Opinion Number. 1687

Subject

COMPENSATION OF INTERNEES PAYMENT OF COMPENSATION ON ACCOUNT OF INTERNEES KILLED OR INJURED IN THE COURSE OF WORK: APPLICATION TO INTERNEES OF COMMONWEALTH EMPLOYEES COMPENSATION ACT: ‘EMPLOYEES’: PRACTICE IN OTHER COUNTRIES

Key Legislation

COMMONWEALTH EMPLOYEES’ COMPENSATION ACT 1930: NATIONAL SECURITY (INTERNMENT CAMPS) REGULATIONS regs 6(2), 15(1), 18(3): EMPLOYERS AND EMPLOYEES’ ACT 1928 (Vic) Part III

Date
Client
The Secretary, Department of the Army

In reference to your memorandum of 30th June, the first question which calls for consideration is the possible application to internees of the Commonwealth Employee’s Compensation Act 1930.

Sub-regulation (2.) of regulation 6 of the National Security (Internment Camps) Regulations provides that internees may be required to perform any work in connexion with the administration, internal arrangement and maintenance of internment camps. Internees performing work in pursuance of this sub-regulation do not do so by virtue of any contract express or implied, and are not, in my opinion, ‘employees’ within the meaning of the Act referred to. Regulation 18(3.) provides that internees may be employed in the kitchen. I think that this provision should be read in the light of regulation 6 (2.) and that internees may be required to work in the kitchens and, when so required, are not ‘employees’ within the meaning of the Act.

There does not appear to be any express provision for voluntary work by internees, but regulation 15 (1.), which refers to money earned by an internee during his internment, appears to contemplate voluntary paid work. An internee is capable in law of making contracts. If internees are in fact performing, under proper authorization, voluntary work for which they are paid by the Commonwealth, I cannot advise definitely, without knowing the full facts, whether there is a contract of service, expressed or implied, within the meaning of the definition of ‘employee’ in the Act. There can be no contract unless the parties intend to effect a legally binding relationship, or unless one party so intends, and reasonably believes, from the conduct of the other party, that the latter so intends.

Whether there is a contract is a question of fact, and I consider that the special relationship which exists between the military authorities and internees would render it more difficult for an internee to establish a contract of service than it would be for a free person. Even though payment is made for the work, the payment might be regarded as an ex gratia one.

I would suggest that, in view of the doubtful questions which may arise, if it is decided that the Commonwealth should not be liable to pay workmen’s compensation to internees, the matter should be expressly dealt with in the National Security (Internment Camps) Regulations. The same applies to possible liabilities of the Commonwealth under State legislation of the kind contained in Part III. of the Employers and Employees Act 1928 of Victoria, or at common law.

If it is decided as a matter of policy that workmen’s compensation should be payable by the Commonwealth to internees, it would be possible by regulations under the National Security Act to apply, mutatis mutandis, the terms of the Commonwealth Employees Compensation Act 1930 to them. I would point out, however, that the rates of compensation under that Act are in many respects dependent on the rate of pay of the employee, and consideration would need to be given to the question of the proper rates in respect of internees. In deciding the question of policy I would suggest that the following considerations should be taken into account:

  1. The practice in England;
  2. The practice in Germany and Italy;
  3. The analogy of the Prisoners of War Convention;
  4. The fact that, if no compensation is to be payable, internees could, as regards voluntary work, be warned of the position before undertaking the work;
  5. The fact that internees are sometimes detained merely on suspicion, and that they, or their dependants, are not necessarily disloyal;
  6. The fact that it would not be desirable during the war to remit compensation to dependants in enemy, or enemy-occupied, countries;
  7. The practice in state prisons.

[Vol. 34, p. 250]