APPLICATION OF STATE LAW TO COMMONWEALTH COUNCIL FOR SCIENTIFIC AND INDUSTRIAL RESEARCH: WHETHER BOUND BY STATE WORKERS’ COMPENSATION LEGISLATION IN RESPECT OF OFFICERS ENGAGED IN INVESTIGATIONS IN NEW SOUTH WALES: MEANING OF ‘EMPLOYER’: EXPRESS INCLUSION OF SOME GOVERNMENT DEPARTMENTS AND AUTHORITIES: IMPLIED EXCLUSION OF COMMONWEALTH GOVERNMENT DEPARTMENTS: INCONSISTENCY
SCIENCE AND INDUSTRY RESEARCH ACT 1920 s 14A: CONSTITUTION s 109: WORKERS’ COMPENSATION ACT 1926 (NSW)
The Secretary, Council for Scientific and Industrial Research has forwarded the following memorandum for advice:
- Under the provisions of the Science and Industry Research Act, 1920 – 26, this Council has appointed several officers who are now engaged in carrying out investigations in N.S.Wales.
- I shall be glad if you will very kindly inform me whether it is necessary for this Council to comply with the provision of the N.S.Wales State laws regarding the compulsory insurance of its officers resident in that State.
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 Council for Scientific and Industrial Research. The definition expressly includes certain Government Departments and Authorities of the State, and, under the rule expressio unius est exclusio alterius, Commonwealth Government Departments are excluded.
Even if the State Act were construed as applicable to Commonwealth Departments, it could not, in my opinion, be applied to officers employed by the Council for Scientific and Industrial Research, because, as so construed, it would be inconsistent with section 14A of the Commonwealth Act, which provides that such officers shall be subject to such conditions as are prescribed. Under section 109 of the Constitution, the State Act would, to the extent of the inconsistency, be invalid.
I am of opinion, therefore, that the Workers’ Compensation Act 1926 of New South Wales is not applicable to the Council for Scientific and Industrial Research.
[Vol. 23, p. 110]