Tebera-Kitika and Military Rehabilitation and Compensation Commission

[2010] AATA 433

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 433

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2009/4653

VETERANS’ APPEALS  DIVISION		)
Re		JOSEPH TEBERA-KITIKA

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 10 June 2010

Place Brisbane (heard in Cairns)

Decision  The Tribunal affirms the decision under review.

......................[Sgd]........................

Senior Member

CATCHWORDS

MILITARY REHABILITATION AND COMPENSATION – eligibility to receive compensation under old legislation – applicant member of the Royal Pacific Islands Regiment in Papua New Guinea – exclusion as an employee – whether right to receive workers’ compensation conferred by anti-discrimination laws – decision affirmed.

Commonwealth Employees Compensation Act 1930 (Cth) ss 4, 4A, 9

International Convention on the Elimination of All Forms of Racial Discrimination (Cth) Art 5

Racial Discrimination Act 1975 (Cth) s10

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 124

Veterans’ Entitlements Act 1986 (Cth)

Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455

Secretary, Department of Veterans' Affairs v Mr & Mrs P & Ors [1998] FCA 85

Trau v Repatriation Commission [1998] FCA 1459

REASONS FOR DECISION

10 June 2010 Senior Member Bernard J McCabe

1.      Mr Joseph Tebera-Kitika (“the applicant”) has made a claim for compensation in respect of injuries he sustained while serving in the Australian Army in Papua New Guinea (“PNG”) in the 1960s. He says he injured his lower back, hip and leg. The Military Rehabilitation and Compensation Commission (“the MRCC”) initially accepted liability for the injuries but subsequently revoked that determination. After reviewing the legislation, the MRCC decided the applicant is ineligible to receive compensation. Mr Tebera-Kitika has asked us to reconsider that decision.

2.      The MRCC has asked me to consider a preliminary question. If that question is decided against the applicant, the decision under review must be affirmed without considering the merits of the claim. I heard from the parties at a hearing in Cairns to consider the issue.

3.      Mr Tebera-Kitika does not speak English. He was represented at the hearing by his son. Both parties provided me with written submissions. Mr Tebera-Kitika’s written submissions spoke at length about the merits of his substantive claim. While I acknowledge those submissions, I am required to focus in these reasons on the preliminary issue. I am unable at this point to comment on whether Mr Tebera-Kitika’s claim would succeed if it were to be considered on the merits at a full hearing.

4.      For reasons I will explain, I am obliged to accept the decision under review must be affirmed.

the background facts

5.      Mr Tebera-Kitika was born in PNG when that country was an Australian territory and its citizens were Australian citizens. He enlisted in the Australian Regular Army in 1960. He joined the Royal Pacific Islands Regiment. The unit was raised in PNG and based in Port Moresby. He served with that regiment for a number of years. He claims he was injured during the course of his service.

6.      The Royal Pacific Islands Regiment had its origins in the Papuan Infantry battalion, which was raised from local volunteers in 1940. Additional battalions were formed during the course of the war from local people and a regimental headquarters was established in 1945. The regiment was disbanded in 1946 but reformed in 1950. The enlisted men in the re-formed unit were mostly from PNG, but the officers and some of the NCOs were from mainland Australia: see the T documents at 380.

the legislation

7.      The Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) sets out the workers’ compensation arrangements for Commonwealth employees. But the SRC Act was not in force when Mr Tebera-Kitika was injured during the 1960s. The legislation in force at that time was the Commonwealth Employees Compensation Act 1930 (“the 1930 Act”). If Mr Tebera-Kitika had made a claim in respect of his injuries when they occurred, he would have made it under the 1930 Act. He did not do that. He is making a claim now, some forty years later.

8. A person in Mr Tebera-Kitika’s position who now claims to have been injured before the commencement of the SRC Act must still seek compensation under the SRC Act rather than under the legislation that was in place at the time. But the old legislation is still relevant. Section 124 of the SRC Act says a person making a claim in respect of an injury that was sustained before the SRC Act commenced (that is, before 1988) is unable to receive compensation if he or she was not eligible to receive compensation under the old legislation - in this case, the 1930 Act.

9.      The MRCC points out that s 9 of the 1930 Act said the Commonwealth may be liable to pay compensation to an employee injured in the course of his or her employment. The definition of “employee” in s 4(1) includes members of the defence force. But s 4A creates exceptions to that definition. In particular, s 4A(7) provides:

This Act does not apply in respect of the service of an aboriginal inhabitant of a Territory of the Commonwealth who is a member of a part of the Defence Force consisting, or consisting mainly, of such inhabitants and raised in that Territory.

10.     That exclusion appears startling to modern eyes, but there it is. Mr Tebera-Kitika was an aboriginal inhabitant of a Territory and his unit was raised in that Territory and consisted mainly of local people. If the words of the statute are given their plain meaning, Mr Tebera-Kitika cannot qualify as an employee for the purposes of the 1930 Act. If that is so, his injures cannot be compensated under the SRC Act.

11.     The MRCC acknowledged I must have regard to the provisions of the Racial Discrimination Act 1975 (“the Discrimination Act”) in the course of my deliberations. Section 10 of the Discrimination Act is of particular interest. Relevantly, the section provides:

Rights to equality before the law

(1)  If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first‑mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

(2)  A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.

12.     The “Convention” is a reference to the International Convention on the Elimination of All Forms of Racial Discrimination. Article 5 of the Convention sets out a list of rights that must not be denied on the basis of race, colour or national or ethnic origin. These include:

(e) Economic, social and cultural rights, in particular:

(i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;

(ii) The right to form and join trade unions;

(iii) The right to housing;

(iv) The right to public health, medical care, social security and social services;

(v) The right to education and training;

(vi) The right to equal participation in cultural activities;

(f) The right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres and parks.

13. If the right that is being denied to Mr Tebera-Kitika falls within this list, the provisions of the 1930 Act can effectively be read down in accordance with s 10 of the Discrimination Act. If it is read down, the practical effect is to allow Mr Tebera-Kitika to be treated as if he were a soldier from the mainland who was included within the definition of “employee” in s 4(1).

14. Article 5(e) does not expressly refer to a right to receive workers’ compensation or participate in a workers’ compensation scheme. That is not necessarily fatal, as s 10 of the Discrimination Act refers to “rights of a kind referred to in Art 5”, which means the list in Article 5 is not taken to be an to exhaustive enumeration of the rights that might be protected by s 10. The rights protected by s 10, while not expressly listed in Article 5, must still be like the examples which are listed: Gerhardy v Brown (1985) 159 CLR 70 at 101 per Mason J. It follows that not every right available to a citizen under domestic law is necessarily protected by the Discrimination Act. The question in each case is whether the right in question is like those fundamental rights and freedoms set out in the Convention: Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 at 476-477 per Drummond J.

15.     I think the right to receive workers’ compensation, while related to employment, is nonetheless different in kind to the employment-related rights enumerated in Article 5(e)(i), which refers to:

“The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration”

16.     The right to receive workers’ compensation is properly compared to the rights set out in sub-clause (iv), which include “The right to public health, medical care, social security and social services”. But is it sufficiently similar to be regarded as a right of the same kind?

17. Drummond J considered the interpretation of s 10 and Article 5(e)(iv) in the course of his decision in Secretary, Department of Veterans' Affairs v Mr & Mrs P & Ors [1998] FCA 85. In that case, the decision-maker had declined to certify that a former soldier in the New Zealand army who later settled in Australia was eligible for a defence service loan because the individual did not meet the statutory requirement of being “an Australian soldier”. His Honour said the right (such as it was) to benefits accruing to a member of the defence forces by reason of their service was not a right like those contemplated in Article 5. His Honour explained:

Paragraph 3(iv) of Article 5, in my opinion, deals only with State-provided assistance to alleviate need in the general community and with benefits provided to advance the well-being of the entire community of the kind that many national states now make available to their citizens. The meaning I would give to the expressions "social security and social services" in the Convention Article reflects the limited protective reach of ss 9 and 10 the RD Act. A war veteran's entitlement to a government-subsidised housing loan of the kind provided before by the DSH Act is a right conferred on too narrow a section of the community for reasons unconnected with considerations fundamental to the individual's existence as a human being to qualify as the kind of basic right which alone is the concern of ss 9 and 10 the RD Act.

18.     Lehane J reached a similar conclusion in Trau v Repatriation Commission [1998] FCA 1459. In that case, the applicant was denied a “gold card” available to veterans’ under the Veterans’ Entitlements Act 1986. Dr Trau, the applicant, served in the Polish army in World War II but was not domiciled in Australia at the time. He claimed the requirement of domicile was impermissible discrimination. His Honour concluded the entitlement to a gold card was a reward or benefit available in recognition of war service. That was different in kind to the universal rights to public health, social security and social services.

19.     The entitlement of a worker to access a workers’ compensation scheme is different to the benefits available to veterans discussed in P and Trau. All employed workers in Australia – including fellow members of Mr Tebera-Kitika’s regiment from the mainland – are covered by a scheme established under state or federal law. Those schemes provide relief from the hardship that would otherwise be visited upon those injured during work. They play essentially the same role as the disability support pension which covers the needs of those who are unable to work because they were incapacitated by a non-compensable injury. No one doubts that the disability support pension is a form of social security within the meaning of the Convention.

20.     In effect, I am being asked to look to the function rather than the form of the benefit provided. Mr Tebera-Kitika would say that a workers’ compensation scheme is just one institutional response to a social welfare problem, namely the problem of how to protect sick and injured individuals who would otherwise experience economic hardship. The fact society chooses to deliver those social services through a scheme tailored for injured workers rather than through the usual welfare bureaucracy does not change the essential nature of the entitlement, he would say.

21.     On balance, and with some hesitation, I am satisfied the respondent’s view of the law is correct.  An entitlement to workers’ compensation is similar in some respects to an entitlement to social security, but there is enough difference between the two to justify saying they are not alike. In my view, the essence of workers’ compensation is insurance. It is not simply about redistributing benefits from the well-off to the needy, which is the usual function of social welfare systems. A workers’ compensation scheme, like any insurance arrangement, is intended to distribute and manage risk. Most of these schemes collect contributions from employers that are recycled through the system and paid out to injured workers. It is ultimately a form of self-help for workers and employers, albeit that it is compulsory. Welfare is different. It involves a helping hand from the state.

22. In those circumstances, s 10 of the Discrimination Act cannot be used to read down the definition of “employee” in the 1930 Act.

Conclusion

23.     The Tribunal cannot order that compensation be paid to Mr Tebera-Kitika in respect of any injuries that he might have sustained in the course of his duties.  His claim simply cannot succeed. There is no point proceeding to a hearing on the merits. That is a hard result but one that is required by law. The reviewable decision must therefore be affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: ......................[Sgd].....................................................
  Patrick MacDonald

Date of Hearing  26 March 2010 
Date of Decision  10 June 2010
Advocate for the Applicant            Mr M Tebera

Counsel for the Respondent          Ms H Blattman
Solicitor for the Respondent          Ms J McGrath