Telstra v Worthing & Anor- A-G v Telstra

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S68 of 1998

B e t w e e n -
TELSTRA CORPORATION LIMITED
Appellant
and
ALLAN JOHN WORTHING

First Respondent

and
THE COMPENSATION COURT OF NEW SOUTH WALES
Second Respondent

Office of the Registry
Sydney No S69 of 1998

B e t w e e n -
ATTORNEY-GENERAL OF THE COMMONWEALTH
Appellant
and
TELSTRA CORPORATION LIMITED

First Respondent

and
ALLAN JOHN WORTHING
Second Respondent

GLEESON CJ

GAUDRON
McHUGH J
GUMMOW J
KIRBY
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 DECEMBER 1998, AT 10.17 AM

MR A. ROBERTSON, SC: May it please the Court, I appear with my learned friend, MR G.M. WATSON for the appellant in the first matter, Telstra Corporation, and the first respondent in the second matter. (instructed by Sparke Helmore)

MR D.M.J. BENNETT, QC, Solicitor-General for the Commonwealth: May it please the Court, I appear with my learned friends, MR E. WILLHEIM and MR D.A. PAGE, for the appellant in the second matter and the Attorney‑General for the Commonwealth intervening in the first matter. (instructed by the Australian Government Solicitor)

MR B.W. WALKER, SC: May it please the Court, I appear for Australian Postal Corporation with my friend, MR G.M. WATSON, which is an applicant to intervene on behalf of the appellants in each of the matters. (instructed by Sparke Helmore)

MR A.J. LESLIE, QC: If the Court pleases, I appear for the respondent Worthing in each matter, with my learned friend, MR J.H. PEARCE. (instructed by Gray & Ryan)

MR M.G. SEXTON, SC, Solicitor- General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR S.J. GAGELER, for the Attorney-General for New South Wales intervening in both matters. (instructed by the Crown Solicitor for New South Wales)

GLEESON CJ: Is the application of Mr Walker opposed?

MR ROBERTSON: Not on my part, your Honour.

GLEESON CJ: You have that leave.

MR WALKER: May it please the Court.

GLEESON CJ: Yes, Mr Robertson.

MR ROBERTSON: If the Court pleases. Your Honours, may I begin by asking your Honours to make a correction to the ‑ ‑ ‑

GLEESON CJ: May I interrupt you to say, Mr Robertson, that there is a certificate from the Senior Registrar saying that she has been informed that the second respondent in the appeal does not wish to be represented at the hearing of the appeal and will submit to any order of the Court save as to costs.

MR ROBERTSON: Thank you, your Honour. Could I ask your Honours to look at the appellant’s chronology that was filed and ask your Honours to delete one entry on page 3 of that document: the date 1 July 1996 where the chronology speaks of:

General conditions of Licence for Class 2 and Class 3 licensed authorities

at pages 32 to 40. Could your Honours delete the whole of that, as that is in fact – it does not make a material difference but they were conditions imposed on some other people, although in the same terms and conditions on Telstra. Similarly, at the foot of page 4 of our written submissions, the penultimate line at page 4, if your Honours could delete there the references to pages 32 to 40 and otherwise leave it unchanged.

KIRBY J: I am sorry, I did not get that second one.

MR ROBERTSON: Your Honour, it is at the foot of page 4 of our written submissions, the penultimate line. Your Honour will see the words and numerals “and 32 to 40”, if Your Honour could delete that reference.

Your Honours, the sole points of this appeal so far as concerns the appellant Telstra is the section 109 point, the inconsistency point. That follows, if I can remind the Court, from the decision in Dao v Australian Postal Commission 162 CLR 317. I will take the Court back to this case later on the inconsistency point, but for present purposes if I could remind your Honours that at pages 330 to 332, the relationship of section 64 of the Judiciary Act, on the one hand, and section 109 of the Constitution, on the other hand, was made clear. If I can pick it up, your Honours, from about point 8 on page 330, which is where the discussion begins, and it continues over 331 and ends at about point 3 on page 332, shortly expressed the point being that you do not look at section 64 of the Judiciary Act until you have dealt with the section 109 question.

The other preliminary point, your Honours, is that although we did below contend on various wider bases, some of those were overtaken by the decision of this Court in the Residential Tenancies Tribunal Case – we no longer press them - but for present purposes, if I can take your Honours to the notice of appeal, or the amended notice of appeal, on page 84 of the joint appeal book. As we have made clear in paragraph 35 of our outline of submissions, we do not press ground 3.2 of the amended notice of appeal which is referred to in the judgment as the construction point. The reason being that it does not do Telstra – it only applied as a live point in relation to the first two of the three injuries in any event, and we wish to press only the 109 point.

KIRBY J: Is that because you accepted there is no substance in it or that it would not avail you completely to escape liability and, therefore, there is no point?

MR ROBERTSON: It is the latter, it would not avail us.

KIRBY J: Because at least on the face of things, a State statute - well, one might argue that a State statute would not be intending without express language to embrace the corporation of another polity in Federation.

MR ROBERTSON: Yes. It really follows, your Honour, if I can put it this way, as at 1 February 1992, which was before the third incident of which Mr Worthing complains, as is made clear from our chronology, I think – as at that date Telstra ceased to be in the same position as the Commonwealth. I put it that way because I can avoid using language of immunities and so on. But, as at that date, Telstra ceased to be in the same position as the Commonwealth and if I can give your Honours a page reference to the statutory provision that makes that clear, it is in volume 2 of one of the blue booklets and it is at page 25 which is section 26 of Act No 79 of 1991. Your Honour see, “AOTC”, which was the name of the appellant at that stage:

is taken for the purposes of the laws of the Commonwealth, of a State or of a Territory:
(a) not to have been incorporated…..not to be a public authority…..not to be entitled to any immunity or privilege of the Commonwealth –

That section came into force on 1 February 1992. Your Honours, the judgment of the Court of Appeal narrows significantly the issues between the parties, as we understand it, because the Court of Appeal concluded that but for two provisions of the 1988 Commonwealth Compensation Act there would have been section 109 inconsistency between ‑ ‑ ‑

GAUDRON J: Well, is that right, or would there have been a cover the field – it would have been a presumed intention or a statutory intention to cover the field. It seems to me there are two issues here, one, is there a direct inconsistency, in which event one would seem to go no further, notwithstanding what the Act says.

MR ROBERTSON: I will take your Honours to the pages but the Court of Appeal ‑ ‑ ‑

GUMMOW J: It did not really distinguish between the two.

MR ROBERTSON: No, it sort of dealt with it in two parts. It said, “Well, looked at as a matter of detail there are inconsistencies and also looked at at a more abstract level there are inconsistencies” and then said, “But for section 52 of the Commonwealth Act and but for section 118 of the Commonwealth Act that would evince an intention of the Commonwealth – well, perhaps I am putting that loosely, but that would displace, to use more neutral language, the liability of the appellant under the State compensation law. But the point that I am making for present purposes, your Honour, is that either way that is put, the conclusion would have been in favour of the present appellant, but for the two sections that I mentioned.

The judgment of his Honour Justice Cole, with which Justice Beazley agreed and with which Justice Stein agreed but added his own supplementary reasons, in our respectful submission, usefully sets out the Commonwealth regime and the competing provisions as between the particular sections that were invoked in the compensation court, that is the particular sections of the State Act on the one hand, and the corresponding provisions of the Commonwealth Act on the other. Can I take your Honours to page 61 of the ‑ ‑ ‑

KIRBY J: There is no distinction between Justice Stein’s reasons and those of Justice Cole that I could see. Was there anything that you discern of a point of difference between his Honour’s treatment of the matter?

MR ROBERTSON: I think that is right, your Honour. Subject to perhaps one thing which is the observation of Justice Stein on page 73, lines 20 to 25 where his Honour Justice Stein says that:

In my opinion, laws with respect to the terms and conditions of employment are distinct and different from laws relating to workers’ compensation. They cover different fields or topics.

To the extent that is of present relevance, Justice Cole does not say that, at least not in those terms. I do not think his Honour says it implicitly either but subject to that reservation, your Honour, the conclusions and the reasoning of his Honour Justice Stein is the same.

I was taking your Honours to page 61 of the appeal book and that is where the summary – perhaps I should begin at page 60. That is where his Honour Justice Cole begins to summarise the provisions of the 1988 Commonwealth Act and I will not read it to your Honours. It is all set out there in a manner that we do not disagree with.

Then at the top of page 64 is the point that I was mentioning just now to Justice Gaudron and Justice Gummow. Right at the top of page 64, his Honour says:

To my mind, had the act stopped there, it would have been plain that the Commonwealth had set up an exclusive code addressing the topic of workers compensation for employees of the Commonwealth, its authorities, and persons employed by licensed corporations. At the widest level there would have been an apparent inconsistency with the Workers Compensation Act 1987 ‑ ‑ ‑

GAUDRON J: His Honour is there talking of cover the field type?

MR ROBERTSON: I think so. Yes, your Honour:

which addressed similar, if not identical, topics to those to which I have referred in the Commonwealth Act.

And then, if I can interpolate, his Honour goes on to deal with the more detailed collision, if one likes, between the relevant sections invoked by Mr Worthing and the different provisions made by the Commonwealth 1988 Act, again in terms that we do not cavil with.

GAUDRON J: Well that would be direct inconsistency in the sense of alter or impair the liability of the employer.

MR ROBERTSON: It would be because there are provisions directed to different consequences of the same event. So the State Act says, as his Honour there says. He makes, I think, five points which I will identify for the Court. But in relation to five sections invoked in the New South Wales court, his Honour counterpoises them to the Commonwealth provisions. And he does this by reference to page, not expressly but by reference to page two of the appeal book, if I could take your Honours to that, which sets out – I was going to say a pleading, but it is an identification of the section by a cross on page two, which identifies the sections of the State Act on which Mr Worthing relied in the Compensation Court. Your Honours will see in the left‑hand column on page two, there is five crosses and against those crosses are the various sections of the State Act referred to.

I said just now that there were five of these provisions, and if I can pick them up on pages 64, 65 and 66 of the appeal book, where his Honour Justice Cole says:

Further, if the matter of inconsistency had been considered on the harrower the approach the inconsistency would have been equally plain. The respondent’s claim was for total continuing incapacity from 29 April 1994. Such a claim is brought pursuant to s 36 and s 37 of the State act. By that act the claimant, assuming he established his case, would be entitled to compensation at a rate equivalent to his current weekly wage for the first 26 weeks, such current weekly wage being determined in accordance with s 42, and thereafter an amount equivalent to 90% of the worker’s average weekly earnings subject to the matters set forth in s. 37.

And in contrast his Honour sets out the provisions of the 1988 Commonwealth Act at a different rate calculated over a different period, and then after:

45 weeks at a rate calculated in accordance with section 19(3). The amounts of each weekly payment and the periods of each category of payment are different under the two acts. Further, in consequence of ss 36 and 37 of the Commonwealth act the worker’s entitlement to payment of the compensation to which I have referred is made dependent upon him undertaking appropriate rehabilitation.

So that is the first of these instances.

GAUDRON J: Why is that not the end of the matter? That is to say, they cannot coexist because it would alter or impair the Commonwealth’s liability. There is therefore direct inconsistency, no matter what is said in section 52 or section 118. Section 109 operates and that is the beginning and end of it.

MR ROBERTSON: We would, with respect, your Honour, adopt that submission.

GAUDRON J: Did not Metwally say that, that section 109 operates if there is inconsistency and it does not matter what the Commonwealth legislation provides?

GUMMOW J: There seems to be an assumption in this reasoning that you do not have a case of the operation of 109 unless you have both species.

MR ROBERTSON: That may well be so, your Honour. If that is so, we would submit, as I think is implicit in your Honour Justice Gaudron’s question to me, that that is an incorrect basis. We would still need to deal ‑ ‑ ‑

KIRBY J: But if in the federal legislation you have a formula that appears to indicate federal or statutory purpose that the two regimes will work in some way in relation to each other, then you may not have the inconsistency that, on the face of things, exists. That is obviously how they reason.

MR ROBERTSON: I think that is so, your Honour.

GUMMOW J: That may negative a covering of the field but there is no decision that says the Commonwealth can blow hot and cold when it is direct inconsistency, is there?

MR ROBERTSON: No, your Honour, because conceptually, if there is that direct inconsistency, then it does not matter what the perhaps more remote intentions of ‑ ‑ ‑

GUMMOW J: Well, 109 operates for the benefit of citizens apart from regulating relations between legislatures.

MR ROBERTSON: Yes, and that was also made clear in Metwally’s Case.

GUMMOW J: Yes.

KIRBY J: But I think it is important to keep in mind that section 109 propounds one constitutional test for inconsistency. For convenience the Court has developed various ways in which to conceptualise the different ways in which inconsistency present, but the section is one and it contemplates one inconsistency.

MR ROBERTSON: Certainly I would accept that, your Honour, and I think your Honour said as much in Residential Tenancies Tribunal, that there was one test even though different ways of expressing it.

KIRBY J: Just on the face of the Constitution it is one provision referring to inconsistency.

MR ROBERTSON: One provision and, we would submit, one result of such a provision. That is the invalidity of the State law. Your Honours, I will not go on unduly about these matters that Justice Cole identified as the narrow approach to inconsistency. That is the first of them that I have just ‑ ‑ ‑

GLEESON CJ: You began your submissions by saying that the Court of Appeal judgment narrows the issue considerably. Were you going to mention what you had to say about that issue?

MR ROBERTSON: Well, it narrows the issue considerably because it compendiously sets out what these clashes are, if I can use that expression, and no exception so far as we read the written submissions of the respondent and the Attorney-General of New South Wales - no exception is taken either to that analysis or to the conclusion that the Court of Appeal reaches. Perhaps I can shorten it even further, your Honour, by taking your Honours to the summary, as it were, of those conclusions that we have set out in the written submissions and which appear at page 59. It precedes but summarises in an anticipatory way the detail of the conclusions that follow and after, at the foot of page 58, referring to a passage in the judgment of Justice Murphy in the Australian Broadcasting Commission v Industrial Court of South Australia Case, his Honour Justice Cole says, at line 3, if I can pick it up there:

If the field be industrial relations, or here the worker’s compensation entitlements, of employees of the Commonwealth or a Commonwealth instrumentality or corporation operating nationally, the factors referred to by Murphy J give weight to interpreting that field as being an area of exclusivity of federal legislation, rather than concurrence of federal and state legislation with the employee having the right to select the federal or state law providing him with the greatest advantage. One would not readily interpret –

says his Honour -

a federal act dealing with federal employees operating Australia wide as expressing the intention of the federal Parliament, in relation to matters common to all Commonwealth employees, such as industrial relations or workers compensation, that there should be inconsistency between such employees’ rights and obligations depending upon the state in which they were employed and their choice of law.

That is the employees’ choice of law.

Inconsistency of entitlements and obligations between workers employed under contracts of employment regulated by federal legislation on the one hand, and state legislation on the other, may be recognised, but clear words would be needed to convey the intention of the federal legislature that employees subject to the one piece of federal legislation were entitled to different rights and subject to different liabilities arising from that one piece of federal legislation.

Now, I certainly accept what your Honours Justice Gaudron and Justice Gummow have put to me that, in a sense, that deals with the broader idea, the statement of intention. It does not deal with it at the level, perhaps, of ‑ ‑ ‑

GAUDRON J: Perhaps it is inaccurate to talk of them as broader or not.

MR ROBERTSON: Yes, your Honour.

GAUDRON J: It is a question whether an intention to cover the field is to be discerned, but you only look to that if you do not otherwise find inconsistency.

MR ROBERTSON: Yes. Well, adopting that approach, his Honour, on page 59, seems to be dealing with the “cover the field” question rather than the ‑ ‑ ‑

GUMMOW J: In fairness to his Honour, at page 56 he was reacting to submissions from your side – page 46, line 5 which seemed to have concentrated on covering the field.

MR ROBERTSON: Well, we certainly put it at both levels, your Honours, that is, the detail level and the broader intention.

McHUGH J: Mr Robertson, perhaps I am being very slow this morning but what is your point? You have been on your feet now for some time. What are your points or point? What are your propositions that we can come to grips with it?

MR ROBERTSON: The proposition, your Honour, is that the State Compensation Court did not have jurisdiction to deal with the application of Mr Worthing for the reason that the State Workers’ Compensation Act is inconsistent with either or both of the Telecom legislation or the 1971/1988 Workers’ Compensation statutes of the Commonwealth.

GLEESON CJ: Yes, but you are the appellant. Is there something in the judgments of the courts below with which you disagree?

MR ROBERTSON: Yes, your Honour.

GLEESON CJ: What about taking us to that instead of expressing your heated agreement with the judgment?

MR ROBERTSON: If your Honours please.

McHUGH J: I have been waiting for the attack to come. All I have heard so far is agreement.

MR ROBERTSON: Your Honours, where the Court of Appeal found that there was a sufficient expression of intention on the Commonwealth legislature’s part to allow the Commonwealth and State laws to co-exist, begins, or is set out in Justice Cole’s judgment at – it sets out the provisions at 66 and 67 and then the reasoning with which we disagree begins at 68 in his Honour’s judgment through to page 70 and in his Honour Justice Stein’s judgment it is at 74 through to the top of page 76.

McHUGH J: I know. Well, I have read those but are you going to give us some detailed argument as to where the error is?

MR ROBERTSON: Yes, your Honour. The argument is that those two provisions, considered either together or separately, do not have the effect of displacing what the Court of Appeal otherwise found would have been the ‑ ‑ ‑

McHUGH J: Yes, but why? What is the detailed argument? That is a general statement. It is a statement of a conclusion. We have to write judgments and I want to know what the train of argument which leads to this conclusion is.

MR ROBERTSON: Your Honours, could I pick up our submissions in relation to section 52 which are set out in two paragraphs of our written submissions? The first paragraph is 5. If I can deal with 52, on the one hand, and 118, on the other hand, separately. We deal with 52 in paragraph 5 on page 3 and paragraph 31 on page 15 and the provision in the 1988 Act which their Honours in the Court of Appeal found displaced the Commonwealth’s intention is the amendment introduced, as we submit, by Act No 264 of 1992 to add paragraph (c) to section 52(6) of the 1988 Commonwealth Act.

KIRBY J: This is the successor to the Commonwealth Employee’s Compensation Act, is it, the Safety, Rehabilitation and Compensation Act?

MR ROBERTSON: Yes. Your Honour, the first respondent submits, and I will have to come to this in due course, that there was, over some 80 or 90 years, a course of Commonwealth legislation of which this is the culmination. To give your Honour, therefore, the full picture in answer to your Honour’s question, there were four main Commonwealth Employees Compensation Acts, 1912, 1930, 1971 and 1988. As appears from our chronology, the 1988 Act was not enforced throughout the period of the three claims but it is the most recent one.

KIRBY J: What were the names of the 1912 and 1930 Acts? They are not in the chronology.

MR ROBERTSON: They are reproduced, your Honour, in volume 3 of the appellant’s supplementary materials.

KIRBY J: I see.

MR ROBERTSON: If your Honour has volume 3?

KIRBY J: Yes.

MR ROBERTSON: Pages 49 to 58 is the Commonwealth Workmen’s Compensation Act 1912, page 59 is the Commonwealth Employees Compensation Act 1930, page 70 is an extract of the Compensation (Commonwealth Government Employees) Act 1971 and then there is the current Act which is now called the Safety, Rehabilitation and Compensation Act 1988.

KIRBY J: We are not concerned with the old Acts because they have been bypassed by the last two.

MR ROBERTSON: Yes.

KIRBY J: Is it your submission that over the whole period since the original Act providing employees’ compensation for Commonwealth employees that there were two regimes: one, if you happened to be a Commonwealth employee as defined you fitted into the federal regime and, if not, then you had to apply under the State regime. Is that how it worked because there was a case about a seaman?

MR ROBERTSON: Yes.

KIRBY J: You will no doubt come to that in due course?

MR ROBERTSON: Yes, and we will submit - we do submit that the seafarers’ legislation is quite distinct, both in purpose and effect. Of course, the Seafarers’ legislation was directed to a broader class, in other words, it was directed to seamen employed on interstate and territorial shipping.

KIRBY J: In private employment, not Crown employment?

MR ROBERTSON: The definition in the Act included the Crown but was not limited to the Crown.

KIRBY J: I see. You will come to that in due course?

MR ROBERTSON: Yes, I will. Your Honours, section 52 in its previous form is at page 4 of volume 3 of the supplementary materials and when the 1988 Commonwealth Act was originally enacted, section 52 was in the same terms as it presently is but with the absence of paragraph (6)(c) and your Honours can see that at page 4 of volume 3. At the next page your Honours can see the Act that amended it, No 264 of 1992. That is at page 5, and the amendment in question appears at the foot of page 7 and about line 45, on page 7, is the amendment which says:

Omit paragraph (b), substitute:
“(b) an award or order –

et cetera and then the purpose or the explanatory memorandum for that is on page 9 of volume 3:

The amendments made to the act by Schedule 1 are consequential and drafting amendments required to be made as a result of the extension of the Act to licensed corporations. They adapt the Act so that it can in all relevant respects apply to the employees of licensed corporations.

So, to go back to paragraph 5 of our outline of submissions - and it is a short point - licensed corporations would be corporations which are not or are about to cease to be a Commonwealth authority declared by the Minister to be eligible under section 108C and we submit that paragraph (c) was added to meet the possibility that employees of those non‑Commonwealth licensed corporations might have existing workers’ compensation rights under State or territory awards.

KIRBY J: Would they be officers of the Commonwealth for the purposes of the Constitution?

MR ROBERTSON: The employees of the licensed corporations?

KIRBY J: Yes.

MR ROBERTSON: Some of them might be; a lot of them would not be because “licensed corporations” would include employees of corporations which were competitors of Commonwealth corporations. Could I answer that, your Honour, by saying there was a ‑ ‑ ‑

GLEESON CJ: Mr Robertson, whether his Honour was right or wrong, the reasoning that he expressed that brought you undone in the Court of Appeal appears at page 68, lines 11 and 12. At some stage are you going to tell us what your answer is to the proposition on which the judgment below turned? That is, the history to which you have been referring does not, according to Justice Cole, permit a reading down of the provisions so as to apply only to such employees. I understand you to agree with almost everything his Honour says but you must disagree with that.

MR ROBERTSON: Yes.

GLEESON CJ: Why is that wrong?

MR ROBERTSON: What we submit, your Honour, is that first of all the inclusion of paragraph (c) would not on any view disclose an intention on the part of the federal Parliament to permit the State compensation law, which is what we are presently concerned with, to coexist with the 1988 Commonwealth Employees Compensation legislation. In its terms it deals only with an award, determination or order under a law of a State or territory. It would be most unlikely, in our submission, that Commonwealth employees as such would have rights under such State or territory awards.

KIRBY J: Well, it may be unlikely, but the federal Parliament has by its enactment indicated that it must happen, because otherwise this is complete surplusage.

MR ROBERTSON: Your Honour, what we submit is that if one looks at the whole of section 52 – and I am going now to paragraph 31 of our submissions – that section 52 has a limited role in respect of what we describe as possibilities. That is made clear by the references in subsection (6)(a), a determination under the Public Service Arbitration Act.

GAUDRON J: We are not really concerned with 52, are we, in terms of actual operation? The only relevance of 52 to this case can be whether or not it reveals an intention to cover the field or to allow two regimes to coexist, one to be selected at the option of the employee. So we are not concerned in a practical sense with this, are we?

MR ROBERTSON: Quite so, your Honour.

GAUDRON J: Do you not then have to say, “Look, really 52 is irrelevant and so is 118, absolutely irrelevant because there is direct inconsistency and, the minute that came about, section 109 did its work”?

MR ROBERTSON: We submit that, your Honour. We also submit, in the alternative, if we need to that the basis upon which the Court of Appeal found that the intention was not an exhaustive intention, or an exclusive intention, on the part of the Commonwealth on the basis of 52 and 118 is, in itself, incorrect for the reasons that we are presently submitting. That is ‑ ‑ ‑

McHUGH J: That is the point, what are the reasons? I hate to hark on this, but in paragraph 5 of your submissions - again it is just a submission – and the purpose of oral argument, I might respectfully say so, is to illustrate by analogy, by argument, by analysis as to why one should adopt the submission as opposed to what is stated in the judgment. But paragraph 5 just simply says, “The appellant submits”, and there is the conclusion. Now why should we prefer the submission to what the judge’s view of it is? His view is you look at the literal words of 52 and, on its face, it assumes an intention on the part of the Parliament not to have an exclusive regime for Commonwealth employees. Now why is that wrong?

MR ROBERTSON: Your Honour, we submit that, first of all, it has to be looked at in light of its history, why it was introduced, the purpose that the Parliament said it had when it was introducing paragraph (c). Secondly, we submit, one has to look at it in context, and that is the purpose of our paragraph 31, that where the Parliament in subsection (6) is actually dealing with federal law, the Public Service Arbitration Act, the Conciliation and Arbitration Act, we submit, as is quite clear, that both of those provisions prevented either the Public Service Arbitrator or the Conciliation and Arbitration Commissioner - and that continues up to the present day - prevented either of those federal bodies from interfering with the federal rights which were conferred by the 1988 Compensation Act.

So we make the point that it could not have been the intention of the Parliament to allow Commonwealth employees, whoever they might be, to obtain rights under the 1987 State Act when the federal bodies, the Public Service Arbitrator, the Conciliation and Arbitration Commission, were expressly prevented from doing so and where the express purpose of introducing subparagraph (c) was at the time that non-Commonwealth employees were, as a matter of possibility, brought under the umbrella of the 1988 Commonwealth Act. So we submit, your Honour, that in terms of its history, and in terms of its purpose read in context, the conclusion that the Court of Appeal reached just could not have been correct.

GUMMOW J: Perhaps one should look at the context by looking at this Act. It is in Part IV which is headed “Liabilities Arising Apart from this Act”. The first clutch of sections of the Georgiadis provisions, are they not, section 44? That is dealing with common law rights.

MR ROBERTSON: Common law rights against the Commonwealth and against some others, yes, your Honour.

GUMMOW J: Yes, and 45 is designed to require an election, is it not, as to common law rights?

MR ROBERTSON: Yes.

GUMMOW J: There are complicated proceedings, there are complicated provisions about what happens with common law damages and so on, and then section 52 operates in a situation where there is, not a common law right but there is a right under some State statutory regime. It gives an election there. I cannot see what it has to do with this case, that is all.

MR ROBERTSON: Well, we submit it really has not got anything to do with it but it does no more than ‑ ‑ ‑

GUMMOW J: Whether you are talking about field or direct inconsistency, or whatever. It was never construed at any stage, as far as I can find, in the context of the actual Act in which it appears, namely, Part IV, and why Part IV is there, when you look at Part IV and understand it, there it is.

MR ROBERTSON: Well, your Honour, we submit that 52 – put compendiously, that 52(6) ‑ ‑ ‑

GUMMOW J: Counsel will persist in tracing isolated sections through some complicated genealogy without construing the relevant Act in which they now appear to hold. This case is becoming a vivid demonstration of it. What I have said assists rather than impedes your case, I think.

MR ROBERTSON: In terms of whether or not, as the Court of Appeal found, that – although one might say they place less reliance on 52(6)(c) than on 118, which I will move to shortly, but we submit that in relation to 52(6)(c) there is no reason whatever for giving it any further operation than it was intended to have. That is, that in 1992 the legislation was amended so that some non-Commonwealth employees could be, in certain circumstances, brought under the Act as employees of licensed corporations under Part (8B). Licensed corporations included non-Commonwealth corporations, that is, private sector bodies. Those private sector bodies might have employees who may have had some rights under a State or territory award. But it is no basis, in our submission, for concluding that Commonwealth employees were going to have rights under State awards or that ‑ ‑ ‑

GLEESON CJ: Am I right in thinking that one of the arguments you want us to consider is that both section 52(6) and section 118 have important and understandable work to do even if one concludes that there is inconsistency between the Commonwealth Act and the State Act.

MR ROBERTSON: Yes, exactly so, your Honour, and if I can add to that, since that is so, on our submission, that is sufficient justification for their existence when one is looking at it in light of what the Court of Appeal has said is the general approach, given the other provisions of the 1988 Commonwealth statute, that is ‑ ‑ ‑

GLEESON CJ: Well, your argument is they do not deny inconsistency, they operate notwithstanding inconsistency. That is why they are there.

MR ROBERTSON: That is so, that is so, exactly so, your Honour. And the Court of Appeal has held that they do operate to deny inconsistency, even if they have sensible work to do if there was inconsistency, and that is where we plainly part company with them.

McHUGH J: Your point is that once a corporation was licensed under 108C, the potentiality for conflict was there.

MR ROBERTSON: Yes.

McHUGH J: In other words, a person might have rights both under this Act and under the State legislation, and they had to be put to an election.

MR ROBERTSON: That is in relation to section 52.

McHUGH J: Section 52, yes.

MR ROBERTSON: Yes, 118 is slightly different, exactly so, your Honour. I will leave section 52, if I may.

McHUGH J: Yes.

MR ROBERTSON: If your Honours still have page 68 of the appeal book, where we part company – and I am moving now to 118 – his Honour says, at page 68, the first full paragraph:

s. 118, which remains in its original form, makes it plain that the Commonwealth Parliament contemplated that notwithstanding the establishment of a complete regime ‑ ‑ ‑

McHUGH J: I am sorry, where are you reading, Mr Robertson?

MR ROBERTSON: Page 68, your Honour, the first full paragraph.

McHUGH J: Oh yes, yes.

MR ROBERTSON: It was in Justice Cole’s judgment. And it says:

the establishment of a complete regime –

this is line 3 of the first full paragraph:

for the payment of compensation to Commonwealth employees and those of Commonwealth authorities and licensed corporations, such employees nonetheless had a right to seek and obtain workers compensation recoverable under a state law.

Now, to an extent that is true, but the question which his Honour does not expressly deal with, from whom did they have such a right, and in relation to what? And his Honour then later on that page refers ‑ ‑ ‑

GUMMOW J: Well, wait a minute. Again, one has to look at the text, it is a good idea, really. Section 118(6) defines “State workers’ compensation”. It includes foreign countries.

MR ROBERTSON: Indeed, indeed, your Honour, indeed. And we submit that what that shows is that 118 is a purely pragmatic section dealing with not the obligations imposed on the Commonwealth, but the circumstances where an employee may have had in the past, that is before he or she became a Commonwealth employee ‑ ‑ ‑

GUMMOW J: It has to be read with 117 too.

MR ROBERTSON: Yes, they all have to be read together. Section 117 is to do with a particular subclass of what they describe as locally engaged overseas employees, and whether or not a foreign compensation law would apply or not.

McHUGH J: But, in addition, under some State workers’ compensation legislation, an employee may be deemed to be an employee of some other person, principal contractors and subcontractors, for example. So it is possible, I would imagine, that a Telstra employee might have a right against another organisation, but not the Commonwealth.

MR ROBERTSON: If there is some co-employment. So ‑ ‑ ‑

McHUGH J: Well, general or particular employment, or I think there used to be provisions in the New South Wales Workers Compensation Act about head contractors and subcontractors, so Telstra was working on a subcontract with somebody, and your worker might have a right against the head employer.

MR ROBERTSON: Yes. That is certainly one of the – to go back to your Honour, the Chief Justice’s questions, that is one of the pieces of work that if, as we submit there is inconsistency, nevertheless, 118 would do, that is, it can deal with aggravation of injuries where somebody is moving from non-Commonwealth employment into Commonwealth employment and maybe out again, so that the employee would have a claim against a private employer at the beginning and at the end and what it is directed to, as I submitted before, is the purely pragmatic question of double benefits. It has got nothing to do, whatever, in our respectful submission, with the Commonwealth admitting the parallel operation as against itself of a ‑ ‑ ‑

McHUGH J: But it is not inconsistent with the Commonwealth only being liable under the SRC Act.

MR ROBERTSON: Not in the least inconsistent. Not in the least inconsistent.

McHUGH J: Yes, and that is the whole point.

MR ROBERTSON: In a nutshell, that is the whole point.

GUMMOW J: I suppose Telstra, for example, could be laying cables or equipment under contract with some other private entity.

MR ROBERTSON: It could be, yes, your Honour.

GUMMOW J: It could be doing it here, it could be doing it in Saudi Arabia, or ‑ ‑ ‑

MR ROBERTSON: It could be doing it in China.

GUMMOW J: Yes, as in fact happens, as I understand it, in all sorts of foreign countries.

MR ROBERTSON: I think it does, your Honour, yes.

McHUGH J: And there used to be a provision about being transferred – a general or particular employer, I think it was, under the – so that you have a right in certain circumstances under the New South Wales Workers’ Compensation Act against somebody who was not your employer.

MR ROBERTSON: Yes. So, in our respectful submission, 118 casts no light whatever on the question of whether the Commonwealth admits of the possibility, as a matter of intention or otherwise, that it is going to be subject to a parallel liability, what I might call a dual liability, under any of these State and territory laws and, in our respectful submission, the Court of Appeal expressed correctly the question, “Well, you would not readily assume that a Commonwealth body, operating nationally, would expose itself to the variety of State and territorial laws”.

McHUGH J: There is, of course, an even more fundamental point about direct inconsistency.

MR ROBERTSON: Quite so, your Honour. Even if all that is incorrect, in a sense, it does not answer what do you do when the Commonwealth says, “You shall have $100,000 maximum” and the State law says, “You

can have $150,000” or the Commonwealth says, as it does, “You cannot get anything unless there is a 10 per cent whole of body impairment” and the State law says, “You can get compensation whatever the percentage of impairment”.

McHUGH J: Yes.

MR ROBERTSON: It does not deal with that issue at all. That just gives a further point. The equivalent passage in the passage in the judgment of Justice Stein – I mentioned it before, but it is at page 75 and we make the same criticism. The first full paragraph:

This provision was included in the original enactment in 1988. I agree with Cole JA that the provision makes it apparent that notwithstanding that the legislation contemplated a regime for compensation for Commonwealth employees (and specific others) it was on the basis that these workers have the right to seek and obtain workers’ compensation under relevant state and territory laws. Section 118(1) of the SRC Act is plain. If state workers’ compensation is recovered by the worker, then compensation is not payable under the Act with respect to the injury ‑ ‑ ‑

McHUGH J: Well, you would say that is an irrelevancy, it does not answer your point as to whether or not the Commonwealth ‑ ‑ ‑

MR ROBERTSON: Exactly so and in the next sentence his Honour says:

This must relate to successful claims for compensation under state workers’ compensation legislation -

Exactly so, but it does not say against whom. So we submit that 118, whether looked at in light of its terms or its history, which I will come to in a moment, does not achieve the result that their Honours in the Court of Appeal said it did.

GLEESON CJ: Yes, thank you, Mr Robertson. We have read the history. Thank you.

MR ROBERTSON: If your Honour pleases.

GLEESON CJ: Yes, Mr Solicitor.

MR BENNETT: Your Honours, the error in the judgment in this case is holding that section 108 in some way cures what otherwise is manifest inconsistency.

McHUGH J: 108 or 118?

MR BENNETT: Sorry, 118, your Honour. I propose to address that under six headings. The first is to ‑ ‑ ‑

GUMMOW J: Do they add anything to what has already appeared.

MR BENNETT: I am sorry, your Honour.

GUMMOW J: Will the six headings shed any more light than has already been shed?

MR BENNETT: Yes, your Honour. I hope so. If your Honours are stopping me, I will sit down but the ‑ ‑ ‑

GLEESON CJ: No, we are encouraging you.

MR BENNETT: Yes.

McHUGH J: We are telling you to stop quickly.

MR BENNETT: The six points are – first, I will deal with Justice Gaudron’s question about direct inconsistency; second, the history and just show that historically it has always been assumed by everyone throughout Australia that the Commonwealth is not bound by State Workers’ Compensation Acts and I will show how that is fed through into the various legislation.

GUMMOW J: Why do we need worry about all that?

MR BENNETT: Because, your Honour, it is one of the matters one has to ‑ I will do it very briefly, your Honour. I will not take a long time. The third matter is to deal with the extent of the inconsistency. I will do that very briefly. Fourthly, the true purposes of section 118; fifthly, I will have to distinguish King’s Case and sixthly, I will stir the pot a little on section 64 of the Judiciary Act but I will do that briefly, too.

GAUDRON J: Why?

GUMMOW J: Why?

GAUDRON J: That would only arise in reply, surely, would it?

MR BENNETT: Well, that is probably so, your Honour, which may make it unnecessary to do so.

GLEESON CJ: It is point No 5 you might have to come fairly directly to. That is a point that is made against you by Mr Leslie.

MR BENNETT: Yes, I will deal with that, your Honour. So far as direct collision is concerned, may I simply say this. It is discussed fairly fully in Metwally’s Case by a number of the Justices. Clearly, if there is direct inconsistency, if the Commonwealth says do acts and the State says do not do acts, it does not matter how much intention is shown that the one can prevail over the other and that is obvious. There are also cases such as Blackley’s Case which say that where the Commonwealth says, “Pay $10” and the State says, “Pay $12”, that is a direct inconsistency. The judgments of Chief Justice Barwick and Justice McTiernan, who agreed with him in that case, make that point very clearly although the other Justices ‑ ‑ ‑

McHUGH J: It goes back to Cowburn’s Case ‑ ‑ ‑

MR BENNETT: Yes, it does. Yes, but they make a distinction ‑ ‑ ‑

McHUGH J: …..pay both does not mean that they are not inconsistent.

MR BENNETT: The reason it is not a complete answer which enables me to sit down without going to points 2 to 6 is that it is also said in those cases that if the Commonwealth provision saying, “Pay ten” on its true construction means pay ten or such larger amount as is ordered under the State Act, then there is no longer a direct inconsistency.

On the argument put against me, that would be the case here. We say there is no way section 118 can be construed that way and for that reason one has a direct inconsistency, but I have to deal with the question of covering the field and indirect inconsistency because of that argument about section 118. What section 118 says when one reads it is very simply that it is not a scheme for making the two work together; it is a disqualification. What it says is, “Look, if you get anything else in a foreign country under State workers’ compensation, if there’s some reason why you get State workers’ compensation or something else, you are out”. That is all the section says.

It is not designed carefully to mesh the two schemes and enable them to work side by side; it is a simple disqualification. It is not a section which says, “It’s our intention that the Commonwealth or its instrumentalities should be liable to pay a larger amount”. It says nothing of course about who pays the State workers’ compensation; it is silent on that. We submit as a matter of removing direct inconsistency, the section simply falls a long way short. That is the first point.

The second point is the history, and may I simply say this about history. One can pore through State workers’ compensation cases since 1912, since the first Commonwealth Act, and one does not find cases against the Commonwealth or its instrumentalities. One had an attempt in Russo in New South Wales in the seventies which failed. One has a single report of a decision in 1995 in New South Wales in the Compensation Court, a case called Cramp which is referred to. Apart from those and apart from this case ‑ ‑ ‑

McHUGH J: Is that the decision of Commissioner Neilson?

MR BENNETT: I am not certain, your Honour.

KIRBY J: What is the name of that case and the citation?

MR BENNETT: It is Cramp ‑ ‑ ‑

KIRBY J: You can give it to us later.

MR BENNETT: I will have it in a moment, your Honour. I am sorry, I thought my material was here. We are going to have to get microphones at the ends of the table in this Court. The disruption of moving makes it very, very difficult.

McHUGH J: It is in 12 NSW CCR.

MR BENNETT: Yes, it is, your Honour, at page 312, a decision of Judge Neilson. I do not propose to address that in detail. The point I simply make is that until then one just does not find cases in the reports.

KIRBY J: That does not necessarily – that could just be the mind‑set of the legal profession. Somebody discovers something new and ‑ ‑ ‑

MR BENNETT: It is one of nine matters under the second head I am going to put to your Honours. It is the first one.

McHUGH J: In Cramp the judge relied on section 64 of the Judiciary Act.

MR BENNETT: Yes, he did, your Honour. The second matter is that the State schemes did not purport to cover the Commonwealth, at least prior to three of the States enacting new Acts in 1987, 1988 and 1986.

KIRBY J: But the New South Wales Act did, as I remember in Peters, say that it would extend against the Crown in any other right to which it could competently apply.

MR BENNETT: That section, your Honour, appeared in the South Australian Act of 1986 and the Western Australian Act of 1988 and the New South Wales Act of 1987. The Queensland Act expressly excludes the Commonwealth. The Tasmanian and Victorian Acts, by implication, exclude the Commonwealth. So that is the interstate position. In Russo where the New South Wales Court of Appeal said that the State scheme did not, on true construction, bind the Commonwealth, that was the earlier Act, the phrase used was, “It is difficult to imagine that the State Acts were intended to bind the Commonwealth.”

The third matter is, and I had thought my learned friend Mr Robertson was going to deal with this so I have not brought them, but I will arrange for your Honours, later in the day, to have given to you the second reading speeches of the earlier Commonwealth Acts, which say that one of their purposes is to ensure a better benefit for Commonwealth workers than they might otherwise get.

GAUDRON J: Why do we need second reading speeches?

MR BENNETT: I am sorry, your Honour?

GUMMOW J: Of extinct Acts.

GAUDRON J: Yes, why would we need that?

KIRBY J: Sometimes they make interesting reading when you are bored with everything else.

MR BENNETT: Your Honour, I simply refer to them. I do not make a major point of them. The fifth matter is that, throughout this history, throughout this period in which the Commonwealth has not, as a matter of practice been thought to be bound by the State Acts. There have been equivalents of section 118 in the Commonwealth Acts. The various textbooks, we have referred to these, CCH and so on, have all made that assumption. And one has to apply a Bropho‑type principle in looking at this, because in looking at the Commonwealth’s intention, it is significant that at the time of the various legislation, both State and federal, there was a different view of the State/Commonwealth power. Cigamatic was regarded as the law ‑ ‑ ‑

GUMMOW J: Telstra is not the Commonwealth, neither is Mr Walker’s client. These are corporations.

MR BENNETT: No, your Honour.

KIRBY J: The Postmaster General was.

MR BENNETT: That is a different aspect of the argument, your Honour. I am dealing, at the moment, with the Commonwealth not being bound. But Telstra is a ‑ ‑ ‑

GUMMOW J: I am not talking about the Commonwealth being bound…..

MR BENNETT: Well, we certainly are, your Honour, in relation to the earlier injuries in this case.

GUMMOW J: Exactly.

MR BENNETT: And the decision from which ‑ ‑ ‑

GUMMOW J: Hence the unattraction of archaeology…..

MR BENNETT: And, your Honour, the decision of the Court of Appeal makes it clear that it takes the view the Commonwealth is bound. That is the ratio of the decision. I simply remind your Honours of the Bropho point that where one looks at legislation which was passed in the light of review of the law, one reads it in that way.

Finally, there is a range of other Commonwealth Acts which are passed around the time of the Safety, Rehabilitation and Compensation Act ‑ and we have a list of them which I will have given to your Honours’ associates, a list of a sample of them - which contain a standard provision saying, “It is intended that State Acts should be able to continue to exist alongside this Act so far as is possible”. So, in a sense, when the Commonwealth wants to say that, it is able to say it. The implication one gets here is not that the Commonwealth has not said this overrides the State Act but, rather, the Commonwealth has not said this does not override the State Act.

Now, the third area concerns the reference to inconsistencies, and may I simply say this. Payment to injured workers is an important part of the scheme but it is not the whole of the scheme. Section 118 does not solve the whole of the problem. If one gets more for an injured knee under one scheme and more for an injured elbow under the other, presumably, if both apply, a worker will move under the one scheme if he injures his knee and the other scheme if he injures his or her elbow. Now, how does that fit with premiums? There is nothing in section 118 about premiums. If one has a Commonwealth body which is not a self-insurer and whose employees are covered under the Safety, Rehabilitation and Compensation Act, which pays money to Comcare in relation to those employees, that body, if this judgment is right, would have to pay two lots of premiums for one lot of compensation because it is only ‑ ‑ ‑

KIRBY J: Did I not see in Mr Leslie’s submissions that he objected to this, that this is factual material that if it was relevant ought to have been raised at the trial?

MR BENNETT: This is not factual material, your Honour, this is ‑ ‑ ‑

KIRBY J: You say this merely arises from an analysis of the insurance provisions of the State Act?

MR BENNETT: Yes, I am not introducing factual material, your Honour. But where one has a Commonwealth entity which is not a self-insurer, it would have to pay two lots of premiums or in fact, if its employees travel around the Commonwealth from time to time, nine lots of premiums. There may be a different question in the Territories because it would depend there on repugnancy rather than inconsistency. But it would have, in relation to those of its employees who are stationed in the States, to pay two lots of compensation, and the problem is that it is not as if it gets two returns because an injury is only covered by one. The worker, if section 118 has the meaning given to it by the Court of Appeal, may claim under either set of legislation and will claim the higher. How does one adjust the premiums to take into account that?

KIRBY J: Presumably the argument is that that is just too bad. If you are covered by the State Act, well, you just have to pay the premium and you can negotiate for the very low risk that is involved to your employees.

MR BENNETT: Well, your Honour, the problem with that is the level of risk depends not on the extent of the employees in the State so much as on the extent to which in particular areas from time to time the one scheme or the other may be more attractive. It would create totally anomalous consequences in relation to premium. A good example would be this Court which has Registrars in the various States and sends associates and tipstaves into various States. I do not say that in terrorem, but it is a very good example of the way in which the scheme simply cannot operate sensibly merely with section 118.

Another aspect is rehabilitation. This Act, the SRC Act is concerned heavily with rehabilitation. It has provisions which specifically say that if the worker co-operate with rehabilitation aspects the compensation is cut off. No doubt that provision and provisions dealing with the level of compensation are part of a general overall scheme in which the available sums are applied perhaps more to rehabilitation than under a State scheme. Now, how does one read those together? Does one say, “Well, that is all right, the employer pays the larger amount to deal with rehabilitation schemes under the Commonwealth legislation but the workers can get their larger payments or the payments at all, notwithstanding ignoring that, if they go under the State scheme”. Section 118 says nothing about that.

In our respectful submission, the various matters we have put in our submissions and are referred to by the Court of Appeal are extremely serious and extremely substantial conflicts where there is a clear intention, we would submit, to cover the field, and the only question then is the question raised by the Court of Appeal whether section 118 is enough to overcome that. That brings me to the fourth area which is what section ‑ ‑ ‑

GAUDRON J: It is not really a question of both Acts being able to exist side by side which is the normal test of consistency, if you like, it is a question of whether you can find something in this legislation which gives the employee the right to elect as between the two.

MR BENNETT: Yes. Well, your Honour, that is why I started with your Honour’s question because the test for whether section 118 can prevent a direct inconsistency arising is a much higher test than whether if one gets to cover the field area, the Commonwealth intention, one sees whether it manifests a general intention, and we do stress that it is sufficient here for me to say, “Look, section 118 does not say where there are two amounts of compensation the worker has an election and can pick the higher and if he does he does not get the other” or, “does not get the Commonwealth one if he picks the State on”. All section 118 says is, “You are disqualified once you make a claim for a foreign or State workers’ compensation.

Now, the true purpose of section 118 we have put in our submissions and we have given examples. There is the successive employer example – I am sorry there is the two employers where the injury occurs partly under one employer and partly under the Commonwealth; there is the example of the successive injuries where a Commonwealth employer is privatised or de-privatised and has a different status at different times, rather like this case in some ways; there is the case where the person has dual employment, as a matter of fact, for example, a seconded employee or a part-time employee like a cleaner who has two cleaning jobs.

KIRBY J: I do not quite understand your point about the successive employer because, as I understand it, your theory of the legislation is the employee just has to go off to the State Compensation Court for State compensation and if it is in respect of a federal injury, has to go to the federal system and never the twain shall meet. How do you reconcile? Say you have a back case with aetiology that mixes the two up and medicine does not bend easily to legal categories, well, how do you then resolve that?

MR BENNETT: Well, your Honour, if one has an injury which occurs in two stages – as happened in this case, where I think it was three stages – like a back case, once under one employer, once under the other employer, there are provisions in the State legislation for working out how that is done. But what the Commonwealth Act says is if you have a claim in respect of an injury under the State Act, then you do not have a claim under the Commonwealth Act. It may be a harsh disqualification, it may go further than is necessary, but that is what it does. There are other examples ‑ ‑ ‑

KIRBY J: Why do you need a section 118 for that situation?

MR BENNETT: Your Honour, because otherwise the person might be entitled to make a double claim, one under each, and obtain an overlap or obtain more than proper compensation.

KIRBY J: But I understood on your theory he just does not have a claim under the federal Act.

MR BENNETT: No, because of section 118. That is one of the purposes of section 118.

KIRBY J: Why would he have a claim anyway, under the Commonwealth Act?

MR BENNETT: I am assuming that one of his employments is Commonwealth employment and one is not.

KIRBY J: Well, we just have to look at it.

MR BENNETT: And there may be other examples. There may be people who make fraudulent claims, claiming to be employees under State legislation. Certainly there is the overseas claim. There is the case where the person has an overseas workers compensation claim and this makes it mesh with that. But all those can fairly be described as a general purpose of saying, “Look, something may slip through the net. There may be some situation where a person receives compensation for an injury in some other way, and if you do you are excluded from this Act”. That is ‑ ‑ ‑

GLEESON CJ: If there is direct inconsistency, the consequence of that is, is it not, that you can only escape the direct inconsistency by construing section 118 or treating section 118 as implying a general entitlement in workers to opt for alternative benefits.

MR BENNETT: Precisely. That was my first submission, your Honour. That was my first adoption, if one likes, rather than an answer, to Justice Gaudron’s question. And that is why I say it is not merely a matter of saying, “Does section 118 show that the two can be read together?” It is actually much harder than that. One has to show that section 118 is really giving an election to opt so as to avoid the direct inconsistency of the Blakeley‑type where one says pay 12, one says pay 10.

So, your Honours, we would submit that the section certainly has other work to do and it cannot be read as an attempt to merge the two. It does not attempt to provide a general reconciliation of the two schemes, and certainly does not deal with matters like…..rehabilitation, matters of that sort.

Fifthly, in relation to King’s Case, your Honours have a separate submission from us in relation to that.

GAUDRON J: It is a different statute, it is a different Act altogether.

MR BENNETT: Yes.

KIRBY J: I do not remember seeing it.

MR BENNETT: No, your Honour, it was not, it is my mistake. Yes, we prepared a separate submission in this case. I had thought it had been filed. Your Honour, the point about King’s Case is very simple. First, that is dealing with a general scheme. It is not a scheme just for Commonwealth employees. It is a general scheme in relation to seamen and the Court found that the Seamen’s Compensation Act was not a complete Code and one can see that very clearly. It is not a very scientific way of demonstrating it but if one compares the sizes of the two Acts, the SRC Act and the Seamen’s Compensation Act, one sees something very different.

The second matter, of course, is that in relation to seamen’s compensation one can well understand a need for the two to operate side by side. A seaman who is based in a port like Newcastle or Wollongong may find that some of the voyages on which he or she goes are interstate and some are intrastate, may not even know until a day before signing on for a particular ship whether it is an interstate or intrastate voyage. There are all sorts of reasons why the two schemes have to be made to operate side by side and one would not say, “Seaman Jones is a Commonwealth seaman or is a State seaman”.

The double payment provision there, of course, dealt with damages. It was a broader provision where section 118 is confined to workers’ compensation, although the early predecessors of section 118 also referred

to damages. We would submit it is just very simply a case that does not set up a Code. The second reading speech - and I hesitate to refer to it again, but the second reading speech on the introduction of the first Seamen’s Compensation Bill confirms that the Commonwealth recognised the independent existence of State laws.

The double payment provision in the Seamen’s Compensation Act prevented double recovery against the employer. Double payment provision here prevents double recovery in respect of an injury so section 118 is preventing double recovery which may be against different employers. The seamen’s compensation provision was merely concerned with double recovery against an employer. So we would submit there were a range of reasons why Union Steamship v King is really quite distinguishable from the facts of this case.

KIRBY J: Is the Seamen’s Compensation Act still in force?

MR BENNETT: It has a new title but it is – it has a title involving the word “Seafarers” rather than the word “Seamen” which is, no doubt, thought more appropriate. But it is a much more extensive piece of legislation today and there may be different considerations.

KIRBY J: Is there any amendment to the section 118 equivalent?

MR BENNETT: Yes, it specifically excludes State law. Well, your Honours, I adopt the submissions of the appellant, Telstra, and I, of course, incorporate in my submissions the far more detailed submissions we have put in writing but, in our respectful submission, for the reasons we have given, when one stands back from this case, when one reads section 118, it is just a long, long way from performing the function which the Court of Appeal gave it. May it please the Court.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Walker?

MR WALKER: Your Honours, there are two points we wish to add to that which has already been said and that which is said in our writing ‑ ‑ ‑

GUMMOW J: Neither of them archaeological?

MR WALKER: Neither archaeological. Methodological, we hope. The first is that the meaning of legislation, by which we mean the broad meaning, the effect, character of legislation, is not, of course, for the legislators exclusively to determine and among other matters which, in our submission, bespeak error on the part of Justice Cole in his reasons, is that it would appear he has given to section 118 a meaning which would give to the legislators some dictating or determining effect as to the rest of the Act. That is the first of the errors. The second is that it privileges what might be called implication by logical consequence in isolation - that is, section 52 and section 118, respectively, in isolation - in a manner which, in our submission, flies in the face of orthodox statutory interpretation.

The third thing, which brings the first two together, is that both those errors totally undervalue to the point of ignoring the constitutional dictate in section 109. All we wish to do is to elaborate very slightly those matters. Page 68, of course, is where the error occurs. Page 68: what his Honour says is that each of section 52 and section 118 can be seen, by their language and by what they contemplate, the definition of “award” in paragraph 52(6)(c) in the former case and the reference to the possibility of double compensation in section 118, contemplate as a matter of logic from that language what his Honour describes as the possibility of seeking relief under a State scheme.

That, of course, is to interpret by logical consequence. Neither section 52 nor section 118 attempt that which was regarded as impossible in Metwally, namely, to convert black into white by legislative fiat. Nor do they say in terms that there are entrees to State or Territory schemes preserved by the statute which includes section 52 and section 118. None of that is explicit or express. It comes only by a process of implication, that is interpretation of a statute.

KIRBY J: But often section 109 problems are problems of interpreting the statute.

MR WALKER: They always involve first asking what would the statute mean if one can imagine - and one should be careful about imagining - a setting in which 109 did not operate. But on that first and lowest level of statutory interpretation and as a matter of pure orthodoxy, the difficulty with his Honour’s reasoning, the error located on page 68, is to have proceeded down a track of interpretation by implication as if those sections were not constrained as to the way in which one could read them, including by implication, by that which surrounded them - not only their more immediate context, the parts of the statute in which they appear, but by all the rest of the sections to which your Honours’ attention has been drawn and with which, as my learned friend Mr Robertson has pointed out, there has been no real issue joined, the direct collisions which can be catalogued in great number in this case.

And it is, in our submission, an elementary matter of statutory interpretation that one does not imply where there are express reasons not to. One does not carry an implication by logical consequence into territory which has been covered inconsistently by express provision. And for those reasons, the reading of sections 52 and 118 by Justice Cole is simply wrong because it took implication by logical consequence into territory already covered by express provisions. After all, what he says is that 52 and 118 leave schemes to coexist. They do not say anything about the penal consequences which would flow for not only Telstra but my client, Australian Postal Corporation, for not paying an appropriate premium. They say nothing about premiums and yet, it must be that the implication, the logical consequence of which he speaks, must be that there is recourse to a whole scheme which is funded, of course, by the premiums being sanctioned ultimately by penal consequences.

Now, linguistically, in our submission, quite apart from the error we have already identified, that is a remarkable outcome with respect to two sections, one of which has at its operative level the language of the conditional mood. Section 52(1), “would”. And then section 118, the first word of it is “if”, and, in our submission, those are the clues linguistically to the error committed by taking implication too far.

KIRBY J: Now, you began in the same persona as the Postmaster-General and then at a certain stage you divorced and became something different. Now, is that set out – I cannot see it readily in your written submissions.

MR WALKER: We certainly – we did and we wish to address principally as to the present and future, as your Honours will have gathered from the material we have put on in support of our application to intervene. I should simply draw to your Honours’ attention ‑ ‑ ‑

KIRBY J: Is that in the affidavit of Mr McMahon?

MR WALKER: Yes, it is.

KIRBY J: I see.

MR WALKER: I should simply draw to your attention, without taking your Honours to it, that there are provisions in the Australian Postal Corporation Act 1989 and in particular, sections 90A and 90B which expressly refer to the application of laws of a State and territory in a way which leaves this argument – an extremely important and live argument – with real consequences for us. We do not have any legislative blanket immunity of any kind, we only have immunity against discriminatory provisions.

KIRBY J: Are you a licensed employer under the federal SRC Act?

MR WALKER: Yes, we are. We are a Class 3. Your Honours, the second difficulty, in our submission, which shows error by Mr Justice Cole, relates to the way in which the section 109 inconsistency is then dealt with by his Honour. As we say it is not, for section 118 or for section 52, for the legislature itself to say what is the effect of reading Commonwealth and State laws side by side under the requirements of section 109 of the Constitution. It is not for the legislature to dictate the outcome of that reading.

Just as in Metwally the Parliament was held to lack the power to say that which was constitutionally the case was not the case, so here, if anything, a fortiori, because of the weak read of implication to which I have already referred, it was beyond the power, in our submission, of Parliament to say that which is inconsistent is not in fact inconsistent and, of course, Parliament did no such thing in sections 52 and 118, which returns me to my first point.

In our submission, this case is therefore an illustration in relation to the jurisprudence of section 109 of what might be called one the teleological fallacies in interpreting statutes. To ascribe too much in terms of intention or purpose to individual sections of a statute when the task is to construe the text and to see what the text says in relation to another text, here the competing text of the State legislation. And, the fact remains that Justice Cole’s epithet is entirely appropriate, inconsistencies are gross. One does not need to gloss the Constitution by referring to simultaneous obedience. One does not, in our submission, need to revert to metaphors such as "direct collision”. The inconsistencies, as a matter of legal consequences and text are gross. The consequence of trying to read them together would be, in this case, to convert what were intended to be maximum payments into minimum payments, for example, and that is a good illustration of why, in our submission, one would start and finish with the proposition of that inconsistency detected at that level, and we have given examples in our written submissions of the way in which that should conclude the issue.

Against that background, one then turns back to a reading of sections 118 and 52 if your Honours were against us on our first argument and if your Honours were content to allow the implication to spin off to a logical consequence of the kind that Justice Cole detected. If that were the case, then those words would be saying that that which is in direct collision is nonetheless not an inconsistency within the meaning of section 109 of the Constitution and we return again to the impossibility of ‑ ‑ ‑

GAUDRON J: But ultimately it is not a question of inconsistency in this case, is it? It is a question whether that indicates an intention that a worker can elect.

MR WALKER: No, your Honour.

GAUDRON J: Is it not?

MR WALKER: It is ultimately a case of inconsistency, a word we have to adopt because of section 109.

GAUDRON J: Yes, I ‑ ‑ ‑

GLEESON CJ: But if Parliament had said in this legislation, “Notwithstanding anything that appears elsewhere, any worker may elect to pursue rights to compensation under State law or under federal law”, then there would not be a problem of inconsistency.

MR WALKER: If there were something so direct and explicit and if ‑ ‑ ‑

GLEESON CJ: That seems to be the way section 118 was read or treated.

MR WALKER: It seems to have been the way it was read but, in our submission, only by that departure from orthodoxy and how one construes one section embedded in what can only be described as ancillary parts of an overall legislative scheme. In our submission, it was a triumph, as I say, of the implication from logical consequence over what are explicit indications elsewhere in the legislation.

GLEESON CJ: If you look at the last sentence on page 68, Mr Justice Cole expressed himself in terms of the Commonwealth not seeking to exclude claims, but what he must have really been doing is treating the Commonwealth as permitting claims.

MR WALKER: Yes. The same personifying approach one finds at about lines 21 and 30 where the words “contemplated” and “contemplates” are used as to similar matters. In our submission, what one does not get from 52 and 118 is a contemplation that there will be premiums payable elsewhere, different rehabilitation schemes set up, different penal provisions and that which would have been sufficient or would be sufficient for the Commonwealth to discharge its compensatory obligations to its employees being regarded as insufficient.

McHUGH J: The last sentence on page 68 reflects the central thesis of the respondents’ submissions that in the absence of a Commonwealth indication to the contrary, State law applies to federal employees.

MR WALKER: A proposition with which one could never quarrel. That is why 109 exists. Section 109, if it is to do its constitutional work, needs to operate ex facie. One needs to be able to look at printed texts next to each other and ask: what is the law I must obey; what is the law which governs; which law gives me rights or imposes obligations on the person I might wish to sue? In our submission, in this case the gross inconsistencies which appear, the direct collisions which are multifarious and important – we certainly adopt what the learned Solicitor said in relation to the payment of compensation being an important but not the only part of these schemes. Those matters are matters which, in our submission, could not be converted into consistency by anything other than the plainest of language which would then have required, we would insist, reading plain language elsewhere in the statute in a way other than the ordinary English would reveal.

It is for those reasons that the interpretations of sections 52 and 118 by Justice Cole on page 68, including the rather negative or passive approach in the last sentence about what the Commonwealth has not seemed to have done is wrong.

For all those reasons, in our submission, one then is simply left with a section 109 exercise. We would respectfully suggest that the language of direct collision or simultaneous obedience, or covering the field is not necessary. The Court does not have to have recourse to those approaches. In this case one can simply ask is there an inconsistency, and there would appear to be but for the magical effect which is suggested for 118. It would appear there is common ground that there are inconsistencies.

The next question is whether there is any piecemeal approach required in this case, severability it is sometimes called, raised by the expression “to the extent”, in section 109. That is where as a matter of degree one finds the mounting accumulation, both in number and in gravity, of these inconsistencies in this case are such that one could say, if you wanted to use the metaphor, that the scheme covered the field to the intended exclusion of other so-called schemes.

GUMMOW J: The phrase “to the extent” also, it is to be understood, is connected to use of the word “law”. Is the law a whole statute or part of a statute? Do you see what I mean?

MR WALKER: Yes, and when I used the word “piecemeal” I mean, for example, if this case were decided against Telstra which would bind my client as a matter of precedent, obviously ‑ ‑ ‑

GUMMOW J: What is the law? Is it a statute or a section?

MR WALKER: What would happen, for example, when instead of a case being raised, as this one is, by the provisions about access to a State regime, what happens when my client is prosecuted for failure to pay a State premium? It would be a different tribunal. Question: is it a different law?

It will find its place probably in the same statute, although not necessarily so. We would certainly say, as an overall approach, it finds its place in the same scheme. Of course, they are comprehensive schemes with many different aspects to them: funding, social work, namely rehabilitation, compensation, namely the money and, of course, all the regulatory and administrative record keeping requirements.

Now, in our submission, “to the extent” in section 109 means that there is left open the question whether there are not, as it were, even more direct collisions than the one raised by Mr Worthing in this case. In our submission, the proper approach to all of those difficulties and the opportunity this Court has to resolve those difficulties in this case is to characterise what are self-evidently schemes as self-evidently schemes which are different in a way and to an extent which is inconsistency within section 109 and one need not ask about covering the field. One simply says the Commonwealth law in this case, the SRC Act, prevails over by rendering invalid to the extent of that difference, the relevant State law. And that will mean, in answer to your Honour Justice Gummow, that will carry away, as a matter of that law, all of the statutory provisions to do with the funding, regulation, administration, social work, that is rehabilitation provisions, as well as compensation provisions of the State Act. For those reasons, in our submission, the appeals ought to be upheld.

GLEESON CJ: Thank you, Mr Walker. Yes, Mr Leslie?

MR LESLIE: If the Court pleases. May I first of all correct an earlier mistake that I made? Mr Pearce appears with me for the respondent worker. I submit that section 118 of the Commonwealth legislation offers the worker a clear choice – a harsh choice but a clear choice. He may have Commonwealth benefits or he may take State benefits. If he takes State benefits, he can never again claim Commonwealth benefits. This choice was a choice that had stood for 50 years. By 1950 the provision of the Seamen’s Compensation Act, section 10A, and the provisions of the Commonwealth Employees Compensation Act, section 17A, were, in terms, identical – in material terms, identical. There was some change in the use of the word “employer”. But the essential provisions were identical.

In King’s Case the High Court addressed all of the difficulties and said that, nevertheless, the worker had a clear choice. If he took the State benefit he forsook the Commonwealth benefit. That was his choice. Now, at that time, in 1950, the words must have meant the same thing in the Commonwealth Act. Indeed, the Commonwealth’s sidenote is explicit. It refers to the Commonwealth’s liability to State compensation. Then supervening legislation was passed which was the Commonwealth’s Code – new Code – in 1971. By section 121, it offered the same choice. The successor to section 121 was section 118. It offered the same choice. The Seamen’s legislation did not have a counterpart of the 1971 public service legislation.

The Seamen’s legislation stood until the Seafarers Act was introduced which is an elaborate Code which reflects the current public service Code. The provisions are parallel and, indeed, the corresponding provision to section 118, section 138, clearly contemplated that there should be this right of election. Recently, the Seafarers Act has been amended to exclude totally the application of State workers’ compensation. It has been made abundantly clear in the Seafarers legislation that the State legislation is not to apply.

No such clear intention has been announced in the Commonwealth legislation and it is my submission that this clear right of election, which stood for 50 years, was not set aside by either section 121 or section 118 of the subsequent Commonwealth legislation.

KIRBY J: Is the Seafarers Act as you have been describing it the Seafarers Rehabilitation and Compensation Act 1992.

MR LESLIE: Yes, your Honour.

KIRBY J: Which is the provision in it that now says that the State law does not apply?

MR LESLIE: Section 139A was introduced into the Act, and section 138 was repealed.

KIRBY J: That was by an amending Act of when, of 1992, is it?

McHUGH J: No, the Maritime Personnel Legislation Amendment Act 1997, was it not?

MR LESLIE: Yes, your Honour.

GUMMOW J: Act No 10 of 1997.

MR LESLIE: That evinced a very clear intention to destroy the election. No such clear intention has been announced in either sections 121 or 118. Indeed, sections 121 and 118 would become meaningless if the Code was totally exclusive of State compensation. It is my submission that the right of the worker to elect stands under the Commonwealth Public Service legislation down to the present time, and could only be removed by a very clear statement of that intention. No such statement of intention appears. The written argument developed since ‑ ‑ ‑

GLEESON CJ: Excuse me, what did you mean by the Public Service legislation in that submission?

MR LESLIE: The Safety, Rehabilitation and Compensation Act.

GLEESON CJ: I just wanted to be clear on that, thank you.

MR LESLIE: The written submissions develop in some depth and detail the argument that to set aside such a fundamental pattern which had stood for 50 years would require very clear terms.

KIRBY J: But what do you say about Mr Bennett’s point that if there were such an election for such a long time, one would have expected one or two cases in which claims were made and rejected under the State law in some particular which was more beneficial to employees, and which had been elected, that you would expect a few in the reports, a few cases where the Commonwealth had been sued.

MR LESLIE: The answer to that is, your Honour, that the Commonwealth benefits always appeared to be more generous. And a worker who elected for State compensation was accepting, in theory, benefits.

McHUGH J: Well, was the Commonwealth legislation more beneficial? Was there not a very long period of time under the Commonwealth legislation under which you had to prove both that the injury occurred in and arose out of the course of employment, and that the conjunctive nature of the legislation continued long after it became disjunctive under the State.

MR LESLIE I stand corrected, your Honour. Yes, but, certainly in recent times, the benefits have appeared to be superior. That might well account for ‑ ‑ ‑

KIRBY J: Just legal indolence that no lawyer ever advised somebody to take a case that you would be better off here with your heart attack under the State Act which was changed in 1940 to make it disjunctive, rather than under the federal Act which remained resolutely conjunctive well into the 70s, as I remember it.

MR LESLIE Yes.

KIRBY J: Well, that seems unlikely, Mr Leslie.

MR LESLIE Well, nevertheless, your Honour, there is, I would submit, a long history of a clear choice of election and to set that aside without plain words required clear words.

GAUDRON J: There is a difference, however, between the legislation here in question and that considered in Union Steamship v King, is there not?

MR LESLIE There is a dramatic difference because King is looking at the Seamen’s Act section 10A whereas by the time King’s Case had come along the 71 legislation had been introduced, but my point is that the old Commonwealth Employees’ Compensation Act section 17A was in identical terms for all practical purposes with the legislation in King’s Case. I am not suggesting that anything that happened afterwards was similar to the legislation in King’s Case. Not at all, except in so far as it offered an election. But the similarity in words that I am insisting upon appear in section 10A of the Seamen’s Act and section 17A of the old Commonwealth Employees’ Compensation Act.

McHUGH J: But did they not operate in a completely different context? The Seamen’s Act did not merely apply to Commonwealth employees. It operated generally. It applied as any shipping line, any employer.

GAUDRON J: Providing it was in overseas or interstate trade.

McHUGH J: Yes.

GAUDRON J: Or in the territorial waters of a territory. It did not apply generally so that it did not apply to intrastate voyages.

MR LESLIE Yes. Even so, in the 1950s the Commonwealth employees legislation quite plainly offered a choice by section 17A, explicitly. That is made clear by the sidenote; the Commonwealth’s liability for State compensation. That was changed on the argument of the appellants by the introduction of the legislation in 1971 and followed through into 1988. That change, I submit, was a dramatic change that ought to have been indicated in very clear terms.

GUMMOW J: The fact that it ought to have been – need it have been? That is the real question.

MR LESLIE: In my submission, yes, your Honour.

GUMMOW J: Why?

MR LESLIE: Because one of the fundamentals is the requirement of legal certainty, and for a long time it had been made clear to workers that they had a choice. Here in sections 121 and 118 it is said their choice was taken from them. Legal certainty required that that removal of choice ‑ ‑ ‑

GUMMOW J: That is not what was said. What was said in the Court of Appeal was that by reference to a number of very specific provisions there was identified what was called gross inconsistencies. That is what was decided in the Court of Appeal.

MR LESLIE: Yes, your Honour. There were collisions, there were inconsistencies, but nevertheless a choice was offered.

GUMMOW J: Well, that is the question.

MR LESLIE: Yes, but, despite the inconsistency, the implication ought to have been that there was an election.

KIRBY J: You say the inconsistency was resolved by offering a worker an election as to which regime he or she would fit within?

MR LESLIE: Yes, I am sorry, your Honour.

KIRBY J: And therefore there was no inconsistency because you then had the opportunity to elect either.

MR LESLIE: Sections 118 and 121 removed the inconsistency entirely by taking the benefits back from the worker once he took the State benefit.

GAUDRON J: Where do I find section 17A in all this material?

MR LESLIE: It is in the joint materials in volume 3 at page 65 in the right‑hand column: section 17A.

GAUDRON J: How does that relate to 10A?

MR LESLIE: The words are the same.

GAUDRON J: Section 10A considered in King’s Case?

MR LESLIE: Yes, with a slight difference, a change from the employer to the Commonwealth.

GAUDRON J: That is right, yes.

MR LESLIE: But 17A(1) makes it quite clear that the Commonwealth employee has a right against the Commonwealth to State compensation.

GLEESON CJ: Where is the sidenote to which you have referred?

MR LESLIE: In very, very fine print, your Honour.

GLEESON CJ: It is different from the language that you read.

MR LESLIE: “Liability of Commonwealth”- - -

GLEESON CJ: “independently of this Act”. I thought you said it read, “Liability of Commonwealth to State compensation”.

MR LESLIE: Perhaps I am mistaken, your Honour. No, your Honour, “Liability of Commonwealth independently of this Act”, but it is talking about the liability of the Commonwealth.

GAUDRON J: Yes, which could arise under the common law.

McHUGH J: Indeed, that is what it is basically directed to, if not exclusively directed. There was a similar provision in the New South Wales workers’ compensation legislation.

GAUDRON J: In Union Steamship Co, you also had section 5(2)(e) which specifically allowed that there might be a claim for compensation:

under any law of the United Kingdom or of any other part of the King’s Dominions or of any foreign country.

MR LESLIE: Yes, but it is clear from King’s Case that that was ‑ ‑ ‑

GAUDRON J: Well, have we the equivalent of 5(2)(e)?

MR LESLIE: No, your Honour, but that was not a material factor in King’s Case.

GAUDRON J: I am not so sure about this. “In both ss 5” – I am reading at page 15, the joint judgment:

In both ss 5(2)(e) and 10A the word “compensation” –

et cetera. It seems to me that it was the conjunction of both that was critical in King’s Case.

GLEESON CJ: Mr Leslie, if an employee of the Commonwealth were injured in a motor accident in New Zealand, as I understand, that person’s entitlements in New Zealand, they would be to receive weekly or monthly benefits of some kind. A provision like section 118 would operate on that, would it not?

MR LESLIE: Yes, your Honour, and, indeed – I am sorry, no, your Honour, section 119 operates on such benefits provided they are taken up pursuant to the provisions of section 119.

KIRBY J: The difficulty I have in construing section 118 as an election provision as distinct from a disqualification provision, is that Compensation Acts quite often, especially in the long history of compensation law, contained election provisions, and they were generally in some detail and required all sorts of protections. If this is an election which you say has lasted for 60 years, you would have expected them to take that form rather than this, for example, getting a certificate from a solicitor. There are all sorts of provisions in the old Compensation Act.

MR LESLIE: Maybe so, your Honour, but it would be my submission that, nevertheless, the election stood. However, your Honour ‑ ‑ ‑

KIRBY J: There is nothing like that in this provision. It simply is a consequence of disqualification for double payments. It is not saying, “Here is a very important right that puts you into one or other regime. They each have advantages; you have to elect”. There is no notice provision, there is no advice provision, it just does not look like an election provision.

MR LESLIE: That did not seem to trouble the High Court in King’s Case, your Honour.

GAUDRON J: But you are in an Act which was not of general application and which was designed to provide compensation to people who were travelling to foreign ports and travelling interstate, but not just travelling in intrastate. You might have claims under the laws of those countries, and perhaps of the States, because they were not employed by the Commonwealth. It was a difference. They might have been employed by any old shipping company and the injury might occur anywhere in the world.

MR LESLIE: But then the extraordinary consequence follows that the same words ‑ ‑ ‑

GAUDRON J: But they are not the same words.

MR LESLIE: ‑ ‑ ‑had opposite effect.

GAUDRON J: They are not the same words because you do not have the conjunction of section 5(2)(e) and you do not have the words “by the Commonwealth”. And you have a different context.

MR LESLIE: Yes, a different context, agreed, but nevertheless an extraordinary result. I do not wish to weary the Court by repeating my submission ‑ ‑ ‑

GLEESON CJ: Thank you, Mr Leslie.

MR LESLIE: ‑ ‑ ‑but I do insist that what has been set aside is 50 years of elective rights, without a clear statement of intention to that effect.

GLEESON CJ: Thank you, Mr Leslie. Yes, Mr Solicitor.

MR SEXTON: If the Court pleases. Your Honours, our submissions are made in support of the decision of the Court of Appeal below. Can I come first to the question of ‑ ‑ ‑

GUMMOW J: Well, do you agree with the Court of Appeal’s decision in so far as it found gross inconsistencies?

MR SEXTON: Your Honour, we agree with the final conclusion which found that there was not an inconsistency between the two sets of legislation. I appreciate what your Honour says that on the face of it, leaving aside section 118, for example, that there is a rather elaborate Code on both sides, and that was the basis of the Court of Appeal’s initial findings to that effect.

GUMMOW J: If there is a direct inconsistency, how does section 118 get into it?

MR SEXTON: Can I come first, your Honours, to that question of direct inconsistency because we say that it is not such a case here, and then I will move to the question of covering the field.

GUMMOW J: You disagree with the Court of Appeal about that part do you, about gross inconsistencies?

MR SEXTON: Well, your Honour, the Court of Appeal did not find that there was a direct inconsistency in the sense of section 109 of the Constitution.

GUMMOW J: I thought they did.

MR SEXTON: Well, your Honour, that was not a finding that they made in terms, obviously.

GUMMOW J: How do you describe in terms of 109 law, or the body of authority on 109 of the Constitution – how do you describe the reasoning by which the Court of Appeal reached its conclusion in terms of that body of authority?

MR SEXTON: In fact, your Honour, the problem ‑ ‑ ‑

GUMMOW J: You say you support them? I want to know what you say they said.

MR SEXTON: I said I supported the decision, I think, your Honour, but ‑ ‑ ‑

GUMMOW J: Well, that will not help you at all.

MR SEXTON: No. In many ways the Court of Appeal approached it as a question of whether it was covering the field or not, and that was perhaps the basis underlying their decision. It was not really approached as a matter of direct inconsistency in the Court of Appeal, in our submission. But I propose to address that matter because several of your Honours had raised that this morning.

We would say that it does not - that the State legislation does not alter or impair any right or liability that has been created by the federal legislation which was, I think, the way it was initially put by Justice Gaudron this morning. We say the State Act creates a separate and an alternative right. It would be an accumulative right, except for section 118, but we say it is separate and alternative.

GLEESON CJ: It may be that the problem becomes a little sharper when you focus, not on the rights of the worker, but on the obligations of the employer.

MR SEXTON: Yes.

GLEESON CJ: How much a week do you have to pay an injured worker?

MR SEXTON: Under the two?

GLEESON CJ: Well, no. If you are Telstra and a worker in your employment is injured, how much do you have to pay him or her?

MR SEXTON: As a figure, your Honour?

GLEESON CJ: Yes.

MR SEXTON: I do not know the answer to that, your Honour.

GLEESON CJ: Well, it is a different amount depending on which legislation applies.

MR SEXTON: Yes, I appreciate that is so, your Honour. But we say that that does not involve ‑ ‑ ‑

KIRBY J: Does that not make it very unlikely that section 118 is an election, given that an employer is entitled to know exactly where it stands, what regime, what system it is operating within, because the benefits from day one are different.

MR SEXTON: Well, there are differences, presumably, in a number of respects, your Honour. Whether they all ‑ ‑ ‑

KIRBY J: They are gross according to Justice Cole.

GLEESON CJ: Well what provision do you make in your accounts for a future liability? What do you tell your auditor?

MR SEXTON: Well, your Honour, it is possible to make some sort of assessment of liability. Whether in fact all of the differences go in one direction, to some extent, depends the answer to that question because that would then determine whether or not the liabilities would be overall greater or not. But, even so, the estimation of that for an auditor is a rather difficult and special exercise, in any event, in this area, one might think.

KIRBY J: No, but Telstra is a huge corporation and there is a paymaster and the paymaster has to know exactly what they have to do. They have to have a regime. It is all done by computers. They have to say, “Is this going to be in the State Act or the federal Act?”, and the beauty of what was apparently assumed to be the law of the two regimes, was that you knew where you stood. Under your theory of the Act, without any explicit election, you are in a halfway world. You are in limbo. You just do not know.

MR SEXTON: But, your Honour, under either legislation the estimation of a future liability is going to present something of that problem.

KIRBY J: I am not so worried about it though; I think that is a practical concern. I am worried about the paymaster. There is somebody who is injured and they want their money and they are entitled to know which regime they fit within.

MR SEXTON: What we say, your Honour, is that they will make that election.

KIRBY J: But you would think an election would be a real knowing, informed decision, whereas this scheme has nothing of that and the paymaster does not know of any election. He just pays.

MR SEXTON: If the election is made by the worker, presumably he or she receives advice in relation to the ‑ ‑ ‑

KIRBY J: So, it is an ignorant, silent election with no knowledge of the rights that are being surrendered and the entitlements that are being gained. It just happens as a course and that is an election. That seems bizarre.

MR SEXTON: No, your Honour, the election is made on the basis of advice that – a comparison of the two schemes in relation to that particular injury.

KIRBY J: So, thousands of employees over the whole history back in the Postmaster‑General’s days, right up to the present, are making these silent elections knowing and weighing carefully their differential rights. I mean, it is unrealistic. It is totally unrealistic. If you had that scheme you would have quite detailed provisions and you would have provisions for administration, for premiums and for all the other considerations that would then be engaged. Whether you have a rehabilitation scheme under the federal Act or not, that would all have to be explained to workers. They would have to know.

MR SEXTON: Well, your Honour, as federal employees they do, of course, have the rights under the federal legislation. The only question is: can they also, if they wish and if they are so advised, exercise the rights under the State legislation?

McHUGH J: Does this right also include the right notwithstanding section 44 of the Commonwealth Act to bring an action for modified common law damages under the Workers Compensation Act of New South Wales 1987 or is there inconsistency?

MR SEXTON: There is there in that case, your Honour.

McHUGH J: Yes.

MR SEXTON: Because of section 45, I think. Section 45 claims back, as it were, some of the rights that are taken away under section 44, but essentially, as your Honour says, section 44 is designed to deal with that common law liability. We do not make that submission, your Honour. So, your Honours, on that question of direct inconsistency, we would say it is not such a case here and that there is nothing in either Metwally or Viskauskas which is inconsistent with that submission that we make.

Now, your Honours, in relation to the broader question of covering the field, which really turns on section 118 as the heart of that matter, we would say that that provides the election and the choice, that the terms of section 118 are such that one would not read it as taking away that option but on its face it appears to give the option.

We appreciate what has been put from the other side in relation to the work that is done by section 118. If one analyses the submissions that are made by the two appellants, in our submission, they deal with a rather limited type of situation.

HAYNE J: Well, what are the words in 118 that give this right to elect?

MR SEXTON: Well, your Honour, it begins by saying:

If (a) an employee recovers State workers’ compensation in respect of any injury –

which in our submission would lead initially to the proposition that that right is available.

HAYNE J: So, it is a right that is assumed by 118 rather than a right that is given by 118?

MR SEXTON: Your Honour, section 118 does not either way spell out - in terms of either side in this case it does not spell out expressly the granting or the taking away of the right, as your Honour says, but ‑ ‑ ‑

GUMMOW J: What is the relationship between 117 and 119 and 118?

MR SEXTON: Well, your Honour, in relation to 119 ‑ ‑ ‑

GUMMOW J: That requires a specification under subsection (7), does it not, by the Minister?

MR SEXTON: Section 119, your Honour, appears to deal with compensation other than workers compensation under State legislation. I suppose victims’ compensation might be an example.

HAYNE J: Or is it transport accident type compensation? Motor car compensation schemes that are intended to be caught. Do we know what laws have been specified under 119?

MR SEXTON: No, your Honour. I do not know if my learned friends for the Commonwealth – it does include victims’ compensation. I am indebted to my learned friend, “compensation to relatives, crimes, damage by aircraft, civil aviation vicarious liability”.

GUMMOW J: Is there a statutory ruling?

MR SEXTON: Yes, your Honour, it is the Gazette of 30 November 1988, a ministerial notice dated 28 November 1988 and the Transport Compensation Act as Justice Hayne suggested.

Your Honours, we rely upon the proposition that section 118 acknowledges the option for an employee in relation to the State or the federal scheme and that it would be reading down section 118 to say that that right is not available – that that option is not available to an employee in the way in which it is put by the two appellants in these proceedings.

KIRBY J: Would you not also expect, in the light of the decision in Russo that held the State Act did not apply to the Commonwealth, if that was going to be changed, that situation, the election provision and the facility for that change would have been made clearer?

MR SEXTON: Well, that may be so, your Honour. Russo was really, in a sense, as a matter of construction that that particular Act which has, of course, now been superseded in New South Wales ‑ ‑ ‑

KIRBY J: But it did, as it were, continue what has, apparently, by the lack of case law and the lack of claims, the fact that everybody assumed there were two different regimes for 60 years, it did reinforce that assumption. You would have then expected, if that is all going to be changed, that the federal Act - first of all, that there would have been intergovernmental arrangements, to some extent, for premiums and things of that kind, but you would have expected the federal Act to be a bit more explicit.

MR SEXTON: Well, your Honour, there is an assumption as to what the practice was. Whether it is safe to make that on the lack of reported cases ‑ ‑ ‑

KIRBY J: It seems safe enough, given the lack of any litigation, no cases in ‑ ‑ ‑

MR SEXTON: We do not know if there was an absence of litigation, your Honour, an absence of reported cases.

KIRBY J: You would have thought there would be one or two, especially as Justice McHugh pointed out, because of the conjunctive/disjunctive provision.

MR SEXTON: Well, your Honour, that assumption may have been made as a matter of practice but, in our submission, it does not determine the question. I understand that your Honour makes the point about Russo ‑ ‑ ‑

KIRBY J: It seems curious the Court of Appeal did not refer to its own earlier authority in Russo especially, as I understand, it was cited and relied on.

MR SEXTON: Yes. Perhaps that was because it was only looking at the 1987 Act, your Honour, because it does not seem to have done so.

McHUGH J: Do you not have to throw the weight of your argument about an election, not on section 118, but on sections 53 and 54? That is to say that section 53 says:

This Act does not apply in relation to an injury to an employee unless notice in writing…..is given –

and 54:

Compensation is not payable…..unless a claim for compensation is made –

So, do you not have to say, “Well, those two sections show that this Act says nothing about liability for workers’ compensation unless the worker elects to give notice under 53 or to make a claim under 54, and that 118 merely reinforces that”?

MR SEXTON: Well, your Honour, it is part of what we would say is a preservation of the dual system. Now ‑ ‑ ‑

KIRBY J: That is a rather weak argument, is it not, because if you are going to have notices and you are going to have provisions of that kind, you would have expected the election provisions to have had slightly more formality than we find however much we dig in section 118.

MR SEXTON: Well, it is the totality of the legislation ‑ ‑ ‑

KIRBY J: But it is in there?

MR SEXTON: But it is section 118 that we ‑ ‑ ‑

GUMMOW J: No, what Justice Kirby is putting to you, I think, is that you expect it to be in Part V.

GAUDRON J: Or perhaps Part IV.

GUMMOW J: To run with a procedure that is set up with 53 and 54, and then you give the notice, and in the notice you would elect and so on.

MR SEXTON: Well, your Honour, one of the problems is to say what section 118 is doing in the legislation, wherever it is positioned, and the layout of the legislation is not always easy to divine but, in our submission, that one would not in effect read that section down in the way that is contended for by the appellants in these proceedings.

GUMMOW J: Why would it not be 44A in Part IV, it is just as good?

GAUDRON J: There really may be several parts, but if you look – I am looking, for example, here at 39(1):

Where:
(a) an employee suffers an injury resulting in an impairment…..
the relevant authority is liable to pay compensation of such amount as is reasonable –

et cetera. Well, then we would say we would have expected all those provisions to say, unless the employee elects to proceed under some other scheme and you get it again in 14:

(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee –

and ‑ ‑ ‑

McHUGH J: That was what I was putting to you in your favour ‑ ‑ ‑

MR SEXTON: Yes, I realised your Honour was doing that.

McHUGH J: ‑ ‑ ‑that 53, and notwithstanding those substitutive provisions, 53 says this Act does not apply in relation to injury unless a claim was made.

MR SEXTON: And we would say it is a ‑ ‑ ‑

McHUGH J: I think that is about the highest you can put it.

MR SEXTON: And in relation to what Justice Gaudron said, we would say that, of course, in that situation the liability is there, of course, in Comcare. But unless someone has exercised their right under, for example, the State scheme, which is where section 118 prevents the double recovery.

KIRBY J: There is an uninsured liability scheme, is there not, under the State Act?

MR SEXTON: There is, I think, yes.

KIRBY J: Would Telstra be insured for the purpose of the State Act? Are you arguing to get a vast, uninsured employer into your State coffers, so that the State coffers can suddenly be found generous and munificent in their - - -

MR SEXTON: If it wanted to, your Honour, I imagine it could be a self‑insurer.

KIRBY J: It could if it wanted to but it is not insured and it is not a self‑insurer, under your Act, then it is uninsured.

McHUGH J: And if, under the old 1926 Act, if somebody was uninsured, did you not have to proceed against the uninsured liability scheme?

MR SEXTON: I think that is right, your Honour, yes.

GUMMOW J: What…..could not the State in expanding its liability out of its coffers to meet that situation?

KIRBY J: It is very generous of the State of New South Wales.

MR SEXTON: The proposition is, your Honours, that it is a State Act that, we would say, should be available to anyone who suffers a work injury, should have that option. They may choose to exercise it, for example, under the federal legislation.

McHUGH J: Well, the point I was putting to you is that the worker would not bring his action against Telstra. He would be bringing it under the State Act against the uninsured liability scheme if it still covers that.

MR SEXTON: But he would be governed by the liability provisions of the State Act, your Honour, that is the ‑ ‑ ‑

KIRBY J: But the point behind Justice McHugh’s point remains, that is to say that then Telstra would be subject, on your theory, to prosecution for being uninsured. You see, there is no intermeshing of the administration of the two Acts.

MR SEXTON: Realistically, your Honour, if it is found that Telstra has that liability then, of course, one imagines they would take steps to comply with the State scheme. There is a number of matters on which your Honours have not been addressed this morning, and I do not propose to do so. One is the question of inconsistency in relation to the Telecommunications Act and those staffing-type provisions. They are dealt with in the written submissions on both sides.

The other is the question of statutory construction which is dealt with in some detail again in the written submissions on both sides. Telstra no longer presses that question but it is still a ground of appeal on the part of the Commonwealth. They have addressed it in their submissions and we have addressed that question as well. It depends on questions involving ‑ ‑ ‑

KIRBY J: Would we come at that if, in fact, the inconsistency argument is made good? You do not have to deal with the other argument, do you?

MR SEXTON: That is so, your Honour. The submissions are quite detailed because they involve several pieces of State and federal legislation over a period of time. I will not go into those. As I say, your Honours have not been addressed on those today but they are dealt with in some detail in the written submissions. We rely on our written submissions on that question and, indeed, on the other questions on which I have addressed your Honours this morning. Unless there are any other matters which I can assist your Honours with ‑ ‑ ‑

GUMMOW J: Do you rely on Union Steamship?

MR SEXTON: We rely on the principle, your Honour, which is that one looks at the legislation to see whether in fact there are two schemes, as it were, preserved and whether the worker is given that option. One can look at differences between the two sets of legislation and the two situations, but we would say, in a sense, the overriding principle of looking at the legislation to determine what it ‑ ‑ ‑

GUMMOW J: You do not need authority for that, surely.

MR SEXTON: No, we do not, your Honour, except that Union Steamship is an example from this area, in a sense, where the Court found that the worker did have those two options preserved. If your Honours please.

GLEESON CJ: Mr Robertson?

MR ROBERTSON: If your Honours please. I make six points in reply. First of all, in answer to my learned friend Mr Leslie’s submissions about the choice having stood for 50 years and the identicality of language in his submission ‑ ‑ ‑

GUMMOW J: Identity, surely. There is no such word as identicality.

MR ROBERTSON: I beg your Honour’s pardon. It is submitted that the language was identical. Our submission is that if one looks at the language of – and he referred, in particular, to section 17A of the 1930 Act - it is quite clearly directed to the Commonwealth’s common law liability and not to anything else, and we handed up in the materials this morning the second reading speech for the 1948 Act that inserted section 17A and if there had been any basis for submitting, up until 1948, that there was some commonality of language between the Seamen’s Compensation Act and the Commonwealth Employees Compensation Act, that stopped in 1948 when section 17A was inserted. The sidenote does not say what my learned friend said it said and, in any event, it is not part of the Act as section 13(3) of the Acts Interpretation Act makes clear.

In terms of the history, and I will not say more than two sentences about it, but if one looks at the 1912 Act, section 4 and section 7 relied on by the respondent, they are directed either to common law damages or to strangers’, by which I mean third parties, liability; similarly, with sections 14, 15, 17 and 17A of the 1930 Act. In terms of section 121 of the 1971 Act, I do no more than draw your Honours’ attention to the definition of “employer” in section 121 which rather singularly defines employer to mean “Commonwealth employer”.

So that when one reads 121(2) and (3) of the 1971 Act “employer” means “Commonwealth employer” and then when in subsection (3) it talks about “other liabilities” it moves into the passive voice and does not talk about the position of the Commonwealth employer under State legislation.

Your Honour the Chief Justice raised the question about what would happen in New Zealand. I am not sure whether it is implicit in your Honour’s question but it would depend on whether the employee was in the course of his or her employment - is in the course of his or her employment section 119, on any view, would not seem to have anything to do with it because it is not a prescribed ‑ ‑ ‑

GLEESON CJ: Not a law of a State or territory.

MR ROBERTSON: It is not a law of a State or territory and it is not in the Gazette notice to which the Solicitor for New South Wales referred.

In relation to Union Steamship Co v King I only want to submit this, your Honours: plainly, that decision had nothing to say directly about the position of the Commonwealth as employer. If it had it would have been necessary for the Court to look, for example, at section 27 of the Australian Coastal Shipping Commission Act which, in turn, said, in part, that the Commonwealth Employees Compensation Act was to apply to some employees of the Coastal Shipping Commission and that the Seafarers Act was to apply to other employees, so, there would have been a different statutory regime or different statutory structure that it would be necessary to refer to.

In terms of the amendment to the section 138, 139A of the Seafarers Act, we would submit no more than that is explained by reference to the decisions of the Compensation Court which has held that there is a dual liability on the part of the Commonwealth operated shipping lines, and that would explain the reason for that amendment. Lastly, your Honours, and for completeness, although your Honours have been told of the 1912 Act, the 1930 Act, the ‑ ‑ ‑

KIRBY J: Could I just ask, should we look at that decision? Is that relevant to the reasoning that lies behind the view of the Compensation Court?

MR ROBERTSON: It is only relevance, your Honour, is this, that that line of cases is relied upon by her Honour Judge Truss, at first instance, in the present matter. But we would say that so far as there has been a bringing over or bringing across of that line of decisions, it is an impermissible bringing over for the reasons that we have otherwise given.

Your Honours have been told of the four main Commonwealth statutes, but for completeness there were three Commonwealth officers Compensation Acts before the 1912 Act. There was one in 1908, one in 1909 and one in 1912. The form they took was to list the individual officers and the sums of money to which they were entitled. So that it referred to a linesman of the Postmaster-General’s Department or the widow of a linesman and then in an ex gratia sort of way - - -

KIRBY J: So, between 1901 and 1908, were they covered by State compensation law?

MR ROBERTSON: No, they would not have been; there would not have been any.

KIRBY J: I cannot believe they were – I mean, there was workers’ compensation law in Australia following Germany in the 1890s, so I cannot believe they were left uncovered.

MR ROBERTSON: In a sense they were not left uncovered. What happened was that if they were to be paid anything by way of compensation before 1912, it was done in the manner that I have just described, that is by listing the employees or their dependants to whom specific sums of money were to be paid, so it was done ‑ ‑ ‑

KIRBY J: You say the first statute was in 1908?

MR ROBERTSON: Yes.

KIRBY J: What happened between 1901 and 1908?

MR ROBERTSON: I do not know what happened in that period. I assume that it was done as a matter of executive payment rather than by legislation. If your Honours please.

GUMMOW J: Now, the effect of what you seek by your notice of appeal is an order from the notice of motion at page 5, is that right? Does that sufficiently deal with this litigation? What is “the matter” referred to in the ‑ ‑ ‑

MR ROBERTSON: That was the application that your Honours see at page 1.

GUMMOW J: Yes, the application for determination of the ‑ ‑ ‑

MR ROBERTSON: And, if your Honours look at page 84 of the appeal book, what we seek, apart from the appeal being allowed, setting aside those parts of the orders of the Court of Appeal, whereby the appeal to that court was dismissed because – I will not bore your Honours with the detail of it but originally it was an application for statutory prohibition and then it turned into an appeal, so obviously we do not wish to set aside the parts of the orders that allowed the appeal to be brought and then, in 4.3(b) we seek that the order numbered 1 of her Honour Judge Truss be set aside and in 4.3(c) we submit that the order that this Court should make is that the application for determination dated 10 September 1996 be struck out.

McHUGH J: The order 1 to which you refer is that that is the order that is set out on page 37 of the appeal book.

MR ROBERTSON: I was looking at page 5, your Honour, but it may be the same on page 37.

McHUGH J: O page 37 is the actual order.

MR ROBERTSON: Yes.

GUMMOW J: Dismissing the motion.

MR ROBERTSON: Yes, your Honour is quite right; that should be set aside, yes.

McHUGH J: Yes.

MR ROBERTSON: Yes, it is page 37, not page 5.

KIRBY J: And a special provision was imposed on the grant of special leave as to costs, were they not?

MR ROBERTSON: Indeed there were, your Honour, and they appear in this Court’s order ‑ ‑ ‑

GUMMOW J: Page 80.

MR ROBERTSON: Page 80, your Honour?

GUMMOW J: Yes.

MR ROBERTSON: Yes that is so. Does your Honour Justice Kirby have that?

On condition that there be no disturbance of the Cost Orders made in the Courts below and that the Applicant pay the First Respondent’s costs of the appeal to this Court in any event –

GLEESON CJ: Thank you Mr Robertson. Mr Solicitor.

MR BENNETT: Your Honours, my learned friend, Mr Leslie, referred to the many years of election which would be terminated by this appeal being allowed. That submission sits ill with the statement by Justice Hope in Russo (1979) 1 NSWLR 330 at 335, and your Honours need not go to it. The statement there is that for a number of reasons and, in particular, because of the existence in 1926 of the Commonwealth Workmen’s Compensation Act, it is difficult to imagine that the New South Wales legislature intended that the word “employer” should include the Commonwealth. That was 1979. So it was difficult to imagine in 1979, that that fills up a very large number of the years in which workers had this happy right of election.

McHUGH J: Well, in Russo’s Case, if it applied to the Commonwealth, it was going to work against the worker because of the point…..to take was to say, “Well, the Commonwealth was not the last employer”.

MR BENNETT: And your Honour was, no doubt, very persuasive in that case, but, your Honour, in my respectful submission, my friend describes it as a harsh election. It is, we would submit, both a harsh election and a surprising election.

The other matter is that the learned Solicitor for New South Wales referred to the argument about construction. That is still part of our argument but it only arises if your Honours are against us on section 109. The argument is that the extended provision about the Act binding the Crown does not pick up the definition section which refers to government employees.

GAUDRON J: Well, why would we be in the least bit concerned about either of those considerations, it being a corporation?

MR BENNETT: That is so, your Honour.

GAUDRON J: And section 64 would not seem to have any application at all.

MR BENNETT: Yes, because it is not the Commonwealth.

GAUDRON J: Because it is not – in terms of the construction of the New South Wales legislation, you are either a corporation or you are not, are you not?

MR BENNETT: Yes. Yes, that is so, your Honour.

GAUDRON J: And they are the only questions that arise.

MR BENNETT: It arises in relation to the first injury at a time when – I think it was then called the Australian Telecommunications Commission. It was an emanation of the Commonwealth and ‑ ‑ ‑

GAUDRON J: But it was still a corporation?

MR BENNETT: It may not have been within the meaning of the New South Wales Act, your Honour, being an emanation of the Commonwealth.

GUMMOW J: Well, you say “emanation” but it was given corporate form, was it not?

MR BENNETT: It was given corporate form, yes. Well, so was the Commonwealth Bank, your Honour, in Inglis’ Case.

GUMMOW J: Indeed, yes.

KIRBY J: In order to see if there is an inconsistency, you first have to see whether there is a clash of provisions and if, in fact, on its true construction, the New South Wales Act never caught Telstra or its predecessors, if you took the view that it is a State Act dealing only with State matters and that where it refers to government employment it is limited to the State, that that is, as it were, its whole provisions in relation to government-type employees and that corporations means other types of corporations then you do not get an inconsistency, the State Act just does not bite.

MR BENNETT: That is so, your Honour. As a matter of strict logic, that is right. There is no reason why this Court cannot say, even assuming in the applicant’s favour that the State Act purports to bind, nevertheless, and therefore we do not need to consider that question. One can deal with it in the reverse order, even though logically that question comes first.

The provision which says that it binds the Crown in all its capacities can be regarded as being confined to provisions like providing information to inspectors, permitting entry of premises, and possibly, if Commonwealth legal aid were revised, to the amounts which could be charged by the Commonwealth in its provision of legal aid. May it please the Court.

GLEESON CJ: We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.

AT 12.53 PM THE MATTER WAS ADJOURNED

[1998] HCATrans 443

Key Legal Topics

Areas of Law

Civil Procedure

Constitutional Law

Statutory Interpretation

Legal Concepts

Abuse of Process

Jurisdiction

Standing

Statutory Construction

Stay of Proceedings