CDDA Scheme is an administrative, not statutory scheme established
under section 61 of the Constitution, enabling Ministers and authorised
departmental officers to authorise payments to those who have suffered
financial losses as a result of defective administration.[8]
1.15
Comcare is established as a body corporate under section 74 of the Safety,
Rehabilitation and Compensation Act 1988, and therefore falls within the
definition of a ‘Commonwealth Authority’ as detailed in the Commonwealth
Authorities and Companies Act 1997. As such, CDDA claims cannot be made
against Comcare for maladministration.
1.16
Neither Comcare nor the Department of Finance have an appropriate
mechanism for handling claims of maladministration against Comcare.
1.17
In its March 2010 Report, The Commonwealth Ombudsman recommended that “Comcare
work with Finance to find a way to resolves these claims and to develop a
strategy for dealing with similar claims in the future”[9].
1.18
As Recommendation 1 of the Ombudsman’s report reads:
“I recommend Comcare and Finance develop a proposal for
establishing a scheme, similar to the CDDA, whereby people adversely affected
by poor administration of the SRC Act can seek compensation.”[10]
1.19
The Committee recommends that under section 73 of the Public Service Act
1999, the maximum amount of a discretionary payment should be increase from
$100,000 to $250,000.
1.20
This does not allow for adequate compensation for victims such as Barry
Crush and will not come close to compensating for his actual loss and damage.
1.21
Given Mr Crush is not eligible for a discretionary payment under the
CDDA scheme or an act of grace payment, there is effectively no way for Mr
Crush to be appropriately compensated for his losses.
Recommendation 1
The Public Service Amendment (Payments in Special
Circumstances) Bill 2011 be passed, with a view that it be repealed once a
CDDA-style scheme is established to address defective administration for
agencies covered under the Safety, Rehabilitation and Compensation Act 1988.
Recommendation 2
Taxation on discretionary payments received under the
Public Service Amendment (Payments in Special Circumstances) Bill 2011 be
waived.
Nick Xenophon
Independent Senator for South Australia
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