I refer to your memorandum No. 467/47/756, dated 24th June.

(2)  The facts disclosed in your memorandum are as set forth hereunder.

(3)  In the main, members of the Governor-General’s personal staff are engaged and their wages are paid by the Commonwealth. Three members of the personal staff are, however, engaged by the Governor-General, and he pays their wages.

(4)  Advice is asked as to whether the Commonwealth Employees’ Compensation Act 1930–1944 applies to the employees who are engaged and paid by the Commonwealth, and whether the Workmen’s Compensation Ordinance 1946 of the Territory applies to the employees who are engaged and paid by the Governor-General.

(5)  ‘Employee’ for the purposes of the Commonwealth Employees’ Compensation Act includes any person who has entered into or works under a contract of service with the Commonwealth.

(6)  It has been held, in a number of cases, that the question whether a person has entered into or works under a contract of service is a question of fact, to be determined by all the circumstances of the case. The question turns on the distinction between a contract of service and a contract for service. If the contract is one of service, the person is an employee within the meaning of the Act; if the contract is one for service, he is not.

(7)  A full statement of the duties to be performed by the employees who are engaged and paid by the Commonwealth has not been submitted, and any opinion with regard to such employees must, therefore, depend on an assumption as to the nature of their duties.

(8)  A test frequently adopted to determine whether a person employed is an employee, is to ascertain whether or not the principal for whom the service is rendered retains complete control of the conduct of the person engaged during the performance of the duty and has the right to dictate all the incidents (manner, time, etc) of the performance of the duty.

(9)  If the contract is concerned only with the result desired and not with the manner in which the result is to be obtained, the result would ordinarily be a contract for service and the person engaged would not be an employee within the meaning of the Act. An architect engaged to prepare and submit plans for a dwelling house would be engaged under a contract for service and would not be an employee.

(10)  On the other hand, if a person engaged is subject at all relevant times to the direction and control of the principal with regard to the manner in which the duty is to be performed, the contract would be a contract of service and the person engaged would be an employee within the meaning of the Act.

(11)  I assume that the employees under consideration here who are engaged and paid by the Commonwealth are under the control of departmental officers, that they can be directed as to the manner in which they perform their work and that they are controlled, in so far as their hours of duty are concerned. If that be so, on the foregoing reasoning, they are employees within the meaning of the Act and, if they are injured by accident arising out of and in the course of their employment, the Commonwealth is liable to compensate them in accordance with the Frist Schedule to the Act.

(12)  As regards the personal staff who are employed by the Governor-General – a female private secretary and a maid for Her Excellency and a valet for himself – the Workmen’s Compensation Ordinance defines ‘workman’ as including, inter alia, a person who has entered into a contract of service with his employee.

(13)  As a general rule no proceeding, civil or criminal, is maintainable against the sovereign; the Courts being his own, have no jurisdiction over him. The Governor-General is a representative of the Crown and, in my opinion, in relation to the administration of public affairs, he exercises sovereign authority. But when the Governor-General acts in a private capacity, he does not exercise sovereign authority. Though he represents the Crown he has none of the personal legal irresponsibility of the sovereign within the compass of his limited and delegated sovereignty.

(14)  In my opinion, therefore, the Governor-General would be liable to compensate any of the employees privately employed who are under consideration in accordance with the provisions of the Ordinance if they were injured by accident arising out of and in the course of their employment.

[Vol. 37, p. 555]