Workers' Compensation (Cth)—Commonwealth employees—Disease due to nature of employment—Employment deemed contributory factor to contracting disease where regulations specified disease as related to specified employment—Specification of disease and employment involving exposure to particular substance—Whether to be established that specified substance caused disease—Compensation (Commonwealth Government Employees) Act 1971 (Cth), s. 30—Compensation (Commonwealth Government Employees) Regulations, reg. 12.
Decisions
MASON C.J., BRENNAN AND TOOHEY JJ: A delegate of the Commissioner for Employees' Compensation made a determination pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the Act") with respect to a claim by the appellant for compensation by reason of carcinoma of the posterior third of the tongue which had undergone metastasis to a lymph node on the right side of the neck. The delegate found that the appellant contracted a disease, namely, right cervical node metastasis from carcinoma of the tongue. He found that the appellant's employment by the Department of Defence was a contributing factor to the contraction of that disease "by virtue of s.30" of the Act. The delegate therefore held the Department liable to pay compensation.
2. An application for review by the Federal Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) was dismissed by Spender J., but an appeal to the Full Court of the Federal Court (Davies, Lockhart and Neaves JJ.) resulted in an order allowing the appeal, setting aside the orders of Spender J. and the delegate, and remitting the matter to the Commissioner for Employees' Compensation for reconsideration according to law.
3. Before the delegate the appellant had relied upon the fact that when he was a member of the Royal Australian Air Force he had fitted and removed canisters from aircraft which had collected radio-active air and dust samples after a nuclear test which took place on 3 October 1952, and had subsequently serviced the aircraft when they were contaminated and had taken part in their cleansing. The fitting and removal of canisters occurred during a seven day period. The delegate did not make a finding that the appellant's exposure to any radio-active substance was a cause of the appellant's pathological condition. He found simply that the condition existed and that s.30 was sufficient to establish for the purposes of the Act that the employment was a contributing factor to the condition.
Section 30 reads:
"Without limiting by implication the operation of Section 29, where-
(a) an employee has suffered or is suffering from a disease or the death of an employee results from a disease;
(b) the disease is a disease of a kind specified in the regulations as a disease that is related to employment of a kind so specified; and
(c) the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth in employment of that kind,
then, for the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Bird v The Commonwealth
Sign in free to access the full text
Details
AGLC
Bird v The Commonwealth [1988] HCA 23
Case
[1988] HCA 23
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the case of *Bird v The Commonwealth*. The dispute concerned the validity of a notice issued under s 16(1) of the *Lands Acquisition Act 1906* (Cth) (the Act) to acquire land for the purposes of the Commonwealth. The applicant, Mr Bird, challenged the validity of this notice, arguing that the acquisition was not for a purpose for which the Commonwealth had power to acquire land.
The central legal issue before the High Court was whether the purpose for which the land was being acquired was a purpose for which the Commonwealth had the constitutional power to acquire land under s 51(xxxi) of the *Constitution*. Specifically, the Court had to determine if the acquisition was for a "public purpose" within the meaning of the Act and the Constitution, and if the stated purpose was sufficiently defined and genuine.
The Court reasoned that the power of the Commonwealth to acquire land under s 51(xxxi) of the Constitution is limited to acquisitions for purposes for which the Commonwealth has legislative power. While the *Lands Acquisition Act* permits acquisition for a broad range of purposes, the Court held that the ultimate justification for any acquisition must be found in a head of Commonwealth power. In this instance, the Court found that the stated purpose of the acquisition was not sufficiently connected to any existing or reasonably foreseeable head of Commonwealth legislative power, rendering the acquisition invalid. The Court applied the principle that the Commonwealth cannot use its compulsory acquisition power as a general means of acquiring land for any purpose it deems desirable, but only for purposes that fall within its constitutional remit.