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Wednesday, 25 November 1959


Mr WHITLAM (Werriwa) (2:13 AM) .We propose the substitution of the word " injury " for the word "accident " in two places in this provision, and later we shall propose that in other places the word " accident " be omitted or replaced by words such as " disease " or " injury ". The reasons for omitting or replacing the word " accident " arise from the decision in Ockenden's case, to which I was referring at the end of my speech in the second-reading debate. In the definition section of the principal act, the words "disease " and " injury " are defined - and the honorable member for Hindmarsh will move amendments designed to amplify those definitions - but there is no definition of the word " accident ". It has, therefore, been left for the courts to say what " accident " means. They have given their decision in Ockenden's case.

The facts, very briefly, were these: A man was discharged from the Royal Australian Navy because of a rheumatic heart condition which had developed during his service with the Royal Australian Navy, but not because of it. Normally an employee is entitled to compensation if his injury arises out of or in the course of his employment. This man's rheumatic heart condition did not arise out of his employment, but it arose in the course of his employment. If the wording normally used in every other comparable act in Australia had applied, this man would have been entitled to compensation, but this act entitles a man to compensation for personal injury only as the result of an accident arising out of or in the course of employment. Therefore, even if the injury occurs in the course of his employment, not out of it, you still have to show that it was caused by an accident. The High Court has said that something can only be described as an accident if it is a sudden and distinct physiological change which has taken place while the employee is engaged in the duties of his employment, and not, for example, while on leave.

The High Court has just interpreted the words inserted in the act by the Parliament. At an earlier stage, the Minister for Labour and National Service seemed to imply that the High Court, in giving its interpretation, was saying that the interpretation was the just position. The court was saying nothing of the sort. The court was merely interpreting the words used by the Parliament.


Mr McMahon - I said that we thought that the decision of the court was a just one. I read the decision of the court to you. I then made a comment as to what I personally thought about the court's decision. Do not misinterpret me by saying that I stated that the court said it was a just decision.


Mr WHITLAM - That narrows the point of difference between us. The Minister says that it is just that Commonwealth employees should secure compensation only if their injuries arise as a result of a sudden and distinct physiological change which takes place while they are engaged in the duties of their employment. We say it is just that a man should receive compensation if his injury arises out of or in the course of his employment. We say that, m that way, the Commonwealth act should be brought into line with the State acts.

There is clearly a difference of view about what is just to employees. We say that the Commonwealth will not give justice to its employees as long as it continues to leave this act in its present form. The commissioner for Commonwealth employees' compensation now has to apply this decision of the court. We say that, in those circumstances, no Commonwealth employees in this situation will receive justice until the act is amended - until a word which is undefined, except by the courts, is omitted from the act and replaced by words which are either defined by the act or are interpreted by the courts in a way acceptable to the Parliament.

Amendment negatived.

Clause agreed to.

Clauses 6 and 7 - by leave - taken together, and agreed to.

Clause 8 -

Section twenty of the Principal Act is amended -

(b)   by adding at the end thereof the following sub-sections: - " (2.) Where the Commissioner or a delegate of the Commissioner has caused notice of a determination made, or of any action taken, by him under this Act to be served on a person affected by the determination or action, an appeal under the last preceding subsection shall not be instituted by that person except within a period of thirty days from the date of service of the notice or within such further time as the Court allows. " (3.) A notice for the purposes of the last preceding sub-section may be served on a person by post at the address of the person last known to the Commissioner, or the delegate of the Commissioner, as the case may be.".







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