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Wednesday, 25 November 1959

Mr WHITLAM (Werriwa) (1:43 AM) .I do not think that the Minister for Labour and National Service dealt with the second part of the amendment to clause 4 that was proposed by the honorable member for Hindmarsh who sought to have the words " or materially contributes to " inserted after the words "results in" in section 13 (2.) of the act. If this amendment were adopted the relevant sub-section would read -

Where an injury results in or materially contributes to the death or the total and permanent incapacity of the employee for work . . .

This is the first of several occasions on which the honorable member will seek to insert words that I have quoted, and therefore I think that I should deal with the proposal in some detail because nothing illustrates these facts as well as does a decided case. During the second-reading debate I referred to Ockenden's case. The amendment that has been proposed by the honorable member for Hindmarsh is designed to cure the fault that has been shown to exist in the legislation by the decision of the High Court in The Commonwealth of Australia v. Butler, which is reported in Volume 32 of The Australian Law Journal at page 320. I shall read the facts of the case as stated by Mr. Justice Fullagar in his decision in which, incidentally, the Chief Justice concurred. His Honour said -

The deceased man was at all material times employed as a clerk in the Department of the Navy. He died on 12th July, 1957, as a result of a coronary occlusion. He had suffered in the course of the preceding five years or thereabouts three attacks of a similar nature, and it is necessary to refer briefly to the circumstances of each of the four occlusions, the last of which was fatal.

The first occasion was in April, 1952. It would appear that before this date the health of the deceased had appeared to be normal, but on a day in that month he complained in the morning that he had been awake during the night with a severe chest pain, and his wife summoned a doctor. He did not go to work on that day, and was away from work for about three months. At the end of that time he appeared to have recovered his former health. The second attack occurred in September, 1955. He went to work as usual on that day. Before leaving home in the morning he had complained that he " did not feel very well", and during the morning he complained of a feeling of " listlessness ", and of pain in the chest and difficulty in breathing. He went home about lunch-time and his wife helped him to bed and telephoned for a doctor. On the doctor's advice he entered Prince Henry's Hospital, where he remained for about three weeks. After this he remained at home until 23rd December, 1955, when he suffered a third attack and, on his doctor's advice, entered Prince Henry's Hospital again, where he again remained about three weeks. After that he remained at home until he returned to work in February, 1956. During the next eighteen months or s->. his wife said, he complained at times of the pain in his chest, and, as time went on, these complaints became moTe frequent. He remained at work, however, until 10th July, 1957. On that day he appears to have returned home at the usual hour saying that he did not feel very well. During the evening he had another attack of severe pain, and on the morning of the 11th his wife summoned the doctor, on whose advice he remained at home in bed. In the afternoon of the 12th, being still in bed, he complained that the pain was very severe, and the doctor was again summoned. Before the doctor arrived, however, he died.

I have quoted His Honour's succinct blowbyblow description of the man's disability. His Honour goes on -

The case has, however, been conducted throughout on the assumption that the illness which affected the deceased while he was at work in September, 1955, did amount to an injury by accident arising in the course of his employment. The ultimate question in the case is, therefore, whether his death in July, 1957, " resulted from " that assumed injury.

HisHonour concludes in these terms -

In the present case the evidence could not be said to establish that any prior occlusion " contributed to " the death in the sense that the death " resulted from " it - which is the only relevant sense.

To overcome that decision, to cure the fault in the Commonwealth act and to procure the same result for Commonwealth employees as has been achieved for employees covered by State compensation acts it is proposed to include the words " or materially contributes to " after the words " results in " where they appear in the bill. Those words occur in the Victorian act and have been applied by the Supreme Court of Victoria and by the High Court "of Australia to entitle persons covered by the Victorian legislation to compensation in this kind of circumstance. The Commonwealth act lags behind the State legislation.

This portion of the amendment that has been proposed by the honorable member for Hindmarsh is not concerned with amounts. It is true that in most respects this bill will leave Commonwealth employees when they obtain compensation, in a better material sense than the position in which employees under State acts are placed, but this is one of the instances where the bill still leaves Commonwealth employees in a more difficult and disadvantageous position to obtain compensation than are workers covered by the State acts. The Treasurer (Mr. Harold Holt), a little while ago, interjected to say somewhat testily that we were trying to re-write the act.

All that we are trying to do in this instance, Sir, is to take the first opportunity provided by an amending bill to cure faults in the act which have been revealed.

Mr Harold Holt - You have had eight years in which to cure them.

Mr WHITLAM - The right honorable gentleman cannot have been following the argument. If he were familiar with the interpretations which have been given of the acts for which he is ministerially responsible, he would know that the decision in relation to the Commonwealth Employees' Compensation Act, which has shown the faults of the act, was given eleven months ago, on 12th December, 1958. This is the first time since that decision that a bill amending the principal act has come before the Parliament. The Treasurer seeks to perpetuate the injustices which are now revealed as being possible under the terms of the act, and we are taking the first available opportunity to test his bona fides and sense of justice in these matters.

Is there any good reason why Commonwealth employees should be in a less advantageous position with respect to compensation than are employees under the State acts? We are not re-writing the act in any sense except to bring it into line with the interpretation which we always thought it used to bear and which all the State acts still bear.

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