Chiswell and Australian Capital Territory (Compensation) - [2023] AATA 3101

Chiswell and Australian Capital Territory (Compensation) [2023] AATA 3101 (29 September 2023)
Division:GENERAL DIVISION
File Number(s): 2021/7267
Re:Andrew Chiswell
APPLICANT

AndAustralian Capital Territory
RESPONDENT

DECISION
Tribunal:Senior Member O'Donovan
Date:29 September 2023
Place:Canberra

The decision under review is set aside and remitted to the respondent for reconsideration.
…………………[sgd]……………………
Senior Member O’Donovan
CATCHWORDS
WORKERS' COMPENSATION - whether the applicant was employed as a firefighter - whether firefighting made up a substantial portion of the applicant's duties - whether the provision is a limiting provision or a deeming provision - decision set aside and remitted
LEGISLATION
Acts Interpretation Act 1901, s15AA, 15AB
Emergencies Act (ACT), Part 4.2, s 44
Safety, Rehabilitation and Compensation Act 1988, s 7(8), 7(9)
Safety, Rehabilitation and Compensation Amendment (Fair Protection for Firefighters) Act 2011
CASES
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2020) 282 FCR 1
R v A2 (2019) 269 CLR 507
Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531
SECONDARY MATERIALS
Senate Education, Employment and Workplace Relations Legislation Committee Report on the SRC Amendment (Fair Protection for Firefighters) Bill 2011
Supplementary Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022
REASONS FOR DECISION
Senior Member O'Donovan

On 10 November 1988 the applicant commenced employment with ACT Fire and Rescue (the Fire Service). He trained as a firefighter over the next three years and commenced operational duty as a firefighter around June 1990.
The applicant worked at various fire stations in Canberra in the following 12 years. In 2001 the applicant began performing some of his work in the Communications Centre (Comcen) for the Fire Service which did not require direct involvement in firefighting. By the end of December 2002 the applicant’s direct involvement in attending active fire scenes ceased altogether. He performed duties at Comcen more or less continuously from December 2002. He was permanently transferred to Comcen from 16 February 2004. He ceased work in Comcen around September 2010. He retired from the Fire Service on medical grounds on 29 June 2018. Throughout this time the employment classification he held included the title ‘firefighter’.[1]
[1] The applicant’s job title was ‘Firefighter’ or ‘Senior Firefighter’, from 1991. The employment details on cessation was ‘FB.5’, which according to the enterprise agreement is a Senior Firefighter.
On 18 May 2021 the applicant was diagnosed with prostate cancer and the applicant sought compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). His claim sought to take advantage of the special provisions of the SRC Act which create a rebuttable presumption for firefighters who develop certain cancers (including prostate cancer) that their employment contributed to a significant degree to the development of the condition.
In order to take advantage of these provisions the applicant must establish a number of things which are set out in subsection 7(8):
(a)that he suffers from a disease mentioned in the Table set out in the subsection (which includes prostate cancer);
(b)that before the disease was sustained, he was ‘employed as a firefighter for the qualifying period mentioned for that disease’ – in the case of prostate cancer - 15 years; and
(c)that he was exposed to the hazards of a fire scene during that period.
Subsection 7(9) includes a paragraph (a) which on its face appears designed to assist an applicant to establish that he or she was ‘employed as a firefighter’ for the qualifying period as required by subsection 7(8). The relevant paragraph of the subsection is phrased as a deeming provision, although it is not always regarded as such.[2]
[2] See for example paragraph 1.41 of Senate Education, Employment and Workplace Relations Legislation Committee Report on the Safety, Rehabilitation and Compensation Amendment (Fair Protection for Firefighters) Bill 2011.
At the time when the applicant made his claim and the reviewable decision was made, subsection 7(9) read as follows:
For the purposes of subsection (8):
(a)an employee is taken to have been employed as a firefighter if firefighting duties made up a substantial portion of his or her duties; and
(b)an employee who was employed as a firefighter for 2 or more periods that add up to the qualifying period is taken to have been so employed for the qualifying period; and
(c)an employee is taken to have been employed as a firefighter only if he or she was (disregarding the effect of any declarations under subsection 5(15)) employed as a firefighter by the Commonwealth, a Commonwealth authority or a licensed corporation.
The applicant’s claim was rejected by Comcare on the basis that he was not ‘employed as a firefighter’ for the relevant qualifying period. The applicant sought review of that determination and Comcare determined that because firefighting duties did not make up a substantial portion of his duties for 15 years he was not employed as a firefighter for the relevant qualifying period. He applied to the Tribunal for review. In December of 2022, just over a month before this matter came on for hearing, relevant amendments to section 7(9)(a) passed the Federal Parliament. The amendments did not affect the primary provision (subsection (8)) but alterations were made to the deeming provision. Subsection (9) was amended to read as follows:
For the purposes of subsection (8):
(a)an employee is taken to have been employed as a firefighter if the relevant authority is satisfied that firefighting or related duties made up a not insubstantial portion of his or her duties; and
(b)an employee who was employed as a firefighter for 2 or more periods that add up to the qualifying period is taken to have been so employed for the qualifying period; and
(ba) for an employee of the Australian Capital Territory specified in a declaration under subsection 5(15) – the employee is taken to have been employed as a firefighter during any period for which the employee was a member of a firefighting service;
(c)an employee is taken to have been employed as a firefighter only if he or she was employed as a firefighter by the Commonwealth, a Commonwealth authority or a licensed corporation.
At the hearing in January 2023 it became clear that because the applicant’s period of service as an active firefighter fell short of the 15-year qualifying period, it was necessary to determine whether his time spent performing duties in Comcen, in a position classified as a firefighter, but not attending fires, counted towards the qualifying period in subsection 7(8). The correct interpretation of subsections 7(8) and 7(9) is critical to the resolution of this question.
The parties advanced two very different approaches to the provisions. The applicant advances a straightforward reading of the text of the provision. The respondent on the other hand seeks to emphasise the context of the provision as a better guide to Parliament’s intention and a proper understanding of the provisions. Each approach is orthodox in its own way, but a purposive approach which takes account of context is essential to the correct analysis of a statute.
The applicant contends that he satisfies the requirements of subsection 7(8) under either the pre- or post-December 2022 version of the provisions. The argument is simple. He was employed as a firefighter and retained that classification until he was medically retired in 2018. His total period of employment as a firefighter was approximately 30 years. He was exposed to the hazards of a fire scene during that 30-year period, and although he was exposed many times, to meet the requirements of paragraph 7(8)(c) he only needs to have been exposed once. As section 7(9) is only a deeming provision and the applicant already qualifies directly under subsection 7(8), it is unnecessary to consider subsection (9) at all. If one did need to consider subsection 7(9), the 2022 amendments apply to his case and he was performing firefighting or related duties for more than 15 years.
The respondent’s position is that the term ‘firefighter’ should be given its ordinary meaning which refers to ‘a person whose task is to extinguish fires’. The respondent rejects the position advanced by the applicant that a person employed by the Fire Service who holds the classification of a firefighter is thereby ‘employed as a firefighter’ for the purposes of the SRC Act. It contends that service in the employ of a firefighting agency, other than service as a firefighter (in the ordinary sense of that word), is not capable of counting towards the 15-year qualifying period.
As put, it is unclear whether the respondent relies only on applying the ordinary meaning of ‘firefighter’ as sufficient to exclude the applicant’s service in Comcen or whether the exclusion depends on a reading of paragraph 7(9)(a) as a narrowing provision rather than a deeming provision. I deal with both arguments but the latter appears to be the primary argument that is advanced because the respondent makes the submission that a person’s service in a period when firefighting did not make up ‘a substantial portion of his or her duties’ does not contribute towards the 15-year qualifying period. This seems to frame the issue in terms drawn from subsection 7(9) which would only be necessary if that provision had work to do in modifying the phrase ‘employed as a firefighter’.
The fact that the respondent reads subsection 7(9) as a limiting rather than deeming provision explains some of the difference between the conclusions contended for by the parties.
However, the respondent also submits that subsections 7(8) and (9) cannot be interpreted without first understanding the context of the provisions and in particular the ‘mischief’ to which the provisions are directed. In this regard the respondent notes that the available Parliamentary materials establish that the rebuttable presumption, concerning prostate and other cancers developed by firefighters, was introduced because of the scientifically established heightened risk which firefighters faced of developing such cancers. However, ‘because these differences in risk according to type of cancer were time and exposure dependent’ and that ‘cumulative exposure’ was the cause of the heightened risk, the plain intent of subsections 7(8) and (9) was to facilitate access to benefits for firefighters in recognition of their uniquely elevated occupational risk, once a sufficiently long period of service in work involving them in exposure to the hazards of a fire scene was attained.
The respondent’s view is that ‘work for a firefighting agency in a role that does not involve any exposure to the hazards of a fire scene should not be considered to constitute ‘firefighting duties’ (a phrase which appears in subsection (9)), or form any part of the 15-year qualifying period for prostate cancer because it was not Parliament’s intention to count such service in the qualifying period.
The applicant responds to this position with a submission that the Parliament was not concerned with periods of exposure, but with latency periods – i.e. the period between exposure and the disease becoming manifest. Consequently, it is wrong to proceed on the basis that Parliament was seeking to impose a threshold which required exposure to the hazards of fire scenes over time.
Resolving these questions of statutory interpretation is the focus of this decision. In practical terms the question can be asked this way. Does the applicant’s service at Comcen count towards the 15 year qualifying period? If it does then he has the benefit of the rebuttable presumption provided for in subsections 7(8) and (9). If service at Comcen does not count towards qualifying service, then the applicant cannot get the benefit of the rebuttable presumption.
One issue that I am not going to address is the question of whether certain periods of leave which the applicant took do or do not contribute to the calculation of the qualifying period. This issue has been the subject of competing submissions. It is unnecessary to resolve the issue because, if I accept the contention that the applicant was not ‘employed as a firefighter’ when he was working full-time at Comcen, then the applicant cannot succeed regardless of how his periods of leave are treated. His total service from 10 November 1988 until commencing full-time at Comcen, was 14 years and 1 month. If I accept the applicant’s service at Comcen as qualifying service then he comfortably meets the 15 year requirement even if leave periods are not counted.
Before turning to the construction issues, I will set out my findings on material questions of fact and the evidence on which they are based.
Evidence
The evidence in this proceeding consists of:
(a)The documents filed under section 37 of the Administrative Appeals Tribunal Act 1975 (T-Docs);
(b)The documents produced and filed under section 71 of the SRC Act (Exhibit A1);
(c)The applicant’s witness statement dated 22 December 2022, and accompanying annexures (Exhibit A2);
(d)Material produced under summons by South West Sydney Urology (Exhibit A3);
(e)Material produced under summons by Campbelltown Private Hospital (Exhibit A4);
(f)The Supplementary Explanatory Memorandum of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, as well as the following agreements (Exhibit A5):
(i)ACT Fire and Rescue Enterprise Agreement 2013-2017;
(ii)ACT Public Service ACT Fire and Rescue Enterprise Agreement 2011-2013;
(iii)ACTFB Agreement 2006-2010; and
(iv)ACTFB Certified Agreement 2004-2006;
(g)An extract from the ACT Emergency Services Agency website entitled ‘Role of a Fire Fighter’ (Exhibit A6);
(h)An extract from the ACT Emergency Services Agency website entitled ‘Fire & Rescue Recruitment’ (Exhibit A7);
(i)An extract from the Comcare website entitled ‘Scheme guidance – Disease provisions relating to firefighters’ (Exhibit A8);
(j)An extract from the ACT Emergency Services website entitled ‘Career development and opportunities’ (Exhibit A9); and
(k)A summary of the applicant’s leave records, produced by the respondent (Exhibit R1).
The applicant also gave evidence. He elaborated on his statement (Exhibit A2) and was cross examined. He was a credible witness who made appropriate concessions. I have largely accepted his evidence, but for the purposes of determining where he was assigned in various periods I have relied on Annexure A to his statement.
Facts
The applicant commenced with the Fire Service on 10 November 1988. He commenced his training at the Belconnen Fire Station. The Tribunal was not provided with any documents concerning the applicant’s initial engagement with the Service, but the applicant’s recollection was that he was designated as a trainee firefighter.
The applicant was issued with a uniform and underwent the initial training to become a firefighter. The trainees underwent structured training for about 16 weeks. There were classroom components, physical training components and hands on training using equipment which included extinguishing fires. The applicant described regular exposure to fires during training – more regular in fact than on active duty.
The applicant injured his knee during the course. As a consequence, he needed surgery and was not fit to complete the course, although he continued to attend the training when he had recovered. When the course was finished, he was assigned to headquarters while waiting for the next training course to commence. He commenced the training course again on 30 October 1989. During the course the applicant’s son was born. This resulted in the applicant missing a week which turned out to be crucial. The week of training which he missed was conducted at HMAS Creswell , a navy base at Jervis Bay. During the training week at Creswell trainees are exposed to a range of extremely hot fires and are required to extinguish them. It constitutes a critical part of the training.
As a consequence of having missed that week, the applicant was again unable to graduate to active duty. He resumed work at Head Quarters at the end of the training course. He commenced his third recruit college on 19 April 1990 and graduated around July 1990. An exact date is not available.
Upon graduation the applicant commenced duties at Fyshwick Fire Station. Presumably his title and designation changed but there is no information available to the Tribunal about that.
Over the course of the next six years the applicant worked at various fire stations in Canberra although for the most part he was formally attached to the Fyshwick Fire Station. There is no dispute that in this period the applicant was employed as a firefighter, nor is there any dispute that in this time he was regularly exposed to the hazards of a fire scene.
In 1996 the applicant suffered a neck injury and took two periods of time off work on compensation leave.
Despite his injury the applicant continued to work as a firefighter at various locations until July 2001. On 17 July 2001 the applicant took his first shift at Comcen. In order to work there the applicant had to undergo specific training.
After his initial shifts at Comcen, the applicant continued to work as a firefighter at various fire stations around Canberra doing the occasional shift at Comcen.
In his statement the applicant says that until 2004 he was ‘attached to and active on fire stations across the Canberra district’. That may be true in a general sense, but it is clear from the applicant’s summary of the ‘Occurrence Book Entries’[3] which is annexure A to his statement, that from late 2002 the overwhelming bulk of his work was at Comcen. The applicant’s last shift at a fire station appears to have been on 21 December 2002. After that he remained assigned to the Fyshwick Fire Station, but I am satisfied he worked exclusively at Comcen. I accept that the applicant did attend other fire stations regularly as part of his work at Comcen, but from that point he was no longer involved directly in fighting fires.
[3] Which record the date of the shift, as well as the station at which the shift commenced and details of any ‘Out Duty’ which was undertaken.
He was formally transferred to Comcen from the Fyshwick Fire Station on 16 February 2004.
While the Tribunal does not have comprehensive information about the employment arrangements under which the applicant was engaged, it appears that during the 1990s there was a relevant Firefighting Industry award and from at least 2004 Certified Agreements covered the ACT Fire Brigade. It would appear that throughout his career the applicant fitted into a classification under these instruments which was in some way designated ’firefighter’. His career began as a Firefighter in training (or some similar description) and he completed his career classified as a Senior Firefighter (FB5).[4] The description of the Senior Firefighter role includes:
An employee at this level:
- As part of an emergency team responds to and deals with the types of incidents referred to in Part 4.2 of the Emergencies Act;
- Assists in the command, control and co-ordination of personnel and resources under the direction of higher level employees;
[4] Exhibit A1 p 109.
Part 4.2 of the Emergencies Act 2004 (ACT) relevantly provides as follows:
(1)The main function of the fire and rescue service is to protect and preserve life, property and the environment from fire in built-up areas.
(2)In exercising the function, the fire and rescue service is responsible for—
(a)operational planning for fire response in built-up areas, including fire preparedness; and
(b)fire response in built-up areas.
(3)The fire and rescue service has the following additional functions:
(a)to respond to and deal with hazardous material incidents;
(b)to respond to rescue incidents;
(c)to respond to chemical, biological and radiological incidents;
(d)to undertake assistance operations to support other entities in the exercise of their functions under this Act;
(e)any other function prescribed by regulation.

When working at Comcen the applicant did not attend the sites of fire emergencies. His primary role was dispatch and co-ordination. When 000 emergencies were identified as a fire emergency the calls were diverted to Comcen where people who performed the role of the applicant would obtain details of the emergency, ensure that the caller was safe and then dispatch crews from the appropriate fire station. During the course of the emergency the dispatcher would provide details to the firefighters on the scene about the fire they would be encountering.
In addition to fulfilling the dispatch role, the applicant also visited fire stations teaching first aid and participated in committee work addressing issues such as the appropriate handling, wearing and cleaning of personal protection equipment.
The applicant’s own assessment is that when he visited fire stations and when firefighters on active duty visited Comcen in dirty PPE, he was exposed to hazardous substances. I could not make a finding concerning the number of exposures, but I am satisfied that such exposures did occur but were occasional rather than frequent.
Comcen was staffed by persons classified as firefighters and only firefighters with an appropriate level of qualifications and experience could staff Comcen. Comcen staff wore uniforms as members of the fire brigade. What distinguished them from other members of the fire brigade is that they did not attend fire scenes or work at fire stations. The applicant worked at Comcen until at least September 2010. After his time at Comcen the applicant moved to administrative roles, undertook retraining and then, in 2018, retired from the Fire Service.
Framing the issues
As noted at the outset, regardless of how this matter is analysed it is necessary for the applicant to establish that his time at Comcen counted towards the 15-year qualification period described in the SRC Act.
The period starting at the date the applicant commenced as a trainee fire fighter (10 November 1988) until he commenced regular shifts at Comcen (22 December 2002) is just over 14 years. The applicant only did two days of active duty outside of Comcen after that date. Accordingly, even proceeding on the basis that the applicant’s time as a trainee should count as a qualification period, and that no periods of leave should be excluded, unless the applicant establishes that some of his time at Comcen counted towards the qualification period, he does not meet the fifteen-year threshold. If the applicant’s time at Comcen up to September 2010 does count towards the qualification period, then he comfortably meets its requirements. Accordingly, the focus of these reasons is on how best to characterise the applicant’s time at Comcen and whether it meets the statutory threshold.
Consideration
Subsection 7(8) provides as follows:
If an employee:
(a)suffers a disease mentioned in the [relevant] table; and
(b)before the disease was sustained, was employed as a firefighter for the qualifying period [15 years] mentioned for that disease, and
(c)was exposed to the hazards of a fire scene during that period; and
(d)in the case of a cancer of a kind covered by item 13 of the following table – satisfies the conditions (if any) prescribed for such a cancer;
the employment is, for the purposes of this Act, taken to have contributed, to a significant degree, to the contraction of the disease, unless the contrary is established.
Subsection 7(9) provides as follows:
For the purposes of subsection (8):
(a)an employee is taken to have been employed as a firefighter if firefighting duties made up a substantial portion of his or her duties; and
(b)an employee who was employed as a firefighter for 2 or more periods that add up to the qualifying period is taken to have been so employed for the qualifying period; and
(c)an employee is taken to have been employed as a firefighter only if he or she was (disregarding the effect of any declarations under subsection 5(15)) employed as a firefighter by the Commonwealth, a Commonwealth authority or a licensed corporation.
The key issues can be broken down into the following questions:
(a)Was the applicant ‘employed as a firefighter’ by virtue of being employed by the Fire Service and given the classification ‘firefighter’ and duties consistent with the objectives of the Fire Service, or does the term ‘firefighter’ carry its ordinary meaning of a ‘person who fights fires’;
(b)In what circumstances can it be said that a person has been ‘exposed to the hazards of a fire scene during [the qualifying] period’;.
(c)If the effect of the answer to the first question is the applicant was ‘employed as a firefighter’ when performing duties with the Fire Service and classified as a firefighter, the final question is, does paragraph (9)(a) work as a narrowing provision such that the period when he was performing duties at Comcen are not included.
When was the applicant ‘employed as a firefighter’?
It is apparent from the range of interpretations advanced by the parties that the text of the provisions require some constructional choices to be made. In making the choice, a construction which would best achieve the purpose or object of the Act is to be preferred to one which does not.[5] In approaching the task:
Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provision are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material…[6]
[5] Section 15AA, Acts Interpretation Act 1901.
[6] Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2020) 282 FCR 1, [4].
The secondary material which can be referred to can include any relevant report of a committee of the Parliament or of either House of the Parliament that was made before the provision was enacted.[7] In the present case a Senate Committee reported on the Bill which introduced the relevant provisions to the SRC Act. It recommended amendments which were adopted. This report is useful in identifying what problem the Parliament was trying to solve when it passed the Safety, Rehabilitation and Compensation Amendment (Fair Protection for Firefighters) Act 2011 (Firefighter Protection Act). Understanding the problem the Parliament sought to solve is important for the reasons explained by the High Court in R v A2:[8]
Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “mischief” is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
[7] Section 15AB(c), Acts Interpretation Act 1901.
[8] (2019) 269 CLR 507.
The respondent, by reference to the Senate Committee’s report on the Safety, Rehabilitation and Compensation Amendment (Fair Protection for Firefighters) Bill 2011 (Committee Report), contends: [9]
…that the presumptive provisions [7(8)-(10)] were enacted in response to developments in the medical evidence concerning the relationship between certain cancers and exposure to carcinogens released during combustion and the related concern that firefighters, in particular, were considered to have elevated occupational risk for developing one or more of a group of certain specific types of cancer.
[9] Respondent’s submissions dated 6 March 2023, [53].
That a professional firefighter is at a higher risk of certain types of cancer than the general population and that the Firefighter Protection Act was an attempt to ameliorate difficulties of proof is clear from the Committee Report. But the respondent also makes a more specific point which, if accepted, would support a narrow application of the provision. The critical contention is that:
The plain intent of the amendments…was to facilitate access to benefits for firefighters, in recognition of their uniquely elevated occupational risk, once a sufficiently long period of service in work involving them in exposure to the hazards of a fire scene had been attained.
The respondent contends that this should inform any analysis of the operation of the provision.[10]
[10] Respondent’s submissions dated 6 March 2023, [57]-[59].
The applicant does not accept this more specific premise. He contends that the time periods in the Firefighters Protection Act demonstrate an appreciation of the latency periods for the various cancers – i.e. the period before which the cancer manifests after exposure – rather than the need for cumulative exposure. That however is not a proposition I can accept. Latency is referred to in the Committee Report, but not in a way which could be regarded as helpful in understanding its role in the design of the legislation.[11]
[11] Paragraph 1.38
However, in my assessment, the respondent’s emphasis on the significance of accumulated exposure ignores the fact that the amendments quite advertently seek to use proxies for exposure in order to relieve firefighters of the burden of proving certain matters. The Committee Report in some passages does assume that it is cumulative exposure which creates the cancer risk[12] but it responds with a decidedly broad-brush approach to how exposure might be assessed for the purposes of the presumption. As the Committee Report notes:
3.34 The Bill being considered relies on scientific evidence and assumes an association between the length of occupation as a firefighter and certain cancers. If the Bill is passed, firefighters with these primary site cancers will only have to prove length of service.
[12] Paragraphs 1.11 and 1.12
It is clear from the Committee Report that the Committee accepts that accumulated exposure is the source of the heightened risk of cancer,[13] but it is equally clear that the legislative response is to eliminate the need for people employed as firefighters to prove actual exposure to toxins and to use length of service as a proxy.
[13] Paragraphs 1.11 and 1.12
The following passage in the Committee Report emphasises the limited role proof of actual exposure is to take in the structuring of the Bill:
1.38 The inclusion of the qualifying period in provisional subsection 7(8)(b)
reflects that:
...broadly considered, the evidence of work relatedness of disease
strengthens as the duration of potential occupational exposure increases...
This passage acknowledges that the paragraph is not laying down a rule which invites investigation of actual duties and/or actual exposure, but is instead putting in place a rule of thumb which will roughly reflect the likelihood of work relatedness if disease emerges. Potential occupational exposure by virtue of employment as a firefighter is enough – no more detailed analysis is required.
The Committee continued:
1.39 Subsection 7(8)(c) makes reference to the 'hazards of fire'. Slater and Gordon
Lawyers informed the committee that this was '...an important statement of principle
going to the heart of the subject matter of the Bill – that the hazards of a fire scene are both pervasive and insidious.' This recognises that the hazards of fire may be
transported away from the fire scene by firefighters and the equipment they carry:
The one complicating factor is that when we talk about the hazards of a fire
scene that immediately invokes images of attending the fire itself or the
immediate aftermath, but the thing with the cancers and the chemicals that
firefighters are exposed to in this context is that quite often the hazard can
migrate. It might not be the primary exposure at the site; it might be that the
hazard is also experienced when cleaning fire equipment or cleaning out the
truck back at the station if those chemicals have imposed themselves upon
the clothing or the apparatus of a firefighter or on the truck itself. I
understand that there is clearly a distinction between a clerical officer
working for the department and the firefighter in confronting the hazards of
the scene, but I think that we ought not to limit the concept of 'exposure to
the hazards of a fire scene' to the immediate emergency because these
things have a tendency to migrate away from the scene.
1.40 The committee heard that the proposed legislation draws a line around
firefighters AND those engaged in firefighting activities. Coverage would not expend (sic) to other officers—such as mechanics or clerical officers—employed by the fire services:
[Emphasis Added]
These passages indicate that subsection 7(8)’s objective was to provide protection to the class of employees who are firefighters, rather than to a subset of persons engaged in firefighting activities who can demonstrate accumulated exposure. The fact that the Committee identified two classes of person to be protected - ‘firefighters’ and ‘those engaged in firefighting activities’ - indicates that the Committee understood that not every person who is employed as a ‘firefighter’ actually fights fires. Armed with that understanding of the Bill’s purpose, it is difficult to read the phrase ‘employed as a firefighter’ as a phrase which only encompasses a subclass of people who actually fight fires.
When read with the benefit of this understanding of the provision’s purpose the word ‘firefighter’ in the phrase ‘employed as a firefighter’ is better understood as a reference to people who hold the employment classification ‘firefighter’ rather than to the narrower class of people who actually fight fires.
Consequently, I am satisfied that the applicant was, while working in Comcen, ‘employed as a firefighter’. To read the provision down as referring only to persons who actually fight fires would impose an evidential burden on the applicant which the provisions were designed to avoid.
This conclusion on its own however is not sufficient to give the applicant the benefit of the presumption.
Was the applicant exposed to the hazards of a fire scene during his period of employment?
Turning then to the requirements of paragraph 7(8)(c).
On an initial reading, without any context, the words of paragraph 7(8)(c) might be thought to indicate that if an employee attended a fire scene at least once during the qualifying period then the threshold was met. That is the interpretation which the applicant presses.[14]
[14] Applicant’s submission in reply p4 (e)
Read in the context of the Committee Report, a quite different meaning suggests itself.
As the Committee Report notes, a fire scene is almost inevitably going to produce exposure to toxins. It states:
It is estimated there are tens of thousands of toxins and chemicals in the average household fire. Fabrics, furniture and construction materials give off a range of toxic gasses when burning. These toxins include acetic acid, phenol, formaldehyde, benzene, styrene, ammonia, carbon monoxide and cyanide. In a fire, the combination of these chemicals increases the toxicity significantly.
The Committee Report notes that the hazards of a fire scene are both pervasive and insidious. It recognises that the hazards of fire may be transported away from the fire scene by firefighters and the equipment they carry. The Report accepts the submission that ‘…it might be that the hazard is also experienced when cleaning fire equipment or cleaning out the truck back at the station if those chemicals have imposed themselves upon the clothing or the apparatus of a firefighter or on the truck itself…we ought not to limit the concept of ‘exposure to the hazards of a fire scene’ to the immediate emergency because these things have a tendency to migrate away from the scene.
This suggests that it would be wrong to read paragraph 7(8)(c) as stating a minimum threshold which is satisfied by attendance at a (singular) fire scene.
Read in context the better view is that the paragraph requires exposure to hazards of a type found at ‘a fire scene’.
This reading has two consequences. First, attendance at a fire is not necessary - only exposure to hazards that are have a fire scene as their source. Exposure to these, even in other contexts such as at the fire station, are sufficient to meet the threshold.
Second, the use of the indefinite article in the phrase ‘hazards of a fire scene’ does not convey the meaning that a single exposure to such hazards is sufficient to meet the requirement. The phrase ‘exposed to the hazards one would find at a fire scene’ is a way of saying the same thing while emphasising that the use of the indefinite article does not convey the idea that a single exposure is sufficient.
Being exposed to hazards which have their origin at fire scenes ‘during’ the 15 year qualifying period is what is required. In this context I am satisfied that the word ‘during’ is closer in meaning to ‘throughout’ than it is to ‘at some point’, although either interpretation is open on the text. I am satisfied that the Parliament intended that this paragraph impose a meaningful threshold for exposure. A single exposure threshold would not be consistent with the Committee’s acceptance that it is cumulative exposure to toxins which is the source of the risk to firefighters.
In the applicant’s case, I am satisfied that he was exposed to the hazards of a fire scene during the qualifying period. When he was an active firefighter he was exposed to those hazards by his attendance at active fires and when he was working at Comcen he was exposed to those hazards when active firefighters came in wearing uncleaned personal protective equipment. On this basis I am satisfied that the applicant’s employment at Comcen meets the threshold specified in subsection 7(8)(c).
Subsection 7(9)
Turning then to subsection 7(9) and its role in the operation of the reverse onus. On its face the provision reads like a deeming provision.
However, when contextual materials are examined, it is clear that the drafters of the Committee Report and the Explanatory Memorandum had a clear conception of the role of subsection 7(9)(a). To use the words of the Explanatory Memorandum:
…subsection 7(9)… would stipulate that workers must have been involved in firefighting duties as a substantial portion of their employment in order for subsection 7(8) to apply.
That formulation is mirrored in the wording of the Committee Report at paragraph 1.41.
When one returns to the text of paragraph 7(9)(a) though, such an approach looks to be a strained reading inconsistent with the words chosen by the Parliament.
The paragraph as originally passed provides that:
An employee is taken to have been employed as a firefighter if firefighting duties made up a substantial portion of his or her duties;
As noted above and as the applicant points out, the words are unmistakably a deeming provision rather than a provision which stipulates a threshold that must be met before the requirement in paragraph 7(8)(b) is made out. If the intention was to make paragraph 7(9)(a) prescriptive rather than merely deeming, it would more usually be expressed in the following terms:
‘an employee is taken to have been employed as a firefighter only if firefighting duties made up a substantial portion of his or her duties’.
The ‘only if’ formulation is used in paragraph 7(9)(c) which makes it clear that paragraph (c) imposes a limitation. What then can be made of paragraph 7(9)(a)? Should it be read as narrowing significantly the quite liberal qualification threshold in section 7(8) based on the contents of the Explanatory Memorandum and the Committee Report? Given the way the provision is expressed, my view is it should not.

Statutory construction begins and ends with the text. While context can suggest a range of meanings, they must be supportable when one returns to the words used by Parliament which remain the surest guide as to what the Parliament intended.[15] To read a phrase which describes a circumstance in which a person will be taken to meet a statutory criterion as stipulating a criterion which the person must meet, stretches the language which the Parliament used too far. The text cannot support such a reading. To carry the meaning presumed in the Committee Report and the Explanatory Memorandum, the word ‘only’ needs to be inserted. In my assessment the requirements for reading a word into the paragraph are not met.[16] Consequently such a reading is not open.
[15] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [47]
[16] See Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531.
Effect of the Amendments
In light of this conclusion, it is unnecessary for me to determine whether or not the amendments which came into force on 6 December 2022 apply to the applicant.
I am satisfied that the applicant meets the requirements in subsection 7(8) without any need to take advantage of the deeming provision in subsection 7(9). Any alteration of subsection 7(9) will not influence the outcome in this case.
Conclusion
I am satisfied that the applicant was ‘employed as a firefighter’ for the purposes of subsection 7(8) from the date he commenced as a trainee until at least the point in time when he ceased work at Comcen. That period exceeded 15 years. During this employment the applicant was exposed to the hazards of a fire scene as required by subsection 7(8)(c). Subsection 7(9) is a deeming provision and does not operate to exclude the applicant’s service at Comcen from counting towards the qualifying period.
The applicant therefore does get the benefit of the rebuttable presumption in subsection 7(8). In those circumstances I set aside the decision under review and remit the matter to the respondent to determine the claim on the basis that the provisions of subsection 7(8) apply to the applicant. Remittal is appropriate as it will enable the respondent to consider whether it wishes to obtain medical and other evidence relating to whether the presumption is capable of rebuttal.

I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member O'Donovan

....................................[sgd]....................................
Associate
Dated: 29 September 2023

Date(s) of hearing: 23 January 2023

Date final submissions received: 22 June 2023

Counsel for the Applicant: Mr Karl Pattenden

Solicitors for the Applicant: Slater & Gordon Lawyers

Counsel for the Respondent: Mr Michael Snell

Solicitors for the Respondent: McInnes Wilson Lawyers

Date(s) of hearing:	23 January 2023
Date final submissions received:	22 June 2023
Counsel for the Applicant:	Mr Karl Pattenden
Solicitors for the Applicant:	Slater & Gordon Lawyers
Counsel for the Respondent:	Mr Michael Snell
Solicitors for the Respondent:	McInnes Wilson Lawyers