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Tuesday, 10 December 1912

Senator McGREGOR (South Australia) (Vice-President of the Executive Council) . - I am sure that every honorable senator will give the Commonwealth credit for doing the very best it can in the circumstances. What possible object can it have in depriving an employe of what is his just right? I wish to point out that the Imperial Workmen's Compensation Act, as well as every State Act on the subject, is different altogether from this Bill. The Imperial Act is a general Compensation Act with respect to accidents occurring in the employment of workers throughout Great Britain, and so is every State Act with respect to compensation to workmen generally employed in that State. But this Bill deals with only a section of the workers in Australia, namely, the employes of the Commonwealth. If Senator St. Ledger recognises that fact, he must acknowledge that the case he has referred to under the English Act has no relation to this measure, because the employe and the employer are different.

Senator St Ledger - No ; it is a matter of law, not of person.

Senator McGREGOR - Paragraph b of the clause only provides that an employe" cannot recover compensation first from the Commonwealth under this Bill, and then claim compensation from the Commonwealth or anybody else under another law. It provides that he cannot do the two things at the same time. The clause which Senator St. Ledger is endeavouring to amend does not debar any employe of the Commonwealth who, in the course of his employment, has met with an accident, from taking action under any other law, if he thinks that it will be to his benefit to do so, and if he fails there he can take advantage of this measure. But it provides that if he elects to come under this measure straight-away - and that is what every sensible employe will do, because it will be the most liberal and most certain legislation existing in the Commonwealth - he will have to give an undertaking not to seek a remedy under some other law at the same time. What more does the employe want ? If he comes under another law, and gets compensation, of course he will not be able to get compensation under this measure.

Senator St Ledger - - But, suppose that he does not?

Senator McGREGOR - If the. employe" cares to come under this measure, he must give an undertaking not to sue under any other law, and we may rely upon his legal advisers putting him on the right track. Since the Imperial or a State Act is a general Workmen's Compensation Act, the Court, working independently under that Act, can dismiss a case, and has dismissed a case. Although it may be a State Court which will try a complaint under this measure, yet it is very doubtful whether, under the Constitution, we could direct a Court in a State, as we could not direct a Court in Great Britain, to dismiss a case. If Senator St. Ledger desires to make what is plain and straightforward at present complicated and difficult, he will stick to his amendment. But if he wants simplicity to prevail throughout the whole of this legislation he will withdraw it.

Senator ST.LEDGER (Queensland; [8.26]. - I certainly shall not withdraw my amendment, but will leave it to the decision of the Committee. Let me give a case which the Minister has not touched. Leaving out the question of the exercise of the State jurisdiction under the Employers' Liability Act, what will happen if an. employe1 of the Commonwealth sues at common law in a Federal Court, and fails?

Senator McGregor - -Then he can come under this measure.

Senator ST LEDGER -Then there is no meaning, to my mind, in paragraphs b and e, because the latter says that if it appears that he has a claim, he must make a declaration before tie can come under this measure that he will not claim under the State Act.

Senator McGregor - Yes ;" if he claims to come under this one first.

Senator ST LEDGER - It may be so.

Senator Pearce - It is to be before the claim is allowed. It may be without a Court case at all ; read the words of the provision.

Senator ST LEDGER - I cannot read paragraph e in that way.

Senator Pearce - It says that " compensation under this Act shall only be allowed upon the claimant undertaking not to claim compensation for the injury under any such law " ; that is, before there is a Court case at all.

Senator ST LEDGER - Yes; but suppose that he has been advised not to proceed under this measure and he has made a claim at common law in a Federal Court, what are the Government going to do?

Senator McGregor - If he fails, he can come under this measure.

Senator ST LEDGER - I wish I was sure of that. It will not be denied by the Minister that, if the Commonwealth thinks that a man may have a claim for £5,000 damages at common law, it cannot ask him to sign an undertaking not to seek a remedy under any other law. The man will be barred, then, from seeking a common law remedy.

Senator McGregor - No; because he will have decided to come under this measure.

Senator ST LEDGER - Why should the Commonwealth do that? Under this provision it can play fast and loose with an injured employed The Commonwealth Government can say to him, " Sign this undertaking before you go to any Court of law."

Senator McGregor - Not before you go to any Court of law; before you go under this law.

Senator ST LEDGER - Is that what it means ?

Senator McGregor - Yes.

Senator ST LEDGER - Then what is the objection to making that clear by this amendment? You can get out of any difficulty that may arise with regard to conferring jurisdiction on the State Courts, but why not allow it to apply to your own Federal Court? Why not place the question beyond all doubt?

Senator Lynch - Supposing sub-clauses b and c are contradictory, will not the former prevail over the latter?

Senator ST LEDGER - No. They must be read together. It is the one case in the hundred that will be the hard case.

Senator McGregor - When the claim is dealt with it mav not have to go to a Court at all.

Senator ST LEDGER - Dealt with I By whom ?

Senator McGregor - By the Government.

Senator ST LEDGER - Supposing the Government stands on its rights, and requires the man to sign this declaration ? We frame laws so that as far as possible there shall be no doubt with regard to them, but there is a doubt about this provision. Sub-section 4 of .the Imperial Act which corresponds-

Senator McGregor - That deals with a different kind of -compensation altogether.

Senator ST LEDGER - It is of no use the Vice-President of the Executive Council trying to bluff me. It deals with exactly the same kind of case.

Senator Guthrie - The Imperial Act only dealt with a section of the people when it was first passed. For instance; it did not extend to buildings over 30 feet in height.

Senator ST LEDGER - That was afterwards modified. I say, " Deal with your own employes, and allow your employes to go into your own Court." It must be admitted that if the Commonwealth is advised that the claimant may have an action atcommon law in the Federal Court, the Commonwealth Government can block him under sub-clause e. They can say, " No. You will not have a penny. You must sign that declaration." The moment the man has signed that declaration his common law rights in a Federal Court are gone. If the man elects not to sign the undertaking, it is a very nice point as to whether he will have an action in the Federal Court at common law, and that point should be placed beyond all doubt. There is a remarkable difference between this Bill and the Imperial Act in that respect, and there is a remarkable departure in this Bill from the provisions of at least four of the Acts of the States of the Commonwealth. The Commonwealth Government when dealing with their own employes leave the question of their liability in doubt, while the Imperial Act and the Acts of four of the Australian States make the position clear.

Senator Lynch - Do you not think that an injured employe will have perfect freedom to appeal to the Court at common law, or under the Employers' Liability Act?

Senator ST LEDGER - No.

Senator Lynch - What is to stop him?

Senator ST LEDGER - Sub-clause e, I think.

Senator Guthrie - When he signs the undertaking it will become a contract.

Senator Lynch - Sub-clause b is clear.

Senator ST LEDGER - There is no doubt about that. I have proposed this amendment, which appears in the Imperial Act and the Acts of four of the States, but which does not appear in this Bill, in order to make the position clear. The Commonwealth Government, when dealing with its own employed, should be subject to the same obligations as a private employer under the Imperial law and the State laws. It may be that if a- man chooses to sue at common law even in the Federal Court, and the Commonwealth doplead sub-clause e, there is no estoppel,, but the risk is too great, and my amendment would place the question beyond: doubt. The only objection that can beoffered to it is that if we were to attempt to confer jurisdiction on the State Courtsthe State Courts would decline to exercisethat jurisdiction. Even if that be granted, it should be made quite clear that when an employe of the Commonwealth is suing in the Federal Court he should have the samerights as he would have if he sued at common law a private employer in any part of the Commonwealth.

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