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GOODWIN [2019] WACIC 24 (1 November 2019)

Last Updated: 11 November 2019

JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

ACT : CRIMINAL INJURIES COMPENSATION ACT 2003

CITATION : GOODWIN [2019] WACIC 24

CORAM : K HAFFORD

DELIVERED : 1 NOVEMBER 2019

FILE NO/S : CIC 3159 of 2018

CIC 3160 of 2018

BETWEEN : THOMAS JOHN GOODWIN

Applicant

Alleged offence - Did not do any act or thing he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence - Application of Criminal Injuries Compensation 2003 to "Commonwealth places" - Application of Criminal Injuries Compensation Act 2003 to Christmas Island - Court of a State

Legislation:

Christmas Island Act 1958, s 7, s 8, s 14

Christmas Island Applied Laws Ordinance 1992

Civil aviation Regulations 1988 (Cth)

Commonwealth Places (Administration of Laws) Act 19780 (WA), s 10

Commonwealth Places (Application of Laws) Act 1970 (Cth) s 3, s 4, s 6

Crimes Act 1900 (NSW) s 310D

Criminal Code s 2, s 4

Criminal Injuries Compensation Act 1985

Criminal Injuries Compensation Act 2003 s 3, s 8, s 12, s 14, s 17, s 18, s 19, s 29, s 30, s 31, s 38, s 53, s 66, s 67, s 70, Schedule 1, clause 5

Director of Public Prosecutions Act 1991 (WA)

Freedom of Information Act 1982

Judiciary Act 1903 (Cth), s 39

Migration Act 1958 (Cth)

Misuse of Drugs Act 1981, s 6

Territories Law Reform Act 1992 (Cth)

The Constitution (Cth) s 52, s 77, s 122

Result:

Compensation granted

Compensation refused

Representation:

Counsel:

Solicitors:

Case(s) referred to in decision(s):

A v D (1994) 11 WAR 481

ABY, ABZ v Patient Review Panel (Health & Privacy) [2011] VCAT 905

AJC v Lewis (2003) 35 SR (WA) 94

Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497

B v W (1989) 6 SR (WA) 79

Bass v Permanent Trustee Co Ltd [1999] HCA 9

Baxter v Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087

Bennett v Commonwealth of Australia [2007] HCA 18

Casinos Australia International (Christmas Island) Pty Ltd & Ors v Christmas Island Resort Pty Ltd & Anor [1958] WASC 387

Chamberlain v Doyle [2000] WADC 309

CME [2018] WADC 69

Cullinane v Tomlinson (1997) 18 SR (WA) 63

DPM [2006] WACIC 24

Federal Commissioner of Taxation v Munro [1926] HCA 58

Forge v Australian Security and Investments Commission [2006] HCA 44

GPW [2005] WADC 48

Hinchcliffe [2010] WADC 78

Houlahan v Pitchen [2009] WASCA 104

Huddart, Parker & Co Pty Ltd v Moorehead [1909) HCA 36[1909] HCA 36; , (1909) 8 CLR 330

JMT [2005] WACIC 33

Kiely v R [1974] WAR 180

KMA v DFS [2010] WADC 6

Kwong v Abdulwahab [2016] NSWCA 107

Li v Commonwealth of Australia [2002] FCA 1251

Lustig v Qantas Airways Ltd (Civil Claims) [2013] VCAT 1012

M v J and J v J (Unreported WASC, Library No 920598, 19 November 1992)

Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

Martin v Martin [2015] WADC 138

Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1

Mok v Director of Public Prosecutions (NSW) [2016] HCA 13; (2016) 330 ALR 201

New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173

Orellana-Fuentes v Standard Knitting Mill Pty Ltd [2003] NSWCA 146

P v P [1994] HCA 120

Permanent Trustee Australia Ltd v Commissioner of State Revenue [2004] HCA 53; (2004) 220 CLR 388

Pinkstone v The Queen  [2004] HCA 23 

Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118

Queensland Heritage Council v. Co of Trustees of Roman Catholic Archdiocese Brisbane [2000] QCA 378

Queensland Investment Corporation and Minister for Transport and Regional Services and Anor [2004] AATA 1025

R v Holmes [1988] 93 FLR 405

R v Phillips (1970) HCA 50; (1970) 125 CLR 93

R v Pinkstone [2001] WASC 172; (2001) 24 WAR 406

R v Porter [2001] NSWCCA 441; (2001) 53 NSWLR 354

R v Porter [2004] NSWCCA 353; (2004) 61 NSWLR 384

R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361

R v Willoughby [1975] WAR 19

Ransfield v The Assessor of Criminal Injuries Compensation [2000] WADC 245

Re ATS [2019] WADC 76

Re Piggott [2017] WADC 150

Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410

Re Utting [2011] WADC 10

RJE v Bandy (Unreported WASC, Library No 1365; 31 May 1974) 3

Robertson v Baker [2014] WADC 14

S v Neumann (1995) 14 WAR 452

Santos v Director of Public Prosecutions (WA) [2016] WASCA 230

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Shell Company of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530

Smith v Alone [2016] NSWDC 265

State of New South Wales v Maxwell [2007] NSWCA 53

Subramaniam v Mental Health Review Tribunal [2012] NSWSC 918

Svikart v Stewart [1994] HCA 62; (1994) 181 CLR 548

Tana v Baxter [1986] HCA 69; (1986) 160 CLR 572

TAW v NJS [2011] WADC 187

The Queen v Phillips (1970) 125 CLR93

Trosic [2012] WACIC 11

Trust Company of Australia Ltd (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Café Tiffany's) ('Stockland') [2006] NSWCA 185

Underwood v Underwood [2018] WADC 13

Waterside Workers Federation of Australia v JW Alexander Limited [1918] HCA 56; (1918) 25 CLR 434

Winiarczyk v Tsirigotis [2011] WASCA 97

WKO [2004] WACIC 68

Worthing v Rowell & Muston Pty Ltd [1970] HCA 19

Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89

Reasons for Decision:

1. By applications dated 5 November 2018 the applicant made a claim for compensation for injuries he suffered as a consequence of alleged offences which occurred on 12 November 2015 at Yongah Hill Immigration Detention Centre (the first incident) and on 13 October 2016 (the second incident) at the North West Point Immigration Detention Centre ("Christmas Island Immigration Detention Centre").
2. On 9 April 2019 Assessor Guthrie wrote to the applicant's solicitors raising two issues of concern with the applications. The first is in relation to the incident on 12 November 2015 and relates to the applicant's failure to report the matter to police. Assessor Guthrie had reached a preliminary view the claim should be refused pursuant to section 38 of the Criminal Injuries Compensation Act 2003 (the Act) because the applicant refused to assist police in the identification, apprehension or prosecution of the alleged offenders. The second issue was the broader matter of jurisdiction. Assessor Guthrie commented:

. . . both alleged offences took place on Commonwealth land and my preliminary view is if charges were to be laid then these charges would have been Commonwealth matters. The offences also involved persons detained under Commonwealth law. My preliminary view is that I do not have jurisdiction to make an award of compensation'. The applicant's solicitors provided submissions with respect to these matters on 1 May 2019, 31 May 2019 and 28 July 2019. I reviewed this matter after the applicant's submissions of 28 July 2019 were received and on 10 September 2019 advised that applicant's solicitors I had also formed a preliminary view the application with respect to Yongah Hill Detention Centre should be refused as a result of the jurisdictional issue. Further submissions from the applicant's solicitors were received on 8 October 2019, with a request I provide written reasons for my decision in the event I found the applicant was not entitled to compensation, together with an assessment of quantum of his claim. I now provide those reasons.

Offence at Yongah Hill Detention Centre

3. This application was made pursuant to section 17 of the Act which authorises an assessor to award an applicant compensation if satisfied the claimed injury and/or loss occurred as the consequence of the commission of an alleged offence. Alleged offence is defined in section 3 as a crime, misdemeanour or simple offence of which no person has been convicted.
4. Yongah Hill Detention Centre is located in Northam, Western Australia, approximately 95 km from Perth. It is a facility established under the Migration Act 1958 (Cth) for the detention of 'unlawful non-citizens' including persons who have overstayed a visa, or entered Australia without authority.
5. The circumstances of the first incident were set out in the Applicant's Statement to the Australian Federal Police dated 10 December 2015 and are as follows:
   4. About 11.00pm on 12 November 2015, I was visiting my friend in another compound [redacted]. I began to feel sick and went back to my room, 6G in Swan Compound.
   5. As I was walking back to my room, I noticed a group of males standing on the landing in front of my room. Two of the males I recognised as [redacted] and [redacted]. I recognised a third male who I know as [redacted]. I do not remember his last name.

. . .

10. I walked straight into my room, went to the toilet and threw up. After I threw up I sat on the bottom bunk which is [redacted]'s bed, and began texting my friend.
11. I was looking down at my phone when I heard the door open; I didn't look up to see who it was. Immediately after the door opened I was struck to my face. I felt it in my nose, teeth, and jaw. The hit pushed me right back, and as I was going back I saw a boot about my head height.
12. I landed on my back on the bed, [redacted] punched me two to three times. I grabbed his jumper with both hands, around his chest area. I asked him "What are you doing?" and tried to push [redacted] off me. He punched me again and [redacted] kicked me in the head at the same time.
13. I then let go of [redacted] and put both my arms around my head to protect it. Both [redacted] and [redacted] began punching and kicking me numerous times in the head.
14. I ran towards the door, as I got to the handle, I was put in a headlock and dragged backwards into the room. I do not know who put me in the headlock. As I was going backwards I slipped out of the headlock and fell to the floor, landing on my chest.
15. I reached out and grabbed the square railing on the bottom bunk to pull myself up. While this was happening I was being kicked in the back of my head. Someone then stomped on the back of my head which caused me to hit my head on the railing.
16. My right eyebrow hit the railing, and caused excruciating pain causing me to scream. I could feel blood come out of my eyebrow and run into my right eye.
17. I was still holding onto the railing to support myself, I turned my head to the right. At that time I was kicked in the face around my right eye. They repeatedly kicked and stomped on my head.
18. They put me in another headlock from behind and began punching me and asking me where my computer was. Saying words similar to "Where’s your computer?"
19. [Redacted] then reached under the quilt and took my laptop, he then left immediately. [Redacted] followed and left my room as well”
6. From the Federal Police records it is apparent there was a delay in investigating the matter. Despite initially indicating he wished to make a complaint, within 14 hours of the first incident the applicant advised he had changed his mind about laying an assault complaint. No investigation was carried out until after 22 November 2015 when the applicant advised he had changed his mind and wished to lay a complaint.
7. The applicant's solicitors provided a copy of correspondence from A/Superintendent Graeme Marshall, Australian Federal Police to Mr Geoff Lewis, Security Liaison Officer at Yongah Hill Immigration Detention Centre dated 18 January 2016 which states:

I refer to the above mentioned matter which was first received by the AFP Perth Office on 13 November 2015. The matter did not proceed at that time as the complainant declined to make formal complaint.

Subsequent correspondence was received from you on 24 November advising that the complainant, Thomas GOODWIN (1-4ZYIL30), had reconsidered and requested that the matter be investigated.

As a result of the complainant making a formal complaint, enquiries were conducted. It was determined that one of the alleged offender, FERRIS (1-32WHPOX) had been removed from the Commonwealth of Australia on 26 November 2015.

On 10 December 2015, the complainant, GOODWIN, was interviewed by AFP and provided a statement. On the same date the second alleged offender ARENA (1-5H78AUM) refused to participate in an interview with AFP.

The matter was referred to the Perth Regional Operations Capacity and Capability Committee (ROCCC) on 07 January 2016 for consideration. The ROCCC determined that this matter will not be investigated further as there is no evidence to corroborate the complainant's statement. There is no CCTV footage to identify either ARENA or FERRIS, and no witnesses to the assault (either SERCO officers or detainees).

Evidence

8. In support of the applications the applicant's solicitors provided a bundle of documents he had obtained under the Freedom of Information Act 1982 from the Australian Federal Police and from the Department of Immigration and Border Protection (the FOI documents). The FOI documents included photographs of the applicant's injuries which showed significant swelling and bruising to the applicant's right eye and cheek.
9. The applicant's solicitors also provided medical evidence with respect to his injuries, submitting a report from Dr K Cassam dated 21 May 2018, a referral from Dr Houlton of Birmingham Hospital to Mr Declan Costello dated 4 May 2018, a referral from Birmingham Hospital (author unknown) addressed to Dr Sahota also dated 4 May 2018, a report from Dr Hirsh of Royal Perth Hospital dated 21 September 2016, a report from Dr Weekes of Royal Perth Hospital dated 21 September 2016; a medical record described in the application as 'from unknown'; a letter from Dr Paul Hill of Northam Hospital dated 13 November 2015; a Questionnaire from Mr Alan Grant of International Health and Medical Services (IHMS) dated 16 November 2015; medical records from Royal Perth Hospital; medical records from Woorooloo Prison farm; documentation including medical records from Acacia Prison; medical imaging reports from Fiona Stanley Hospital; Emergency Department Notes from Northam Hospital, Eye Test Results from Specsavers dated 1 November 2016 and clinical records from IHMS.
10. Various Western Australian police records, receipts with respect to out of pocket expenses, handwritten notes form the applicant and a Victim Impact Statement were also provided. The application did not specify which documents related to each incident. For the purpose of these reasons I have referred to them with respect to the incident to which they are most relevant.
11. The report from Dr Cassam dated 21 May 2018 addressed the injuries sustained in both incidents without differentiating between the two incidents. This is unsurprising given the report was produced after the applicant returned to the United Kingdom following his deportation from Australia. Dr Cassam noted the applicant complained of damage to his teeth, being unsteady on his feet and having double vision in his right lateral gaze. Dr Cassam also noted the applicant had depressive symptoms which were triggered by the assault and the injuries as well as from having been in detention for some time, with difficulty adjusting to life after detention. Dr Cassam diagnosed the applicant with depression and prescribed sertraline (an antidepressant). In addition, Dr Cassam referred the applicant to a maxillo-facial surgeon. Dr Cassam attributed the dizziness and double vision to the assaults and considered the disability to be moderate in nature. With respect to work capacity, Dr Cassam opined the applicant was unfit to work as a result of his maxillo-facial injuries and due to his depression. No prognosis was provided. Dr Cassam noted the applicant has no history of alcohol or drug abuse. This observation is inconsistent with the records supplied by the applicant's solicitors who provided a copy of the applicant's Police Certificate for Immigration Purposes, which included a history of possession of cocaine in 2006, and a copy of his criminal record in Australia which included five offences of possession of a prohibited drug or drug paraphernalia and 26 offences for offer to sell/supply a prohibited drug (methamphetamine). There were also records from IHMS which note the applicant as having advised of daily methamphetamine use.
12. Dr Houlton noted in a referral dated 4 May 2018 the applicant had an injury to his right orbit with subsequent dizziness, which only occurred since the head injury in November 2015. In a letter to Dr Sahota dated 4 May 2018, which omitted details of the sender, it is noted the applicant's cranial nerves V and VII appeared intact but that binocular diplopia is occurring on extreme right lateral gaze. The letter also noted enophthalmos (posterior displacement of the eyeball) of the right eye is apparent by 2 mm.
13. A report from Dr Weekes of Royal Perth Hospital dated 21 September 2016 noted the applicant was transferred to Royal Perth Hospital for facial injuries consisting of an orbital blow-out fracture on the right side and an undisplaced fracture of his zygoma. The applicant was noted to have an enophthalmos on the right side, a large medial wall and floor defect in the right eye with diplopia on right lateral gaze, and some dental damage. Dr Weekes recorded on 25 August 2016 the applicant was provided with the option of reconstructive surgery but declined at that time. Confusingly, the report of Dr Hirsch of Royal Perth Hospital also dated 21 September 2016 is identical to the report of Dr Weekes, save it comments the injury occurred at Christmas Island Immigration Detention Centre, not at Yongah Hill Immigration Detention Centre.
14. A report from Dr Paul Hill dated 13 November 2015 noted on his presentation to the emergency department of Northam Hospital on 13 November 2015 the applicant was diagnosed with an fracture of the infra orbital floor and medial wall of the right orbit; and a fracture of nasal bones with some septal deviation. A copy of the Northam Hospital records was included with the application.
15. The applicant's solicitors provided a copy of his records from Royal Perth Hospital. A preliminary handwritten report from Royal Perth Hospital which is unsigned and undated, but which has been written on an IHMS referral form dated 16 November 2015 summarises the applicant's attendance at the maxillo-facial clinic as 'examined facial fractures - sustained right medial wall of orbit fracture and un-displaced right zygoma fracture; minimally displaced nasal bone, occlusion sound, multiple broken teeth, right (illegible) nerve injury, nil diplopia'. The applicant attended the Maxillo-facial Outpatient clinic at Royal Perth Hospital on 16 November 2015, 30 November 2015, 1 August 2016 and 25 August 2016. Of note in the records was a reference on 30 November 2015 to the applicant having suffered right eye lateral uniocular diplopia and sensory deprivation in the distribution of the infraorbital nerve. He attended the Ophthalmology Outpatient Clinic at Royal Perth Hospital on 11 April 2016, 9 May 2016 and 30 May 2016 The applicant's complaints over this time related to Diplopia on right lateral gaze. I understand this to mean the applicant experienced double vision in his right eye when looking to the right. There were no complaints in the clinical records that the applicant was experiencing ongoing dizziness.
16. On 8 June 2016 the applicant provided a statement with respect to his economic loss. This noted he was unable to work whilst in Australia due to his visa conditions, and therefore had not worked since 2010. He was unable to provide any record of past earnings prior to 2010. His previous work history included working as a metal finisher.
17. The Woorooloo Prison Farm records contain a record on 6 July 2017 that the applicant experiences double vision only when looking to the side and that his sight is 'OK' when he looks straight ahead.

Findings with respect to the incident at Yongah Hill Detention Centre

18. With respect to the first incident at Yongah Hill Immigration Detention Centre, I make the following findings:

(a) The circumstances of the incident comprise an alleged offence under section 17 of the CICA;

(b) In the first incident the applicant sustained injuries from an assault, which comprised:

(i) A fracture of the infra-orbital floor and medial wall of the right orbit;

(ii) A fracture of nasal bones with some septal deviation;

(iii) Dental damage; and

(iv) Associated swelling and bruising.

(c) The applicant experienced dizziness immediately after the first incident but this resolved and no ongoing complaints of dizziness were made with respect to this incident.

(d) As a result of the applicant's injuries arising from the first incident, he has ongoing residual disabilities which include:

(i) Right eye lateral uni-ocular diplopia;

(ii) Sensory deprivation in the distribution of the infraorbital nerve;

(iii) Enophthalmus of the right eye; and

(iv) Depression.

(e) The applicant's vision is within normal limits when he is looking straight ahead, and he only has a visual defect when looking to the side.

(f) The applicant's depression is multifactorial and includes a history of depression, the impact of the first incident, the second incident on Christmas Island, the impact of having been in detention and the difficulties in adjusting to life outside of detention which include financial pressures arising from being unable to work.

(g) The applicant's injuries and residual disabilities arising from the first incident have impacted his earning capacity. I accept the applicant's residual disabilities, specifically the diplopia and the depression, will have an impact on his ability to carry out his employment as a metal finisher. The extent of this loss is difficult to quantify given the failure of the applicant to produce any evidence of past earnings or potential future earnings.

Findings with respect to section 38 of the Act

19. Section 38 of the Act provides, an assessor must not make a compensation award in favour of an applicant if the assessor is of the opinion that the applicant 'did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence'.
20. The intention of section 38 is to ensure authorities are not prevented from investigating the factual circumstances of an alleged offence: Hinchcliffe [2010] WADC 78 [58]; Ransfield v The Assessor of Criminal Injuries Compensation [2000] WADC 245 [23] - [31]; CME [2018] WADC 69 at [52]. In considering section 38 of the Act, two enquiries must be made. First, to make a factual determination whether there was a failure by the applicant to assist in the identification, apprehension or prosecution of the offender? Secondly, if there was a failure, was that failure reasonable in the circumstances, taking into account the particular circumstances of the applicant to determine what was reasonable for him or her to do?: AJC v Lewis (2003) 35 SR (WA) 94 [33] (Martino J).
21. The applicant initially refused to make a complaint with respect to the first incident which caused a delay in the investigation of this incident. I have considered the applicant's submissions dated 31 May 2019 with respect to this issue and accept that within a relatively short time of the first incident he expressed his willingness to co-operate with the authorities for the prosecution of the offenders. The delay was only nine days, being from 13 November 2015 to 22 November 2015.
22. I have reviewed other decisions with similar delays. In Re ATS [2019] WADC 76, Davis DCJ held a four month delay in reporting an incident to Police, where there was evidence of previous attempts to report to Police commencing one week after the incident, did not preclude an award of compensation. In Re Piggott [2017] WADC 150, Bowden DCJ held Mr Piggot was not precluded from making a claim despite having been initially uncooperative with Police who attended promptly at the scene. He did not lodge a formal complaint until 10 weeks later. It was noted he had been in hospital and working remotely between the incident and the report, and it was accepted whilst Mr Piggott delayed the police investigation the delay did not prejudice the identification, apprehension or prosecution of the offender. In Martin v Martin [2015] WADC 138, the applicant was assaulted by her de facto partner and did not cooperate with police on the night of the assault. This was held to be 'not particularly surprising or unreasonable'. Derrick DCJ allowed the claim, noting the applicant did report the matter to police and provide a detailed statement within 4 days of the offence. In DPM [2006] WACIC 24, a delay in reporting a sexual assault in a prison was held by Assessor Dempsey to be reasonable due to fears of reprisals, noting there was only a two month delay in reporting which did not prejudice investigations.
23. Whilst ultimately no prosecution of the alleged offenders occurred, this was predominantly due to the lack of corroborating evidence from faulty CCTV cameras, and not due to the applicant's failure to co-operate with investigators. Accordingly, there has not been non-compliance with section 38 of the Act.

Assessment of the applicant's claim with respect to the incident at Yongah Hill Immigration Detention Centre

24. On 10 September 2019 I advised the applicant's solicitors I had reached a preliminary determination to refuse the claim with respect to the first incident. By way of correspondence dated 8 October 2019, the applicant's solicitors requested I provide reasons for my decision if I refused the applicant's claim and that I also undertake an assessment of the quantum of the claim. However, for reasons set below I do not have jurisdiction to assess this matter and accordingly will not do so. I make the following comments with respect to the first incident, as they impact the assessment of the second incident.

Non-economic loss

25. The injuries I have found the applicant to suffer are set out at paragraph 18 herein. The applicant has been left with a permanent visual defect, namely right eye lateral uni-ocular diplopia and an enophthalmus of the right eye. In addition, the applicant suffered a sensory deprivation in the area of distribution of the infraorbital nerve. In very broad terms, this nerve distribution extends from the lower eye-lid to the upper lip. I have received no evidence with respect to the recovery of this nerve or any ongoing issues the applicant is suffering with respect to this nerve. The applicant bears the burden of proof (GPW [2005] WADC 48 at 12) and has not satisfied me on the balance of probabilities the sensory deprivation in the area of the infraorbital nerve distribution is of ongoing concern.
26. The extent of the contribution of the incident at Yongah Hill Immigration Detention Centre upon the applicant's depression is unclear, noting Dr Cassam commented in the report dated 31 May 2018 the depression is as a result of both assaults, the time spent in detention, the difficulty adjusting to life outside of detention and the applicant's current financial situation. I also note that Dr Cassam reported that counselling was offered but was declined by the applicant.
27. Pursuant to section 17 of the Act I can only compensate an applicant for injury which has been suffered as a consequence of the commission of an alleged offence. Compensation must be confined to consequences caused by the offence: Chamberlain v Doyle [2000] WADC 309. In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [106] to [108], Ipp JA (with whom Mason P agreed) held that:

Without intending to give an exhaustive list of possibilities, it may be that, had the defendant's negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.

Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant's negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.

As was pointed out in Newell v Lucas, the court must determine whether a comparison may be made between the plaintiff's condition prior to the injuries sustained by the defendant's negligence (including the plaintiff's economic and other prospects in that condition) and the plaintiff's condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.' (citations omitted)

28. A plaintiff can recover damages only for that part of his or her condition resulting from a defendant's negligence, and a court must take into account 'the chance that (unrelated) factors ... might have brought about the onset of a ... similar condition': Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 642. With respect to the applicant's situation, the consequences which were caused by the time spent in detention, the difficulty adjusting to life outside of detention and the applicant's financial situation are not compensable under the Act.

Loss of earning capacity

29. Dr Cassam commented in the report dated 21 May 2018 that the applicant is currently unfit for work due to the effects of his maxillofacial injuries and also due to his depression. The ongoing impacts of the maxillofacial injuries are listed in that report as being double vision and dizziness. I am unable to accept on the balance of probabilities the ongoing dizziness was caused by the first incident. The double vision is on right lateral gaze, and hence occurs when the applicant is looking to the right in the horizontal plane. I accept that this could have an impact upon some unspecified types of employment. No evidence has been provided that the right uniocular diplopia would specifically impact the applicant's ability to work in his previous employment of a metal finisher, or any other occupation for which the applicant is suited. Included in the application, in response to Question 33 of the application form, was a submission the applicant was unable to work and the income he is prevented from earning or will be prevented from earning in the future is $31,200. No evidence in support of this loss was provided. In the assessment of economic loss a plaintiff carries the onus of proving the loss of earning capacity and the extent to which that loss produces or might produce financial loss: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1. The applicant has not worked since 2010, and has provided no evidence of any earnings prior to that date.
30. In addition, the applicant's criminal record would impact his employability: State of New South Wales v Maxwell [2007] NSWCA 53 at [113] to [118]; Smith v Alone [2016] NSWDC 265 at [90] and [200] to [201]. In State of New South Wales v Maxwell [2007] NSWCA 53 the plaintiff, a prisoner, was injured while working in prison. A significant increase for vicissitudes from 15% to 50% was warranted because of the many relevant factors, namely his poor work record, criminal background, drug-taking, anger management and a pre-existing back condition. The Court of Appeal explained its reasons as follows:

[113] However, the appellant is on firmer ground in its submission that her Honour erred in making no allowance for the difficulties that the respondent would have encountered, even if uninjured. He would have needed more than favourable references from within the prison system to get anywhere near maximising the earning capacity inherent in his formal crane-driving qualifications. Even as an unskilled labourer he would have had difficulties in securing and retaining employment in light of his criminal record and his personal disposition.

[114] One hopes that this comparatively young man will readjust his lifestyle and climb out of his long pattern of drug dependency and associated criminality. There have, however, been incidents since his release from prison indicating that controlling anger and avoiding the use of illegal drugs remains a significant problem. And it is to be expected that some prospective employers will shy away from engaging him, at least in the short term until he (hopefully), builds up a record of responsible employment.

[115] These difficulties ought to have impacted on the awards for past and future economic loss.

[116] Neither party seeks a new trial unless it is unavoidable. The Court must do its best to determine what awards are justified.

[117] More than the pre-existing back problem should have been allowed for by way of "vicissitudes", assuming the conventional model of calculating economic loss by reference to the balance of an anticipated working life as a certificated crane operator. We think that 50% reduction in the award would more accurately reflect the probable loss stemming from all of the circumstances.

[118] A 50% reduction in the award for past economic loss is also justified on similar reasoning.

31. A further impact on the applicant's employability would be his history of drug taking. The applicant advised medical staff at IHMS of daily methamphetamine use. In Kwong v Abdulwahab [2016] NSWCA 107, the trial judge increased vicissitudes to 25% for this reason and, while the Court of Appeal made a minor adjustment of $10,000 to the damages awarded, this reasoning was not the subject of challenge.
32. Given the above, I am not persuaded that any reduction in the applicant's earning capacity due the injuries suffered in the first incident would result in a loss of earnings.

Treatment expenses, travel expenses and loss of personal items

33. No claim has been made by the applicant for travel expenses or loss of personal items.
34. The applicant has claimed treatment expenses as follows:

35. In addition, the applicant incurred medical report fees of $220.00 to obtain the report from Royal Perth Hospital and £104 to obtain the report from Dr Cassam. At the current exchange rate,[1] the cost of that report is approximately $194.00. The report was obtained to support both applications and I apportion 50% of the cost to each application, being $97.00.

Offence at Christmas Island Immigration Detention Centre

36. The second application was also made pursuant to section 17 of the CICA and relates to a second incident on 13 October 2016 at Christmas Island Immigration Detention Centre.
37. A Post Incident review completed by Serco on 13 October 2016 describes the incident as:

On the 13th October 2016 at approximately 13:04hrs Detainee Thomas Goodwin (1-4ZY1L30) was allegedly assaulted by two other detainees in C Block of Green Two Compound. CCTV footage of this incident is inconclusive; footage shows Mr Goodwin walking towards the Southern end of C Block, then out of camera angle.

At approximately 13:06 hrs Mr Goodwin then re-appears stumbling and heading in the direction of the officer's station in a bloodied state.

. . .

At approximately 13:30hrs, M Goodwin was interviewed by Security & Risk Manager Adrian Bain regarding the events leading to the physical altercation. Mr Thomas stated unknown detainee/s ambushed him when entering room C6, punching him in the right side of the jaw, causing Mr Goodwin to fall to the floor, Mr Goodwin also recalls being stomped on the head several times. Mr Goodwin stated that he did not want to identify the perpetrators. Fearing this will cause more issues for him within the compound. Mr Goodwin stated that he had a similar incident happen to him at Yongah Hill, and believed this incident is targeted based on criminal history that is drug related.

38. The circumstances of the incident were set out in the Applicant's Statement to the Australian Federal Police dated 17 October 2016 and are as follows:
    6. On Thursday the 13th day of October 2016, about 1:00pm I had finished lunch and returned to my room which is at Green Two, "C" Block . . .
    7. I left my room shortly after returning and walked towards the end of the dining area of the block to make a coffee. I had got half way to the coffee area when someone hit me on the right side of my face which caused me to slip over onto the floor. I was face down trying to get up when my black tracksuit top was pulled over my head. I couldn't see but it felt like I was being kicked and punched from both sides of my head. I felt around on the floor and grabbed one of the fixed metal chairs that are in the dining area and tried to pull myself up. While I was doing this someone punched or kicked the back of my head causing my face to smash against the metal chair. This caused a cut to the bridge of my nose and another one to the area between my eyebrows.
    8. I fell back to the floor and was still being punched and kicked. I was trying to stand up, pull off my tracksuit top so I could see and cover my head all at the same time. I could feel blood getting into my eyes and I was starting to feel dizzy.
    9. After some time I managed to get to my feet and pull the tracksuit top form [sic] over my head. I can't remember much at this stage because I think that I must have been close to going unconscious. I then staggered out of the block and walked to the officer's fish bowl and was met by some Serco officers.
    10. The officers took me up to the medical rooms where the doctor stitched up my cuts. I had 6 or 7 stitches. I also have two cracked teeth, one at the front right and the other at the rear left.

. . .

16. As a result of the assault I have two cracked teeth, swelling to my cheeks and eyes, an infected left eye, two cuts to my face, and the left side of my jaw is clicking and it hurts when I eat. I also have a sore neck. I am currently taking pain killers prescribed by the doctor.
39. A Case Note dated 18 October 2016 contained in the AFP file contains an analysis of the CCTV and details a discussion with the applicant:

The footage shoes the exact scenario that Thomas told us immediately afterwards (and also confirmed when speaking with other Detainees). That Thomas was looking for [redacted] (in the footage you can see him enter C Block and then go to C6 [redacted's] room - open the door and look inside, and then turn as if someone called him and walk towards C2 vicinity). We were told that Thomas was looking for [redacted] and someone called out "In here". And that's when he went to C2 and got smacked on the side and fell to the floor where he was kicked/stomped on.

When Thomas was in Medical [redacted] asked him, "Was it [redacted]?. Thomas "Yeah". [Redacted] asked him. "Was [redacted] involved?". He said "Check the cameras, there was a few of them, I think". [Redacted] passed that straight to ERT [Redacted]]. Later I spoke to Thomas on the phone when he was at Medical. He told me there were a few of them, but only named [redacted] and said he did not know who else was there. I asked him if someone had held him. He said that he had fallen to the floor and he had been kicked.

The Case Note then provides a redacted list of Detainees of interest with respect to the incident.

40. CCTV cameras did not capture the second incident, there were no witnesses and as the applicant was unable to clearly identify his assailants the Federal Police finalised the investigation without laying any charges.

Evidence

41. The documents provided in support of the second incident have been listed previously. The FOI documents included photographs of applicant's injuries which showed a laceration to the applicant's forehead and nose, which had both been sutured, and bruising to the applicant's left eye.
42. A copy of the applicant's medical records from IHMS was included with the application in relation to the second incident. These records indicate on 13 October 2016 the applicant attended the medical centre after the second incident. He was initially complaining of nausea and dizziness but denied any head injury, loss of consciousness or tenderness to his cervical spine. This record comprises the only recording of dizziness in the IHMS record. A 2 centimetre laceration to his forehead and a 1 centimetre laceration to his nose were noted, and both were sutured. He had bruising to the right temple, swelling of the left side of his jaw, a broken left 3rd molar and broken right upper lateral incisor. On 14 October 2016 it was noted the applicant presented to the medical centre seeking pain relief and he had superficial injuries/bruising to his face. The applicant complained of ongoing discomfort to his jaw and a generalised headache. On 17 October 2016 it was noted the swelling had improved and the applicant's wounds were healing well. The applicant reported he was able to eat and had nil concerns with respect to his jaw. The sutures were removed from his forehead and nose. A consultation note on 21 October 2016 refers to the applicant having sustained facial lacerations and bruising in the assault. In addition it was noted the applicant had sustained a neck injury as his neck was stepped on during the assault whilst being hyperextended. The applicant complained of ongoing jaw and neck pain. The lacerations were noted to have healed and the bruising to be resolving. On 27 October 2016 there is a reference to the applicant requiring eye drops due to flashing lights in his left eye since the second assault. Unrelated to the applicant's injuries in the incidents are records of lower back pain (2 June 2016); dermatitis (2 July 2016); shoulder pain (30 November 2015); toothache/dental caries (26 August 2016 and 6 October 2016); chronic ankle pain (6 October 2016); and daily methamphetamine abuse (6 October 2016).
43. On 26 October 2016 the applicant was reviewed by Dr Justina Teo, dentist, who wrote a report of the same date. The applicant's presenting complaint was that teeth 12 and 38 were chipped after a fight. He did not report any pain but requested the veneer on tooth 12 be fixed. Tooth 38 was noted to be carious and non-functional and removal of it was recommended if it became problematic.
44. On 27 October 2016 the applicant was referred to SpecSavers with respect to episodes of "flashing lights" in the left eye which were occurring up to 4 times per day.
45. The applicant provided a copy of his medical record from Woorooloo Prison Farm. This records on 9 November 2016 that the applicant had suffered an assault in October 2016 which caused chipped teeth, as well as a neck strain and flashing lights in his left eye. On 14 November 2016 the applicant underwent a new admission review. He complained the assault from the second incident caused facial injuries, chipped teeth, neck strain and flashing lights in in his left eye. The applicant was questioned about his medical history and he advised he had no history of any neurological issues but had a history of depression.
46. On 27 November 2016 the applicant attended the medical centre at Woorooloo Prison complaining of a dizzy episode. He reported it as having started at 14.30 hours during a visit with his family, and despite resting he had ongoing symptoms. On 8 December 2016 when being reviewed by the medical officer the applicant complained of flashing in his left eye with pain, diplopia in his right eye, a right ankle injury, psoriasis of his elbows and a right foot plantar wart. No complaint of dizziness was made. On 28 December 2016 the applicant saw a clinical nurse and complained of a headache with dizziness. He was noted to have nil vomiting and nil visual disturbance and assessed as having a Glasgow Coma score of 15/15. On 29 December 2016 the applicant saw a clinical nurse and reported dizziness which he attributed to previous head injuries including a shattered left [sic] eye socket and headaches. I note this attribution is inconsistent with the information provided on admission or at the first recorded episode of dizziness on 27 November 2016. The applicant requested a script for Stemetil. On 7 January 2017 the applicant advised the clinical nurse he had suffered 'two serious head injury assaults', and attributed his ongoing symptoms to those assaults. An e-consult was performed by Dr Richard Wee who noted the applicant's visual acuity tested as 6/6 left eye, 6/6 right eye, 6/6 both eyes and no peripheral vision loss in the left eye. On 9 January 2017, 16 January 2017, 24 January 2017, 15 February 2017, 3 March 2017, 5 April 2017, 1 May 2017, 9 May 2017, 24 May 2017 the applicant attended the medical centre and complained he had been suffering from dizziness. By 12 April 2017 the records refer to 'dizziness getting worse post assault Oct 2016'. However the initial attribution for these symptoms came from the applicant and I cannot see from the medical records any tests, investigations or examinations were conducted to confirm the applicant's symptoms arose from the assaults. The applicant was to be referred for a MRI and a neurology consult but this did not occur prior to his discharge from prison. On 26 April 2017 the records note 'pt. states he is getting dizziness and awaiting a brain scan for ? fluid on the brain'. This is another self-report by the applicant however the notes record he had previously been 'reassured about having fluid on the brain' on 29 November 2016.
47. A 'non-compliance with treatment' record on 6 July 2017 includes a comment from the applicant that he had no ongoing issues with his left eye, and only required treatment with respect to his right eye. In this regard, the last recorded complaint of left eye flashes was on 15 February 2017. The applicant advised on 1 May 2017 this issue had resolved. In addition the notes include references to the applicant suffering from chronic right ankle pain from an incident (unrelated to this claim) which occurred 26 August 2015, and which caused ongoing pain and restriction of movement in that ankle.

Findings with respect to the incident at Christmas Island Immigration Detention Centre

48. With respect to the second incident I make the following findings:

(a) The circumstances of the incident comprise an alleged offence under section 17 of the CICA;

(b) In the incident on 13 October 2016 the applicant sustained injuries from an assault, which comprised:

(i) a 2 cm laceration to his forehead;

(ii) a 1cm laceration to his nose;

(iii) bruising to the right temple;

(iv) swelling of the left side of his jaw;

(v) a broken left 3rd molar and broken right upper lateral incisor; and

(vi) cervical tenderness.

(c) As a result of the applicant's injuries, he has ongoing residual disabilities which include:

(i) Depression;

(ii) Damage to the left 3rd molar and broken right upper lateral incisor.

(d) The applicant's depression is multifactorial and includes a history of depression, the impact of this incident, the first incident at Yongah Hill Immigration Detention Centre, the impact of having been in detention, the difficulties in adjusting to life outside of detention and financial pressures noted above.

(f) The applicant recovered well from his injuries arising from the second incident. He complained of "left eye flashes" on 15 February 2017, but denied any ongoing left eye issues by July 2017.

(g) The applicant suffers from dizziness. Taking into account the delay between the incident and the applicant's reports of ongoing dizziness, combined with the initial explanation of the dizziness at Woorooloo Prison Farm I am not satisfied on the balance of probabilities the ongoing dizziness is as a result of the second incident.

(h) The applicant's earning capacity is impacted by his depression, the cause of which is multifactorial. However, the primary impact on the applicant's employability is the diplopia (which relates to the first incident at Yongah Hill Immigration Detention Centre) and the dizziness (which I am not persuaded relates to the second incident).

Assessment of the applicant's claim with respect to the incident at Christmas Island Immigration Detention Centre

49. Section 30 of the Act sets out the general powers of an assessor. It provides 'on application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered'. Under Section 3 of the Act, 'satisfied' means 'satisfied on the balance of probabilities'.
50. As the offence occurred after 23 September 2003, the maximum amount of compensation payable is $75,000: section 31(1) of the Act. The maximum in the Act under section 31(1) is a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463 (Murray J); TAW v NJS [2011] WADC 187 [21] (Bowden DCJ); Underwood v Underwood [2018] WADC 13 [19] (Gething DCJ) [30].
51. In assessing the amount of compensation the court should have regard solely to the injury suffered by the applicant in consequence of the commission of the offence. The amount of compensation is not to be fixed as punishment of the offender or as an expression of sympathy for the victim: B v W (1989) 6 SR (WA) 79, 89.
52. The correct approach to adopt in assessing the amount of compensation under the Act is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act, and to the jurisdictional limit of the Act: M v J and J v J (Unreported WASC, Library No 920598, 19 November 1992) (Scott J); RJE v Bandy (Unreported WASC, Library No 1365; 31 May 1974) 3 (Burt J); Re Utting [2011] WADC 10 [6] (Braddock DCJ); Robertson v Baker [2014] WADC 14. [12] (Stone DCJ); Underwood [113].

Assessment of non-economic loss

53. Pursuant to section 12 of the Act a victim who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss suffered. Injury' is defined in section 3 of the Act as 'bodily harm, mental and nervous shock, or pregnancy.'
54. The amount of damages for non-economic loss must be fair and reasonable compensation for the injuries received by the plaintiff and the disabilities caused, having regard to current general ideas of fairness and moderation: Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, 125 (Barwick CJ, Kitto & Menzies JJ); Houlahan v Pitchen [2009] WASCA 104 [107] (Newnes JA with whom Pullin & Miller JJA agreed); Winiarczyk v Tsirigotis [2011] WASCA 97 [71] (Judgment of the Court); Underwood [117]. The amount must be proportionate to the particular situation of the respondent.
55. The injuries I have found the applicant to suffer are set out at paragraph 48 herein.
56. I am of the view an appropriate award for non-economic loss is $7,500.

Assessment of loss of earning capacity

57. The applicant is entitled to compensation for 'loss of earnings as a direct consequence of the injuries' he suffered: section 6(2) of the Act. Loss of earnings includes loss of earning capacity: A v D (1994) 11 WAR 481, 489; KMA v DFS [2010] WADC 6 [27].
58. As at the date of the second incident at Christmas Island, the applicant:

(a) Had not worked since 2010;

(b) Had sustained injuries in the first incident as a consequence of the assault whilst at Yongah Hill Immigration Detention Centre;

(c) Had an impaired earning capacity by reason of the injuries sustained at Yongah Hill Immigration Detention Centre, namely a visual impairment, and due to depression;

(d) Had a history of daily methamphetamine use; and

(e) Had a criminal record.

59. Dr Cassam commented in the report dated 21 May 2018 the applicant is currently unfit for work due to the effects of his maxillofacial injuries and also due to his depression. I have found the applicant has recovered from the relatively minor maxillofacial injuries sustained in second incident at Christmas Island. The extent of the contribution of the incident at Christmas Island upon the applicant's depression is unclear, noting Dr Cassam has commented the depression is as a result of the first incident, the time spent in detention (which is not compensable), the difficulty adjusting to life outside of detention (which is not compensable) and his current financial situation (which is not compensable). Accordingly, I find the contribution of the injuries sustained in the second incident at Christmas Island to the applicant's impaired earning capacity to be negligible.
60. I am not persuaded to make any award for loss of earning capacity.

Treatment expenses, travel expenses and loss of personal items

61. No claim has been made by the applicant for treatment expenses, travel expenses or loss of personal items.
62. I allow the other half of Dr Cassam's report fee in the amount of $97.00

Summary of the assessment

63. I have assessed the applicant's claim as follows:

Jurisdiction

64. The concepts of federal jurisdiction and state jurisdiction are fundamental to the operation of the Australian judicial system. In Baxter v Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087, 1142, Isaac J explained the fundamental distinction between these concepts as follows:

'Jurisdiction' is a generic term and signifies in this connection authority to adjudicate. State jurisdiction is the authority which State Courts possess to adjudicate under the State Constitution and laws; federal jurisdiction is the authority to adjudicate derived from the Commonwealth Constitution and laws.

65. Section 52 of the Constitution (Cth) vests the exclusive legislative power in relation to Commonwealth land acquired from the States in the Commonwealth Parliament. Section 52(i) of the Constitution provides 'the Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes'. A 'Commonwealth place' is a place acquired by the Commonwealth for public purposes, other than the seat of government.
66. The Commonwealth Places (Application of Laws) Act 1970 (Cth) (the COPAL Act) was enacted pursuant to the legislative power conferred by section 52(i) following the High Court decisions in Worthing v Rowell & Muston Pty Ltd [1970] HCA 19; (1970) 123 CLR 89) and R v Phillips (1970) HCA 50; (1970) 125 CLR 93. The effect of those decisions was State law ceased to apply upon the acquisition by the Commonwealth of land for public purposes. Accordingly, a person could not be charged with having committed an offence against State law on or in a Commonwealth place. The COPAL Act was enacted for the purpose of making surrounding State laws, both statute and common law, applicable in relation to Commonwealth Places.[2]
67. A Commonwealth place is defined under section 3 of the COPAL Act:

Commonwealth place means a place (not being the seat of government) with respect to which the Parliament, by virtue of section 52 of the Constitution, has, subject to the Constitution, exclusive power to make laws for the peace, order, and good government of the Commonwealth.

68. Both of the incidents occurred at Commonwealth detention centres. A detention centre is established by the Commonwealth under section 273 of the Migration Act 1958 (Cth). A detention centre is a "Commonwealth Place" within the definition of the COPAL Act. (See Subramaniam v Mental Health Review Tribunal [2012] NSWSC 918 (17 August 2012) at [20] and Li v Commonwealth of Australia [2002] FCA 1251 (10 October 2002) at [12]).
69. The fact that a detention centre is a Commonwealth Place does not mean it is excised from the State of Western Australia: Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89; The Queen v Phillips (1970) 125 CLR93; R v Phillips [1970] HCA 50; (1970) 125 CLR 93 at 100-101 (Barwick CJ), 105 (McTiernan J), 110-111 (Menzies J, Owen J agreeing), 112 (Windeyer J) and 131-132 (Gibbs J); Permanent Trustee Australia Ltd v Commissioner of State Revenue [2004] HCA 53; (2004) 220 CLR 388 at [35] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); R v Porter [2004] NSWCCA 353; (2004) 61 NSWLR 384 at [14] (Spigelman CJ, the rest of the Court agreeing). This is essential to the applicant's application as it is not open for an Assessor to compensate the applicant for the impact of any incident which occurred outside Western Australia: Trosic [2012] WACIC 11.

What law applies to a Commonwealth place?

70. Section 4 of the COPAL Act sets out the laws that apply to 'Commonwealth places' as follows:

(1) The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time.

. . .

(12) Where:

(a) there is not in force an arrangement with the Governor of a State under subsection (2) of section 6 of this Act;

(b) a law of that State provides that an act may or shall be done by an authority of the State; and

(c) a part of the applied provisions corresponds to that law;

that authority is empowered to do that act under that part of the applied provisions.

(13) Without limiting the effect of any of the preceding provisions of this section, it is declared that the powers of a person under the applied provisions may be exercised in a Commonwealth place in a State in respect of an act done in that State notwithstanding that the act was not done in or in relation to that place and the applied provisions as having effect in or in relation to that place have effect in relation to anything done by a person in the exercise of a power referred to in this subsection.

(14) Without limiting the effect of any other law of the Commonwealth, it is declared that the powers of a person under the law of a State may be exercised in that State in respect of an act done in that State notwithstanding that the act was done in or in relation to a Commonwealth place and the provisions of the laws of the State have effect in relation to anything done by a person in the exercise of a power referred to in this subsection.

71. The effect of the application of section 4(1) is 'to enact a Commonwealth law in the same terms as each State law which falls within its terms': R v Porter [2001] NSWCCA 441; (2001) 53 NSWLR 354 (at [41]) per Spigelman CJ (Studdert J and Ireland AJ agreeing).
72. State provisions apply to a Commonwealth place 'in accordance with their tenor', and apply within the limits of the State laws, whether as to locality or otherwise. The laws applied are those in force at any relevant time, so when State laws are amended or repealed, the applied provisions will change accordingly.
73. Pursuant to the COPAL Act, the Act applies to a Commonwealth place in Western Australia, and hence to a detention centre. To be eligible for compensation, an applicant must have suffered injury as a consequence of a proved offence or an alleged offence: sections 12 to 17 of the Act. As a result I must also consider the nature of the offence that was committed or was alleged to have been committed.

Is an offence under the Criminal Code (WA) which is committed in a 'Commonwealth place' a State or Federal Offence?

74. If the Criminal Code (WA) applies to a Commonwealth Place in Western Australia under the COPAL Act, is an offence committed in that Commonwealth Place a State or a federal offence?
75. The applicants in R v Pinkstone [2001] WASC 172; (2001) 24 WAR 406) were charged with having committed offences against section 6(1) of the Misuse of Drugs Act (WA) (MD Act) at Perth Airport. Perth Airport is a Commonwealth Place. One applicant (Mr Pinkstone) applied to quash the indictment on the ground the court had no jurisdiction to try the offence as it was a Commonwealth offence that had occurred in New South Wales. The other applicant demurred to the indictment on the ground the offence charged was a State offence in respect of a Commonwealth place and was a nullity for that reason (the demurrer relied on the form of the indictment which alleged the commission of a State offence on a Commonwealth place rather than the commission of a Commonwealth offence by the contravention of an applied State law).
76. Roberts-Smith J explained the operation of the Commonwealth Places Act as follows:

Contrary to the submission made by Pinkstone ... the Commonwealth has not, by operation of the Commonwealth Places Act returned power to the States. The Commonwealth retains exclusive legislative power in respect of Commonwealth places; by virtue of s 51(i) of the Constitution it could not be otherwise. Whilst State laws are applied to such places by virtue of s 4 of the Commonwealth Places Act, they apply as Commonwealth law. It follows that the present offences are Commonwealth offences and the trial of them is an exercise by this court of federal jurisdiction [23]. (my underlining)

77. Mr Pinkstone appealed his conviction to the High Court. McHugh and Gummow JJ commented on the operation of the COPAL Act (Pinkstone v The Queen [ 2004] HCA 23  at  [33] ). After noting Perth Airport was a Commonwealth place, their Honours stated '[a]ccordingly, the [MD Act] (read with the Criminal Code ...) is picked up by s 4(1) and given effect to within the boundaries of Perth Airport. In this way, the [MD Act], as applied by the Commonwealth Places Act, operates as a surrogate federal law' (at [34]).
78. Similarly, in Mok v Director of Public Prosecutions (NSW) [2016] HCA 13; (2016) 330 ALR 201, French CJ and Bell J accepted that section 310D of the Crimes Act 1900 (NSW) (which made it an offence to escape or attempt to escape from lawful custody) could not apply of its own force to an attempted escape at Tullamarine Airport as the airport was a Commonwealth place (at [19]). Kiefel and Keane JJ also observed a 'State law made applicable by a federal law operates as federal law' (at [52]).
79. In Santos v Director of Public Prosecutions (WA) [2016] WASCA 230, Corboy J explained the purpose of the COPAL Act as follows:

The purpose of the Act is to apply State law to a Commonwealth place. The effect of the Act is to apply State law to a Commonwealth place as surrogate federal law. Where a person is charged with having committed an offence against a State law in a Commonwealth place:

(a) the court dealing with the charge is exercising federal jurisdiction;

(b) the offence will be a federal offence in terms that correspond with the terms of the State law;

(c) State criminal process laws will also apply to the investigation, prosecution and trial of the accused person by a combination of s 4 (1) or s 6(1) of the Commonwealth Places Act, any arrangement that has been made under s 6(1) of the Act and s 79(1) of the Judiciary Act (and see below regarding the effect of s 12(1) of the Commonwealth Places Act and s 11 of the State DPP Act).

A fundamental difficulty in the appellant's submissions was the failure to appreciate the nature of federal diversity jurisdiction. There are not two entirely independent sources of law as the appellant suggests – a binary system of either State law or Commonwealth law. Rather, the Commonwealth Parliament has legislative power to enact legislation that, in this instance, applies State law to a Commonwealth place. The offences with which the appellant was charged and convicted were offences against s 6(1) of the MD Act applied as surrogate federal law by the Commonwealth Places Act. Contrary to the appellant's submissions, the charges were validly made under a law that was 'known' to Commonwealth law [68] - [69].

80. It is clear from the authorities any offence at a Commonwealth place is a federal offence.[3]
81. Consideration is also given as to whether the Act applies to a Commonwealth place as state or federal law. The COPAL Act has been held to apply equally to legislation relating to criminal offences as to civil matters. See for example: R v Willoughby [1975] WAR 19; R v Holmes [1988] 93 FLR 405; Lustig v Qantas Airways Ltd (Civil Claims) [2013] VCAT 1012; Queensland Investment Corporation and Minister for Transport and Regional Services and Anor [2004] AATA 1025; Queensland Heritage Council v. Co of Trustees of Roman Catholic Archdiocese Brisbane [2000] QCA 378.
82. The effect of section 4 of the Commonwealth Places Act is that any civil state law is applied as if it were a surrogate federal law: R v Porter [2001] NSWCA 441, Spigleman CJ at [41]. Hence the Act will apply to the Yongah Hill Detention Centre as if was a surrogate federal law.
83. Two issues then arise. Firstly, whether the Act awards compensation for federal offences, and secondly, whether an Assessor of Criminal Injuries Compensation has jurisdiction with respect to federal law.

Does the Act award compensation for federal offences?

84. Cullinane v Tomlinson (1997) 18 SR (WA) 63 involved a claim under the Criminal Injuries Compensation Act 1985 in which a flight attendant sought compensation for injuries sustained on a flight between Darwin and Perth. The offender in that matter was charged pursuant to the Civil Aviation Regulation 1988 (Cth). Wisbey J considered the findings in Kiely v R [1974] WAR 180, in which the court held the word 'offence' as defined in s 2 of the Criminal Code and as used in general in the Code, meant an offence under the law of the State of Western Australia, and accordingly held a breach of a Commonwealth Act or regulation was not an offence within the meaning of that term as used in the Code. As a result he held:

It is abundantly clear that in passing the Criminal Injuries Compensation Act and in providing civil remedies for persons suffering from criminal behaviour, it was the intention of the Parliament that the criminal behaviour was that prescribed by the legislation of the State parliament. It was for that reason that it chose to use the same definition of offence as appears in the Code, the concept clearly being that persons suffering injury by conduct designated an offence by the law of the State are entitled to compensation.

He went on to say:

If the conduct complained of had constituted an offence under State law, it is my view that the appellant would have had an entitlement to damages if she suffered injury or loss there from, as that injury or loss would have been the consequence of the commission of an alleged offence in respect of which no person had been charged.

I take the use of the word 'damages' as used by Wisbey J to encompass compensation awarded under the Act.

85. To succeed with an application for compensation the applicant must establish on the balance of probabilities the conduct of another person amounted to a crime, misdemeanour or simple offence as envisaged in the Criminal Code: WKO [2004] WACIC 68.
86. In JMT [2005] WACIC 33, Assessor Millar considered the issue of compensation appropriate for an applicant who had been the victim of offences in Western Australia and in the Northern Territory. He commented:

In Cullinane v Tomlinson, (1997) 18 SR (WA) 63, it was held that references to crimes, misdemeanours and simple offences in the Criminal Injuries Compensation Act 1985 ("the 1985 Act") equated with the meanings of those offences in section 3 of the Criminal Code. Accordingly, it was held that the references to "crimes", "misdemeanours" and "simple offences" in the 1985 Act applied only to State offences and, therefore, in the context of that Act, were references to crimes, misdemeanours and simple offences committed in Western Australia. Similar references are made in the definitions of "proved offence" and "alleged offence" in the 2003 Act and, therefore, it is apparent that any reference to a "proved offence" or an "alleged offence" in that Act must be confined to offences committed in Western Australia. From that it follows that the 2003 Act does not authorise the payment of compensation for an offence committed in Darwin. (at [16])

87. The applicant's solicitors, in submissions dated 28 July 2019, have submitted JMT is authority for the proposition that a 'proved offence' or an 'alleged offence' must be confined to offences committed in Western Australia, and as Yongah Hill Immigration Detention Centre is in Western Australia, Western Australian Law, and hence the Act, applies. However, in my view, Assessor Millar has conflated two principles, the first that compensation can only be awarded for State offences, and the second that compensation can only be awarded for offences that occur within Western Australia. Whilst both principles are correct, a distinction should be drawn. Cullinane is authority for the principal the Act only creates an entitlement for a person suffering injury as a consequence of conduct that was designated an offence by the laws of the State. The issue of whether the offence for which compensation is being sought occurred in Western Australia is a preliminary jurisdictional matter (Trosic [2012] WACIC 11) and separate to the issue determined in Cullinane.
88. Accordingly, the Act does not create an entitlement to compensation for a person suffering injury as a consequence of conduct that constitutes a Commonwealth offence and that did (or would have) resulted in a conviction pursuant to Commonwealth legislation.

Do Assessors have federal Jurisdiction?

89. As the Act applies to a Commonwealth Place as a surrogate federal law, I must also consider whether an Assessor of Criminal Injuries Compensation is able to determine the matter.
90. The power to invest State Courts with federal jurisdiction is provided by section 77 of the Constitution. Jurisdiction in respect of any matter that involves federal law can only be vested in a "Court" in the strict sense: Waterside Workers Federation of Australia v JW Alexander Limited [1918] HCA 56; (1918) 25 CLR 434.
91. Section 7 and section 8 of the COPAL Act vest State courts with Federal jurisdiction in respect of matters arising under the provisions of the laws of the State to be applied to a Commonwealth place pursuant to section 4(1) of the Act. In particular, section 7(1) provides:

The several courts of a State are, within the limits of their several jurisdictions, whether those limits are as to subject matter or otherwise, but disregarding any limitation that exists by reason of a place being a Commonwealth place, invested with federal jurisdiction in all matters arising under the applied provisions as having, or as having had, effect in or in relation to a Commonwealth place.

92. A body may be characterised as a 'court' for one purpose and not another: compare Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497, 515 (McHugh JA) and New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173, 209 (Mahoney JA). However the expressions 'courts of the States' or 'court of a State' are constitutional terms, in that they refer to institutions of a certain kind within the contemplation of the Constitution. As their Honours Gummow, Hayne and Crennan JJ said in Forge v Australian Security and Investments Commission [2006] HCA 44 at 75.

It may be accepted that the constitution and organisation of State courts is a matter for State legislatures. In that sense, the federal Parliament having no power to alter either the constitution or the organisation of a State court, the federal Parliament must take a State court 'as it finds it'. It does not follow, however, that the description which State legislation may give to a particular body concludes the separate constitutional question of whether that body is a 'court' in which federal jurisdiction may be invested. It is only in a 'court', as that word is to be understood in the Constitution, that federal jurisdiction may be invested.

93. The expression 'court of a State' refers to a body that has 'the essential character of a court' that can receive and exercise the judicial power of the Commonwealth. If a body does not have this 'essential character', it cannot receive and exercise Commonwealth judicial power. The relevant characteristics of a 'court of a State' are not easy to define[4] however, the High Court has held that independence and impartiality is the irreducible minimum for a court of a State within section 77(iii) of the Constitution: Forge v Australian Security and Investments Commission at [67].
94. The NSW Court of Appeal held the Administrative Decisions Tribunal, established under a State Act, was not a 'court of a State'. Spigelman CJ, with whom Hodgson and Bryson JJA agreed, commented that:

For present purposes it is sufficient to conclude that, in order for federal jurisdiction to be permissibly conferred upon it, a 'court of a State' must – exclusively, or at least predominantly – be constituted by judges. (Trust Company of Australia Ltd (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Café Tiffany's) ('Stockland') [2006] NSWCA 185)

95. In Shell Company of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 at 543-544, Viscount Dunedin, delivering the advice of the Privy Council on appeal from the High Court of Australia:

The authorities are clear to show that there are tribunals with many of the trappings of a court which, nevertheless, are not courts in the strict sense of exercising judicial powers ... In that connection it may be useful to enumerate some negative propositions on this subject: (1) A tribunal is not necessarily a court in the strict sense because it gives a final decision; (2) Nor because it hears witnesses on oath; (3) Nor because two or more contending parties appear before it between whom it has to decide; (4) Nor because it gives decisions which affect the rights of subjects; (5) Nor because there is an appeal to a court; (6) Nor because it is a body to which a matter is referred by another body.

96. The issue of whether an Assessor is a court has not previously been judicially determined. However, the following bodies have been found not to be Courts:

(a) Administration Decisions Tribunal (NSW). In Trust Company of Australia Ltd (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Café Tiffany's) ('Stockland') [2006] NSWCA 185 Spigelman CJ with whom Hodgson and Bryson JJA agreed, firstly considered two competing lists of indicia as to whether the ADT was a court, before holding that it was not a "court of a State" pursuant to the Constitution;

(b) NSW Residential Tenancies Tribunal. In Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 the High Court (comprising Brennan CJ, McHugh J, Gummow J and Kirby J who provided separate judgments and Dawson, Toohey and Gaudron JJ in a joint judgment) held that the Tribunal was not a State court exercising federal jurisdiction with which it has been invested pursuant to section 77(iii) of the Constitution and s 39(2) of the Judiciary Act 1903 (Cth). Rather, it was an administrative body with no power to finally declare the rights of the parties for the purpose of the proceedings. Instead, it was asked to make orders, breaches of which gave rise to offences against the Act, which were prosecuted in the Local Court, or, with the consent of the Minister, in the Supreme Court of New South Wales in its summary jurisdiction;

(c) Victorian Civil and Administrative Tribunal. In ABY, ABZ v Patient Review Panel (Health & Privacy) [2011] VCAT 905 Ross J considered two competing lists of indicia and noted the appointment of non-judicial members, the lack of an oath of office and the requirement that it 'stand in the shoes' of the administrative decision maker meant that in some circumstances it may be required to implement Government policy. As a result Ross J was not persuaded that the Tribunal is a 'court of a State', as it lacked the requisite level of institutional independence;

(d) Workers' Compensation Commission of New South Wales. In Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146; (2003) 57 NSWLR 282 Ipp J noted the requirement that the President be a judge of a court of record and the Deputy President be a judicial officer or lawyer of at least five years standing, that there were means to compel the provision of evidence including evidence on oath and attendances at hearings, and the conveying of the same protection and immunity upon parties appearing as upon a solicitor appearing for a party in the District Court were consistent with it being a Court. However he held the appointment of arbitrators by the President, there being no requirement for the Registrar and Arbitrators to be legally qualified, there being no security of tenure, or no judicial oath of office, that rules of evidence did not apply, that functions could be exercised without the holding of a hearing and the procedures relating to medical disputes were indicative that it was not a court. He concluded that '[w]hile the Commission has some of the powers and trappings of a court, the cumulative effect of the matters that indicate that it is not a court is extremely powerful' (at [51]);

(e) Civil and Administrative Tribunal of NSW. In Attorney General for New South Wales v Gatsby [2018] NSWCA 254 Bathurst CJ found the Tribunal was not a court for reasons which included it was not designated a 'court of record', it was not comprised predominantly of 'judges', there was no security of tenure for members of the 'tribunal', the term of appointment did not exceed five years, members could be appointed on the basis they were 'capable of representing a group of persons in respect of which any one or more classes of matter in respect of which the tribunal had jurisdiction, and that a member can be removed by the Governor for 'incapacity, incompetence or misbehaviour';

(f) Workers' Rehabilitation and Compensation Tribunal. In The State of Tasmania (Department of Health & Human Services) v M.; M. v The State of Tasmania (Department of Health & Human Services) (Ref Nos 920/2017 & 1045/2017) [2018] TASWRCT 24 Chief Commissioner Webster noted whilst 'the Tribunal appears in a number of instances to be a court and has some of the powers of a court it is my view there are significantly more indicia which point to the Tribunal not being a court. In my opinion this compels the conclusion the Tribunal is not a court'.

97. In determining whether an Assessor can be characterised as a "court of a State" it is necessary to look at the powers of an Assessor. There are a number of indicia that suggest an Assessor acts a "court of a State", for example:

(a) an Assessor exercises powers which have the characteristics of judicial power;

(b) an Assessor can compel a person to attend to give evidence or produce documents and to give evidence on oath (as per sections 19(1)(c) to (e); 19(2); 25; 63 of the Act);

(c) an Assessor has the same protection and immunity as a judge of the Supreme Court (see section 66 of the Act);

(e) an Assessor's compensation reimbursement order is enforceable once lodged with a court of competent jurisdiction (see section 53 of the Act);

(f) an Assessor is required to take an oath of office (see Schedule 1, clause 4 of the Act).

(g) an Assessor is required to be an Australian lawyer of at least 8 years legal experience (see Schedule 1, clause 1 of the Act).

98. However even though an Assessor is able to exercise judicial power in his/her original jurisdiction this is not determinative. I note that Ipp JA said in Orellana-Fuentes v Standard Knitting Mill Pty Ltd [2003] NSWCA 146 at [39]:

There are many institutions that exercise judicial powers but are well recognised not to be courts.

99. There are a number of factors that suggest an Assessor is not sitting as a court:

(a) an Assessor/the Office of Criminal Injuries Compensation is not referred to as a court. This was held to be a relevant factor in Tana v Baxter [1986] HCA 69; (1986) 160 CLR 572, 581-2 (Brennan J); Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153, 175 (Issacs J); Trust Company of Australia Ltd (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Café Tiffany's) ('Stockland') [2006] NSWCA 185 [87] (Spigelman CJ);

(b) an Assessor cannot make costs orders (section 67 of the Act);

(c) an Assessor cannot grant injunctive or declaratory relief;

(d) an Assessor cannot be appointed for a term longer than five years (See Schedule 1, clause 3(1) of the Act);

(e) the judicial officers are "assessors" not "judges" (although are referred to as "Your Honour" whilst sitting in court);

(f) an Assessor is not bound by the rules of evidence (section 18(2) of the Act) and may have regard to any factors or circumstances that the Assessor thinks are relevant (section 29 of the Act). This was held to be a factor in P v P [1994] HCA 120 per McHugh J;

(g) any debts to the State that arise under the Act must be recovered in a court of competent jurisdiction (section 69 of the Act) ;

(h) an offence under the Act, such as giving false information under section 70, must be prosecuted in the Magistrates Court;

(i) the Governor may terminate an assessor's appointment if satisfied the assessor is incapable of properly performing the duties of an assessor, has shown himself or herself to be incompetent to properly perform, or has been guilty of misconduct (Schedule 1, clause 5 of the Act).

100. In my opinion the powers of, and restrictions upon, an Assessor as identified above lead to the conclusion that an Assessor is not a Court and is not able to exercise federal jurisdiction.

Impact of the WA COPAL Act

101. By way of correspondence dated 8 October 2019 the applicant's solicitors submitted an Assessor has power to exercise or perform the powers or functions he or she is empowered to exercise under the COPAL Act, pursuant to the provisions of the Commonwealth Places (Administration of Laws) Act 1970 WA (the WA COPAL Act). The WA COPAL Act is complementary legislation which relates to the administration of the law of the Commonwealth and of the State of Western Australia in Commonwealth places.
102. The applicant's solicitors referred to the following sections of the WA COPAL Act are:

3. Interpretation

In this Act unless the contrary intention appears –

Authority, in relation to the State, means –

(a) The Governor, a Minister or a member of the Executive Council of the State;

(b) A court of the State;

(c) A person who holds office as a member of a court of the State;

(d) A body created by or under the law of the State;

(e) An officer or employee of the State or of a body referred to in paragraph (d);

5. Authorities may act under Commonwealth Law

Notwithstanding the provisions of any law of the State, an Authority may–

(a) Exercise or perform the powers or functions that it or he is empowered to exercise or perform under the Commonwealth Act; and

(b) Act in any office or capacity in accordance with the provisions of an arrangement in force under section 4, in addition to carrying out its or his duties as an Authority under the law of the State.

7. Validation of certain acts

Where an Authority or a person has done an act in the purported exercise or performance of a power, duty or function under the applied provisions and that act could have been done by that Authority or person in the exercise or performance of a power, duty or function under the laws of the State, that act shall be deemed to have been done by that Authority or person in the exercise or performance of the power, duty or function under the laws of the State.

103. In essence, the submission from the applicant's solicitors is the above provisions mean Western Australian law, including the Act, were in effect and operate at Yongah Hill Immigration Detention Centre pursuant to the provisions of the COPAL Act, applied in Western Australia under the WA COPAL Act, and as a result an Assessor may exercise or perform the powers or functions he or she is ordinarily empowered to exercise.
104. In considering the applicant's submissions, section 4 of the WA COPAL Act is also relevant. This section states:

4. Arrangements with the Commonwealth

(1) Where, under a law of the State, provision is made for or in relation to the exercise or performance of a power, duty or function by an Authority of the State, not being a court, and under the applied provisions, provision is made for or in relation to the exercise or performance of a like power, duty or function, the Governor may make an arrangement with the Governor-General of the Commonwealth for the exercise or performance of that power, duty or function under the applied provisions by an Authority of the State, not being a court, in and in relation to Commonwealth places as provided in the arrangement.

105. In addition, I note section 6(2) of the COPAL Act which provides:

6(2) The Governor-General may make an arrangement with the Governor of a State for or in relation to the exercise or performance of a power, duty or function (not being a power, duty or function involving the exercise of judicial power) by an authority of the State under the applied provisions having effect in or in relation to a Commonwealth place in that State and, where such an arrangement is in force, the power, duty or function may or shall, as the case may be, be exercised or performed accordingly."

106. Also, section 4(14) and section 10 of the COPAL Act respectively provide as follows:

4(14) Without limiting the effect of any other law of the Commonwealth, it is declared that the powers of a person under the law of a State may be exercised in that State in respect of an act done in that State notwithstanding that the act was done in or in relation to a Commonwealth place and the provisions of the laws of the State have effect in relation to anything done by a person in the exercise of a power referred to in this subsection.

10. Where an authority of a State [defined, in section 3] to include 'an officer or employee of the State'] or a person has purported to do an act under a law of a State in or in relation to a Commonwealth place and:

(a) that law was inapplicable by reason of the operation of section 52 of the Constitution in relation to that Commonwealth place; and

(b) a part of the applied provisions corresponded to that law;

that act shall be deemed to have been done under that part of the applied provisions.

107. An Arrangement pursuant to section 6(2) of the COPAL Act and section 4 of the WA COPAL Act between the Commonwealth and the State of Western Australia was gazetted on 30 September 1971. The Arrangement states:[5]

'... where, under a law of the State to which a part of the applied provisions corresponds, an authority (as defined in the Act and in the State Act) of the State (not being a court) may or shall, as the case may be, exercise or perform any power, duty or function (not being a power, duty or function involving the exercise of judicial power), the corresponding power, duty or function under that part of the applied provisions may or shall, as the case may be, be exercised or performed by that authority.' (Emphasis added)

108. For an Assessor to be able to exercise its function in a Commonwealth place, there needs to be an arrangement between the Governor and the Governor-General which authorises an Assessor to do so. The arrangement in place, as gazetted, does not apply to the exercise of judicial power.
109. In Huddart, Parker & Co Pty Ltd v Moorehead [1909) HCA 36[1909] HCA 36; , (1909) 8 CLR 330 at 357) Griffiths CJ, with whom Barton J agreed, held judicial power to mean the power to:

'decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action'.

110. This definition was further expanded by Kitto J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 at 374, cited with approval in Bass v Permanent Trustee Co Ltd [1999] HCA 9 at [45]) as the engagement in 'an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined'. In my view when determining applications under the Act, an Assessor is exercising judicial power. As the arrangement in place between the State and Commonwealth does not apply to the exercise of judicial power, no agreement has been made, or indeed can be made, between the State and the Commonwealth to implement the provisions of the Act into a Commonwealth Place.

Findings with respect to the application of the COPAL Act to the first incident at Yongah Hill Detention Centre

111. I find that:

(a) Yongah Hill Detention Centre is "Commonwealth Place" under the COPAL Act.

(b) The Criminal Code applies to Yongah Hill Detention Centre pursuant to the COPAL Act as a surrogate federal law;

(c) An offence under the Criminal Code at Yongah Hill Detention Centre is a Commonwealth offence;

(d) Under the Act it is not possible to award compensation for injuries as a consequence of conduct which constitute a Commonwealth offence;

(e) The Act applies to Yongah Hill Detention Centre pursuant to the COPAL Act;

(g) The Act applies as if it were a surrogate federal law;

(h) Only a court of a State can be invested with federal jurisdiction under the COPAL Act;

(i) An Assessor is not a competent court to exercise federal jurisdiction;

(j) An Assessor is exercising judicial power when determining an application. The gazetted agreement between the State and Commonwealth pursuant to the COPAL Act and the WA COPAL Act does not apply to an authority which is exercising any power duty or function which involves the exercise of judicial power, and therefore does not overcome the difficulties mentioned above,

(k) Accordingly, I refuse the applicant's application with respect to the injuries sustained at Yongah Hill Immigration Detention Centre and decline to make an assessment of the applicant's injuries.

What law applies to Christmas Island Immigration Detention Centre?

112. Christmas Island Immigration Detention Centre is located on the Territory of Christmas Island, an Australian external territory located around 350 km south of Java and Sumatra and 1,550 km north-west of the closest point on the Australian mainland.
113. Christmas Island is a territory placed under the authority of and accepted by the Commonwealth, within section 122 of the Constitution. Section 122 provides the Commonwealth parliament may make laws for the government of such a territory (See also Bennett v Commonwealth of Australia [2007] HCA 18 at [29]).

Does the COPAL Act apply to Christmas Island?

114. Section 3 of the COPAL Act states a Commonwealth place means: 'a place (not being the seat of government) with respect to which the Parliament, by virtue of section 52 of the Constitution, has, subject to the Constitution, exclusive power to make laws for the peace, order, and good government of the Commonwealth'. The COPAL Act applies to Christmas Island as it is an external territory of Australia.
115. The Australian Government has the power to make laws for the government of any territory, including Christmas Island, under section 122 of the Australian Constitution. By virtue of that, subject to the remainder of the Constitution, section 52 would apply. Subsection 52(i) of the Constitution refers to 'all places acquired by the Commonwealth for public purposes'.
116. Subsection 4(1) of the COPAL Act states:

'The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time'.

The construction of this provision indicates the purpose of section 4 is to apply state laws to Commonwealth places within states, not to Commonwealth places within territories. Therefore, the laws in place in the territory of Christmas Island do not automatically apply to Commonwealth Places within the territory pursuant to the COPAL Act.

117. In Svikart v Stewart [1994] HCA 62; (1994) 181 CLR 548, the High Court considered whether an R.A.A.F. base in Darwin was a Commonwealth place within the meaning of section 52(i) of the Constitution. This was the first time the High Court had considered the application of section 52(i) to places acquired in a Territory. The High Court held the exclusive power given to the Parliament by section 52(i) of the Constitution to make laws with respect to 'all places acquired by the Commonwealth for public purposes' is confined to places 'acquired within a State'. Section 52(i) therefore does not prevent the Parliament from 'conferring power upon a Territory legislature to legislate with respect to Commonwealth places in a Territory.' (at p562). Accordingly, the laws that apply to a Commonwealth Place in a territory are those that apply to the territory, or alternatively those that the territory government has been authorised under section 52(i) to legislate for that Commonwealth Place.

The Christmas Island Act

118. Pursuant to section 122 of the Constitution the Commonwealth Parliament enacted the Christmas Island Act 1958 (the CI Act) which specifies the laws applicable on Christmas Island. There is no separate legislature upon Christmas Island to which authority can be delegated under section 52(i) of the Constitution to make specific laws to apply to Commonwealth places within the territory. The laws that apply to Christmas Island Immigration Detention Centre are therefore the same as the laws that apply to Christmas Island.
119. Division 1 of Part 3 of the CI Act provides for the application of Commonwealth and Western Australian laws to the territory. A Commonwealth Act extends to the Christmas Island 'of its own force except so far as the [CI] Act or another Act expressly provides otherwise': section 8E(1) of the CI Act. The laws of Western Australia are also in force in the territory to the extent they are not inconsistent with Commonwealth legislation or the Constitution: section 8A(1) and (4) of the CI Act.
120. Under sections 7(d) and 8A(1) of the CI Act the laws of Western Australia apply to the Island. This includes principles of common law and equity (both procedural and substantive) and the statutes and subsidiary legislation of the Western Australian Parliament: Casinos Australia International (Christmas Island) Pty Ltd & Ors v Christmas Island Resort Pty Ltd & Anor [1958] WASC 387. The Territories Law Reform Act 1992 (Cth) conferred jurisdiction in and in relation to the Territory on the courts and judicial officers of Western Australia. In short, the Island is administered by the Commonwealth Government as part of the Australian territories but Western Australian law applies to it. All powers conferred by Western Australian laws in force in Christmas Island under section 8A are vested in the Minister administering the CI Act under section 8G. The Minister may make arrangements with the Western Australian Government for the effective application and administration of the laws in force in the territory: section 8H.
121. Section 8A of the CI Act states:

(1) Subject to this section, section 8G and Part IVA, the provisions of the law of Western Australia (whether made before or after this section's commencement) as in force in Western Australia from time to time are in force in the Territory.

(2) To the extent that a law is in force in the Territory under subsection (1), it may be incorporated, amended or repealed by an Ordinance or a law made under an Ordinance.

(3) An Ordinance may suspend the operation in the Territory of a law in force in the Territory under subsection (1) for such period as is specified in the Ordinance.

(4) To the extent that a law is in force in the Territory under subsection (1), it has no effect so far as it is inconsistent with the Constitution or an Act or Ordinance.

(5) For the purpose of subsection (4), a law is consistent with the Constitution or an Act or Ordinance if the law is capable of operating concurrently with it.

(6) In this section:

provision of the law of Western Australia:

(a) includes a principle or rule of common law or equity that is part of the law of Western Australia; and

(b) does not include an Act or a provision of an Act.

122. Section 8B of the Christmas Island Act 1958 (Cth) states:

(1) The Minister must cause a list of Acts of the Western Australian Parliament (WA Acts) to be prepared and tabled in each House of the Parliament for the following periods:

(a) the period of 3 months beginning on 1 July 1992; and

(b) each subsequent period of 6 months.

(2) The list must specify the names of all WA Acts that are wholly or partly in force in the Territory under section 8A on the day specified in the list, and have not been specified in a previous list under this section. The specified day must be not more than 14 days before the day on which the list is to be tabled.

(3) The list must include WA Acts whose operation has been suspended in accordance with subsection 8A(3).

(4) The list must be tabled in each House of the Parliament before the end of the period to which the list relates. However, if the House concerned does not sit during any day in the last month of the period, the list may be tabled in that House within the next 15 sitting days of that House.

123. Pursuant to section 8A of the CI Act, the Act became law in Christmas Island on the day the Act received assent, namely on 15 December 2003. On 31 March 2004 a list which included the Act was tabled in both Western Australian Houses of the Parliament in accordance with section 8B of the CI Act. Accordingly the Act is law in Christmas Island.
124. With respect to the Criminal Code (WA), a number of ordinances have been published under the Christmas Island Applied Laws Ordinance 1992 adopting amendments of the Criminal Code and hence it is clear the Criminal Code applies to Christmas Island. An offence committed upon Christmas Island is therefore an offence pursuant to the Criminal Code (WA).
125. Section 14B of the CI Act confers jurisdiction on Western Australian Courts and Court officers:

14B. Conferral of jurisdiction on Western Australian courts and court officers

(1) Subject to this Part and any law in force in the Territory, the courts and court officers of Western Australia have jurisdiction (including appellate jurisdiction) in and in relation to the Territory as if the Territory were part of Western Australia.

(2) Subject to section 14E, a court or court officer of Western Australia may, in exercising jurisdiction under this section, sit in the Territory or Western Australia.

(3) Subject to any law in force in the Territory, the practice and procedure applicable to a court or court officer exercising jurisdiction under this section are to be the practice and procedure as in force from time to time in relation to that court or court officer in Western Australia.

126. Under section 4(1) of the CI Act a 'court officer' includes 'any other office in respect of a court of Western Australia, being an office specified in the regulations'. The Christmas Island (Courts) Regulations 2018 states:

6 Courts and tribunals of Western Australia

For the purposes of paragraph (i) of the definition of Court of Western Australia in subsection 4(1) of the Act, the following courts and tribunals are specified:

. . .

(d) the Chief Assessor of Criminal Injuries Compensation, or an Assessor of Criminal Injuries Compensation, appointed under Schedule 1 to the Criminal Injuries Compensation Act 2003 (WA);

Accordingly, I have jurisdiction to determine an application with respect to Christmas Island.

Findings with respect to the law that applies to Christmas Island Immigration Detention Centre

127. I find that:
     • (a) The COPAL Act applies to Christmas Island;
     • (b) Irrespective of whether or not the Christmas Island Immigration Detention Centre is a Commonwealth Place, section 4 of the COPAL Act has no effect as there are no state laws in place on Christmas Island that can be applied;
     • (c) The Act and the Criminal Code apply to Christmas Island pursuant to the Christmas Island Act 1958;
     • (d) The Act and the Criminal Code apply to Christmas Island Immigration Detention Centre pursuant to the CI Act (there being no difference in the laws applying within and without the Detention Centre);
     • (e) Accordingly, the Act applies with respect to the injuries sustained at Christmas Island Immigration Detention Centre;
     • (f) Pursuant to section 4(1) of the CI Act and the Christmas Island (Courts) Regulations 2018 an Assessor is a 'court of Western Australia' and has jurisdiction to determine applications arising from incidents on Christmas Island;
     • (g) The applicant is entitled to compensation with respect to the incident at Christmas Island Immigration Detention Centre.

Findings

128. I refuse the applicant's application with respect to the first incident at Yongah Hill Immigration Detention Centre.
129. I award the applicant the amount of $7,597 with respect to the second incident at Christmas Island Immigration Detention Centre.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Criminal Injuries Compensation Assessor of Western Australia.

K Hafford, ASSESSOR OF CRIMINIAL INJURIES COMPENSATION

1 NOVEMBER 2019

[1] Approximately AUD$1.87 = £1 as at 15 October 2019.

[2] See Australia, House of Representatives, Second Reading Speech of Commonwealth Places (Application of Laws) Bill 1970, Mr Thomas Hughes, QC, AG, 27 October 1970.

[3] See also R v Porter [2001] NSWCA 441 Spigelman CJ at [41].

[4] Enid Campbell, 'What are Courts of Law?' [1998] UTasLawRw 2; (1998) 17(1) University of Tasmania Law Review 19-47; Graeme Hill, 'State administrative tribunals and the constitutional definition of "court"' (2006) 13 Australian Journal of Administrative Law 10 at 87.

[5] Commonwealth of Australia Gazette, No. 91, 30 September 1971, Australian Government Publishing Service, at 6161.