Attorney-General for the Northern Territory v Chaffey

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Hayne,Crennan JJ,Kirby J.,Callinan J.,Heydon J.
• Judgment Date: 02 August 2007
• Neutral Citation: 2007-0802 HCA A,[2007] HCA 34
• Date: 02 August 2007
• Court: High Court
• Docket Number: Matter No D2/2007

[2007] HCA 34

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ

Matter No D2/2007

Matter No D3/2007

Attorney-General for the Northern Territory

Appellant

and

Cameron Owen Chaffey & Anor

Respondent

Santos Limited

Appellant

and

Cameron Owen Chaffey & Anor

Respondent

Northern Territory (Self-Government) Act 1978 (Cth), ss 5, 6, 50 ..

Work Health Act (NT), Pt 5, ss 49, 52, 53 ..

Work Health Amendment Act 2004 (NT) ..

Attorney-General for the Northern Territory of Australia v Chaffey Santos Ltd v Chaffey

Constitutional law (NT) — Acquisition of property — The respondent was a worker entitled to compensation under the Work Health Act (NT) (‘the WHA’) — The Work Health Amendment Act 2004 (NT) amended s 49 of the WHA so as to exclude employers' superannuation contributions from the definition of a worker's ‘remuneration’ — Whether the amendment to s 49 was an acquisition of property otherwise than on just terms.

Constitutional law (NT) — The legislative power of the Northern Territory does not extend to the making of laws with respect to the acquisition of property otherwise than on just terms — Statutory right to compensation — Whether amendment to the WHA amounted to an acquisition of property — Relevance of statutory right being ‘subject to’ and ‘in accordance with’ the statute as in force from time to time — Relevance of statutory obligation to provide ‘such compensation as is prescribed’ — Inherent variability of statutory entitlements to workers' compensation.

Words and Phrases — ‘acquisition of property’, ‘just terms’, ‘remuneration’.

1 Gleeson CJ, Gummow, Hayne and Crennan JJ These appeals, which were heard together, are brought by the Attorney-General for the Territory and by Santos Limited (‘Santos’). They were the unsuccessful parties to a special case stated for the opinion of the Supreme Court of the Northern Territory pursuant to s 115 of the Work Health Act (NT) (the ‘Work Health Act’) and referred by a Judge thereof (Mildren J) for determination by the Full Court.

Gleeson CJ

The Self-Government Act

2 The starting point for consideration of these appeals is presented by s 5 of the Northern Territory (Self-Government) Act 1978 (Cth) (the ‘Self-Government Act’). This established the Northern Territory of Australia as ‘a body politic under the Crown’ and s 6 conferred upon the Legislative Assembly power to make laws for the peace, order and good government of the Territory. However, the conferral of legislative power by s 6 is expressed therein as being subject to other provisions of the Self-Government Act. In that regard, s 50 states:

‘(1) The power of the Legislative Assembly conferred by section 6 in relation to the making of laws does not extend to the making of laws with respect to the acquisition of property otherwise than on just terms.

(2) Subject to section 70, the acquisition of any property in the Territory which, if the property were in a State, would be an acquisition to which paragraph 51 (xxxi) of the Constitution would apply, shall not be made otherwise than on just terms.’

Section 70 is a special provision dealing with acquisition of interests in land and does not bear upon the present dispute 1.

3 As a general proposition, subject to any applicable constitutional qualification, the power of an Australian legislature to make laws, here conferred upon the Assembly by s 6 of the Self-Government Act, ‘includes the power to unmake them’. Statements to that effect were made in Kartinyeri v Commonwealth2. In the case of the Assembly that power is expressly subjected to the restraint imposed by s 50 of the Self-Government Act. This in turn calls

for the application of the decisions which have construed s 51(xxxi) of the Constitution.

4 Counsel for the Attorney-General for the Territory stressed that in contrast to the position of the Parliament under s 51 of the Constitution, the power of the Assembly is not conferred by reference to enumerated heads of power. This was said to render inapposite in the Territory those authorities 3 which found in other heads of legislative power enumerated in s 51 a contrary indicator to the provision of just terms. However, these appeals may be considered without pursuit of any such distinction between s 51(xxxi) and s 50 of the Self-Government Act.

The Facts

5 Mr Chaffey, the first respondent to each appeal in this Court, was employed by Santos as a maintenance operator working at the Mereenie Gasfield, approximately 200 km west of Alice Springs. His employment commenced on or about 24 March 2003 and at all material times he was a ‘worker’ within the meaning of the Work Health Act. Mr Chaffey's employment with Santos was pursuant to a written contract of employment dated 19 February 2003. At all material times pursuant to the contract Santos made superannuation contributions on his behalf at the rate of 10 percent of salary.

6 On or about 10 September 2003 Mr Chaffey sustained an injury within the meaning of the Work Health Act for which Santos accepted liability. It appears to have been common ground that for the purposes of these appeals the compensation rights of Mr Chaffey under the Work Health Act accrued when he sustained his injury. Reference to the statute in these reasons, save where otherwise indicated, are to the statute as it stood when Mr Chaffey was injured. The facts do not disclose whether, had the relevant common law still been in force in the Territory, Mr Chaffey would have had an action for damages against Santos.

The Work Health Act

7 The Work Health Act repealed the Workmen's Compensation Act 1949 (NT) and commenced on 1 January 1987. Part II thereof (ss 6–15) constitutes the Work Health Authority (‘the Authority’) as the body to administer and enforce the statute. Part V (ss 49–91A) establishes a scheme of workers' compensation. Part VII (ss 117–177) provides for the funding of the scheme, with compulsory insurance to be taken out by employers with an insurer approved by the Authority (s 126), and with provision also for approved self-insurers (s 120) and for the establishment of a Nominal Insurer (s 150) to administer the Nominal Insurer's Fund (s 162). The stated purpose of ss 75–78 is to ensure rehabilitation of injured workers. An assignment of compensation payable under the statute is void and against an employer or an insurer (s 186). A Scheme Monitoring Committee, with a representative of the Authority and the other members appointed by the responsible Minister, is to monitor the viability and performance of the scheme (ss 141, 145).

8 Two provisions of Pt V are of immediate importance. First, s 52 states that the statutory regime operates with effect from 1 January 1987 to the exclusion of certain common law actions for damages which otherwise would have arisen thereafter.

9 Secondly, s 53 provides that ‘ [s]ubject to this Part’, where a worker suffers an injury which results in or materially contributes to the death, impairment or incapacity of that worker, ‘there is payable by [the] employer to the worker or the worker's dependants, in accordance with this Part, such compensation as is prescribed.’ (emphasis added). The term ‘prescribed’ means prescribed by the Work Health Act or by an instrument of a legislative or administrative character made under that statute. This follows from the Interpretation Act (NT), s 18 (‘the Interpretation Act’). Section 187(g) of the Work Health Act confers upon the Administrator of the Territory the power to make regulations ‘prescribing the amount of compensation payable or by reference to which compensation is to be calculated’.

10 Section 65 of the Work Health Act provides that, in certain cases of long term incapacity, compensation is to be paid until attainment of the normal retirement age or the age of 65, whichever is the longer period. A component of the prescribed compensation is calculated by reference to the ‘normal weekly earnings’ of the worker and that expression is defined in s 49(1) by reference to the ‘remuneration’ of the worker.

The 2004 Act

11 In Hastings Deering (Australia) Ltd v Smith(No 2)4 the term ‘remuneration’ in s 49(1) was construed by the Northern Territory Court of Appeal as including superannuation contributions made by an employer for the benefit of a worker. The sequel was the enactment of s 49(1A) which was inserted in the Work Health Act by the Work Health Amendment Act 2004 (NT) (‘the 2004 Act’). The 2004 Act commenced on 26 January 2005 but it also inserted s 195, the effect of which was to give s 49(1A) a measure of retrospective operation which applied to the circumstances of Mr Chaffey. In introducing the Bill for the 2004 Act, the responsible Minister made clear to the Assembly that its purpose was to ‘restore the status quo by confirming what was considered to be the intention of [the Work Health Act]’.

12 Section 5 of the 2004 Act amended s 49 of the Work Health Act by inserting the following after sub-s 49(1):

‘(1A) For the purposes of the definition of “normal weekly earnings” in subsection (1), a worker's remuneration does not include superannuation contributions made by the employer.

(1B) Subsection (1A) is taken to have come into operation on 1 January 1987.’

13 Section 58 of the Interpretation Act provides that every Act amending another Act shall be construed with the earlier statute and as part thereof. That section is declaratory of the common law principles of statutory construction and interpretation 5.

The Special Case

14 The special case posed for determination by the Full Court two questions respecting the validity of the amendment made to s 49 by the 2004 Act. By majority (Mildren and Southwood JJ, Angel J dissenting) 6 the Full Court ordered that the questions be answered as follows:

Question 1.

Whether for the period...