Wilful and false representation
The representation must be both wilful and false. This dual test was discussed by the Federal Court in Comcare v Porter (1996) where the Court held that, for a misrepresentation to be caught by s 7(7), the representation must be:
- objectively false; and
- made without any belief that it is true.
Jenkinson J in Comcare v Porter noted that the word wilful “contains in its connotation elements of purpose. It is not merely that the mind goes with the act but that the mind intends by the act to achieve something”.
Note that the employee must be suffering, or be aware of, a significant medical condition at the time when the false statement is made. The disqualification provision would not be satisfied if, at the time the statement was made:
- the employee was unaware of the condition (ie. it was undiagnosed or asymptomatic); or
- the condition appeared to the employee to be very minor in nature.
Similarly, the disqualification provision would not be satisfied if the false statement arose from carelessness or mistake rather than deliberate falsity.