Commonwealth Employees Compensation - Weekly payments - Past and future entitlement - Proceedings before Tribunal concerning - Settlement by agreed lump sum - Power of parties to agree - Whether obliged to satisfy statutory formula for redemption - Injury prior to 1988 Act - Whether redemption provisions of 1988 Act applied - Federal Court proceedings to enforce settlement agreement - Administrative Appeals Tribunal Act 1975 (Cth), s 34 - Compensation (Commonwealth Government Employees) Act 1971 (Cth), s 49 - Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth), ss 124, 129, 137. The applicant received compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) following an injury in 1980. In 1986 determinations were made which denied liability after March 1985, and the applicant sought review by the Administrative Appeals Tribunal. Following negotiations in February 1990, he claimed that the respondent had agreed to settle his claim by a substitute determination that he was partially incapacitated between March 1985 and February 1990 and that he be paid $50,000 in respect of his entitlement to weekly payments of compensation for that incapacity. He then applied to the Federal Court of Australia for an order for specific performance of the agreement, and for injunctions to restrain the respondent and Tribunal from proceeding further with the matter.

Held: (1) At least some portion of the $50,000 was attributable to a redemption of the applicant's right to future compensation payments.

(2) The rights and liabilities of the applicant and the respondent were to be ascertained according to the Compensation (Commonwealth Government Employees) Act (the 1971 Act), except to the extent that the transitional provisions of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act) might override them.

(3) Section 137 of the 1988 Act governed the right of the applicant and the liability of the respondent to redemption of weekly payments, not s 49 of the 1971 Act.

(4) There was no power in the Commonwealth or its authorities to contract out of the 1988 Act.

(5) In the present case, therefore, the parties were unable to reach an agreement which was in substance a redemption of the applicant's rights on a basis that was not permitted by s 137.

(6) The matter should be adjourned, since there was no evidence whether the $50,000 was arrived at by reference to the formula laid down in s 137.

Farhat and Australian Postal Commission, Re (1989) 9 AAR 523 (note); 16 ALD 712

Figueiras and Australian Postal Commission, Re [1988] AATA 358; (1988) 9 AAR 519.

Willis and Australian Telecommunications Commission, Re (1989) 10 AAR.

Willis and Australian Telecommunications Commission (No 2), Re (1990) 11 AAR 348.

Solicitor for the respondent: Australian Government Solicitor.

The primary question in this case is whether the parties can enter into an agreement providing for a lump sum payment by Australian Telecommunications Corporation to the applicant, its former employee, in extinguishment of his rights under the relevant Commonwealth workers compensation legislation. The second question is whether the particular agreement, which the applicant asserts was made in settlement of his claims, was one which it was competent for him and Australian Telecommunications Corporation to make.

2. Such of the relevant facts as are before the court are not in dispute. The applicant is 52 years of age and is married. At all material times the applicant's sole dependant was his wife. The parties agree that the applicant was employed by the Commonwealth and the respondent or its predecessor Australian Telecommunications Commission (to all of which I shall refer for convenience as the ATC) between 10 June 1957 and 1 April 1987. The parties agree, but solely for the purposes of this proceeding, that on or about 12 September 1980, in the course of his employment by the ATC, the applicant suffered an injury within the meaning of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act).

3. The ATC paid certain sums by way of compensation under the 1971 Act to the applicant during the period 12 September 1980 to 17 March 1985 in respect of the injury sustained by the applicant on 12 September 1980.

4. On 16 September 1986 the delegate of the Commissioner for Employees' Compensation (the Commissioner) appointed under the 1971 Act held that he was unable to find that the personal injury to the applicant's lower back, sustained by him on 12 September 1980, resulted in his being totally incapacitated for work from 18 March 1985 to 7 April 1985. The delegate determined that the ATC was not liable to pay compensation to the applicant under s 45 of the 1971 Act (relating to total incapacity) for the period 18 march 1985 to 7 April 1985.

5. On 18 November 1986 a delegate of the Commissioner determined that the ATC was not liable to pay compensation to the applicant in respect of certain medical expenses incurred during and after March 1985.

6. Between 18 March 1985 and 1 April 1987 (the date of the applicant's official retirement from work) the applicant was absent from work for various periods and for different reasons.

7. By proceedings respectively numbered N87/32 and N87/590 the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the decisions of the delegate of 16 September 1986 and 18 November 1986. The parties to each of those proceedings were the applicant and the ATC. Each application was filed on 14 January 1987. The applications were heard together by the Tribunal constituted by Deputy President Bannon. For the purposes of s 34(1) of the Administrative Appeals Tribunal Act 1975 (Cth) conferences were held before 5 February 1990 in respect of the two applications before the Tribunal. The applications were heard by the Tribunal on 30 May 1988, 27 April 1989, 1 November 1989, 5 February 1990 and 26 June 1990.

8. On 5 February 1990 settlement negotiations took place between counsel for the applicant and counsel for the ATC. Draft documents entitled "Heads of Agreement" and "Decision" were prepared. The draft "Heads of Agreement" states that the parties agree to settle the applicant's claim for compensation in accordance with the draft determination, which is the document entitled "Decision". The draft "Decision" provides for the Tribunal setting aside by consent the determinations of 16 September and 18 November 1986; and for a determination that the applicant was "partially incapacitated" between 18 March 1985 and 4 February 1990 and for a determination that the applicant be paid $50,000 in respect of his entitlement to weekly payments of compensation for "that incapacity" (that is the partial incapacity) under the 1971 Act; and that the applicant be paid certain amounts in respect of medical expenses and costs.

9. During the luncheon adjournment, counsel for the ATC informed counsel for the applicant that his instructing solicitors had "problems with the documents". The proceedings before the Tribunal were later adjourned to 16 February. Then followed an exchange of correspondence between the solicitors for the parties and the mention of the matters before the Tribunal from time to time. Proceedings were commenced in this Court by the applicant on 27 June 1990 seeking to restrain the ATC from proceeding further with its defence of the two proceedings before the Tribunal and seeking to restrain Deputy President Bannon from proceeding further with the hearing. The application also seeks an order for specific performance of the agreement which the applicant asserts was reached between himself and the ATC on 5 February 1990.

"... assuming the applicant had been totally incapacitated for the

period 18 March 1985 to 7 April 1985 and 1 April 1987 to 4 February

1990 his entitlement would have been to compensation payments of

approximately $28,550.50."

11. Assuming that the applicant's entitlement to compensation payments for previous periods was at most $28,550.50 it is clear that at least some portion of the $50,000 settlement is attributable to a redemption of his right to future compensation payments. It is this portion of the total sum that is the real subject of the dispute in these proceedings as it was not suggested that there is any doubt that the ATC has power to pay amounts due in respect of past periods as a lump sum.

12. The question whether the parties could agree to settle the proceedings before the Tribunal for an agreed total amount or whether any lump sum payment by way of compensation can be paid only in accordance with the redemption provisions of the relevant legislation involves an essential preliminary question, namely, whether the respective rights and liabilities of Mr Behan and the ATC fall to be determined under the 1971 Act or the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act) or a combination of the two Acts.

13. This question arises because the 1971 Act was repealed by the 1988 Act: s 139. Part X of the 1988 Act is concerned with transitional provisions, consequential amendments and appeals. Division 2 of Pt X contains ss 124 to 130 relating to transitional provisions, and Div 3 concerns special transitional provisions relating to certain former employees including s 137 which provides for lump sum redemption in specified circumstances.

14. In the 1971 Act the provision allowing for lump sum redemption is s 49. The criteria governing lump sum redemption contained in s 49 of the 1971 Act and s 137 of the 1988 Act differ somewhat. Hence, in addition to determining which of the Acts governs the applicant's general entitlement to compensation it is also necessary to determine which of the two redemption provisions is applicable.

15. The transitional provisions in Pt X include s 124 which deals with the application of the 1988 Act to injuries suffered before the commencement of the 1988 Act (1 December 1988), s 127 concerning settlements and determinations under previous Acts and s 129 which deals with applications for review and other proceedings under earlier Acts. The interpretation of s 124 and other transitional provisions of the 1988 Act has led to divergence of opinion in decisions of the Tribunal. These divergent opinions are collected in the decision of the Full Tribunal in Re Willis and Australian Telecommunications Commission (1989) 10 AAR 382. The Tribunal constituted by the same three members (Hartigan J, President, Forgie, Deputy President and Lynch, Senior Member) gave a separate decision on a separate question between the same parties, reported in Re Willis and Australian Telecommunications Commission (No 2) (1990) 11 AAR 348. The Full Tribunal sat to resolve the divergence of opinion amongst its single members.

16. Section 124 of the 1988 Act was the principal section on which the Tribunal focused in its earlier decisions culminating in Re Willis: Section 124 provides:

"124(1) Subject to this Part, this Act applies in relation to an

injury, loss or damage suffered by an employee, whether before or

after the commencing day.

124(2) A person is not entitled to compensatio under this Act in

respect of an injury, loss or damage suffered before the commencing

day if compensation was not payable in respect of that injury, loss

or damage:

(a) where the injury, loss or damage was suffered before the

commencement of the 1930 Act - under the 1912 Act;

(b) where the injury, loss or damage was suffered after the

commencement of the 1930 Act but before the commencement

of the 1971 Act - under the 1930 Act as in force when

the injury, loss or damage was suffered; or

(c) in any other case - under the 1971 Act as in force when the

injury, loss or damage was suffered.

124(3) A person is not entitled to compensation under section 24 or

25 in respect of a permanent impairment, or under section 17 in

respect of the death of an employee, being an impairment or death

that occurred before the commencing date if:

(a) the person received compensation of a lump sum in respect of

that impairment or death under the 1912 Act, the 1930 Act or

the 1971 Act; or

(b) the person was not entitled to receive compensation of a lump

sum in respect of that impairment or death:

(i) where the impairment or death occurred before the

commencement of the 1930 Act - under the 1912 Act:

(ii) where the impairment or death occurred after the

commencement of the 1930 Act but before the

commencement of the 1971 Act - under the 1930 Act as in

force when the impairment or death occurred; or

(iii) in any other case - under the 1971 Act as in force when

the impairment or death occurred.

..."

17. In Re Willis the Tribunal decided that a clear expression of legislative intent is to be found from s 124 that entitlement to compensation in respect of pre-existing injuries (that is, existing before 1 December 1988) is to be ascertained according to the entitlement provisions of the predeccessor Act which was in force at the time the relevant injury, loss or damage was suffered. In the case of Re Willis the applicant claimed compensation under the 1971 Act in respect of injuries sustained at the time of the operation of the previous Act, namely, the Commonwealth Employees' Compensation Act 1930 (Cth) (the 1930 Act). When the Commissioner for Employees Compensation refused the claim the applicant sought review of the Commissioner's determination by the Tribunal. The application for review was made under the 1971 Act but heard after the commencement on 1 December 1988 of the 1988 Act which repealed and replaced the 1971 Act. The question arose before the Tribunal as to which legislation determined the applicant's entitlement to compensation in the proceedings. The Tribunal held that under the 1988 Act a Commonwealth employee's entitlement to compensation in respect of injury should be determined only in accordance with the provisions of the legislation in force at the time at which the entitlement arose. Accordingly, the Tribunal found that the applicant's entitlement to compensation in the proceedings before it should be determined only in accordance with the provisions of the 1930 Act.

18. In Re Willis the Tribunal expressly agreed with the conclusion reached in Re Figueiras and Australian Postal Commission [1988] AATA 358; (1988) 9 AAR 519 by Mr McMahon, Senior Member, that the application before him was to be decided by the test under the 1971 Act; but the Tribunal disagreed with Senior Member McMahon's finding that s 8 of the Acts Interpretation Act 1901 (Cth) operated to continue in force the application before him in accordance with the terms of the 1971 Act. Senior Member McMahon held that the 1988 Act did not displace the continuing operation of the 1971 Act where a determination had been made affecting the rights and liabilities of the parties prior to the commencing date of the 1988 Act. He held that a fortiori it would not apply so as to displace the operation of the 1971 Act in relation to any application already lodged with the Tribunal for review of an earlier determination if that application had not been finally disposed of prior to the commencement date of the 1988 Act. In Re Willis the Tribunal expressed its disagreement with Mr McMahon's observations on this point on the basis that the 1988 Act expressly dealt with determinations made under the 1971 Act in ss 127(1) and 127(2) and they expressed the further view that the entitlement provisions of the 1971 Act are made applicable by reason of the operation of s 124(2) of the 1988 Act. It is this question of the operation, if any, of s 8 of the Acts Interpretation Act that caused the divergence of opinion in the decisions of the Tribunal constituted by single members.

19. The transitional provisions of the 1988 Act contain fairly elaborate provisions intended to keep alive under the 1988 Act rights and liabilities accrued under previous Acts including the 1971 Act. If rights and liabilities existed before 1 December 1988 then they continue under the 1988 Act but in the sense that entitlement to compensation in respect of injuries that were suffered before 1 December 1988 is to be ascertained in accordance with the entitlement provisions of the earlier legislation in force at the time the injury was suffered. This is the effect in my opinion of s 124. There is no need to resort to s 8 of the Acts Interpretation Act because rights and liabilities accrued before 1 December 1988 are kept alive under the umbrella provisions of s 124 itself. I agree with the decision in Re Willis that the entitlement provisions of the 1971 Act are made applicable by reason of the operation of s 124 of the 1988 Act. I agree also with Re Willis that it is not correct to interpret s 124 of the 1988 Act as requiring entitlement to compensation to be determined under the 1971 Act up to 1 December 1988 and thereafter under the 1988 Act. The Tribunal in Re Willis correctly rejected the contrary approach adopted in Re Farhat and Australian Postal Commission (1989) 9 AAR 523 (note); 16 ALD 712 and other decisions of the Tribunal which follow Farhat.

20. The rights and liabilities of the applicant and the ATC are therefore to be ascertained according to the 1971 Act except to the extent that the transitional provisions of the 1988 Act may override them, and I shall say something about that in a moment with respect to s 137.

21. Section 129 of the 1988 Act deals with applications for review to the Tribunal commenced before and after 1 December 1988. Section 129(1) provides that where a person was before 1 December 1988 entitled to apply to the Tribunal for a review of a determination under the 1971 Act, but had not made such an application before then, Pt IV of the 1988 Act applies (that is relating to reconsideration and review of the determination by the Tribunal) in essence as if the person were a claimant under the 1988 Act.

22. Section 129(2) deals with proceedings commenced before the Tribunal prior to 1 December 1988. That section provides:

"129(2) Where the Commonwealth is a party to any proceedings

relating to any matter arising under the 1912 Act, the 1930 Act or

the 1971 Act (including proceedings under Part V of the 1971 Act),

being proceedings instituted but not completed before the commencing

day, those proceedings may be continued on and after that day and,

where the proceedings are so continued, the relevant authority and

the Commonwealth shall be parties to those proceedings."

23. Whether s 129(2) permits the two applications before the Tribunal in this case to be continued is not entirely free from doubt because the parties to those proceedings are the applicant and the ATC. The Commonwealth is not a party, although the combined operation of the definition of "Commonwealth" in s 4(1) and s 5(7) of the 1988 Act, in my opinion, produces the result that reference to the "Commonwealth" in s 129(2) may be read as including a reference to the ATC so that s129(2) authorises the continuation of the two proceedings before the Tribunal. If this were not so, then in my view s 8 of the Acts Interpretation Act would operate to permit those two proceedings to continue before the Tribunal. Section 129 does not cover the field in the sense that it is not to be construed as excluding from continuation proceedings commenced before 1 December 1988 but not completed by then. The section is a facilitating provision and must be construed accordingly.

24. It does not necessarily follow from what I have said that s 49 of the 1971 Act relating to redemption applies to any redemption which may be made of the liability of ATC to make further payments to the applicant after 1 December 1988. Although entitlement to compensation in respect of the applicant's injuries is to be ascertained according to the entitlement provision of the 1971 Act (see s 124 of the 1988 Act), a right to redeem arises only upon written request by the applicant which had not been made before 1 December 1988. Redemption operates prospectively. It seems to me that s 137 of the 1988 Act governs the right of the applicant and the liability of the ATC to redemption, not s 49 of the 1971 Act.

25. The question whether the parties may lawfully agree to settle the proceedings before the Tribunal for an agreed lump sum reached other than by application of the redemption provisions of the relevant legislation would receive the same answer irrespective of which particular Act (the 1971 or the 1988 Act) applied, though it is necessary to decide, as I have, which of the two Acts applies because their redemption provisions differ. However, the primary question of principle is the same under the two Acts and it is to this question that I now turn. It is necessary to examine the structure and provisions of the 1988 Act to discern how they relate to the question of contracting out and this examination involves looking at the 1988 Act, not standing alone, but in the light of its legislative history in the Federal legislative domain.

26. The 1988 Act established a commission called the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (the Commission), the functions of which are defined by s 69. Part VIII of the 1988 Act established "administering authorities" being Commonwealth authorities who may be declared by the Minister in writing to be administering authorities and they are self administrators under the Act with similar powers and functions to the Commission in relation to the determination of claims, but also are requried to comply with ministerial directions: ss 102-105. The 1988 Act imposes liability on administering authorities to pay compensation (s 101(2)) and exempts them from paying the usual contribution to the fund: s 96(1). This basically establishes a self-insurance arrangement of the kind found in the legislation of some of the States of Australia. The Commission is liable to pay compensation in accordance with the 1988 Act in respect of an injury suffered by an employee if it results in death, incapacity for work or impairment: s 14(1). A formula for determining compensation for injuries resulting in incapacity is provided by s 19. Where the Commission is liable to make weekly payments to an employee in respect of an injury resulting in incapacity and the amount of those payments is $50 per week or less and the Commission is satisfied that the degree of the employee's incapacity is likely to change, the Commission is required to make a determination that its liability to make further payments to the employee under the relevant section be redeemed by the payment to the employee itself: s 30(1). Section 30(2) and (3) then provides a formula and rate to calculate the appropriate amount of payment.

27. Where a payment is made to an employee under s 30 in respect of an injury and thereafter the injury results in the employee being incapacitated for work to the extent that the employee is not able to engage in suitable employment and the incapacity is likely to continue indefinitely, the Commission is liable to pay compensation to the employee under s 30(1) during the incapacity: s 31(1).

28. Section 44 provides that an action or other proceeding for damage except for non-economic loss does not lie against the Commonwealth, a Commonwealth authority or an employee, in respect of an injury sustained by an employee in the course of his employment, being an injury in respect of which the Commonwealth or Commonwealth authority would but for s 44(1) be liable for damages or the loss of or damage caused to property used by an employee resulting for such an injury. Section 44(1) applies whether the injury, loss or damage occurred before or after the commencement of the 1988 Act but does not apply where an action or proceeding was instituted before 1 December 1988: s 44(2). Where an employee would be entitled to compensation under certain provisions of the Act be or she may elect whether to take that compensation for permanent impairment and non-economic loss or to sue the Commonwealth at common law for non-economic loss: s 45(1). A monetary limit on damages is imposed (s 45(4)) and an election is irrevocable: s 45(3). Where an employee makes an election, the abolition by s 44(1) of the common law proceedings does not apply: s 45(2)(a). Section 64 provides for applications to the Tribunal for a review of decisions under the 1988 Act. Section 60(2) states who are the parties to proceedings before the Tribunal, namely, the applicant and the Commission or, where the decision was made by an administering authority, that authority.

29. Part X of the 1988 Act contains the "transitional provisions, consequential amendments and appeals" to which I have previously referred. It is sufficient for present purposes to refer to s 137, an important provision, which provides:

"137(1) (a) Where a relevant authority is liable to make weekly

payments of compensation to a former employee in respect of an

injury resulting in incapacity; and

(b) the amount of those payments is $50 per week or less;

the relevant authority shall, on written request by the former

employee, make a determination that its liability to make further

payments to the employee be redeemed by the payment to the employee

of a lump sum."

30. Section 137(2) provides a formula for calculating the amount of the lump sum with reference to the amount per week payable to the former employee at the date of the determination, the number of years in the complete expectation of life of the former employee and the rate specified by the Minister for the purposes of s 30(2).

31. The 1971 Act also needs examination to understand the Federal Government's statutory provisions for worker's compensation. The 1971 Act established the Commissioner for Employees' Compensation (s 9) the function of whom is to determine all matters and questions arising under the 1971 Act: s 20(1). The Commonwealth is liable to pay compensation in respect of personal injury arising out of or in the course of the employment of an employee by the Commonwealth which is caused to the employee: s 27. Section 45 provides for payment of compensation in respect of injuries which result in total incapacity and s 46 for payments in respect of injuries resulting in partial incapacity. Section 49 provides for the redemption of compensation payable in respect of partial incapacity by stating that where payments of compensation in respect of an injury have been made to an employee under s 46 for a continuous period of not less than six months the employee may request the Commission in writing that the liability of the Commonwealth to make further payments to the employee under s 46 be redeemed by the payment to the employee of a lump sum: s 49(1). The amount of the lump sum is the amount determined to be the value as at the date of the determination by the Commissioner that the liability is to be redeemed, of the right of the employee to receive further payments of compensation under s 46, and in determining the value of that right the Commissioner is to pay regard to the nature of the injury to the employee, the age and occupation of the employee and any other relevant matters: s 49(4).

32. The Commissioner is prohibited from making a determination that the liability of the Commonwealth is to be redeemed unless he is satisfied that:

(a) the injury is not likely to result in the employee becoming

totally incapacitated for work;

(b) the employee intends to use the lump sum in a manner that is

particularly advantageous to the employee; and

(c) in all the circumstances it is desirable in the interests of the

employee that the liability of the Commonwealth be redeemed: s 49

(5).

33. Where an injury in respect of which a lump sum was paid to an employee in pursuance of s 39 or s 49 results in the employee at any time after the payment of the lump sum being totally incapacitated from work and where the incapacity is likely to continue indefinitely, compensation is then payable to the employee in accordance with s 50 during the period of the total incapacity.

34. Where a determination is made by the Commissioner under the 1971 Act an application may be made to the Tribunal for a review of the determination, and the parties to the proceeding before the Tribunal shall be the applicant and any other person who was a party to the determination, but the Commissioner shall not be a party to the proceeding: s 63.

35. The underlying rationale of the workers compensation legislation of the Commonwealth is that employees who are seriously incapacitated are entitled to compensation in the form of weekly payments and that redemption in the form of a lump sum payment generally can only apply where the incapacity is less serious as reflected in small weekly payments or weekly payments for a short period of time. Prima facie payments of compensation under this legislation are to be periodic and not by way of lump sum.

36. The history of the legislation establishes this plainly enough. Under the Commonwealth Workmen's Compensation Act 1912 (Cth) provision was made for commuting weekly payments to a lump sum: see First Schedule, cl 17 and Second Schedule, cl 7(d) and cl 8. Under the Commonwealth Employees' Compensation Act 1930 weekly payments could be redeemed by lump sum payments, but not in the case of total and permanent incapacity: First Schedule, cl 11. The Commonwealth Employees' Compensation Act 1948 (Cth) permitted redemption of weekly payments of a lump sum not exceeding #1,000 (later increased to #1,500 by Act No 27 of 1951 (s 11) and to #2,000 in 1954 by Act No 15 of 1954 (s 6)) having regard to the injury, age and occupation of the employee. See also the Second-Reading-Speech of the responsible Minister with respect to the Commonwealth Employees' Rehabilitation and Compensation Bill 1988 (Hansard 27 April 1988, p 2192).

37. Lump sum redemption for total incapacity was not permissible under the 1971 Act, the redemption provisions of which related only to partial incapacity; and the Commissioner was prohibited from making a determination that the Commonwealth's liability to further payments should be redeemed unless he was satisfied that the injury was not likely to result in the employee becoming totally incapacitated for work: see s 49(1) and (5).

38. Redemption of weekly payments of compensation by payment of a lump sum is considerably limited under the 1988 Act. The only circumstance in which the Commission may make a determination to redeem its liability in the case of current employees is where the amount of the weekly payments pursuant to ss 19, 20 or 21 is $50 per week (with an indexing provision) or less and the Commission is satisfied that the degree of the employee's incapacity is unlikely to change: s 31. Payments to former employees may be redeemed under s 137 on the same basis but a different formula is used in calculating the redemption: see s 137(2).

39. In my opinion, an analysis of the 1971 and the 1988 Acts themselves and of their history establishes that (a) the obligation of the Commonwealth and its authorities to make payments in the nature of workers compensation to its employees or former employees and (b) the respective rights and liabilities of employer and employee, are to be found within the four corners of the Acts themselves. They provide an elaborate and highly detailed code governing the right of employees and former employees to compensation and the obligation of the Commonwealth or its authorities to pay it. It is inconsistent with the legislation that the Commonwealth or its authorities and their employees can contract out of the legislation with respect to the entitlements of the employees other than as specifically provided by the legislation itself. For presently relevant purposes this means the redemption rights under the 1971 Act afforded by s 49 or the redemption rights granted by s 137 of the 1988 Act with respect to former employees are the mechanisms to which resort must be had by employer and employee if any lump sum payments are to be made. Workers compensation is enabling legislation designed for the benefit of employees who suffer injury arising out of or in the course of their employment. The legislation provides a statutory code to achieve this object and in my opinion the Commonwealth, its authorities and employees cannot independently of the legislation determine their respective rights and liabilities with respect to compensation to employees and thus impose charges on the Commonwealth Revenue other than by the application of the statutes themselves.

40. Counsel for the applicant relied on the absence of any specific prohibition against contracting out in the 1971 or 1988 Acts in support of his argument that no such prohibition against contracting out should be implied. He contrasted the legislation of the States which expressly prohibited contracting out and argued that if the Commonwealth Parliament had intended to prohibit contracting out it would have said so expressly.

41. Workers compensation legislation of the States of Australia assumes different forms and to varying degrees it prohibits contracting out of duties and obligations under the legislation. In New South Wales see Workers' Compensation Act 1926 (NSW), s 45 and Workers Compensation Act 1987 (NSW), s 272. In Victoria, contracting out of either the Workers' Compensation Act 1958 (Vic) or the Accident Compensation Act 1985 (Vic) had been effectively prohibited since the enactment of the Workers Compensation Act 1951 (No 5601). In Queensland see Workers' Compensation Act 1916 (Qld), s 12. In Tasmania the Workers' Compensation Act 1927 (Tas) contains s 12 which gives a limited approval for contracting out of the Act where the appropriate authority certifies that scales of compensation under schemes of compensation or insurance for workers are no less favourable than the corresponding scales contained in the Act and where certain other matters are satisfied. In South Australia see Workers' Compensation Act 1971 (SA), s 86 and Workers Rehabilitation and Compensation Act 1986 (SA), s 119. In Western Australia see Workers' Compensation and Assistance Act 1981 (WA), s 181. In the Australian Capital Territory see Workmen's Compensation Act 1951 (ACT), s 13.

42. In my view, the applicant can derive no comfort from this contrast between the Commonwealth and State legislation. The States, also the Territories, legislate for the benefit of employees of themselves and their instumentalities, but in addition for a large workforce employed by numerous private employers over whom the States and Territories have no direct control. Hence there is a necessity for the legislatures to inform employers and employees that they cannot contract out. The Commonwealth is in a quite different position. It and its authorities are the only employers so that it does not need to prohibit itself and its authorities from contracting out of the legislation which it has created for the benefit of employees.

43. It is not a question of not lightly implying a prohibition against contracting out in the absence of express prohibition because the Commonwealth legislation assumes that it is a self-contained code which does not recognise contracting out.

44. There is therefore no power in the Commonwealth or its authorities to contract out of the 1988 Act (also the 1971 Act). It follows that when the parties to this proceeding came to negotiate a settlement of the applicant's two applications for review before the Tribunal, there was inherent in the negotiations the inability of the parties to reach an agreement which is in substance a redemption of the applicant's rights on a basis that is not substance a redemption of the applicant's rights provisions to be found in the legislation, which in the case is s 137 of the 1988 Act.

45. The particular agreement which the applicant asserts was made on 5 February 1990 appears to have been arrived at, if any agreement was arrived at at all, on the basis that the applicant was partially incapacitated between 18 March 1985 and 4 February 1990. I not that the determination of the Commissioner's delegate of 16 September 1986, which is the subject of one of the applications for review before the Tribunal, was that ATC is not liable to pay compensation to the applicant under s 45 of the 1971 Act on the basis of total incapacity for the period 18 March to 7 April 1985.

46. It is unclear from the evidence precisely when it is asserted by the applicant that he was totally or partially incapacitated and as to the weekly amounts payable to him for his incapacity. I cannot therefore determine whether the alleged agreement asserted by the applicant in this case is one which could be accurately described as including a redemption under s 49 of the 1971 Act or s 137 of the 1988 Act.

47. The applicant submitted that it was unnecessary for the court to know the precise manner in which the agreement was reached and that it was possible to simply deem the amount to come within the terms of s 137 without reference to precisely found facts. The applicant derives support for this submission from the proposition that s 137, and indeed many other parts of the Act, would be practically unworkable if the ATC were unable to reach a compromise as to each of the statutory variables contained within it.

48. It is clear that there are many sections of the 1988 Act under which agreement may be reached as a result of negotiation rather than precisely found facts. For example, in the case of a factual dispute as to the degree of incapacity it may be practical to reach agreement by negotiation rather than by a fine analysis of competing medical evidence.

49. However, in order for the Tribunal to accept an agreement between the parties s 34 of the Administrative Appeals Tribunal Act requires the Tribunal to be satisfied that a decision in those terms would be within the powers of the Tribunal. Where, as in s 137, a specific formula is laid down for calculating the applicant's entitlement, the Tribunal needs to know the elements of that calculation.

50. There is no evidence in this case indicating that the lump-sum amount relates in the required manner to a weekly entitlement of less than $50. The negotiations between the applicant and the ATC may have been conducted in the context of the applicant's likely entitlement under s 137, but there is no evidence to that effect. The amount of $50,000 may have been arrived at with no thought to the applicant's weekly entitlement whatsoever.

51. Accordingly, I am unable to find on the current state of the evidence whether the alleged agreement made on 5 February 1990 is one which the parties may enter into or not.

52. I propose to make no orders today but to stand the matter over to a date to be fixed so that the parties may consider my reasons and apply to adduce any further evidence or make any further submissions.