Sexton v Graincorp Operations
[2007] NSWWCCPD 218
•30 October 2007
WORKERS COMPENSATION COMMISSION
REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT
CITATION:Sexton v Graincorp Operations Ltd & anor [2007] NSWWCCPD 218
APPLICANT: Christopher James Sexton
FIRST RESPONDENT: Graincorp Operations Pty Ltd
SECOND RESPONDENT: Pacific National (ACT) Pty Ltd
INSURERS:Self-insured
FILE NUMBER: WCC16814-06
DATE OF DECISION: 30 October 2007
SUBJECT MATTER OF QUESTION: ‘Novel or complex’ question of law; jurisdiction of the Workers Compensation Commission where the employer is a ‘federal employer’, subject to the Safety, Rehabilitation and Compensation Act 1988 (Cth).
PRESIDENTIAL MEMBER: Acting President Gary Byron
HEARING:On the papers
REPRESENTATION: Applicant: White Barnes
First Respondent: Goldbergs
Second Respondent: Edwards Michael Moroney
ORDERS MADE: The answer to the Question of Law posed in this matter is:
The Workers Compensation Commission does not have jurisdiction in a matter where one of the employers is a federal employer, in relation to such federal employer, which is subject to the Safety, Rehabilitation and Compensation Act 1988 (Cth) and is not insured for the purposes of the Workers Compensation Act 1987 (NSW).
No order is made as to the costs of the referral of this Question of Law.
BACKGROUND
1. On 12 February 2007 the Applicant, Mr Sexton filed an Application for Leave to refer a Question of Law to the President (‘the Application’) in the Workers Compensation Commission (‘the Commission’).
2. The Application arises in proceedings commenced by Mr Sexton against two of his employers, the First Respondent, Graincorp Operations Pty Ltd (‘First Respondent/ Graincorp’) and the Second Respondent, Pacific National (ACT) Ltd (Second Respondent/ Pacific National), incorrectly named as Pacific National Ltd.
3. Mr Sexton alleges to have suffered injury to his right shoulder, arm and ankle when he stepped in a hole and fell on 10 January 2001 and a further injury as a result of his duties up to September 2005, climbing into and out of engines and working above shoulder height whilst employed by Graincorp. He claims weekly compensation benefits from September 2005 to date and continuing, and a general order under section 60 of the Workers Compensation Act 1987 (the 1987 Act). He brings the same claim against Pacific National, although it would appear that his employment with Pacific National did not commence until February 2001.
4. Graincorp, filed a Reply putting in issue notice, injury, incapacity, whether Mr Sexton suffered a disease, accelerated, exacerbated or aggravated by his employment with either Respondent and the apportionment of liability, if any, between the respondents.
5. On 17 November 2006, Pacific National sent a facsimile transmission to the Commission confirming that:
“…Mr Sexton is employed by Pacific National (ACT) Ltd which comes under Commonwealth legislation not under New South Wales legislation.
We request that we be withdrawn from these proceedings.”
6. Annexed to the above letter was a copy of a letter in similar form from Pacific National to Mr Sexton’s solicitors similarly requesting that proceedings as against Pacific National be discontinued.
7. Mr Sexton had taken no steps to discontinue the claim against Pacific National.
8. On 11 December 2006, the Commission notified all parties, including Pacific National that the matter had been set down for a teleconference on 17 January 2007.
9. An Application to Admit Late Documents annexing Pacific National’s Reply was filed on 15 January 2007, in which, in addition to placing in issue notice, worker, injury and incapacity, the Second Respondent submitted that the Commission had no jurisdiction to hear and determine the claim against it because:
a. a) Mr Sexton was employed by Pacific National (ACT) Ltd, a Commonwealth authority within the meaning of the Commonwealth Safety Rehabilitation and Compensation Act 1988;
a. b) Pacific National (ACT) Ltd is a self-insurer within the meaning of the Safety Rehabilitation and Compensation Act 1988 (Cth);
a. c) Pacific National (ACT) Ltd is not subject to the 1987 Act and/or the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’);
a. d) Mr Sexton’s claim against the Second Respondent does not arise under the 1987 Act or the 1998 Act, and
a. e) The 1987 Act is inconsistent with the Safety Rehabilitation and Compensation Act 1988 (Cth) and is therefore invalid.
10. Following the teleconference, the Arbitrator issued a direction dated 18 January 2007 seeking submissions from all parties on the jurisdictional issue, such submissions to be filed and served by 29 January 2007. A hearing was scheduled for 15 February 2007.
11. By letter dated 19 January 2007 Mr Sexton’s solicitors wrote to the Commission requesting, that by the consent of all parties at the teleconference, the jurisdictional issue be referred to a presidential member under section 351 of the 1998 Act.
12. The question of law identified by Mr Sexton’s solicitors in the above letter was:
“…whether or not the Workers Compensation Commission has jurisdiction in a matter where one of the employers is a federal employer, which is subject to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (as amended) and not insured for the purposes of the Workers Compensation Act 1987 (NSW) (as amended).”
13. Mr Sexton’s solicitors forwarded to the Commission, a formal application to refer a question of law and additional submissions in support of that referral under cover of their letter dated 29 January 2007.
14. The Second Respondent filed submissions in reply to this application under cover of letter dated 7 February 2007.
15. The Commission issued a Direction on 8 February 2007 directing service of the application to refer question of law on all parties and the WorkCover Authority, and seeking the filing and service of submissions in reply, with final submissions to be lodged by15 March 2007.
16. On 12 February 2007, Mr Sexton’s solicitor confirmed that sealed copies of the application to refer the question of law and the directions were served on the other parties to the proceedings and the WorkCover Authority.
17. On 13 February 2007 the Commission issued a further direction as follows:
“1. The application to have the matter referred to a Presidential member is stood over to the arbitration set down on 15 February 2007 at 10.00am”
18. On 15 February 2007 a conciliation and arbitration was convened, and the matter was adjourned with the question of costs reserved (see direction dated 15 February 2007, issued 19 February 2007).
19. On 16 February 2007 the solicitor for Mr Sexton sought an extension of time, by consent, for compliance with all directions.
20. On 19 February 2007 the Commission issued a further Direction, which among other things, extended time for compliance with the Direction of 8 February 2007 and adjourned the matter to a teleconference on 10 April 2007.
21. Mr Sexton’s solicitors filed a Certificate of Service certifying service of the Application for Leave to refer a Question of Law and a copy of the Direction dated 8 February 2007 on the solicitors for the First and Second Respondents.
22. At the teleconference on 10 April 2007 the parties agreed to the Arbitrator determining, on the papers, whether to refer the question of law to the President.
23. On 7 May 2007 a Certificate of Determination in the following terms, accompanied by written statement of reasons for the referral, was issued to the parties:
“The determination of this matter is as follows:
1. The Applicant’s Application to Refer a Question of Law is granted.
2.No order as to costs of the referral has been sought and it is appropriate that none be made.”
THE QUESTION OF LAW
24. The Arbitrator states the question of law at paragraph 8 of his Statement of Reasons for Referral, as follows:
“The question to be decided is whether or not the Workers Compensation Commission has jurisdiction in a matter where one of the employers is a federal employer, which is subject to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (As amended) and not insured for the purposes of the Workers Compensation Act 1987 (NSW) (As amended).”
PRELIMINARY ISSUES
On the Papers
25. Having regard to section 354(6) of the 1998 Act, and the submissions before me I am satisfied that I have sufficient information to proceed ‘on the papers’ to determine leave to refer the question of law without holding a conference or formal hearing, and that this is the appropriate course in the circumstances.
Leave
26. Section 351(3) of the 1998 Act, requires that leave to refer a question of law is only to be granted if the question involves “a novel or complex question of law”.
27. In relation to the question being novel and complex, it is submitted on behalf of Mr Sexton, in both the formal Application and in correspondence dated 19 January 2007 that:
a. a) the question is novel and complex, involving a jurisdictional question;
b. b) “because it raises the question as to jurisdiction of the Commission over an Employer, which is not subject to the NSW Workers Compensation Legislation, but is subject only to the similar Commonwealth Legislation”;
c. c) this question has “caused considerable difficulty to all forms of the Compensation Tribunal and Court over many years”;
d. d) the Rail Tram and Bus Union has 65 000 members, “a great number of whom could give rise to a similar claim” and it is “therefore a matter of public importance”;
e. e) the laws have changed and the Commission has been established since the High Court determination in Telstra Corporation Limited v Worthing 1999 HCA 12 (24 March 1999) [‘Worthing’], and
f. f) it is unclear if the Commission has “the same rights and entitlements, including cross vesting jurisdiction” as the former Compensation Court.
a.28. In the Arbitrator’s statement of reasons accompanying his decision to refer the question, he noted that the First Respondent declined to make submissions on the basis that the question is an issue between the Second Respondent and Mr Sexton, and whilst the Second Respondent concurs with Mr Sexton’s submissions that the question is of public importance in that the issue may affect many thousand employees, it submits that the Commission does not have jurisdiction to hear and determine the claim as against the Second Respondent.
a.29. The Arbitrator also noted that whilst WorkCover had been served with a copy of the application it had neither made submissions nor sought to be joined to the proceedings.
a.30. I am satisfied given that this question involves the jurisdictional limits of the Commission and with application beyond the issues in dispute between parties to the current proceedings, that the question is “novel” and “complex”, within the meaning of those words in section 351 of the 1998 Act, and the ‘question of law’ procedure in the Commission is an appropriate mechanism for a determination of the question that has arisen in this matter.
a.31. Leave to refer the question of law is granted.
SUBMISSIONS
a.32. On the question referred, Mr Sexton’s solicitors submit as follows:
a. a) on 10 January 2001, during his employment with the First Respondent, Mr Sexton suffered injury to his right shoulder for which liability was initially accepted and subsequently denied;
b. b) in about February 2001 Mr Sexton commenced employment with National Rail as a permanent part time driver and became a full time driver in 2003;
c. c) “at about that time or soon after” [presumably this is a reference to 2003], Pacific National (ACT) Limited took over National Rail and Mr Sexton’s employment was transferred to the new entity;
d. d) during his period of employment he had various periods off work “due to the right shoulder injury”;
e. e) both Respondents declined liability in or around September 2005;
f. f) “it would appear to be common ground that some component of the Applicant’s current incapacity arises out of both employments”;
g. g) the findings in the decision of Widdup v Hamilton [2006] NSWWCCPD 258 distinguishing the powers of the former Compensation Court and the Commission “gives rise to indecision on the point”;
h. h) because only one employer is subject to NSW legislation, “a question arises as to whether [the Commission]….has jurisdiction to make a decision which will bind the Second Respondent Pacific National (ACT) Limited”;
i. i) the matter has been considered by the High Court in Telstra Corporation v Worthing;
j. j) if the Commission does not have jurisdiction to hear the matter then Mr Sexton would need to commence separate proceedings against each employer and be exposed the risk of losing his claim “against each individual Employer in each individual jurisdiction on the bases of contrary findings in each jurisdiction” and such an outcome would be against public policy and increase cost and time in resolving the disputes.
a.33. The Second Respondent submits that the Commission does not have jurisdiction to hear and determine the claim as against it because:
a. a) Mr Sexton was employed by Pacific National (ACT) Limited, which is a Commonwealth authority and self insured within the meaning of the Safety, Rehabilitation and Compensation Act 1988;
b. b) the Second Respondent is not subject to, and Mr Sexton’s claims as against the Second Respondent do not arise under the NSW workers compensation acts;
c. c) the Workers Compensation Act 1987 is inconsistent with the Safety, Rehabilitation and Compensation Act 1988 and is therefore invalid;
d. d) the Workers Compensation Commission does not have jurisdiction to hear and determine the claim as against the Second Respondent;
e. e) section 105 of the 1998 Act sets out the jurisdiction of the Commission and it is restricted to matters arising under the 1998 Act and the 1987 Act;
f. f) the jurisdiction of the Commission is different to that of the former Compensation Court and the Commission has no inherent powers and “may only exercise such powers which are incidental and necessary to the exercise of its statutory jurisdiction”;
g. g) Widdup v Hamilton [2006] NSWWCCPD 258 affirms the Second Respondent’s position;
h. h) there is no offence against public policy in Mr Sexton maintaining two proceedings but it would be against public policy for the Commission to act beyond its jurisdiction, and
i. i) the Commission does not have power to order the payment of compensation under the Safety, Rehabilitation and Compensation Act 1988, or to order the Second Respondent to pay compensation under the 1987 Act.
DISCUSSION
a.34. Both parties acknowledge, and the Arbitrator and I concur, that the Second Respondent is a “federal employer”, as described in the Question of Law referred to me by the Arbitrator.
a.35. The Court of Appeal in Orellana-Fuentes v Standard Knitting Mill Pty Ltd and Anor; Carey v Blasdom Pty Limited t/as Ascot Freightlines & Anor [2003] NSWCA 146 (‘Orellana-Fuentes’) held that although it possessed a number of features consistent with being a court, the Commission is not a “court”.
a.36. The Court of Appeal’s determination that the Commission is not a “court”, applies for the purposes of sections 71 and 77(iii) of the Constitution and section 39 of the Judiciary Act 1903 (Cth). It confirms that the Commission is not vested with federal jurisdiction and that no federal statute exists that confers federal jurisdiction on the Commission. It may therefore, only exercise those powers that are derived from the 1987 and 1998 Acts, and from the Rules and Regulation made under those Acts, and as are incidental and necessary to the exercise of its statutory jurisdiction. The jurisdiction of the Commission has been considered in various contexts in some Presidential decisions. It was also discussed in a Question of Law referred to the President in Widdup v Hamilton [2006] NSWWCCPD 258. The President found that the Commission, unlike the former Compensation Court, does not have the power or jurisdiction to make a ‘declaration of liability’ in respect of proposed hospital and medical treatment pursuant to section 60 of the 1987 Act. In that matter, the President said at [10]:
“The Commission is not a court. Jurisdiction conferred on it is not the same as that conferred on the former Compensation Court.”
a.37. At [22] he stated:
“The Commission, as was the Compensation Court, is a statutory body, and derives its jurisdiction from the 1987 Act and the 1998 Act, and from the rules and regulations made under those Acts.”
a.38. The jurisdiction of the Commission is as set out in section 105 of the 1998 Act.
a.39. Sections 105(1) states as follows:
“(1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.”
a.40. In Raniere Nominees Pty Ltd (t/as Horizon Motor Lodge) v Daley [2006] NSWCA 235, a case concerning whether the Commission at first instance, and on appeal to the Deputy President, erred in finding that the Commission lacked jurisdiction to hear an application by an employer pursuant to section 145(3) of the 1998 Act, because the Commission lacked the power to extend time, Santow JA, with whom Spigelman CJ agreed stated at 66:
“Section 105 of the WIM Act sets out the jurisdiction of the Commission. Thus in acting judicially in its decision-making, the Commission is governed by statute. It does not possess an inherent jurisdiction but only such powers which are incidental and necessary to the exercise of its statutory jurisdiction; see DJL v Central Authority (2000) 201 CLR 226 at [24ff]. It has no statutory power expressly permitting it to extend the time for the employer to make application under s145(3). I do not consider that use of the word “may” in s145(3) does so impliedly; the section is an enabling one so that “may” in effect means “must”.”
a.41. Section 9 of the 1987 Act sets out employers’ liability for injuries received by workers, and states:
“9 (1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.
(2) Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.”
a.42. “Employer” is defined in section 4 of the 1998 Act as follows:
“‘employer’ includes:
(a) the legal personal representative of a deceased employer, or
(b) a government employer, or
(c) a former employer.Without limiting the meaning of the expression, an employer can be an individual, a corporation, a firm, an unincorporated body of persons, a government agency or the Crown.
“government employer” is defined as:
‘government employer’ means the Crown or any government agency, and includes:
(a) a public health organisation within the meaning of the Health Services Act 1997, and
(b) an employer prescribed by the regulations.”
a.43. Section 7 of the 1998 Act and section 6(1) of the 1987 Act state:
“This Act binds the Crown in right of New South Wales and also, so far as the legislative power of parliament permits, the Crown in all its other capacities.”
a.44. Effective from 1 January 2001 subsections 6(2) of the 1987 Act and 7(2) of the 1998 Act were repealed, they both stated:
“Nothing in this Act renders the Crown liable to be prosecuted for an offence.”
a.45. The present position is therefore, that the Crown in right of NSW is clearly an employer, within the meaning of the Act, subject to the provisions of the Act, and since 1 January 2001 is open to prosecution under the Act.
a.46. Section 155 of the 1987 Act, requires, under the sanction of a penalty that an employer other than a self insurer obtain from a licensed insurer a policy of insurance in compliance with Division 1 of the 1987 Act and Part 7.
a.47. Part 7 Division 5 (sections 210-216) of the 1987 Act deal with the application and granting of licences to self-insurers and their obligations under penalty, to deposit with the NSW WorkCover Authority an amount of money determined by the Authority.
a.48. The parties agree on the facts that the Second Respondent did not hold a policy of insurance in accordance with section 155 nor was it self-insured under the provisions of the 1987 Act but rather in the way that Pacific National submits. Mr Sexton does not challenge that “Pacific National (ACT) Limited, … is a Commonwealth authority and self insured within the meaning of the Safety, Rehabilitation and Compensation Act 1988”. As previously indicated, I accept that all of this is correct.
a.49. In Commission for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407, it was held that the Crown in right of Queensland may be liable under the NSW legislation. This appeal was from a judgment of Moroney J in the Compensation Court awarding compensation to Mr Peters for an injury sustained by him in 1983 during the period that the Queensland Commissioner for Railways (‘Queensland Commission’) employed him. The Court of Appeal held that the Compensation Court did in fact exercise federal jurisdiction, a power not contested by the Queensland Commission, and through the combined operation of the Workers Compensation Act 1926 and the Judiciary Act 1903, the Crown immunity which the Queensland Commission could have otherwise invoked was overcome, and the award of compensation for Mr Peters against the Authority, (because the Queensland Commission was uninsured for the purposes of the NSW Workers Compensation Acts) was upheld. However, the Compensation Court was a court of record. The Commission on the other hand, has been held not to be a court (Orellana-Fuentes).
a.50. Russo v World Services and Constructions Pty Ltd [1979] NSWLR 330, involved a worker with injury in the form of hearing loss who was employed with the respondent company for a period of 5 years and subsequently with a federal government department (the Navy) for a period of three years. The Worker initially brought proceedings against the Navy and was awarded compensation for boiler makers deafness, as a result of the aggravation of his deafness sustained during his employment with the Navy, under Commonwealth legislation, being the Australian Government Employees Act 1971-1974. The worker later sought workers compensation against the respondent company under the NSW Act, the Workers Compensation Act 1926.
a.51. In the Compensation Court, the respondent company raised the defence that it was not the last noisy employer and therefore was not liable under section 7(4) of the 1926 Act to pay compensation. His Honour Judge Wall concluded that:
“the Workers’Compensation Act could not be taken to be purporting to deal in any way with matters which arise under the Compensation (Australian Government Employees) Act, and that the [respondent] Company was taken to be the last employer within the meaning of s. 7(4) who had employed the worker.” (page 332 para [E])
a.52. It was from this decision that an appeal was made to the Court of Appeal. In allowing the appeal the Court of Appeal held that the section 7(4) of the Workers Compensation Act 1926 does not include the Commonwealth as an employer because under section 47 the Act applies to “workers employed by or under the Crown or any government department to which the Act would apply if the employer were a private person.” ( see page 333) and there is nothing in the Act to rebut the presumption that the section only applies, in this regard, to the Crown in right of NSW.
a.53. Further, Hope J held with Hutley JA agreeing that:
“In my opinion the rule to be applied universally as at this time in the construction of statutes, is that the Crown is not included in the operation of a statute unless by express words or by necessary implication.”.
a.54. He went on to say:
“However, the Crown is not otherwise so included and, in particular, the Crown in right of the Commonwealth is not included. If this view be right, then the Commonwealth is not an employer within the meaning of s 7(4) of the [1926] Act.”
a.55. The worker in that case therefore had no employer within the meaning of the NSW legislation, at the date of the application, as it was beyond power of the NSW legislature to impose upon the Commonwealth, obligations of the kind provided for by the NSW Act, as is the case in the matter from which this Question of Law arises. Hope J said that this was so in Russo, either because of the lack of constitutional power to do so or because at the time of the enactment of the NSW legislation, there was already in existence Commonwealth legislation that provided a system of compensation for injured employees of the Commonwealth.
a.56. In Worthing the High Court, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ unanimously determined that Mr Worthing was not entitled to compensation benefits under the Workers Compensation Act 1987, in allowing an appeal from a decision in the NSW Court of Appeal, which had upheld the decision of Truss J in the Compensation Court, in favour of Mr Worthing. Mr Worthing sustained three injuries in 1986, 1988 and 1993. At the time of the 1986 and 1988 injuries, the Australian Telecommunications Commission employed Mr Worthing. The same body continued to operate under the name “Telecom” from 1 July 1989 through the application of the Australian Telecommunications Corporation Act 1989. All rights and liabilities of this body were vested in a company that on 13 April 1993 was called Telstra Corporation Ltd.
a.57. The High Court held that:
“18 The Court should reject the submissions that, as a matter of construction, the 1926 State Act and the 1987 State Act did not in their terms apply to the Commission [the Australian Telecommunications Commission as it was at the relevant time] as an employer.
19. Therefore, it is necessary to consider the submission based upon s 21(3) of the Telecommunications Act. The effect of that provision is that the Commission was not subject to any liability under either State statute to which the Commonwealth was not subjected.
20 Russo v World Services and Constructions Pty Ltd was not concerned with a body such as the Commission, but it did establish that the Commonwealth itself was not bound by the 1926 State Act. The correctness of that decision was not challenged.
21. 21 As to the 1987 State Act, it contains the express statement in s 6(1), as to the Crown being bound in all its other capacities, which has been set out earlier in these reasons. However, a central provision of the legislative scheme established by the 1987 State Act is the requirement, under the sanction of a penalty, that an employer, other than a self-insurer, obtain and maintain in force a policy of insurance which complies with the requirements of the legislation (s 155). Further, a ‘self-insurer’ who holds a licence granted, as the 1987 State Act originally stood, by the State Compensation Board constituted thereunder [25], was obliged, under penalty, to maintain with the New South Wales Treasurer a deposit in an amount determined by that Board (s 213).
22. 22 It will require the clearest indication of a legislative purpose to demonstrate that these penal provisions attach to the Commonwealth. No such indication is to be seen in the 1987 State Act. To the contrary, s 6(2) states that nothing in that statute renders ‘the Crown’ liable to be prosecuted for any offence. [This protection from liability no longer applies – see paragraph 43, above]. These penal provisions are central to the structure upon which the regulatory scheme established by the State legislation rests. We conclude that the liabilities under the 1987 State Act, which are at stake in the present case are not liabilities to which the Commonwealth is subjected. This means that the operation of s 21(3) of the Telecommunications Act is attracted.
23. 23 Section 21(3) is to be construed as a declaration of legislative purpose that the law of the Commonwealth shall operate exclusively of State law on the topic. As in Australian Coastal Shipping Commission v O'Reilly, s 109 of the Constitution then operates upon the State law in question.
24. 24 The overall result with respect to the 1986 injury and the 1988 injury is that the State legislation had no application to the Commission. That being so, there was no relevant liability which passed to Telstra under the successive Commonwealth legislative provisions to which reference has been made.” (Footnote references omitted)
a.58. In respect of the 1993 injury the High Court allowed the appeal by Telstra holding that:
“26….Neither appellant submits that, with respect to that claim, Telstra was other than an employer within the meaning of the 1987 State Act which bore the liabilities for injuries received by workers as detailed in Pt 2 of that statute. Here again, the operation of s 109 of the Constitution is decisive.”
a.59. The High Court at [27] noted that “[t]he applicable principles are well settled. Cases still arise where one law requires what the other forbids.” The Court summarised the law as it relates to inconsistencies between state and federal laws at [27]-[28]:
“27 … It was held in Wallis v Downard-Pickford (North Queensland) Pty Ltd that a State law which incorporated into certain contracts a term which a law of the Commonwealth forbad was invalid. However, it is clearly established that there may be inconsistency within the meaning of s 109 although it is possible to obey both the Commonwealth law and the State law. Further, there will be what Barwick CJ identified as ‘direct collision’ where the State law, if allowed to operate, would impose an obligation greater than that for which the federal law has provided. Thus, in Australian Mutual Provident Society v Goulden, in a joint judgment, the Court determined the issue before it by stating that the provision of the State law in question ‘would qualify, impair and, in a significant respect, negate the essential legislative scheme of the Commonwealth Life Insurance Act’. A different result obtains if the Commonwealth law operates within the setting of other laws so that it is supplementary to or cumulative upon the State law in question. But that is not this case.
28. In Victoria v The Commonwealth, Dixon J stated two propositions which are presently material. The first was:
‘When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid.’
The second, which followed immediately in the same passage, was:
‘Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent.’
The second proposition may apply in a given case where the first does not, yet, contrary to the approach taken in the Court of Appeal, if the first proposition applies, then s 109 of the Constitution operates even if, and without the occasion to consider whether, the second proposition applies.” (footnotes omitted) (emphasis added).
a.60. The Constitution and the Judiciary Act 1903 of the Commonwealth do not vest federal jurisdiction in State tribunals that are not courts. Moreover, no existing federal legislation confers any judicial authority on the Workers Compensation Commission to exercise federal jurisdiction. Consequently, the Workers Compensation Commission is not vested with federal jurisdiction.
a.61. Nevertheless, it seems that a State tribunal that is not a court may reach a view about, or take into account, a federal law issue for its own purposes if required, to ascertain the limits of its own jurisdiction and powers, but without purporting to make an authoritative or substantive determination of the constitutional or federal issue itself (See Re Adams and Tax Agents Board (1976) 12 ALR 239, per Brennan J; Re Boulton; ex parte Construction, Forestry, Mining and Energy Union (1998) 73 ALJR 129 at [22], per Kirby J). Furthermore, there is no existing State legislation that prohibits the Workers Compensation Commission from having regard to a Constitution or a federal law issue (as distinct from making a substantive decision as to a Constitution or a federal law issue), in appropriate circumstances.
a.62. In the recent Court of Appeal decision of Attorney General v 2UE Sydney Pty Ltd and Ors [2006] NSWCA 349 (‘2UE’), 2UE argued that the homosexual vilification provisions of the Anti Discrimination Act 1977 were either invalid or should be read down because they contravened the Constitutional immunity for political free speech. The Attorney General of New South Wales intervened in the case, arguing that the Administrative Decisions Tribunal (NSW) did not have jurisdiction to hear or determine a question arising under the Commonwealth Constitution because it was not “a Court of a State” within the meaning of that term in section 39 of the Judiciary Act 1903 (Cth). The Court of Appeal, Spigelman CJ, Hodgson and Ipp JJA agreeing, following the decision in Trust Company of Australia Ltd (t/as Stockland Property Management) v Skiwing Pty Ltd( t/as Café Tiffany’s) [2006] NSWCA 185, found that the Administrative Decisions Tribunal had no jurisdiction to determine whether the homosexual vilification provisions were invalid or should be read down. The Court also said that the Administrative Decisions Tribunal was not competent to consider the question as a question of law relating to its own jurisdiction. The Court of Appeal characterised every Division of the Administrative Decisions Tribunal and the
Appeal Panel, as an administrative body with statutory powers, the exercise of which have
legal consequences, notwithstanding that some of its divisions conduct merits reviews of government decisions while others exercise original jurisdiction. (Emphasis added).
a.63. In 2UE, Spigelman CJ identified the issue before the Court, at [38], in the following terms:
“The issue before this Court is whether or not Chapter 111 of the Constitution and/or s39 of the Judiciary Act have the effect that the Appeal Panel is precluded from considering the Constitutional immunity for political speech in the course of interpreting the Anti-DiscriminationAct, in the light of the directive of the New South Wales Parliament contained in s31 of the Interpretation Act.”
a.64. Spigelman CJ also pointed to cl 5 of the Commonwealth Constitution which provides that the Act [Constitution] and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges and people of every State and every part of the Commonwealth, notwithstanding anything in the laws of any State. He observed that cl 5 does not confer jurisdiction and is not expressed “in any such terms”. It is, he stated, binding on all persons answering the description in it. He went on to say, “It also extends to all administrative officers and tribunals by reason of the extension of covering cl 5 to ‘people’.”
a.65. Relevantly, at [80] Spigelman CJ concluded:
“A State tribunal may, in my opinion, consider the Constitutional validity of State legislation in the course of the exercise of its statutory powers. However, no State tribunal can exercise the judicial power of the Commonwealth. The registration provisions to which I have referred have the consequence that if the tribunal and Appeal Panel proceed to do the former, they will purport to do the latter.”
a.66. However, he also agreed with the Attorney General’s written submissions, which drew a distinction between a tribunal forming a view on jurisdiction, which may involve a consideration of the meaning of a statute, on the one hand and determining conditions upon the exercise of jurisdiction in a binding manner, on the other (see [82]-[83]). Unlike the situation in 2UE, where the decision of the Appeal Panel in the Administrative Decisions Tribunal would involve “an actual legal consequence”, by reason of its determination of rights in the application of the “Constitutional immunity to the Tribunal’s [ADT] orders for an apology and for costs”, the consideration of the Commission’s jurisdiction in the determination of this Question of Law, does not go that far. The only consequence flowing from the determination of the Question of Law now before me is whether or not the Workers Compensation Commission has jurisdiction to deal with and determine Mr Sexton’s Application as against the Second Respondent, a ‘federal employer’. In deciding this question, there is no determination of substantive rights or any “conditions upon the exercise of jurisdiction” in terms of Commonwealth legislation and/or the exercise of federal power, as was said to be the case in 2UE, but merely an observance of Constitutional and federal law, which are binding on the Commission.
a.67. In the circumstances, I do not consider that a determination by me of the jurisdiction of the Commission in this matter, and in particular what follows in the next paragraph as to the meaning of statutes, is or includes a purported exercise of judicial power of the Commonwealth of Australia.
a.68. The remedy sought by Mr Sexton may be pursued by him against the Second Respondent, as a federal employer, under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The relevant provisions of that Act are broadly the same as the provisions of the NSW Workers Compensation legislation, for all practical purposes. Consequently, the provisions of the State legislation in question, if applied, would necessarily qualify, impair and in a significant respect, negate the essential legislative scheme of the Commonwealth legislation, upon a consideration of the meaning of the similar Commonwealth and State provisions. Furthermore, the Commonwealth law cannot be said in the circumstances of this matter, to operate within the setting of other laws so that it is supplementary to or cumulative upon the State legislation, again on a consideration of the meaning of the similar Commonwealth and State provisions. The inconsistency within the meaning of section 109 of the Constitution is clear and the operation of the section is decisive (See Worthing, in particular [27] and [28], set out at paragraph 57 of these Reasons), and is therefore, binding on the Commission.
a.69. In conclusion, I agree with the statement that this Commission, being a State tribunal, “owes its existence, its jurisdiction and powers to State law, not to Commonwealth law. The tribunal is exercising non-federal State jurisdiction and, in the exercise of that jurisdiction, is bound to have regard to the Constitutional and federal law, unless there is a valid federal law prohibiting it from exercising that non-federal State jurisdiction. There is no such federal law” (The Hon Sir Anthony Mason AC KBE, The Kerr Report of 1971: Its Continuing Significance, Inaugural Whitmore Lecture, Council of Australasian Tribunals NSW Chapter, 19 September 2007, page 8 – COAT website: coat.gov.au). No exercise of federal law powers arises in this matter in the determination of the Commission’s jurisdiction.
a.70. It is clear that the Commission cannot make orders and awards under the Commonwealth legislation. Moreover, Mr Sexton cannot be compensated twice in relation to the same matter against any one employer, whatever the jurisdiction in which he brings his disputed claim (see sections 52 and 118 of the Safety Rehabilitation and Compensation Act 1988 (Cth) and section 9AC of the 1987 Act (NSW)).
a.71. While the substance and purpose of the Question of Law posed is obvious, for the sake of certainty, the answer is framed to include the words “in relation to such federal employer”, so as not to suggest that the Commission does not have jurisdiction to determine the dispute as between Mr Sexton and the First Respondent, Graincorp Operations Pty Ltd.
DECISION
a.72. The answer to the Question of Law in this matter is:
The Workers Compensation Commission does not have jurisdiction in a matter where one of the employers is a federal employer, in relation to such federal employer, which is subject to the Safety, Rehabilitation and Compensation Act 1988 (Cth) and is not insured for the purposes of the Workers Compensation Act 1987 (NSW).
COSTS
a.73. No order is made as to the costs of the referral of this Question of Law.
Gary Byron
Acting President
30 October 2007
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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