Attorney-General (NT) v Chaffey

Case [2007] HCA 34

HIGH COURT OF AUSTRALIA

GLEESON CJ
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

Matter No D2/2007

ATTORNEY-GENERAL FOR THE
NORTHERN TERRITORY  APPELLANT

AND

CAMERON OWEN CHAFFEY & ANOR   RESPONDENTS

Matter No D3/2007

SANTOS LIMITED   APPELLANT

AND

CAMERON OWEN CHAFFEY & ANOR   RESPONDENTS

Attorney-General for the Northern Territory v Chaffey
Santos Limited v Chaffey
[2007] HCA 34
2 August 2007
D2/2007 & D3/2007

ORDER

1.        Appeals allowed.

2.Set aside the order of the Full Court of the Supreme Court of the Northern Territory made on 15 September 2006 and, in its place, order that the questions asked in the special case be answered as follows:

(1)

Q. Whether for the period up to 26 January 2005 the amendment constitutes an acquisition of the Worker's property inconsistent with s 50 of the Northern Territory (Self-Government) Act and as such is invalid to the extent of such inconsistency?

A. No.

(2)

Q.Whether for the period after 26 January 2005 the amendment constitutes an acquisition of the Worker's property inconsistent with s 50 of the Northern Territory (Self-Government) Act and as such is invalid to the extent of such inconsistency?

A.No.

3.The appellants to pay the respondents' costs of the appeals to this Court.

On appeal from the Supreme Court of the Northern Territory

Representation

T I Pauling QC Solicitor-General for the Northern Territory with S L Brownhill for the appellant in D2/2007 and the second respondent in D3/2007 (instructed by Solicitor for the Northern Territory)

S J Gageler SC with P M Barr QC for the second respondent in D2/2007 and the appellant in D3/2007 (instructed by Hunt & Hunt)

B W Walker SC with M P Grant QC and N Christrup for the first respondent in both matters (instructed by Ward Keller Lawyers)

D M J Bennett QC Solicitor-General of the Commonwealth of Australia with M A Perry QC and G M Aitken intervening on behalf of the
Attorney-General of the Commonwealth of Australia (instructed by Australian Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Attorney-General for the Northern Territory of Australia v Chaffey
Santos Ltd v Chaffey

Constitutional law (NT) – Acquisition of property – The respondent was a worker entitled to compensation under the Work Health Act (NT) ("the WHA") – The Work Health Amendment Act 2004 (NT) amended s 49 of the WHA so as to exclude employers' superannuation contributions from the definition of a worker's "remuneration" – Whether the amendment to s 49 was an acquisition of property otherwise than on just terms.

Constitutional law (NT) – The legislative power of the Northern Territory does not extend to the making of laws with respect to the acquisition of property otherwise than on just terms – Statutory right to compensation – Whether amendment to the WHA amounted to an acquisition of property – Relevance of statutory right being "subject to" and "in accordance with" the statute as in force from time…

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Details
AGLC
Attorney-General (NT) v Chaffey [2007] HCA 34
Case
[2007] HCA 34
Decision Date

CaseChat Overview and Summary

The Attorney-General for the Northern Territory and Santos Ltd appealed to the High Court of Australia against a decision of the Full Court of the Supreme Court of the Northern Territory. The dispute concerned amendments made to the Work Health Act (NT) in 2004, which excluded employers' superannuation contributions from the definition of a worker's "remuneration." The respondent, Mr Chaffey, a worker injured in 2003, argued that this amendment constituted an acquisition of his property otherwise than on just terms, contrary to section 50 of the Northern Territory (Self-Government) Act 1978 (Cth).

The High Court was required to determine whether the amendment to section 49 of the Work Health Act amounted to an acquisition of property otherwise than on just terms, as prohibited by section 50 of the Northern Territory (Self-Government) Act. This involved considering whether the statutory right to compensation, as it stood at the time of Mr Chaffey's injury, was "property" in the constitutional sense, and whether the subsequent legislative amendment constituted an "acquisition" of that property. The Court also had to consider the relevance of the statutory right being subject to variation and the inherent variability of workers' compensation entitlements.

The Court reasoned that Mr Chaffey's rights to compensation under the Work Health Act, as it stood at the time of his injury, were of a nature that rendered them liable to variation by subsequent legislative provisions. The Court concluded that the amendment did not constitute an "acquisition" of property within the meaning of section 50 of the Self-Government Act. This was because the statutory entitlement was inherently variable, and the amendment merely adjusted or regulated competing claims within the workers' compensation scheme, rather than acquiring property on terms that were not just.

The appeals were allowed, and the order of the Full Court of the Supreme Court of the Northern Territory was set aside. The High Court ordered that the questions posed in the special case be answered in the negative, meaning that the amendment was not considered an acquisition of the worker's property inconsistent with section 50 of the Northern Territory (Self-Government) Act. The appellants were ordered to pay the respondents' costs of the appeals.

Orders

Orders of the court

1. Appeals allowed.

2. Set aside the order of the Full Court of the Supreme Court of the Northern Territory made on 15 September 2006 and, in its place, order that the questions asked in the special case be answered as follows:

(1) Q. Whether for the period up to 26 January 2005 the amendment constitutes an acquisition of the Worker's property inconsistent with s 50 of the Northern Territory (Self-Government) Act and as such is invalid to the extent of such inconsistency?

A. No.

(2) Q. Whether for the period after 26 January 2005 the amendment constitutes an acquisition of the Worker's property inconsistent with s 50 of the Northern Territory (Self-Government) Act and as such is invalid to the extent of such inconsistency?

A. No.

3. The appellants to pay the respondents' costs of the appeals to this Court. [Orders of the Full Court, joint judgment of Gleeson CJ, Gummow, Hayne and Crennan JJ; Kirby J, Callinan J, Heydon J delivering separate decisions agreeing with orders of the joint judgment]

Background

Background to the litigation

Counsel for the Attorney-General for the Territory stressed that in contrast to the position of the Parliament under s 51 of the Constitution, the power of the Assembly is not conferred by reference to enumerated heads of power. This was said to render inapposite in the Territory those authorities[3] which found in other heads of legislative power enumerated in s 51 a contrary indicator to the provision of just terms. However, these appeals may be considered without pursuit of any such distinction between s 51(xxxi) and s 50 of the Self-Government Act.[3]See Theophanous v Commonwealth (2006) 80 ALJR 886 at 889‑890 [9]‑[14], 896 [55]‑[58]; 226 ALR 602 at 606‑607, 614‑615; Dixon, "Overriding Guarantee of Just Terms or Supplementary Source of Power?: Rethinking s 51(xxxi) of the Constitution", (2005) 27 Sydney Law Review 639 at 650‑651.The Facts Mr Chaffey, the first respondent to each appeal in this Court, was employed by Santos as a maintenance operator working at the Mereenie Gasfield, approximately 200 km west of Alice Springs. His employment commenced on or about 24 March 2003 and at all material times he was a "worker" within the meaning of the Work Health Act. Mr Chaffey's employment with Santos was pursuant to a written contract of employment dated 19 February 2003. At all material times pursuant to the contract Santos made superannuation contributions on his behalf at the rate of 10 percent of salary. On or about 10 September 2003 Mr Chaffey sustained an injury within the meaning of the Work Health Act for which Santos accepted liability. It appears to have been common ground that for the purposes of these appeals the compensation rights of Mr Chaffey under the Work Health Act accrued when he sustained his injury. Reference to the statute in these reasons, save where otherwise indicated, are to the statute as it stood when Mr Chaffey was injured. The facts do not disclose whether, had the relevant common law still been in force in the Territory, Mr Chaffey would have had an action for damages against Santos.The Work Health Act The Work Health Act repealed the Workmen's Compensation Act 1949 (NT) and commenced on 1 January 1987. Part II thereof (ss 6‑15) constitutes the Work Health Authority ("the Authority") as the body to administer and enforce the statute. Part V (ss 49‑91A) establishes a scheme of workers' compensation. Part VII (ss 117‑177) provides for the funding of the scheme, with compulsory insurance to be taken out by employers with an insurer approved by the Authority (s 126), and with provision also for approved self-insurers (s 120) and for the establishment of a Nominal Insurer (s 150) to administer the Nominal Insurer's Fund (s 162). The stated purpose of ss 75‑78 is to ensure rehabilitation of injured workers. An assignment of compensation payable under the statute is void and against an employer or an insurer (s 186). A Scheme Monitoring Committee, with a representative of the Authority and the other members appointed by the responsible Minister, is to monitor the viability and performance of the scheme (ss 141, 145).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ CJ, GUMMOW, HAYNE AND CRENNAN JJ (dissent) KIRBY J CALLINAN J HEYDON J (dissent)
Reliance also was placed upon s 69. This was misplaced. This provides for the settlement by mediation, with a right of appeal given the worker if mediation should fail, of disputes arising from proposed cancellation or reduction of payments.Conclusions The appellants' construction of s 53 of the Work Health Act as it stood at the time of the injury suffered by Mr Chaffey is correct. The consequence is that his rights to compensation under that statute were of a nature which rendered them liable to variation by a provision such as that made by the 2004 Act. Once this nature of the "property" involved is understood it is apparent that there was no "acquisition" spoken of in s 50 of the Self-Government Act. The Attorney-General for the Territory accepted that subsequent legislation might so remove the content of rights to compensation, as to go beyond what was contemplated by s 53 and amount to abolition. But that is not this case, and the prospect need not here be further considered. Nor is it necessary to consider the alternative ground advanced by the appellants, that what was involved here was not an "acquisition" of property, but an adjustment and regulation by the 2004 Act of competing claims, rights and liabilities of "stakeholders" in the system established by the Work Health Act[17].[17]Cf Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 161.Orders The appeals should be allowed. The order of the Full Court should be set aside and in place thereof, each question answered "No". These two appeals, from a divided decision of the Full Court of the Supreme Court of the Northern Territory[18], have taken this Court once again to the constitutional principles governing the obligation to provide "just terms" for the acquisition of property from a person, pursuant to an enacted law. As explained in the reasons of Gleeson CJ, Gummow, Hayne and Crennan JJ ("the joint reasons")[19], the law challenged in the appeals is one enacted not by the Federal Parliament but by the legislature of the Northern Territory of Australia, acting pursuant to the Northern Territory (Self-Government) Act 1978 (Cth), s 50(1)[20].[18]Chaffey v Santos Ltd (2006) 18 NTLR 22.[19]Joint reasons at [1]-[4].[20]cf Constitution, s 51(xxxi). These appeals have required this Court, once again, to consider the large number of decisions, many delivered in recent years, concerning the "just terms" requirement and the meaning of each of the individual words in its composite expression. Those words include whether the law in question was one "with respect to" the subject of the "just terms" guarantee; whether it was one involving an "acquisition"; whether, if so, what was acquired was "property"; and whether, in that case, the law provided for "just terms". Over the years, in the circumstances of individual cases, each and every word in the formulation has been closely scrutinised.The suggested imprecision of "just terms" discourse In recent times, members of this Court[21] and academic commentators[22] have noted what they have perceived to be inconsistencies or overly‑fine distinctions that present difficulties for later courts and for other decision-makers seeking to apply the Court's doctrine on this subject in the circumstances of a new case. Thus, Professors Blackshield and Williams, by reference to several recent decisions, have suggested that outcomes in such cases appear to depend on "difficult questions of judgment" and "subtle distinctions … exacerbated by the judicial differences in emphasis and approach."[23] Similar suggestions have been made in other areas of judicial decision‑making[24]. A measure of imprecision is probably inherent in all constitutional decisions and therefore deserving of no particular apology[25].[21]See, for example, Smith v ANL Ltd (2000) 204 CLR 493 referred to in the reasons of Callinan J at [56].[22]Blackshield and Williams, Australian Constitutional Law and Theory, 4th ed (2006) at 1285; Dixon, "Overriding Guarantee of Just Terms or Supplementary Source of Power?: Rethinking s 51(xxxi) of the Constitution", (2005) 27 Sydney Law Review 639 at 639-640; Allen, "The Acquisition of Property on Just Terms", (2000) 22 Sydney Law Review 351. [23]Australian Constitutional Law and Theory, 4th ed (2006) at 1285.[24]See eg Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2006) 81 ALJR 1155 at 1168 [69]; 234 ALR 618 at 633 concerning the constitutional doctrine of the separation of the judicial power.[25]Theophanous v The Commonwealth (2006) 225 CLR 101 at 126 [60].

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, KIRBY J, CALLINAN J,

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