Frank & Ors v Australian Capital Territory [2001] ACTSC 42 (15 May 2001)

Last Updated: 14 May 2002

IRIS FRANK v AUSTRALIAN CAPITAL TERRITORY

ANDREAS FOKAS v AUSTRALIAN CAPITAL TERRITORY

ANDREW MICHAEL PINTER v AUSTRALIAN CAPITAL TERRITORY

EROL COPELJ by his next friend and mother JASMIN COPELJ v AUSTRALIAN CAPITAL TERRITORY

[2001] ACTSC 42 (15 MAY 2001)

CATCHWORDS

CRIMINAL INJURY COMPENSATION - abolition of statutory criminal injury compensation scheme - replacement by statutory financial assistance scheme - restricted nature of benefits available under financial assistance scheme - whether abolition of rights under criminal injury compensation is "acquisition of property" under Australian Capital Territory (Self Government) Act 1988 (Cth) - (by majority) it is.

DISCRIMINATION - abolition of statutory criminal injuries compensation scheme - replacement of statutory financial assistance scheme - restricted nature of benefits available under financial assistance scheme - whether financial assistance scheme discriminatory under Disability Discrimination Act 1992 (Cth) - it is not.

Criminal Injuries Compensation Act 1983

Victims of Crime (Financial Assistance)(Amendment) Act 1999

The Victims of Crime (Financial Assistance) Act 1983

Supreme Court Act 1933

Australian Capital Territory (Self Government) Act 1988 (Cth)

Disability Discrimination Act 1992 (Cth)

Estate Duty Assessment Act 1914 (Cth)

Seat of Government Acceptance Act 1909

Seat of Government Administration Act 1910

Commonwealth Constitution

Commonwealth Employees' Rehabilitation and Compensation Act 1988

Interpretation Act 1967,

Acts Interpretation Act 1901 (Cth),

Smith v ANL Ltd [2000] HCA 58, 176 ALR 449

Grace Bros v Commonwealth [1946] HCA 11; (1946) 72 CLR 269

Criminal Injuries Compensation Ordinance (1983) 58 ACTR 17

Georgiadis v Australian and Overseas Telecommunications Corp [1994] HCA 6; (1994) 179 CLR 297 Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471

Health Insurance Commission v Peverill [1994] HCA 8; (1994) 179 CLR 226

Commonwealth v WMC Resources Limited [1998] HCA 8; (1998) 194 CLR 1

National Trustees Executors and Agency Company of Australasia Limited v Federal Commissioner of Taxation [1954] HCA 71; (1954) 91 CLR 540

Curtis v Wilson [1948] 2 KB 474

Esber v The Commonwealth of Australia and anor [1992] HCA 20; (1992) 174 CLR 430

Commonwealth of Australia v Pillifeant (1990) 93 ALR 641

O'Neill v Mann [2000] FCA 118D

Mutual Pools and Staff Pty Ltd v Commonwealth [1994] HCA 9; (1994) 179 CLR 155

Elliott v Minister for Transport and Infrastructural Development [2000] NTSC 91

No. SCA 3 of 2000

No. SCA 9 of 2000

No. SCA 10 of 2000

No. SCA 11 of 2000

Judges: Miles CJ, Crispin and Gray JJ

Supreme Court of the ACT

Date: 15 May 2001

IN THE SUPREME COURT OF THE )

) No. SCA 3 of 2000

AUSTRALIAN CAPITAL TERRITORY ) No. SCA 9 of 2000

No. SCA 10 of 2000

No. SCA 11 of 2000

BETWEEN: IRIS FRANK, ANDREAS FOKAS, ANDREW MICHAEL PINTER and EROL COPELJ by his next friend and mother JASMIN COPELJ

Appellants

AND: AUSTRALIAN CAPITAL TERRITORY

Respondent

ORDER

Judges: Miles CJ, Crispin and Gray JJ

Date: 15 May 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appeals be allowed, the awards of the Registrar be set aside and the proceedings be remitted to the Registrar to determine the amount of compensation to be awarded to each appellant in the light of these reasons.

2. A stay of proceedings of twenty-one (21) days be granted.

3. The respondent pay the appellant's costs.

IN THE SUPREME COURT OF THE )

) No. SCA 3 of 2000

AUSTRALIAN CAPITAL TERRITORY ) No. SCA 9 of 2000

No. SCA 10 of 2000

No. SCA 11 of 2000

BETWEEN: IRIS FRANK, ANDREAS FOKAS, ANDREW MICHAEL PINTER and EROL COPELJ by his next friend and mother JASMIN COPELJ

Appellants

AND: AUSTRALIAN CAPITAL TERRITORY

Respondent

Judges: Miles CJ, Crispin and Gray JJ

Date: 11 May 2001

Place: Canberra

REASONS FOR JUDGMENT

MILES CJ and GRAY J:

1. The matters presently before the Court arise in the following way. On various dates after 23 June 1998 but before 24 December 1999 the appellants each made separate application to the Registrar for an award of compensation under legislation then known as the Criminal Injuries Compensation Act 1983 (the Compensation Act). On 24 December 1999 the Victims of Crime (Financial Assistance)(Amendment) Act 1999 (the Amending Act) came into force. The Amending Act had the effect of virtually repealing the Compensation Act except for Part III and Part IV which are not relevant to the present matters. Part I and Part II of the Compensation Act were wholly replaced. The various replacement sections and the remaining sections were re-numbered and the legislation so amended was re-entitled The Victims of Crime (Financial Assistance) Act 1983 (the Financial Assistance Act).

2. Section 16 of the Amending Act was one of several transitional provisions. It provided where relevant as follows:

"(1) The Compensation Act continues to apply in relation to an undetermined application for compensation made after 23 June 1998 as if the amendments to the Compensation Act effected by this Act had not been made, subject to this section.

(2) Where, by an undetermined application for compensation made after 23 June 1998, compensation for pain and suffering is claimed -

(a) If no award was made before the commencement day pursuant to the application - any award may not include provision for any compensation for pain and suffering;

..."

3. At the commencement of the Financial Assistance Act, each of the applications made by the appellants was "an undetermined application for compensation" under s 16 of the Amending Act.

4. On various dates in February 2001, the Registrar determined the applications and awarded compensation to each of the appellants. In doing so the Registrar held that he was precluded by s 16(2) of the Amending Act from including in the total amount awarded a component amount for pain and suffering.

5. The appellants each exercised their rights of appeal against the award under s 61 of the Compensation Act which provides for an appeal by way of rehearing from an award of the Registrar to the Court. On 21 July 2000, Crispin J ordered that the jurisdiction of the Court be exercised by a Full Court pursuant to s 13(2) of the Supreme Court Act 1933 (the Supreme Court Act).

6. At the commencement of the hearing before the Full Court, Mr Tilmouth QC, on behalf of the appellants Pinter, Fokas and Copelj, sought a declaration that s 16 and s 18 of the Financial Assistance Act are invalid in their application to the causes of action pleaded by the appellants, and an order remitting each matter to the Registrar to further assess damages in accordance with the declaration. Mr Everson, for the appellant Frank, joined in those submissions. It was not disputed by counsel for the Territory that the Court has the power to make such declaration by way of "such other order as it considers just" under s 28(4)(b) of the Compensation Act.

7. The substantive points of law which all the appellants and the Territory as respondent wish to have decided are clear enough. They are:

(i) Whether s 16(2) of the Amending Act is invalid because it is inconsistent with s 23 of the Australian Capital Territory (Self Government) Act 1988 (Cth) (the Self Government Act).

(ii) Whether s 10 and s 11 of the Financial Assistance Act are invalid in that they contravene s 24 of the Disability Discrimination Act 1992 (Cth) (the Discrimination Act).

8. We acknowledge the submissions made by Dr O'Hair, who appeared as amicus curiae, instructed by the Victims of Crime Assistance League (ACT) Inc., to support the submission of the appellants that the Compensation Act was intended to confer proprietary rights on victims.

History of Legislation

9. The Compensation Act came into force on 30 June 1983. Its title then reflected its character and intent, namely "an Act relating to compensation for victims of crime and other persons." Under s 11 the Supreme Court and the Magistrates Court were given jurisdiction, and the Registrar of the Supreme Court was given power, to determine applications in respect of a "prescribed injury." That term was defined as an injury sustained in the Territory as a result of the criminal conduct of another person or in the course of assisting a police officer in the exercise of a power of arrest or in taking action to prevent the commission of a criminal offence.

10. Sections 6 and 7 of the Compensation Act confined an award of compensation to three components, namely expenses reasonably incurred as a consequence of the injury, loss from incapacity for work, and pain and suffering resulting from the injury. The assessment of compensation with regard to each of the components was to be made according to the common law principles as to the assessment of damages: Re Criminal Injuries Compensation Ordinance (1983) 58 ACTR 17. Under s 7 of the Compensation Act, the total compensation awarded was not to exceed $20,000.

11. In place of the regime of compensation established by the Compensation Act, the Financial Assistance Act introduced a system of financial assistance to victims of crime. Under the Financial Assistance Act (s 10) a "primary" victim who sustains a criminal injury may recover "financial assistance" being:

* The expense reasonably incurred by or on behalf of the victim;

* The pecuniary loss suffered by the victim in consequence of an incapacity for work; and

* The expense incurred in making the application for financial assistance other than fees paid to a legal practitioner.

12. In addition, but only in circumstances of "an extremely severe injury" (as defined in s 11), a primary victim may recover "special assistance" of an amount of up to $30,000.

13. If the primary victim is a police officer, ambulance officer or fire-fighter (and the injury is sustained in the course of duty), or if the primary victim sustains injury as a result of a "violent crime" (defined in s 3 and s 10(1)(f)), "special assistance by way of reasonable compensation for pain and suffering in an amount of no more than $50,000" may be awarded.

14. Pursuant to s 15 of the Amending Act, the Compensation Act continues to apply to any application made before 24 June 1998 and to any award made pursuant to such application. As already indicated above, s 16 of the Amending Act provides that in respect of "undetermined applications for compensation" the Compensation Act should continue to apply, but that no compensation for pain and suffering is to be included in any award of compensation made. Undetermined applications for compensation as defined in s 14 are claims for compensation where no final award had been made prior to the commencement day of 24 December 1999.

15. Thus when the applications for compensation made by each of the appellants were determined by the Registrar, the award made consisted only of out-of-pocket, medical and other similar expenses, but nothing by way of compensation for pain and suffering. It is common ground that the purpose and effect of the Amending Act and the Financial Assistance Act is to remove retrospectively a potentially significant component of compensation that might otherwise have been awarded, namely that of pain and suffering.

Invalidity of Territory Laws

16. The Legislative Assembly of the Australian Capital Territory is established by the Self Government Act. Under s 22 the Legislative Assembly is given general power to make laws for the peace, order and good government of the Territory, but s 23(1) provides that the Legislative Assembly has no power to make laws with respect to:

"(a) the acquisition of property otherwise than on just terms;

..."

17. This restriction on the power of the legislative arm of the Australian Capital Territory reflects s 51(xxxi) of the Commonwealth Constitution (the Constitution), which provides that the Commonwealth Parliament has powers to make laws with respect to the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws. Section 28 of the Self Government Act provides that a provision of an enactment has no effect to the extent that it is inconsistent with a law in force in the Territory, other than an enactment or a subordinate law, but such a provision shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law. Thus, the present appeals proceed not upon the basis that the provisions of the Compensation Act are unconstitutional but that they are inconsistent with a law in force in the Territory, other than an enactment or subordinate law, namely the Self Government Act.

18. The provision in s 51(xxxi) is in the nature of a constitutional guarantee and not to be narrowly confined: Smith v ANL Ltd [2000] HCA 58, 176 ALR 449 per Gleeson CJ.

There is no reason why s 16 of the Amending Act should not be approached in similar manner.

19. The term "acquisition of property on just terms" is a composite term, drawing its meaning from the totality of the words used: Grace Bros v Commonwealth [1946] HCA 11; (1946) 72 CLR 269 at 290. However, it is appropriate to look at the concepts which underlie the overall meaning. Questions of substance of degree, rather than merely of form, are involved: Smith v ANL Ltd at [22], 455 per Gaudron and Gummow JJ. This may be sufficient to overcome any argument that might have been raised, but was not, that s 16 is not a law "with respect to" acquisition of property. It may also be appropriate to acknowledge that the provision in s 51(xxxi) of the Constitution is by way of a positive conferral of a restricted power to make laws with respect to one of several subject matters. On the other hand, the provision in s 28 of the Self Government Act is by way of one of several exclusions from the conferral of an otherwise plenary power to make laws for the peace, order and good government of the Territory. Further, in the case of s 51(xxxi), the exclusion operates on the acquisition of property by any person and is not restricted to acquisition by the Commonwealth or a Commonwealth instrumentality: Smith v ANL Ltd at [27], 457 per Gaudron and Gummow JJ. There appears to be no reason why the same operation ought not apply to s 28, that is to say that it is not restricted to acquisition by the Territory or by a Territory instrumentality.

Were the interests of the appellants "property"?

20. The principles relating to the meaning of the term "property" in s 51(xxxi), as expressed in the earlier decisions of the High Court, notably Georgiadis v Australian and Overseas Telecommunications Corp [1994] HCA 6; (1994) 179 CLR 297 and Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471, have recently been revisited in Smith v ANL Ltd. The cases establish that a right in the nature of a chose in action is property and that legislation which extinguishes or diminishes the value of that right is, or may be, an acquisition of such property under s 51(xxxi).

21. In Smith v ANL Ltd the legislation in question had the effect that, after the expiration of six months from its commencement, the appellant had no right to bring an action against the respondent for damages for a work-related injury. A majority of the High Court held that the legislation was outside the power conferred by s 51(xxxi). Gleeson CJ was of the view that what was gained by the appellant, namely a benefit under a legislative scheme which replaced a common law right, was not shown to be "full compensation for what was lost". In the joint judgment of Gaudron and Gummow JJ, a chose in action subsisting at common law is property within s 51(xxxi), even if barred by a limitation statute, the right to bring the action without the defendant pleading a time bar is "a significant and integral element of the cause of action itself", and by the imposition of the time bar "the substance of the chose in action is impeached and a co-relative and significant benefit is conferred upon the defendant." at [46], 461.

22. Their Honours acknowledged that, in contrast to a chose in action based upon a common law right, interests created by legislative regulatory schemes may inherently be susceptible of variation. Hence rights to payment under the Medicare scheme (Health Insurance Commission v Peverill [1994] HCA 8; (1994) 179 CLR 226) and statutory rights to minerals (Commonwealth v WMC Resources Limited [1998] HCA 8; (1998) 194 CLR 1) were regarded as not within the concept of property under s 51(xxxi).

23. Kirby J and Callinan J in separate judgments reached the same conclusions as Gaudron and Gummow JJ for not dissimilar reasons.

24. Haine J (McHugh J agreeing) dissented on the ground that at the moment of the legislation coming into effect, the appellant still had his right to bring an action for damages, which he was free to exercise so long as he did so within six months, and that accordingly there was no acquisition of his property.

25. However there does not appear to be any authoritative statement to the effect that an incorporeal right must constitute a chose in action in order to fall within s 51(xxxi). The term "chose in action" does not appear to be capable of exact definition anyway: see National Trustees Executors and Agency Company of Australasia Limited v Federal Commissioner of Taxation [1954] HCA 71; (1954) 91 CLR 540 (Cain's Case) at 584 per Kitto J. In that case the High Court held that the right of a wool grower to share in distributions under an inter-governmental wool marketing scheme was "personal property" under the Estate Duty Assessment Act 1914 (Cth). The power of the Minister to make declarations of distributions was entirely discretionary. The mere fact that a right is not assignable does not prevent it from being a chose in action: Curtis v Wilson [1948] 2 KB 474 at 381. There appears to be no authority to the effect that a chose in action is confined to a right at common law or "general law" including equity and does not extend to a right created by statute. It would be surprising if a right under fatal accidents legislation or a right to sue on a statutory cause of action was not a chose in action.

26. In Esber v The Commonwealth of Australia and anor [1992] HCA 20; (1992) 174 CLR 430 the High Court considered the nature of an application for redemption of weekly payments of compensation for workplace injury where the application had been made but not determined at the time statutory amendments came into force providing that such payments were not redeemable. In the majority judgment it was said at 440 - 441.

"Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely `a power to take advantage of an enactment'.... Nor was it a mere matter of procedure...; it was a substantive right.... Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, `although that right might fairly be called inchoate or contingent'.... This was such a right. It was a right in existence at the time the 1971 Act was repealed..."

27. Whilst there may be room for argument whether the interest of any of the appellants in receiving an award of compensation for pain and suffering was a chose in action, within the proper meaning of that term, that interest was a substantive right to have the application for an award of compensation, including such a component, heard and determined. Accordingly it must be recognised that the interest of each appellant was not merely a hope or expectation of receiving an award including a component for pain and suffering, but a right to have a decision made on the application for such an award, which application was pending before the Registrar at the time the Amending Act came into force.

28. It was submitted on behalf of the Territory that such rights as existed under the Compensation Act were of the nature as those described in Health Insurance Commission v Pevrill at 237 as follows:

"...statutory entitlements to receive payments from [public funds] which were not based on antecedent proprietary rights recognised by the general law. Rights of that kind are rights which, as a general rule, are inherently susceptible of variation. That is particularly so in the case of both the nature and quantum of welfare benefits, such as the provision of medicare benefits in respect of medical services."

The submission placed emphasis on the fact that the right to compensation for criminal injury compensation is statutory, and that the nature of the power to make an award or to not make an award and to fix the amount awarded is discretionary. Thus, it was submitted, the interests of the appellants lacked the character of property. Reliance was also placed on the fact that the appellants' applications were all made to the Registrar. Whilst the Compensation Act confers "jurisdiction" on the Supreme Court and on the Magistrates Court, it confers "power" on the Registrar. Although the term "Court" is used to include the Registrar when exercising that power (s 11), the Registrar does so in a personal capacity and not in the exercise of the jurisdiction of the Supreme Court: Commonwealth of Australia v Pillifeant (1990) 93 ALR 641. In exercising the discretion whether or not to make an award, or in determining the amount of the compensation awarded, the "Court" is required to have regard to various factors, including any conduct which contributed to the injury or damage. Such contributing conduct is not confined to contributory negligence. The Registrar (but not the Supreme Court or the Magistrates Court) may, in his or her discretion, refuse to make an award if the criminal conduct was not reported to a police officer. The compensation awarded is "payable" by the Territory under s 27 but the award is not enforceable as if it were a judgment of a court. On the contrary, the Government Solicitor is required to make arrangements for the payment of compensation after receipt of the appropriate documentation: s 30. Compensation is not subject to attachment, is not capable of being assigned and shall not be the subject of a set off: s 31.

29. In Peverill the majority judgment continued at 237:

"Whether a particular medicare benefit should be provided and, if so, in what amount, calls for a carefully considered assessment of what services should be covered and what is reasonable remuneration for the service provided, the nature and amount of the medicare benefit having regard to the community's need for assistance, the capacity of government to pay and future of health services in Australia. All these factors are susceptible of change so that it is to be expected that the level of benefits will change from time to time. Here such change is effected by a law which operates retrospectively to adjust competing claims or to overcome distortion, anomaly or unintended consequences in the working of the particular scheme, variations in outstanding entitlements to receive payments under the scheme may result. In such a case, what is involved is a variation of a right which is inherently susceptible of variation and the mere fact that a particular variation involves a reduction in entitlement and is retrospective does not convert it into an acquisition of property."

30. The considerations referred to by Mason CJ, Deane and Gaudron JJ are not apt considerations having regard to the nature of the payment under the Compensation Act. These payments are based on the notion of compensating victims of crime for the injury they have sustained. That notion does not require a consideration of factors susceptible of change so as to raise an expectation that the level of benefits will change from time to time. It is different from the position here where a variation is made by the legislature in respect of a very important aspect of the compensation scheme. It is not a variation which would ordinarily be expected.

31. Although an award of compensation does not bear the character of a monetary judgment enforceable by execution, the statutory scheme of compensation contains nothing which is determinative of the question whether abolition of a claim for compensation for pain and suffering amounts to an acquisition of property. In particular, and in contrast with Peverill's case, an award of compensation does not bear the character of a welfare benefit or a social security benefit. Indeed it may be fairly said that the entitlements to receive payments from consolidated revenue are "based on antecedent proprietary rights recognised by the general law" (see Peverill at 237). Indeed it is difficult to envisage criminal injuries compensation being available in a situation where there are not proprietary rights vested in the victim recognised by the general law. The payment from the general revenue is being provided as "compensation" for those proprietary rights. We do not regard it as significant that the Compensation Act did not purport to supplant those rights (cf Georgiadis v Australian and Overseas Telecommunications Corporation (at 306). The basis for the "compensation" is the proprietary right that the victim has against the offender. As well, the principles and concepts to be applied in assessing that compensation, contributory negligence, pain and suffering and the like, have their foundation in principles and concepts related to proprietary rights recognised by the general law.

32. For these reasons the interests of the present appellants fall within the concept of property as recognised by the majority judgments in Smith v ANL Ltd, although they are not common law rights. It is unnecessary to deal with the question raised in O'Neill v Mann [2000] FCA 118D whether rights and liabilities in the Territory necessarily owe their existence to a combination of s 122 of the Constitution, the Seat of Government Acceptance Act 1909 and the Seat of Government Administration Act 1910, and not to the common law.

Was the property "acquired"?

33. If the appellants' interests in an award of compensation under the Compensation Act are property, there is the further question whether they have been subject to acquisition. Exact equivalence between the modification of property rights and the benefits gained by those deemed to have "acquired" those rights need not be shown, and it is sufficient if the beneficiary gains "some identifiable and measurable count availing benefit or advantage": Smith v ANL Ltd at [96] per Kirby J, Mutual Pools and Staff Pty Ltd v Commonwealth [1994] HCA 9; (1994) 179 CLR 155 at 185.

34. On this approach it is difficult to see that, on the state of the authorities, the interests of the appellants were not subject to acquisition by the Territory. The benefit is the saving to the Territory of the amount of compensation likely to have been foregone by the individual appellant in each case. The exact amount of the saving does not have to be measured, and difficulty in measuring it is beside the point. It is enough if the amount is conceptually capable of measurement. The cost to the Territory of the benefits which the Financial Assistance Act confers on the appellant in place of the compensation which would have been awarded or likely to be awarded under the Compensation Act has to be taken into account. But unless the substituted benefits amount to a true attempt to compensate for what is foregone, it cannot be said that there is not an acquisition on other than just terms: Smith v ANL Ltd at [10], [48], [106], [111], and [194].

35. The Territory relied on the decision of Angel J in Elliott v Minister for Transport and Infrastructural Development [2000] NTSC 91. In that case Northern Territory legislation abolished a system of a restricted number of taxi licences and set up a deregulated system under which any person, including former licence holders, could apply for a licence. It was conceded that the former licences were property and the question arose whether there had been an acquisition of that property. Angel J held that there had been. The former monopoly right shared by a restricted number of licence holders had been cancelled and "coincidentally and correspondingly" a right in respect of the same subject matter had been given to any member of the public.

36. The legislation in question in that case is to be contrasted with the provisions of the ACT legislation in that the right of the appellants to apply for compensation including pain and suffering has not been given to other persons or replaced "coincidentally and correspondingly" by a right in respect of the same subject matter in which other persons, as well as the appellants, may participate.

37. Nevertheless, for reasons already given, the provisions of the Financial Assistance Act constitute an acquisition of property within s 23(1) of the Self Government Act.

Was the acquisition of property "other than on just terms"?

38. Section 16 of the Amending Act itself does not provide for any "terms" on which the interests of the appellants, in obtaining an award of compensation, are acquired. The appellants are simply deprived of an award of compensation which includes a component for pain and suffering.

39. The appellants are not eligible for assistance under the Financial Assistance Act. They may not elect between reduced compensation and financial assistance. In Grace Bros v Commonwealth at 290 Dixon J said of s 51(xxxi):

"Under that paragraph the validity of any general law cannot, I think, be tested by inquiring whether it will be certain to operate in every individual case to place the owner in a situation in which in all respects he will be as well off as if the acquisition had not taken place. The inquiry rather must be whether the law amounts to a true attempt to provide fair and just standards of compensating or rehabilitating the individual considered as an owner of property, fair and just as between him and the government of the country."

40. It was not even argued on behalf of the Territory that the Financial Assistance Act passed this test and there is little difficulty in finding that it does not. If there is an acquisition of property by the Territory effected by s 16, that acquisition is not on just terms.

Discrimination Act

41. As at 24 December 1999 the Discrimination Act applied in the Australian Capital Territory (s 12(3)), and, by virtue of ss 24, 34 and 69A of the Self Government Act, prevailed over Territory enactments inconsistent with it.

42. Section 24 of the Discrimination Act provides as follows:

"(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person."

43. Section 4 of the Discrimination Act defines disability to include:

"(a) total or partial loss of a person's bodily or mental functions; or

(b) total or partial loss of part of the body;

...

(e) the malfunction, malformation or disfigurement of part of the person's body;

...

(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour."

44. Section 5 of the Discrimination Act defines disability discrimination to include conduct where:

"...the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability".

45. It was submitted on behalf of the appellants that s 10 of the Financial Assistance Act is inconsistent with s 24 of the Discrimination Act and to the extent of the inconsistency is invalid. It was put that a disability as defined in the Discrimination Act is a wider concept than the concept of "extremely serious injury" as defined in s 10 of the Financial Assistance Act. Thus, according to the submission, a person suffering from a disability resulting from criminal conduct which does not amount to extremely serious injury is not entitled to compensation for pain and suffering. In contrast, an otherwise healthy police officer, ambulance officer or fire fighter not suffering extremely serious injury and not having a disability will nevertheless be entitled to compensation for pain and suffering of up to $50,000.

46. The point made appears to be that there is discrimination in the Financial Assistance Act in favour of police officers, ambulance officers and fire fighters who sustain a prescribed injury, not being extremely serious injury, and against persons who sustain a prescribed injury, which is not an extremely serious injury, but which nevertheless results in disability. The discrimination is said to be that those in the former categories may be awarded compensation for pain and suffering and those in the latter may not be awarded compensation for pain and suffering.

47. Whether this distinction amounts to discrimination depends on the terms of the legislation. Section 5 is the relevant section here in respect of disability discrimination.

48. Section 24 requires there to be a causal link between the discrimination and the disability. It is true that police officers and the like are favoured against other persons who suffer identical or substantially similar injuries falling short of extremely serious injury, but those in the former category are favoured, not on the ground of their lack of disability, but on the ground of their occupation. Conversely, those in the latter category are unfavoured, not because of any disability, but because they are not included in the favoured occupations.

49. Further, both s 5 and s 24 postulate or assume the existence of a discriminator, that is a person who treats the aggrieved person, in like circumstances, less favourably than that discriminator would treat a person without the disability. In the present appeals, a discriminator cannot be identified in any meaningful sense. It was properly conceded in argument that the discriminator is not the legislature responsible for the Financial Assistance Act. It was suggested that it was the Territory that was the discriminator in respect of its payments of compensation. But the Territory, in paying compensation in response to an award that excludes a component for pain and suffering, can hardly be said to "treat or propose to treat" the person with a disability, in whose favour the award is made, less favourably than the Territory treats or would treat a person without the disability. The Territory simply responds to the award according to the terms of the award and the provisions of the legislation. Nor could it be said that the Registrar or the Court, "treats or proposes to treat" the person with the disability less favourably than a person without the disability

50. Lastly, s 24 of the Discrimination Act applies only against a person who provides goods and services or makes facilities available. Again it is difficult to see that this provision was intended to apply to the Territory with respect to the role it plays in compensation proceedings or responding to an award of compensation. Again it was properly conceded that this section is not directed toward the Court or the Registrar making the award of compensation.

51. It follows that s 10 and s 11 of the Financial Assistance Act do not contravene s 24 of the Discrimination Act.

Outcome

52. The appeals are allowed, the awards of the Registrar are set aside and the proceedings are remitted to the Registrar to determine the amount of compensation to be awarded to each appellant in the light of these reasons.

53. A stay of proceedings of twenty-one (21) days is granted.

54. The respondent is to pay the costs of the appellants.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours Chief Justice Miles and Justice Gray.

Associate:

Date: 15 May 2001

IN THE SUPREME COURT OF THE )

) No. SCA 3 of 2000

AUSTRALIAN CAPITAL TERRITORY ) No. SCA 9 of 2000

No. SCA 10 of 2000

No. SCA 11 of 2000

BETWEEN: IRIS FRANK, ANDREAS FOKAS, ANDREW MICHAEL PINTER and EROL COPELJ by his next friend and mother JASMIN COPELJ

Appellants

AND: AUSTRALIAN CAPITAL TERRITORY

Respondent

ORDER

Judges: Miles CJ, Crispin and Gray JJ

Date: 15 May 2001

Place: Canberra

REASONS FOR JUDGMENT

CRISPIN J:

55. The circumstances which gave rise to this appeal have been adequately described in the judgment of Miles CJ and Gray J.

56. As they have observed, the decisive questions are:

(i) whether s 16(2) of the Victims of Crime (Financial Assistance) (Amendment) Act 1999 ("the Amending Act") is invalid because of the restriction on the legislative power of the Assembly imposed by s 23(1) of the Australian Capital Territory (Self Government) Act 1988 (Cth) ("the Self Government Act"); and

(ii) whether ss 10 and 11 of the Victims of Crime (Financial Assistance) Act 1983 (ACT) as amended are invalid because they contravene s 24 of the Disability Discrimination Act 1992 (Cth) ("the Discrimination Act").

57. The first of these questions raises an important issue as to the extent to which the general power of the Legislative Assembly to make laws for the peace, order and good government of the Territory is limited by the terms of s 23(1) of the Self Government Act which provides that such power does not extend to making laws for "the acquisition of property otherwise than on just terms". This provision reflects a similar restriction on the legislative power of the Commonwealth Parliament imposed by par 51(xxxi) of the Constitution. The restriction plainly applies not only to the expropriation of real estate and chattels but to a wide range of proprietary rights and interests. For example, it extends to the enactment of legislation purporting to extinguish common law rights of action against the Commonwealth: see Georgiadis v Australian and Overseas Telecommunications Corp [1994] HCA 6; (1994) 179 CLR 297 and Smith v ANL Ltd [2000] HCA 58; (2000) 176 ALR 449. Nonetheless, the restriction applies only to legislation by which rights of a proprietary nature would be acquired.

58. In Health Insurance Commission v Peverill [1994] HCA 8; (1994) 179 CLR 226 the High Court of Australia considered an argument by a medical specialist that legislation which retrospectively reduced the fees due to him under a bulk billing arrangement involved an acquisition of property. In rejecting that contention, Mason CJ, Deane and Gaudron JJ said at 236:

"There is no doubt that the derivation by the Commonwealth of a financial advantage in association with the extinguishment of a right to receive a payment from the Commonwealth may constitute an acquisition of property for the purposes of s 51(xxxi) of the Constitution. That could even be so in some cases in which extinguishment of the right takes place in the context of some genuine adjustment made in the common interests of competing claims, rights and obligations between another party and the Commonwealth. However, here, the extinguishment of the earlier right to receive payment of a larger amount has been effected not only by way of genuine adjustment of competing claims, rights and obligations in the common interests between parties who stand in a particular relationship but also as an element in a regulatory scheme for the provision of welfare benefits from public funds."

[Footnotes and references omitted]

Their Honours returned to the latter aspect at 237, observing that:

"It is significant that the rights that have been terminated or diminished are statutory entitlements to receive payments from consolidated revenue which were not based on antecedent proprietary rights recognized by the general law. Rights of that kind are rights which, as a general rule, are inherently susceptible of variation. That is particularly so in the case of both the nature and quantum of welfare benefits, such as the provision of Medicare benefits in respect of medical services. Whether a particular Medicare benefit should be provided and, if so, in what amount, calls for a carefully considered assessment of what services should be covered and what is reasonable remuneration for the service provided, the nature and the amount of the Medicare benefit having regard to the community's need for assistance, the capacity of government to pay and the future of health services in Australia. All these factors are susceptible of change so that it is to be expected that the level of benefits will change from time to time. Where such change is effected by a law which operates retrospectively to adjust competing claims or to overcome distortion, anomaly or unintended consequences in the working of the particular scheme, variations in outstanding entitlements to receive payments under the scheme may result. In such a case, what is involved is a variation of a right which is inherently susceptible of variation and the mere fact that a particular variation involves a reduction in entitlement and is retrospective does not convert it into an acquisition of property. More importantly, any incidental diminution in an individual's entitlement to payment in such a case does not suffice to invest the law adjusting entitlements under the relevant statutory scheme with the distinct character of a law with respect to the acquisition of property for the purposes of s 51(xxxi) of the Constitution."

[Footnotes and references omitted]

59. In my view these principles are also applicable to the entitlement to criminal injuries compensation provided by the Criminal Injuries Compensation Act 1983 prior to its amendment by the Amending Act. It may be noted that Dr Peverill had provided professional services to his patients and had been entitled to be paid for those services. As Dawson J observed at 246 the statutory scheme enabled patients to enter into an agreement with medical practitioners to assign the right to payment of the relevant benefit to the medical practitioner and for the practitioner to accept such assignment in full payment for the service. Dr Peverill's entitlements to be paid for his services presumably constituted proprietary rights which would have been recognised by the general law. However, the existence of such proprietary rights against third parties did not prevent the conclusion that the provisions under which he was paid by the Commonwealth created statutory entitlements to receive payments from consolidated revenue which were not "based on" antecedent proprietary rights recognised by the general law. Nor did their existence prevent the conclusion that the amending legislating reducing those entitlements was an element in a regulatory scheme for the provision of welfare benefits from public funds. Consequently, I am unable to accept that the decision of the High Court can be distinguished in this case merely by adverting to the fact that claimants for criminal injuries compensation would have had antecedent rights against offenders.

60. It is true that the word "compensation" generally suggests some payment or benefit provided as recompense for loss or detriment. However, the entitlement provided by the Criminal Injuries Compensation Act 1983 (prior to amendment) was not compensation for the loss of antecedent rights against offenders but compensation for the injuries suffered. That is clear both from the words of the statute and the term of the explanatory statement authorised by the Acting Attorney-General when the Criminal Injuries Compensation Ordinance, as the statute was then cited, was introduced by the Commonwealth in 1983. Hence, it is difficult to see how the statutory entitlement could be said to have been "based upon" antecedent proprietary rights recognised by the general law.

61. Furthermore, many welfare benefits could be seen as involving recompense for loss or detriment. Yet entitlements to such benefits were of the kind which the High Court identified in Peverill as inherently susceptible to variation. They may be contrasted with proprietary rights or statutory entitlements based upon rights of that kind which are not so susceptible. The distinction is an important one. Welfare laws generally reflect the compassion of the community for those suffering loss or hardship. They are based not upon antecedent proprietary rights of those to whom entitlements are given but upon the moral responsibility which a humane society accepts for those less fortunate. The legislature is free to determine the extent to which public funds should be spent on welfare needs and the priorities that should be allocated to various social needs. Furthermore, it is free to change its mind about such matters. It is for this reason that interests created by regulatory schemes are inherently susceptible of variation.

62. In this Territory the power of the Legislative Assembly is limited by s 23(1) of the Self Government Act but only to the extent that any legislative provision may properly be regarded as a law for the acquisition of property. As I have mentioned, that concept may extend to statutory entitlements based on antecedent proprietary rights. For example, it might prevent the enactment of a law repealing a statutory entitlement which had been provided in substitution for common law rights against the Territory. However, the mere fact that some or all of the people who enjoyed such entitlements may have had rights against third parties provides no basis for concluding that their entitlements were based upon such rights or that they were protected by s 23(1) of the Self Government Act.

63. In the present case, the appellants' entitlements to criminal injuries compensation were not choses in action and neither supplanted nor were provided in substitution for antecedent rights against offenders. In my view the appellants were previously entitled "to receive payments from consolidated revenue which were not based on antecedent proprietary rights recognised by the general law". The legislature may lawfully reduce such entitlements whether they relate to loss caused by natural disasters such as floods or to injuries caused by human acts. In such cases the mere fact that a particular variation of the law involves a reduction in entitlement and is retrospective does not involve an acquisition of property. Hence there is no basis upon which a statutory provision of this kind which has been properly enacted by a democratically elected government can be struck down as invalid.

64. It is true that in Esber v Commonwealth and anor [1992] HCA 20; (1992) 174 CLR 430 the repeal of a statutory provision permitting redemption of weekly payments of compensation under the Commonwealth Employees' Rehabilitation and Compensation Act 1988 was held not to prevent the Administrative Appeals Tribunal from upholding an appeal from an antecedent decision refusing such a redemption. Mason CJ, Deane, Toohey and Gaudron JJ said at 440-41:

"Once the applicant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely "a power to take advantage of an enactment". Nor was it a mere matter of procedure; it was a substantive right. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent". This was such a right. It was a right in existence when the 1971 Act was repealed."

[Footnotes and references omitted]

65. However, entitlements to workers compensation may be seen as part of the package of rights which workers receive in return for the provision of services to their employer which in this instance was the Commonwealth. Consequently, those entitled to apply for such benefits might reasonably have argued that they were based upon antecedent rights vis a vis the Commonwealth. The same argument cannot be advanced in relation to payments of public monies to people injured by the acts of third parties.

66. Furthermore, that case was decided upon the basis of s 8 of the Acts Interpretation Act 1901 (Cth) which provides that unless the contrary intention appeared an Act repealing a former Act does not affect "any right privilege obligation or liability acquired accrued or incurred" under the Act so repealed or affect any legal proceeding or remedy in respect of any such matter. It was not necessary for the entitlement to redemption to be regarded as "property"; merely that it be a substantive right rather than a procedural right. Hence, the decision does not seem to me to support the proposition that a statutory right relating to compensation should be regarded as "property" for the purposes of s 23 of the Self Government Act.

67. Of course, there can be no doubt that an entitlement to have an application for criminal injuries compensation determined is also a substantive right and that, if the amending legislation did not contain a clear indication to the contrary, the provisions of s 38 of the Interpretation Act 1967, which are broadly equivalent to the provisions of s 8 of the Acts Interpretation Act 1901 (Cth), would similarly preserve any such right. However, s 16 of the Amending Act does contain a clear indication to the contrary.

68. For these reasons, I am unable to accept that s 16(2) of the Amending Act is invalid because of the operation of s 23(1) of the Self Government Act.

69. So far as the second question is concerned I agree with the conclusions of the Chief Justice as to the effect of s 24 of the Disability Discrimination Act 1992 (Cth) and have nothing to add.

70. I would dismiss the appeals.

I certify that the preceding paragraphs numbered fifty-five (55) to seventy (70) are a true copy of the Reasons for Judgment herein of His Honour Justice Crispin.

Associate:

Date: 15 May 2001

Counsel for appellant Frank: Mr C Everson

Solicitor for appellant Frank: Saunders and Company

Counsel for appellants Fokas, Pinter and Copelj: Mr Tilmouth QC with

Mr J Pappas

Solicitors for appellants Fokas, Pinter and Copelj: Capital Lawyers

Counsel for respondent: Mr Tracey QC with

Mr Walker

Solicitor for respondent: ACT Government Solicitor

Counsel for Amicus Curae for Victims of Crime

Assistance League (ACT): Dr B O'Hair

Solicitor for Amicus Curae for Victims of Crime

Assistance League (ACT): Stacks - The Law Firm

Date of hearing: 27 & 28 November 2000

Date of judgment: 15 May 2001