Parker and Military Rehabilitation and Compensation Commission (Compensation)

[2015] AATA 531

Parker and Military Rehabilitation and Compensation Commission (Compensation) [2015] AATA 531 (21 July 2015)

Division:  VETERANS’ APPEALS DIVISION

File Number:  2014/6053

Re:  MARGARET PARKER

APPLICANT

And:MILITARY REHABILITATION AND COMPENSATION COMMISSION

RESPONDENT

DECISION

Tribunal  Deputy President S A Forgie

Date  21 July 2015

Place  Melbourne

The Tribunal decides to:

affirm the respondent’s decision dated 24 September 2014 affirming its earlier decision dated 28 July 2014.

…[sgd] S A Forgie….

Deputy President

CATCHWORDS

COMPENSATION -   “employee” – whether employed by the Commonwealth, Commonwealth authority or licensed corporation – member of Royal Navy attached to Royal Australian Navy 1962 to 1965 – whether “member of Defence Force … taken to be employed by the Commonwealth”  – whether deemed to be a member of the Defence Force when attached to Royal Australian Navy – whether privileges conferred on a member of a visiting force conferred entitlements to compensation under the legislation in force at the time.

LEGISLATION

Commonwealth Employees’ Compensation Act 1930; sections 4, 9, 10
Criminal Code Act 1995; section 72.2
Defence Act 1903; sections 30, 31, 116B
Defence Acts Amendment Act 1981; section 8
Defence (Visiting Forces) Act 1939; sections 5, 6, 7, 8, 9, 12
Defence (Visiting Forces) Act 1963; sections 7, 16, 24
Naval Defence Act 1910; sections 12, 14, 19, 20, 21, 24, 42
Naval Defence Act 1964; sections 14, 17
Repatriation Act 1920; section 23
Safety, Rehabilitation and Compensation Act 1988; sections 2, 4, 5, 5A, 5B, 14, 15, 16, 17, 18, 53, 54, 124, 147

Defence (Visiting Forces) Regulations 1963; regulation 6(2)

CASES

Gazzo v Comptroller of Stamps (Vic) [1981] HCA 73; (1981) 149 CLR 227

The King v Bevan; Ex Parte Elias and Gordon (1942) 66 CLR 452

OTHER MATERIAL

Black’s Law Dictionary, 6^th edition, 1990, West Publishing Co, St Paul, Minnesota
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Fundamental Legal Concepts Wesley Newcomb Hohfeld, 4^th edition, 1919, 4^th printing 1966, Yale University Press

REASONS FOR DECISION

1. Among other matters, the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) makes provision for the rehabilitation and compensation of employees of the Commonwealth. Section 14(1), which is located in Part II of the SRC Act, provides that:

   “Subject to this Part, Comcare is liable to pay compensation in accordance with this Part in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”

Liability is qualified by other provisions of Part II but, for the moment, only s 17(3) need be noted.  It provides that, if an injury to an employee results in death and he or she dies “… leaving dependents some or all of whom were, at the date of the employee’s death wholly dependent on the employee …” Comcare, and so the Military Rehabilitation and Compensation Commission (MRCC)[1] is liable to pay compensation in respect of the injury for the benefit of all of those dependants.[2]

[1] I have referred to “Comcare” when setting out statutory provisions and discussing them for ease of reference but note that, under Part XI of the SRC Act, the MRCC is responsible for determining and managing claims that relate to service that occurred before the Military Rehabilitation and Compensation Act 2004 commenced operation on 1 July 2004 (defence-related claim). Section 147 of the SRC Act provides that, for the purposes of applying its provisions to defence-related claims and matters arising out of those claims, references in Part II are, for the most part, to be read as references to the MRCC.

[2] SRC Act; s 17(3)

1. The late Mr Parker served with the Royal Navy (RN) from approximately 1952 until 1966.  Towards the end of his service with the RN, he had been attached to the Royal Australian Navy (RAN) from 1962 to 1965.  He served at HMAS Cerberus on two separate occasions and on HMAS Melbourne for a year in between.  Mr Parker was diagnosed with suffering from mesothelioma in approximately November 2012 and died from it on 14 January 2014.  On 21 May 2014, his widow, Mrs Margaret Parker, lodged a claim after his death seeking compensation for funeral expenses and entitlements.[3]   The basis of Mrs Parker’s claim is that her late husband’s death resulted from mesothelioma, which is a disease that was “… an ailment … that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth …”[4] between 1962 and 1965.  The MRCC decided on 28 July 2014 that it was not liable to pay her compensation as her late husband was not considered to be an employee for the purposes of the SRC Act.[5]  It affirmed its decision on the same basis in a decision dated 24 September 2014.[6]

   [3] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T3 at 35-47

   [4] Definitions of “injury” (SRC Act; s 5A(1)) and “disease” (SRC Act; s 5B(1))

   [5] T documents; T9 at 78-79

   [6] T documents; T13 at 84-90

1. The question I am asked to consider is whether Mr Parker was an “employee” within the meaning of the SRC Act.  If he was not, Mrs Parker will not be entitled to compensation under the SRC Act.  For the purposes of answering this question, I have assumed that Mrs Parker was, at the time of her husband’s death, wholly or partially dependent upon him within the meaning of ss 17(3) or (4).  If Mr Parker was an employee, consideration would then need to be given to whether an “injury” resulted in Mr Parker’s death.  This question does not arise for I have decided that the late Mr Parker was not an employee within the meaning of the SRC Act.  Therefore, I have affirmed the MRCC’s decision dated 24 September 2014 affirming its decision dated 28 July 2014 to refuse Mrs Parker’s claim for compensation.

THE SUBMISSIONS

1. On Mrs Parker’s behalf, it was submitted that, although her entitlement to compensation falls to be determined by reference to the provisions of the SRC Act, the question whether or not her late husband was an “employee” had to be determined by reference to the legislation in force at the time he was said to be an employee i.e. Commonwealth Employees’ Compensation Act 1930 (1930 Act).  Mr Parker was an employee within the meaning of the 1930 Act because he was attached to Australia’s Defence Force under the Defence (Visiting Forces) Act 1963 (1963 VF Act).  Under s 24 of that legislation, Mr Parker was regarded as a member of that part of the Defence Force to which he was attached. 

1. Section 16(2) provided that regulations might exempt a visiting force and its members from the operation of any enactment.  They were not exempted from the operation of the 1930 Act.  That legislation conferred a privilege in the form of an entitlement to workers’ compensation in respect of injuries in the course of employment on members of the Defence Force.  The effect of s 7(5) of the 1963 VF Act was that, unless modified by an order of the Governor-General, any law in force conferring a privilege or immunity on a person applied, with necessary modifications, to a visiting force.  No order has been made directing that the 1930 Act not apply to a visiting force.

1. The MRCC also referred to the definition of “employee” in each of the SRC Act and the 1930 Act.  It referred to the predecessor of the 1963 VF Act which was the Defence (Visiting Forces) Act 1939 (1939 VF Act).  The effect of its provisions, the MRCC submitted, was that Mr Parker remained a member of the RN when he was attached to the RAN and so to the Defence Force.  Section 9 of the 1939 VF Act enabled him to carry out his duties as though he were a member of the Defence Force but did not make him a member of it.  When the 1939 VF Act was repealed and replaced by the 1963 VF Act, s 24(2) of the later legislation was analogous to s 9 of the earlier.  All that the 1963 VF Act did was to broaden the range of visiting forces which could be attached to the Defence Force. 

1. With effect from 8 December 1981, s 24 of the 1963 Act was repealed when Parts III and IV were repealed in their entirety.  That was effected by the Defence Acts Amendment Act 1981 (1981 Defence Amendment Act).  At the same time, it amended the Defence Act 1903 (Defence Act) by inserting Part IXA entitled “Provisions relating to the forces of other countries”.[7]  Section 116B comes within that Part and, the MRCC submitted, s 116B(2) reflects s 24(2) of the 1963 VF Act. 

   [7] 1981 Defence Amendment Act; s 8

1. In order to determine whether Mr Parker was an employee for the purposes of the 1930 Act, the MRCC submitted, regard must be had to the Defence Act and the Naval Act as they were in force at the time he was attached to the RAN. When that is done, the MRCC’s submission is that Mr Parker is not an employee for the purposes of the 1930 Act.

CONSIDERATION

The SRC Act: general outline

1. I will begin with the legislative provisions in the SRC Act relating to the second and third issues that I have identified. I have already set out the terms of s 14(1) in the opening paragraph of these reasons. It provides that Comcare is liable to pay compensation in accordance with Part II of the SRC Act. Its liability is not unlimited but is limited in that it is liable to pay compensation “in respect of an injury suffered by an employee” if that injury results in death, incapacity for work or impairment. An examination of the provisions in Part II show that Comcare’s liability is a little wider than s 14 would suggest. The detail is not important in this context but I note, in general terms, that s 15 provides that it is liable to pay compensation to an employee for loss of, or damage to, property used by the employee in certain circumstances in which an employee does not suffer an injury. Section 16 provides that it is liable to pay compensation in respect of medical expenses when an employee suffers an injury.

1. Returning to the terms of s 14, Division 3 of Part II applies to an employee who is incapacitated for work as a result of an injury. It provides for the amount of compensation that Comcare is liable to pay to the employee in respect of the injury. Division 4 stipulates Comcare’s liability to pay compensation to an employee in respect of an injury when that injury has resulted in a permanent impairment. Comcare’s liability in each case is to the employee who has suffered an injury resulting in either incapacity for work or permanent impairment.

1. In the case of an injury resulting in death, Comcare’s liability is not to the employee who has died or to his or her estate but to his or her dependants.  Therefore, except in relation to the payment of medical expenses under s 16 and funeral expenses under s 18, Comcare has no liability if an injury to an employee results in death but the employee dies without leaving dependants.  This follows from ss 17(1) and (2) which provide:

   “(1)     This section applies where an injury to an employee results in death.

   (2)Subject to this section and sections 16 and 18, if the employee dies without leaving dependants, compensation is not payable in respect of the injury.”

1. By contrast, if an employee does leave dependants, some or all of whom were, at the date of his or her death, wholly dependent on that employee, Comcare is liable to pay compensation in respect of the injury in accordance with ss 17(3) to (10).  The total amount of compensation that was payable in the form of a lump sum to dependants was $120,000 at 1 December 1988 but, with the application of the indexation provisions under s 13 of the SRC Act, amounted to $492,145.52 as at 1 July 2013.  Where a dependant is also a “prescribed child” as that term is defined in s 4(1), Comcare is liable to pay weekly amounts of compensation for the benefit of that child under s 17(5).

Application of the SRC Act to pre-existing injuries

1. Even though Mr Parker was attached to the RAN between 1962 and 1965 and so before the commencement of the SRC Act on 1 December 1988, s 124(1) of that legislation provides:

   “Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.”[8]

   [8] The “commencing day” was 1 December 1988: SRC Act; s 2(2)

1. Section 124(1A) then goes on to make provision for an injury, loss or damage suffered before the commencing day:

   “Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.”

That entitlement is qualified by s 124(2) when it provides that:

“A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

(a)where the injury, loss or damage was suffered before the commencement of the 1930 Act – under the 1912 Act;

(b)where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the injury, loss or damage was suffered;

(c)in any other case – under the 1971 Act as in force when the injury, loss or damage was suffered.”

1. The transitional provisions in ss 124(1A) and (2) clearly relate to the circumstances in which compensation is payable to the employee who has suffered an injury, loss or damage before 1 December 1988.  Section 124(3) is also concerned with the circumstances in which compensation is payable to an employee who has suffered an injury resulting in permanent impairment.  It also relates to a person’s entitlement to compensation under s 17 in respect of the death of a person that occurred before the commencing day of 1 December 1988.  In so far as s 124(3) relates to the death of a person, it provides:

   “A person is not entitled to compensation under … section 17 in respect of the death of an employee, being … death that occurred before the commencing date, if:

   (a)…

   (b)the person is not entitled to receive compensation of a lump sum in respect of that … death:

   (i)where the … death occurred before the commencement of the 1930 Act – under the 1912 Act; or

   (ii)where the … death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the … death occurred; or

   (iii)in any other case – under the 1971 Act as in force when the … death occurred.”

2. Section 124(4) limits the amount of compensation to which a person is entitled to receive under s 17 to the amount that, had s 124 not been enacted, would have been payable to the person under the Commonwealth Workmen’s Compensation Act 1912 (1912 Act), the Commonwealth Employees’ Compensation Act 1930 (1930 Act) or the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act) as in force when the death occurred. A person is not entitled to receive a lump sum of compensation or weekly payments in respect of a period if he or she has already received them in respect of the death under the 1912 Act, 1930 Act or 1971 Act.[9]  Section 124(6)(b) is drafted in the same terms as s 124(3)(b) but, rather than limiting entitlement to lump sum compensation in respect of a death to the entitlement under the earlier legislation in force when the death occurred, s 124(6)(b) limits entitlement to weekly payments of compensation in the same way.  Section 124(7) limits the rate of any weekly payments to those applying under the earlier legislation in force when the death occurred.

   [9] SRC Act; ss 124(3)(a) and (6)(a)

   Which Act determines the MRCC’s liability to Mrs Parker?

3. Had Mr Parker known about his illness and lodged a claim for compensation after 1 December 1988, it is clear from the transitional provisions in Part X of the SRC Act that his entitlement might have been determined according to the terms of the 1930 Act.  That was the legislation in force between 1962 and 1965 when Mr Parker was attached to the RAN.  If the evidence were that he suffered the injury, being mesothelioma, at that time, it is clear from the transitional provisions that he would not have been entitled to compensation if compensation had not been payable in respect of his injury under the 1930 Act.  That would have required regard to be had to provisions such as ss 9(1)[10] and 10(1)[11] of the 1930 Act.  The question as to whether Mr Parker was an “employee” would have been determined with reference to the definition of that term in s 4(1) of the 1930 Act.  If the evidence established that Mr Parker did not suffer from mesothelioma until a later time, similar questions would have had to been asked under whichever of the 1971 Act or the SRC Act was in force at the time.

   [10] “If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee of the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule to this Act.”  The First Schedule set out the scale and conditions of compensation.  Paragraph (1) provided for the amount of compensation where the death of an employee results from injury and the employee leaves dependents wholly or partially dependent on him or her.

   [11] “Where – (a) an employee is suffering from a disease and is thereby incapacitated for work; or (b) …, and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment.”

4. As matters turned out, Mr Parker did not lodge a claim before he died.  Mrs Parker has lodged a claim after the date of his death.  Limitations that would have been imposed upon Mr Parker’s entitlement to compensation under the SRC Act by reference to when he contracted mesothelioma and so suffered an injury do not arise.  Indeed, given that Mr Parker did not die until after the commencement of the SRC Act on 1 December 1988, none of the transitional provisions in Part X is relevant in determining Mrs Parker’s entitlement to compensation under s 17.  Reading ss 17 and 124(1) together, therefore, the SRC Act applies without qualification in relation to any injury suffered by Mr Parker (whether he suffered it before or after 1 December 1988) and resulting in his death.  Questions whether Mr Parker suffered an “injury” and whether he was an “employee” at the relevant time are determined by reference to the SRC Act and not by the 1930 Act which was in operation during the period of his attachment to the RAN.

   Was Mr Parker an “employee” under the SRC Act?

   A.Provisions of the SRC Act

1. That would mean that I need first to have regard to whether Mr Parker is an “employee” within the meaning of the SRC Act.  Section 4(1) of the SRC Act provides that the word “employee has the meaning given in section 5, and also applies to persons 65 years of age or older.”  Section 5(1) sets out the meaning of the word “employee” but it is qualified by other sub-sections within s 5.  Beginning with the general proposition, s 5(1) provides:

   “In this Act, unless the contrary intention appears:

   …

   employee means:

   (a)a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship; or

   (b)a person who is employed by a licensed corporation.”

1. The qualifications to the general proposition relating to a person’s employment by a licensed corporation are not relevant for the RAN is not a licensed corporation.  Those in s 5(2) are relevant.  In so far as it is relevant to Mr Parker’s circumstances, s 5(2) provides:

   “Without limiting the generality of subsection (1):

   (a)…

   (b)a member of the Defence Force; or

   (c)…

   shall, for the purposes of this Act, be taken to be employed by the Commonwealth, and the person’s employment shall, for those purposes, be taken to be constituted by … the person’s performance of duties as such a member of the Defence Force …

   Note:   …”

1. Section 5(6) provides that:

   “The Minister may, by legislative instrument (the notice), declare:

   (a)that persons specified in the notice, being persons who engage in activities or perform acts:

   (i)at the request or direction, for the benefit, or under a requirement made by or under a law, of the Commonwealth; or

   (ii)at the request or direction, or for the benefit, of a Commonwealth authority or a licensed corporation;

   shall, for the purposes of this Act, be taken to be employed by the Commonwealth, or by that authority or corporation, as the case may be: and

   (b)that the employment of the person shall, for those purposes, be taken to be constituted by the performance of the person of such acts as are specified in the notice;

   and such a declaration shall have effect accordingly.”

B.       Consideration: ss 5(1) and (6) - contract or legislative instrument

1. I have not been given any evidence of a contract of any kind between Mr Parker and the Commonwealth.  Therefore, he could not be an employee of the Commonwealth on that basis within the meaning of s 5(1) of the SRC Act.  There is no evidence of any legislative instrument, be it a regulation or otherwise, specifying that certain persons shall be deemed or taken to be, as the case may be, employed by the Commonwealth.  Therefore, Mr Parker cannot be regarded as an employee by virtue of s 5(6) of the SRC Act. 

C.       Consideration: s 5(2) – member of the Defence Force

1. That leaves me with the deeming provisions of s 5(2) of the SRC Act. Was Mr Parker an employee on the basis that he was a member of the Defence Force? I will begin my consideration of that question with the relevant provisions of the Defence Act before turning to those of the Naval Defence Act 1910 (ND Act).  The provisions to which I refer are those in force between 1962 and 1965 for that is the period in which it must be established that Mr Parker was a member of the Defence Force.  His membership or otherwise is not determined by reference to legislation in force after the period of his service.  As there is no suggestion that Mr Parker was attached to the Royal Australian Air Force, I have not explored the legislation relating to it.

C.1The Defence Force

1. The expression “Defence Force” is not defined in s 5(2)(b) of the SRC Act but it is an expression used in the Defence Act. That legislation has been amended over the years. At the time Mr Parker was attached to the RAN, it provided that the Defence Force consisted of three forces, and later, arms. Their description changes over those years but their essence remained the same, the RAN, the Australian Army and the Australian Air Force.[12]  The Defence Act made detailed provision only for the Army with other legislation providing for the RAN and for the Australian Air Force.

C.2     Navy

[12] Defence Act; s 30

C.2.1   Branches of the Navy

1. The Naval Defence Act 1910 (Naval Defence Act) regulates the “Naval Forces of the Commonwealth”.  The provisions I refer to in this section of my reasons are those in force between 1962 and 1965 when Mr Parker was attached to the Defence Force.

1. In 1962, s 19 of that legislation provided that:

   “The Naval Forces shall be divided into two branches called the Permanent Naval Forces and the Citizen Naval Forces.”

Following an amendment in 1964,[13] it provided that:

“The Naval Forces of the Commonwealth consist of three parts, namely, the Permanent Naval Forces, the Naval Emergency Reserve Forces and the Citizen Naval Forces.”

[13] Act No. 93 of 1964; Naval Defence Act 1964; s 8

1. The “Permanent Naval Forces” were the subject of s 20.  That section was also amended in 1964.[14]  I will set out first how it read in 1962 followed by how it read after amendment in 1965:

   “The Permanent Naval Forces shall consist of officers who are appointed officers of those Forces, and seamen who have enlisted or engaged as members of those Forces and who are bound to continuous naval service for the term of their enlistment or engagement.”

   “The Permanent Naval Forces consist of officers appointed to, and of seamen enlisted in, those Forces.”

   [14] Act No. 93 of 1964; Naval Defence Act 1964; s 8

1. In 1962, s 21(1) of the Naval Defence Act divided the Citizen Naval Forces into the Naval Reserve Forces and the Naval Volunteer Reserve Forces. Sections 21(2) and (3) went on to specify their membership:

   “(2)     The Naval Reserve Forces shall consist of –

   (a)officers and seamen who are not bound in time of peace to continuous naval service and who are paid for their services as prescribed and of persons who, having been called up in accordance with the National Service Acts 1951 for service with the Citizen Naval Forces, are deemed to have been enlisted in those Forces; and

   (b)members of the Naval Reserve Cadets.

   (3)The Naval Volunteer Reserve Forces shall consist of officers and seamen who are not bound in time of peace to continuous naval service and who are not ordinarily paid for their service in time of peace.”[15]

   [15] Section 21(2) had been inserted in this form by the Naval Defence Act 1952; s 6

1. After their amendment in 1964, the Citizen Naval Forces were not further divided. Instead, as s 19 had provided, they were one part of the Naval Forces of the Commonwealth. Another part was the Naval Emergency Reserve Forces. The two parts were the subject of ss 21 and 22 that were added by the Naval Defence Act 1964:

   “21      The Naval Emergency Reserve Forces consist of seamen enlisted in those Forces and of such officers as are appointed to those Forces or transferred to those Forces from the Permanent Naval Forces and the Naval Emergency Reserve Forces.

   22The Citizen naval Forces consist of officers appointed to, and of seamen enlisted in, those Forces and of such officers as are transferred to those Forces from the Permanent Naval Forces and the Naval Emergency Reserve Forces.”

C.2.2   Appointment and enlistment to the Navy

1. In 1962, s 24 of the Naval Defence Act provided:

   “Except as provided by the National Service Acts 1951, the Naval Forces shall be raised and kept by voluntary enlistment only.”[16]

   After it was repealed and replaced in 1964,[17] s 24 provided:

   “Except as provided by Part IV of the Defence Act 1903-1965, the Naval Forces shall be kept up by the appointment to those Forces, or the enlistment in those Forces, of persons who volunteer and are accepted for service in those Forces.”

The reference to Part IV of the Defence Act refers to the liability of those who are aged between 18 and 60 years and who have resided in Australia for six months, to be called upon to serve in the Defence Force in time of war.

[16] Section 24 was amended by Act No. 14 of 1952 being the Naval Defence Act 1952; s 7

[17] Act No. 93 of 1964; Naval Defence Act 1964; s 8

1. In the period between 1962 and 1965, the Naval Defence Act also made provision for a body known as the “Naval Reserve Cadets” to be established.[18]  It consists of persons appointed as officers or instructors in that body and those who have met the age qualifications and have both volunteered, and been accepted, as cadets.[19]  A person appointed as an officer or instructor in the Naval Reserve does not become a member of the Naval Forces by virtue of that appointment and a cadet is not a member.[20]

   [18] ND Act; s 38(1)

   [19] ND Act; ss 38(2) and (5)

   [20] ND Act; ss 38(3) and (4)

C.2.3   Transfer between Commonwealth Naval Forces and King’s Naval Forces

1. Before its repeals by s 14 of the Naval Defence Act 1964, s 42 of the Naval Defence Act provided as it had done since the Naval Defence Act came into operation on 25 November 1910:

   “(1)     The Governor-General may –

   (a)…

   (b)accept the transfer to the Commonwealth Naval Forces of any officers or seamen of the King’s Naval Forces or of the Naval Forces of any part of the King’s Dominions;

   (c)transfer to the King’s Naval Forces or to the Naval Forces of any part of the King’s Dominions any officers or seamen of the Commonwealth Naval Forces; and

   (d)…

   (2)Any transfer in pursuance of this section may be for such period and subject to such conditions as the Governor-General thinks desirable.

   (3)Subject to conditions of transfer, all officers and seamen of the King’s Naval Forces or of the Naval Forces of any part of the King’s Dominions transferred in pursuance of this section to the Commonwealth Naval Forces shall, while so transferred, be deemed to be members of the Commonwealth Naval Forces, and shall be subject to this Act and the regulations so far as they are applicable.

   (4)Subject to the conditions of transfer, all officers and seamen of the Commonwealth Naval Forces transferred in pursuance of this section to the King’s Naval Forces or to the Naval Forces of any part of the King’s Dominions shall, while so transferred, be subject to the laws and regulations governing the King’s Naval Forces or the Naval Forces of that part of the King’s Dominions to which they are transferred so far as those laws and regulations are applicable.”

1. Section 42 was repealed by s 14 of the Naval Defence Act 1964, with effect from 6 November 1964. That occurred during the period of Mr Parker’s attachment to the RAN. The transition provisions were located in s 17. In so far as it applied to the repeal of s 42, s 17(1) provided:

   “Members of the Naval forces who are serving at the date of commencement of this Act shall continue to serve in accordance with the Principal Act as amended by this Act and the Permanent Naval Forces and the Citizen Naval Forces in existence immediately before the commencement of this Act shall be deemed to be organized in accordance with section twenty-three of the Naval Defence Act 1910-1964.”

C.3Was Mr Parker a member of the Defence Force under the Defence Act or the Naval Defence Act?

1. Putting aside s 42(3) of the Naval Defence Act for the moment, I am not satisfied on the evidence that I have that Mr Parker was either an officer appointed to any of the three parts comprising the Naval Forces of the Commonwealth or a sailor enlisted in any of them. Therefore, he was not a member of the RAN and so a member of the Defence Force by virtue of appointment or enlistment. It follows that Mr Parker could not be a member of the Defence Force on the basis of being a member of the Australian Navy.

1. Although I do not have a copy of any of the relevant documents by which the Governor-General accepted Mr Parker’s transfer to the RAN and do not know the terms and conditions on which his transfer was accepted, it is clear that he was, while transferred, deemed to be a member of the Commonwealth Naval Forces. That is the effect of s 42(3) of the Naval Defence Act, which I have set out above, but consideration then has to be given to what is meant by that deeming provision.

1. On first glance, it might be thought that it is a deeming provision for all purposes including those of the definition of “employee” in s 5(2) of the SRC Act but the definition itself sounds a note of caution.  It states that, among others, “a member of the Defence Force” shall, for the purposes of the Act, be taken to be employed by the Commonwealth.  No reference is made to a person who is “deemed to be” a member of the Defence Force will be taken to be employed by the Commonwealth.  The same was true of the definition of “employee” in the 1930 Act that applied at the time.  It is also true when regard is had to the definition of “Member of the Forces” in s 23 of the Repatriation Act 1920 (Repatriation Act) as it applied at the relevant time.  It included in paragraph (a) of the definition “a member of the Commonwealth Naval or Military Forces enlisted or appointed for or employed on active service outside Australia or employed on a ship of war”. No reference is made to a person deemed to be a member. No reference is made to persons attached to the Commonwealth Naval or Military Forces in paragraph (a) although a member of the Army Medical Corps Nursing Service, who was accepted or appointed for service outside Australia, was included as a Member of the Forces by paragraph (b) but would not have come within paragraph (a). It is relevant to mention the scope of the Repatriation Act for s 43 of the Naval Defence Act provided that provision would be made for any member or his widow and family were he to be killed on active service or on duty or dies or becomes incapacitated from earning his living from wounds or disease contracted on active service. The provision referred to in s 43 was to be found in the Repatriation Act.

1. The way in which the Repatriation Act and the compensation legislation refers to a member of the Defence Force is not definitive but, as I said, they raise a note of caution. When I go back to the Naval Defence Act, it seems to me that it is intended to be read more narrowly than might first be thought appropriate. It seems to me that the transferee is deemed to be a member of the Commonwealth Naval Forces for the purposes of the Naval Defence Act itself and the regulations in so far as they are applicable. That interpretation of s 42(3) would then be consistent with s 42(4) which is clearly stating that, when officers and seamen of the Commonwealth Naval Forces are transferred under s 42 to, for example, the King’s Naval Forces, they will be subject to the laws and regulations governing the King’s Naval Forces. No mention is made of deeming them to be part of the King’s Naval Forces for it is not the place of the Commonwealth Parliament to dictate who will, and who will not, be deemed to be part of the Naval Forces of another sovereign entity. What it could do, and did, is to provide that the transferees would be subject to the laws and regulations of the Forces to which they were transferred.[21] 

D.       Visiting Forces

[21] The law governing the King’s Naval Forces to the effect that every person subject to the Naval Discipline Act 1866 (Imp) who was guilty of murder would suffer death prevailed over s 98 of the Defence Act, which provided that no members of the Defence Force would, with some limited exceptions, be sentenced to death: see The King v Bevan; Ex Parte Elias and Gordon (1942) 66 CLR 452; Rich, Starke, McTiernan and Williams JJ

D.1     1939 VF Act

D.1.1   1939 VF Act: application

1. During Mr Parker’s attachment to the RAN, two different pieces of legislation related to what were described as “visiting forces”.  The first was the Defence (Visiting Forces) Act 1939 (1939 VF Act) which was repealed on 31 October 1963.  It defined the expression “visiting force” in s 5 to mean:

   “… any Home force or Dominion force which is, with the consent of His Majesty’s Government in the Commonwealth, at any time lawfully present in the Commonwealth.”

and was:

“An Act to make provision, in relation to the Commonwealth or the Defence Force, with respect to the Naval, Military and Air Forces of other parts of His Majesty’s Dominions and of Territories administered by His Majesty, and with respect to Members of those Forces, and for other purposes.”[22]

[22] 1939 VF Act; Long Title

1. The 1939 VF Act applied:

   “… both within and beyond the Commonwealth to the Defence Force and every part thereof, and to every member of a Home force or Dominion force temporarily attached to any part of the Defence Force.”

   The “Home forces” meant “… the Naval, Military and Air Forces of His Majesty raised, whether within or without the United Kingdom, and ‘Home force’ includes any body, contingent or detachment of the Home forces, or any of them, wherever serving”.[23] 

   [23] 1939 VF Act; s 5

D.1.2   1939 VF Act: discipline and administration of visiting forces

1. Section 6 provided for the discipline and administration of visiting forces.  Section 6(5) provided that proceedings in respect of the pay, terms of service or discharge of a member of a visiting force must not be entertained by any court of the Commonwealth or of a State.  Instead, all matters concerning discipline and internal administration in relation to a visiting force continued to lie with the naval, military and air force courts and authorities (service courts and service authorities respectively) of either the United Kingdom or of the relevant Dominion.  Those service courts and service authorities were permitted to:

   “… exercise within the Commonwealth in relation to members of the visiting force in matters concerning discipline and the internal administration of the force all such powers as are conferred upon them by the law of the United Kingdom or of the Dominion, as the case may be.”[24]

   [24] 1939 VF Act; s 6(1)

1. A service court was able to exercise its jurisdiction and witnesses appear before it with the same immunities and privileges as were enjoyed by a service court exercising jurisdiction under a law of the Commonwealth.[25]  A member of a visiting force might be detained in custody pending determination of a charge in a service court of the United Kingdom or of a Dominion or upon being sentenced.[26]  The Governor-General could, by order, make provision for matters such as the treatment of members of a visiting force while they were in custody or imprisoned, the circumstances in which they were to be discharged and how they were to be treated if of unsoundness of mind while in custody or imprisoned.[27]  A service court of the United Kingdom or of a Dominion was not authorised to impose on a member of a visiting force in respect of any offence any penalty exceeding the penalty to which a member of the Defence Force would, under a law of the Commonwealth, be liable.[28]  A certificate to that effect under the hand of the officer commanding a visiting force was conclusive evidence of the reason for the detention of a member of the visiting force.[29] 

   [25] 1939 VF Act; s 6(2)

   [26] 1939 VF Act; s 6(3)

   [27] 1939 VF Act; s 7(3)

   [28] 1939 VF Act; s 12

   [29] 1939 VF Act; s 6(4)

1. These provisions indicate that any visiting force and its members were not part of the Defence Force, which was defined in s 5 in terms consistent with those used in the Defence Act i.e. as “… the Naval, Military and Air Forces of the Commonwealth”.[30] Rather, a visiting force was subject to its own disciplinary and administrative regime. It could not, as the force of a foreign power, implement that regime within the Commonwealth’s territorial boundaries without the permission that Parliament gave it in the 1939 Act. As a matter of practicality, it could not enforce its discipline regime in so far as it required detention or imprisonment without appropriate arrangements authorised by the Governor-General under s 7(3). Provisions of the Defence Act relating to the arrest and temporary detention of deserters and absentees without leave, within the Commonwealth, applied in relation to deserters and absentees from a Home force or a Dominion force as they did to deserters and absentees from the Defence Force.[31]  None of those arrangements and none of the authority conferred by the 1939 Act means that a visiting force of the United Kingdom or of a Dominion becomes a member of the Defence Force.  The provisions of ss 6 and 7, to which I have referred so far, clearly distinguish between the two.  They ensure the separate character of the visiting force.

   [30] 1939 VF Act; s 5

   [31] 1939 VF Act; s 8(1)

D.1.3   1939 VF Act: assistance by Commonwealth or States to visiting force

1. The separate characterisation of the visiting force is further found in s 7(1).  It provided for the Governor-General to authorise any Department of the Commonwealth or of a State or other person in the Commonwealth to perform a function at the request of an authority of the United Kingdom or of a Dominion specified in the Governor-General’s order.  The order could specify limitations on the function that was described as a:

   “… function in relation to a visiting force and members thereof, which that Department, Minister or person, performs or could perform in relation to a part of the Defence Force of like nature to the visiting force, or in relation to members of that part, and for the purposes of the exercise of any such function any power exercisable, by virtue of any law, by the Department, Minister or person, in relation to that part of the Defence Force or members thereof, shall be exercisable by him or them in relation to the visiting force and members thereof.

   Provided that nothing in this sub-section shall authorize any interference with the visiting force in matters relating to discipline or to the internal administration of the force.”[32]

   [32] 1939 VF Act; s 7(1)

D.1.4   1939 VF Act: exemptions, privileges and immunities

1. Section 7(5) of the 1939 VF Act and s 7(6), to which it referred, provided that:

   “(5)     Subject to this and the next succeeding sub-section, any law in force in any part of the Commonwealth which –

   (a)exempts, or provides for the exemption of, any vessel, vehicle, aircraft, machine or apparatus of, or employed for the purposes of, the Defence Force or any part thereof from the operation of any law;

   (b)in virtue of a connexion with the Defence Force or any part thereof, confers a privilege or immunity on any person;

   (c)in virtue of such a connexion, excepts any property, trade or business, in whole or in part, from the operation of any law, or from any tax, rate, imposition, toll or charge;

   (d)imposes upon any person or undertaking obligations in relation to the Defence Force, or any part thereof, or any member or service court thereof;

   (e)penalizes misconduct by any person in relation to the Defence Force or any part thereof, or any member or service court thereof,

   shall, with any necessary modifications, apply in relation to a visiting force as it would apply in relation to any part of the Defence Force which is of a like nature to the visiting force:

   Provided that the Governor-General may by order published in the Gazette either direct that any such law shall not apply, or that it shall apply with such exceptions and subject to such adaptations or modifications as are specified in the order.

   (6)       An order under this section may apply either generally, or in relation to any particular visiting force, or in relation to any particular place.”

1. On behalf of Mrs Parker, it has been submitted that the SRC Act is a law in force in the Commonwealth which, “in virtue of a connexion with the Defence Force or any part thereof, confers a privilege or immunity on any person”.  I will start with the meanings of the words that Parliament has chosen.

1. The ordinary meanings of the word “privilege” include that of:

   “… a right granted to an individual or a select few, bestowing an advantage not enjoyed by others. …”[33]

Those of “immune”, of which “immunity” is the noun, include:

“… (especially immune from something) free, exempt or protected from it □ I was immune from prosecution. …”[34]

[33] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)

[34] Chambers

1. Black’s Law Dictionary (Black’s) gives more expansive definitions of the words.  The entry for “privilege” is:

   “… A particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of other citizens.  An exceptional or extraordinary power or exemption.  A peculiar right, advantage, exemption, power, franchise, or immunity held by a person or class, not generally possessed by others.

   In tort law, the ability to act contrary to another individual’s legal right without that individual having legal redress for the consequences of that act; usually raised by the actor as a defense.

   An exemption from some burden or attendance, with which certain persons are indulged, from a supposition of law that the stations they fill, or the offices they are engaged in, are such as require all their time and care, and that, without this indulgence, it would be impracticable to execute such offices to that advantage which the public good requires.  That which releases one from the performance of a liability which he would otherwise be required to perform, or sustain in common with all other persons. …”[35]

   [35] Black’s Law Dictionary, 6^th edition, 1990, West Publishing Co, St Paul, Minnesota

1. The word “immunity” is also defined in Black’s:

   “… Exemption, as from serving in an office, or performing duties which the law generally requires other citizens to perform; e.g. exemption from paying taxes.  Freedom or exemption from penalty, burden, or duty. Special privilege. …”

1. These expanded meanings are very broad and the structure of s 7(5) suggests that all may not be intended to apply to the interpretation of s 7(5)(b).  That suggestion has its foundation in the care that Parliament has taken in choosing particular words to identify the Commonwealth law that shall, with necessary modifications, apply to a visiting force.  Beginning with s 7(5)(a), it applies to a law that “exempts” equipment of the Defence Force or equipment employed for its purposes from the operation of a law.  Section 7(5)(c) applies to a law that, in virtue of a connection with the Defence Force “excepts”, trade or business from the operation of a law or from a tax or the like.  Section 7(5)(d) applies to a law of the Commonwealth that “imposes … obligations” upon any person or obligation in relation to the Defence Force.  Finally, s 7(5)(b) is not drafted in terms of exemptions, exceptions or obligations but of a “privilege or immunity”. 

1. Although in dissent, a passage from the judgment of Murphy J in Gazzo v Comptroller of Stamps (Vic)[36] gives examples of laws exempting persons, some of whom are members of the Defence Force, from the operation of a law.  He did so when considering whether a Commonwealth law exempting maintenance agreements executed under the Family Law Act 1975 from State stamp duty was valid as a law with respect to marriage,[37] with respect to divorce and matrimonial causes[38] or with respect to matters incidental to the exercise of the powers vested by the Constitution in the Parliament or in the Federal Judicature:[39]

   “          The only question is whether the challenged law is one with respect to the subject of federal power.  Victoria contends that simply because a law applies to married persons or bankrupts, that does not make it in the constitutional sense a law with respect to marriage or bankruptcy.  That is correct.  The familiar and acceptable example is of a federal law which exempted all married persons or all bankrupts from the observance of the State traffic laws.  Such a law would have no real connexion with marriage or bankruptcy and would be beyond power.  However the national Parliament may for federal purposes exempt persons or transactions from the operation of State laws … A federal Act to exempt members of the defence forcesor federal police from traffic laws where necessary or desirable for the carrying out of their duties would be valid.  In Pirrie v. MacFarlane an army driver was held subject to State traffic laws, there being no federal law exempting him. In that case, Knox C.J. said (1925) 36 CLR, at p 183:

   ‘The Commonwealth Parliament has, in my opinion, undoubted power, by legislation with respect to a subject which is within the ambit of its legislative powers, to override the provisions of any State law, but in the absence of any such enactment the State law must be given its full effect.’

   The Bankruptcy Act 1966, s. 60 validly provides for setting aside of orders for imprisonment of debtors under State law (see Storey v. Lane [1981] HCA 47; (1981) 147 CLR 549). Ambassadors and officers of the United Nations Organisation may be exempted from criminal proceedings and taxes (see Diplomatic Privileges and Immunities Act 1967 particularly ss. 6 and 7 and Art. 34 of the Schedule).”[40]

   [36] [1981] HCA 73; (1981) 149 CLR 227; Gibbs CJ, Stephen and Aickin JJ; Mason and Murphy JJ dissenting at 255-256 per Murphy J

   [37] Commonwealth Constitution; s 51(xxi)

   [38] Commonwealth Constitution; s 51(xxii)

   [39] Commonwealth Constitution; s 51(xxxix)

   [40] [1981] HCA 73; (1981) 149 CLR 227 at 256 (citations omitted)

1. This passage suggests that a “privilege” is to be interpreted as something more akin to an exemption or immunity from responsibility for certain actions or matters.  It gives examples of laws conferring a privilege.  An example taken from current law and relevant to the Defence Force is found in the Criminal Code Act 1995 (Criminal Code).  Subdivision A of Division 72 of Chapter 4 prescribes various international terrorist acts using explosives or lethal devices as criminal offences.  Section 72.2 confers a privilege or immunity from prosecution on members of the ADF when it provides:

   “Nothing in this Subdivision makes a member of the Australian Defence Force acting in connection with the defence or security of Australia liable to be prosecuted for an offence.”

If analysed according to the principles developed by Hohfeld in Fundamental Legal Concepts,[41] the Jural Correlative of a privilege is a “no-right”.  Taking s 72.2 as an example, the Director of Prosecutions would have no right to charge a member of the Defence Force in relation to conduct prescribed as an offence under Subdivision A if that member were engaged in that conduct in connection with the defence or security of Australia.  The member of the Defence Force would have a privilege or immunity.

[41] Wesley Newcomb Hohfeld, 4^th edition, 1919, 4^th printing 1966, Yale University Press at 35-60.

1. Section 7(5)(b) of the 1939 VF Act, with which I am concerned, requires a law to confer a privilege or immunity on any person “in virtue of a connexion with the Defence Force”.  Whether broader or narrower meanings are attributed to the words “privilege or immunity”, the particular law must be characterised.  At the time, they would have been the provisions of the 1930 Act but the SRC Act is now applicable and the analysis is no different.  Section 17(3) of the SRC Act provides:

   “Subject to this section and to sections 16 and 18, if the employee dies leaving dependants some or all of whom were, at the date of the employee’s death, wholly dependent on the employee, Comcare is liable to pay compensation in respect of the injury of $400,000 and that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of all of those dependants.”

1. Section 17 does not confer a privilege on a dependant in the sense of an exemption or an immunity.  It does not confer a privilege in the sense of a right.  Rather, it imposes a liability upon Comcare to pay compensation in respect of the injury when an employee dies and to do so in accordance with the provisions relating to medical expenses in s 16 and those relating to funeral expenses in s 18 as well as in accordance with those of s 17 itself.  In imposing liability upon Comcare, Parliament has not imposed a duty upon Comcare as such for it has no obligation to assess entitlement to compensation until a person such as an employee or a dependant has followed certain procedural steps such as giving notice of the injury under s 53 and making a claim under s 54.  Those persons are not obliged to make a claim but they have a power to make a claim if they so choose. 

1. Whatever the appropriate interpretation of the word “privilege”, the SRC Act is not a law conferring a privilege on any person “in virtue of a connexion with the Defence Force”.  Any privilege it confers is conferred on a person employed by the Commonwealth or by a Commonwealth authority or by a person employed by a licensed corporation.  Specific reference is made to members of the Defence Force but not to confer any privilege upon them.  The reference to members of the Defence Force in the definition of “employee” in s 5(2) is simply to clarify that they are regarded as an “employee” as that term is defined in s 5(1).  The SRC Act is not conferring a privilege or immunity on a member of the Defence Force “in virtue of a connexion with the Defence Force” within the meaning of s 7(5)(b) but by virtue of being an employee as the term is defined in s 4(1) and, more comprehensively, in s 5(1). 

1. It follows that I do not consider that the SRC Act is a law coming within s 7(5)(b) of the 1939 VF Act.  Therefore, it did not apply to Mr Parker when he was attached to the RAN and he is not an employee for its purposes.

D.1.5   1939 VF Act: Attachment of personnel and mutual powers of command

1. The heading reflects the sidenote to s 9 of the 1939 VF Act.  At the time it was enacted, a sidenote had no relevance in the interpretation of a statutory provision but I think it accurately reflects the tenor of the provision.  In so far as they are relevant, ss 9(1) and (2) provide:

   “(1)     The Naval Board, the Military Board, or the Air Board, as the case may be –

   (a)may attach temporarily to any part of the Defence Force any member of a Home force or of a Dominion force who is placed at their disposal for that purpose by the service authorities of the United Kingdom or the Dominion, as the case may be; and

   (b)…

   (2)While a member of a Home force or a Dominion force is attached temporarily to the Defence Force, he shall be subject, as the case may be, to the Naval Defence Act, or to military law as an officer or soldier, or to Air Force law, as an officer or airman in like manner, and shall be treated, and have the like powers of command and punishment over members of the part of the Defence Force to which he is attached, as if he were a member of that part of relative rank:

   Provided that the Governor-General may by order published in the Gazette direct that in relation to members of a Home force or a Dominion force specified in the order, the Naval Defence Act, the Defence Act or the Air Force Act, as the case may be, shall apply with such exceptions and subject to such adaptations and modifications as are so specified.

1. In so far as the application of the law to a member of a visiting force is concerned, two things are clear from s 9.  One is that he or she is subject to the relevant military, naval or air force law as applicable to the rank he or she holds.  The second is that the member of the visiting force is treated as if he or she were a member of the part of the Defence Force to which he or she is attached at the relative rank but only for determining the way in which the member is to be treated vis a vis other members of that part of the Defence Force and his or her powers of command over other members of that part.  There is nothing in s 9 that suggests that a member of a visiting force is part of the Defence Force for the duration of the attachment.

D.2     1963 VF Act

1. During Mr Parker’s attachment to the RAN, the 1939 VF Act was repealed by the 1963 VF, which came into force on 15 December 1963.  The effect of s 24(7) was that he was then deemed to have been attached to the RAN in accordance with s 24.  For all practical purposes, there was no difference in the provisions between the 1939 VF Act and the 1963 VF Act.  Of particular relevance in this case is s 24(2) of the later Act which equates with s 9(2) of the earlier.  It does not go any way to supporting an argument that Mr Parker was an employee while he was attached to the RAN.

1. The subject matter of s 16 equated with those in ss 7(5) and (6) of the 1939 VF Act except that the provisions of earlier legislation provided for an “opt out” application of certain laws to members of visiting forces.  Section 16 of the 1963 VF Act provided for an “opt in” system so that regulations had to be made if a visiting force and its members were to be exempt from the operation of any enactment specified in those regulations.[42]  The “opt in” nature of the provision appears in its formulation.  I will take r 16(2)(b) of the 1963 VF Act as an example:

   “The regulations may, subject to such conditions (if any) as are prescribed –

   (a)…

   (b)confer on a visiting force, its members, its service tribunals, person in any way connected with a visiting force or property used or to be used for the purposes of a visiting force any privilege or immunity specified in the regulations, being a privilege or immunity that would be enjoyed by, or would be capable of being conferred on, the force, its members, its service tribunals, such persons or such property if the force were part of the Defence Force.”

   [42] 1963 VF Act; s 16(2) and see s 16 generally

1. A regulation of this sort is found in the Defence (Visiting Forces) Regulations 1963. An example of an immunity conferred on members of the Defence Force is found in s 70 of the Defence Act. The essence of the provision is that no toll or due at any wharf, aerodrome or public road, whether demandable under Commonwealth or State law, may be demanded of a member of the Defence Force on march or duty or of any prisoner under his charge or any horse or vehicle used by that member. Regulation 6 provided that:

   “The immunities conferred by section 70 of the Defence Act 1903-1956 on members of the Defence Force are conferred on members of a visiting force sent to Australia by a country in relation to which section 16 of the Act applies and vehicles used by members of that force.” 

I have not found any regulations that conferred a privilege upon members of a visiting force in relation to entitlements under the 1930 Act that would have been in force between 1962 and 1965 when Mr Parker was attached to the RAN.

CONCLUSION

1. For these reasons, I have concluded that Mr Parker was neither a member of the Defence Force nor an employee of the Commonwealth as that term is defined in ss 4(1) and 5 of the SRC Act.  Therefore, I have decided to affirm the MRCC’s decision dated 24 September 2014 affirming its earlier decision dated 28 July 2014.  The effect of my decision is that the MRCC is not liable to pay Mrs Parker compensation as her late husband was not an employee within the meaning of ss 4(1) and 5(1) of the SRC Act.

I certify that the sixty one preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:           ……[sgd]......................................................

Associate

Date of Hearing (on papers)              29 June 2015

Date of Decision  21 July 2015

Solicitor for the Applicant                   Maurice Blackburn
(Ms Victoria Keays)

Solicitor for the Respondent              Australian Government Solicitor
(Mr Dejan Lukic)