Doerr, F.C. v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees

[1993] FCA 480

FREDERIC CARL-HANS DOERR v. COMMISSION FOR THE SAFETY, REHABILITATION AND
COMPENSATION OF COMMONWEALTH EMPLOYEES
No. QG123 of 1992
FED No. 480
Number of pages - 3
Administrative Law - Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Black(1), Ryan(1) and Hill(1) JJ

CATCHWORDS

Administrative Law - Administrative Appeals - Reference to Federal Court on question of law

Workers' Compensation - Entitlement to Compensation - Commonwealth Employees Compensation Act 1930 - whether person appointed to Public Service of Territory of Papua and New Guinea is an "employee" for purposes of Act

Commonwealth Employees Compensation Act 1930, ss 4, 4A

Papua and New Guinea Act 1948, s 12A, 30

HEARING

BRISBANE, 20 November 1992

#DATE 20:7:1993, MELBOURNE

Counsel for the Applicant: Mr D P O'Gorman

Solicitors for the Applicant: Welfare Rights Centre

Counsel for the Respondent: Mr D J McGill

Solicitors for the Respondent: Australian Government

Solicitor

ORDER

The Court orders that:

The questions referred by the Administrative Appeals Tribunal be answered as follows:

1. Was the (former) Territory of Papua and/or the (former) Territory of Papua New Guinea part of the "Commonwealth" at the relevant time within the meaning of that term in para (g) of subsec 4(1) of the Commonwealth Employees Compensation Act 1930(Cth) (as amended)?

Answer: It is not necessary to answer the question.

2. Is the applicant, on the facts stated in this case, "an officer or employee of the Public Service of a Territory of the Commonwealth that does not form part of the Commonwealth" within the meaning of para (g) of subsec 4(1) of the Commonwealth Employees' Compensation Act 1930 (Cth) (as amended)? Answer: Yes.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

BLACK, RYAN AND HILL JJ This is a reference to the Court by the Administrative Appeals Tribunal of questions of law under s. 45(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The circumstances giving rise to the questions referred by the Tribunal appear from the Tribunal's findings of fact, which are as follows:

"1. The applicant was appointed on probation to the Public Service of the (former) Territory of Papua and New Guinea (TPNG) in 1961, as a permanent officer in 1962 and retired from its service in 1973 on reaching the retirement age of 55 years.

2. The Tribunal was provided with no evidence and can make no finding as to the applicant's pre-1961 employment.

3. The applicant made a claim for compensation pursuant to the Commonwealth Employees Compensation Act 1930 (Cth) as amended (the of or in the course of his TPNG employment or to which that employment was alleged to be a contributing factor.

4. The claim was rejected by the respondent on 13 November 1990 and, after reconsideration at the request of the Applicant, on 17 April 1991 the respondent affirmed its rejection of the claim.

5. The claim was denied on the basis that the applicant was appointed to the Public Service of TPNG and that "the Australian Government did not provide coverage for such employees under the 1930 Act or subsequent Acts". In the result, the cause of the claimed injuries has not yet been dealt with by the respondent.

6. The applicant lodged with this Tribunal on 10 May 1991 an application to review the respondent's decision."

1. The questions of law referred to the Court are:
   

1. Was the (former) Territory of Papua and/or the (former) Territory of Papua New Guinea part of the "Commonwealth" at the relevant time within the meaning of that term in para (g) of subsec 4(1) of the Commonwealth Employees Compensation Act 1930(Cth) (as amended)?

2. Is the applicant, on the facts stated in this case, "an Officer or employee of the Public Service of a Territory of the Commonwealth that does not form part of the Commonwealth" within the meaning of para (g) of subsec 4(1) of the Commonwealth Employees' Compensation Act 1930 (Cth) (as amended)?

1. By reason of s. 123A of the Commonwealth Employees' Rehabilitation and Compensation Act 1988, the statute under which any liability of the respondent should be determined is the Commonwealth Employees' Compensation Act 1930 ("the Compensation Act"). The state of health of the applicant has not at any stage been assessed and the respondent has contended from the beginning that it is not liable under the Compensation Act because the applicant does not come within the definition of "employee" in that Act.

2. Section 4 of the Compensation Act, as amended, includes the following definition:
   

"s. 4(1) ... "Employee" means -

(a) an officer who is subject to the Commonwealth Public Service Act 1922-1948;

(b) a person who is temporarily employed under that Act;

(c) an officer or employee to whom, or included in a class of officers or employees to which, the Governor-General has declared in pursuance of that Act that the provisions of that Act shall not apply;

(d) a member of the Defence Force to and in relation to whom this Act applies; and

(e) a person who has entered into or works under a contract of service or apprenticeship with the Commonwealth, whether by way of manual labour, clerical work, or otherwise, and whether the contract is expressed or implied, is oral or in writing, but does not include-

(f) . . .

(g) an officer or employee of the Public Service of a Territory of the Commonwealth that does not form a part of the Commonwealth;

(h) . . .; or

(j) . . .

1. Paragraph (g) of the definition of "employee" is the relevant paragraph for present purposes. The Tribunal found that Mr Doerr was an officer of the Public Service of the former Territory of Papua and New Guinea, but not of the Commonwealth Public Service. If Mr Doerr had been an officer of the Commonwealth Public Service, he would have been covered by the Compensation Act, s. 4A of which specifically provides:
   

"4A (1) This Act applies to and in relation to an employee of the Commonwealth, whether employed within or outside the territorial limits of Australia."

1. It appears that in paragraph (g) of the definition of "employee" in the Compensation Act the word "Commonwealth" was intended to have two different meanings, one characterized by counsel for the respondent as a "geographical" meaning, and the other referring to the political entity created by the Australian Constitution. The problem faced by the Tribunal was to determine which meaning was intended to be given to the word in the context of the definition of "employee".

2. Between the time of the hearing before the Tribunal and the hearing before this court, further examination of the question by the parties has revealed a provision which, as Counsel for the applicant felt obliged to put it, provides an "insurmountable obstacle" for the applicant to overcome. That provision is s. 12A of the Papua and New Guinea Act 1949 (Cth):
   

"12A For the purposes of any other law of the Commonwealth (whether passed or made before or after the commencement of this section) -

(a) the Administrator of the Territory of Papua and New Guinea shall be deemed to be the Administrator of a Territory of the Commonwealth which does not form part of the Commonwealth;

(b) the Supreme Court of the Territory of Papua and New Guinea shall be deemed to be the Supreme Court of such a Territory; and

(c) the Public Service of the Territory of Papua and New Guinea shall be deemed to be the Public Service of such a Territory."

(Emphasis added)

1. Section 12A was added to the Papua and New Guinea Act by the Statute Law Revision Act 1950. Paragraph (c) makes it quite clear that for the purposes of the Compensation Act, the Public Service of the Territory of Papua and New Guinea is deemed to be the Public Service of a Territory which does not form part of the Commonwealth. On the facts found by the Tribunal Mr Doerr is therefore not an "employee" for the purposes of the Compensation Act.

2. The Commonwealth did not intend that persons employed in the Public Service of the Territory of Papua and New Guinea should be without workers compensation protection, and made provision for this in the Administration Employees' Compensation Ordinance 1949 (the Ordinance). Section 5 of the Ordinance provided that an "employee" for the purposes of the Ordinance
   

"means an officer appointed in pursuance of section thirty of the Papua and New Guinea Act 1949 and includes-

(a) a person employed in the Public Service in pursuance of Ordinances made under that Act. . ."

1. Section 30 of the Papua and New Guinea Act provides:
   

"30 (1) There shall be a Public Service of the Territory, consisting of officers appointed in pursuance of this section and other persons employed in pursuance of Ordinances made under this Act.

(2) The Governor-General may appoint or may delegate to the Minister or to the Administrator power to appoint, to the Public Service such officers as are necessary for the purposes of this Act and for the proper government of the Territory.

. . ."

In this case the applicant was appointed by the then Minister for Territories, the Honourable Paul Hasluck and retired from the Public Service of the Territory of Papua and New Guinea in 1973.

1. We do not think it necessary to answer the first of the two questions referred to the Court by the Tribunal. Section 12A of the Papua and New Guinea Act resolves the question of the application of the Compensation Act to the circumstances of the applicant without requiring consideration of the status of the former territories.

2. The answers we propose to the questions referred to by the Court by the Tribunal are therefore as follows:
   

1. Was the (former) Territory of Papua and/or the (former) Territory of Papua New Guinea part of the "Commonwealth" at the relevant time within the meaning of that term in para (g) of subsec 4(1) of the Commonwealth Employees Compensation Act 1930(Cth) (as amended)?

Answer: It is not necessary to answer the question.

2. Is the applicant, on the facts stated in this case, "an officer or employee of the Public Service of a Territory of the Commonwealth that does not form part of the Commonwealth" within the meaning of para (g) of subsec 4(1) of the Commonwealth Employees' Compensation Act 1930 (Cth) (as amended)?

Answer: Yes.

1. The parties have requested that there should be no order as to costs.