whether state workmen’s compensation act applies to governor-general’s establishment at admiralty house sydney and to commonwealth shipping board: statutory construction: inconsistency
Workers’ Compensation Act 1926 (NSW): Commonwealth Workmen’s Compensation Act 1912: COMMONWEALTH Shipping Act 1923 ss 12, 20
The Secretary, Prime Minister’s department, has asked for advice as to whether the New South Wales Workmen’s Compensation Act 1926 applies to (1) the Governor-General’s establishment at Admiralty House, Sydney, and (2) the Commonwealth Shipping Board.
(1) The Governor-General’s establishment at Sydney
The facts in regard to the Governor-General’s establishment at Sydney are set out in the following extract from a memorandum from the official Secretary to the
The caretaker and the gardeners at Admiralty House are employed by the Commonwealth Government. The hall porter is employed by the Government of the State of Victoria and the amount of his salary is reimbursed annually by the Commonwealth Government. The guard and a launch crew are provided by the Department of Defence.
The remainder are employed by the Governor-General and are not in any respect subject to Government control or supervision. Many of the household staff were engaged in Great Britain, others in Victoria. It may be found necessary from time to time to obtain the services of persons resident in New South Wales.
It is customary for Their Excellencies to take up residence in Admiralty House, Sydney during March of each year, and for the establishment to remain there until about August.
The term ‘employer’ is defined in the State Act as follows:
‘Employer’ includes any body of persons, corporate or unincorporate, and the legal personal representative of a deceased employer.
Where the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service or apprenticeship, the latter shall, for the purposes of this Act, be deemed to continue to be the employer of the worker whilst he is working for that other person.
Employer also includes any Government department heretofore or hereafter created, or any Minister, trust, commission or board exercising executive or administrative functions on behalf of the Government of the State as for example the Railway Commissioners for New South Wales, the Sydney Harbour Trust, the Metropolitan Water, Sewerage, and Drainage Board, the Water Conservation and Irrigation Commission, the Board of Fire Commissioners of New South Wales, the Metropolitan Meat Industry Board, or the Hunter District Board of Water Supply and Sewerage.
In my opinion, this definition does not include the Commonwealth, and therefore the Act does not apply to the Commonwealth. Moreover, if the Act were so construed as to apply to the Commonwealth, it would be inconsistent with the Commonwealth Workmen’s Compensation Act 1912, and to that extent invalid. (See Amalgamated Society of Engineers v. Adelaide Steamship Company Limited, 28 C.L.R. 129, Clyde Engineering Company v Cowburn, 32 A.L.R. 214).
I am of opinion, therefore, that the New South Wales Act does not apply to the caretaker and gardeners at Admiralty House, nor to the hall porter, the guard and the launch crew.
In my opinion, however, the Act does apply to persons employed by the Governor-General in his private capacity, who are not in any respect subject to Government control or supervision.
(2) The Commonwealth Shipping Board
The Australian Commonwealth Shipping Board was established under the Commonwealth Shipping Act 1923, and the management of the Commonwealth Shipping Line established under that Act is vested in the Board by section 12.
Read by itself, I do not think the State Act applies to the Commonwealth Shipping Board. The express provision in the definition of ‘employer’ that the term includes any board exercising executive or administrative functions on behalf of the Government of the State impliedly excludes boards exercising such functions on behalf of the Commonwealth. Expressio unius est exclusio alterius.
By virtue of section 20 of the Commonwealth Shipping Act, however, the Commonwealth Shipping Board is subject to certain State laws. Section 20 reads as follows:
20. The income, property and operations of the Board shall be subject to the like rates taxes and charges that would be payable under the laws of the Commonwealth or a State if the Board were carrying on business as a trading corporation formed by private individuals.
If the liability to pay compensation to employees and to insure against the payment of such compensation can be regarded as a charge, the Board is subject to the State Act by virtue of this section; but the meaning to be attached to the word ‘charges’ must, to some extent, be limited by the words which precede it, and, in my opinion, the liability under the State Act cannot be regarded as a charge.
I am of opinion, therefore, that the New South Wales Workers’ Compensation Act 1926 does not apply to the Australian Commonwealth Shipping Board.
[Vol. 22, p. 644]