Police (Return to Work) Amendment Bill

Introduction and First Reading

The Hon. R.L. BROKENSHIRE (16:23): Obtained leave and introduced a bill for an act to amend the Police Act 1998. Read a first time.

Second Reading

The Hon. R.L. BROKENSHIRE (16:24): I move:

That this bill be now read a second time.

This, I believe, is a very important bill and a bill that will restore some justice to one sector of our society that is exceptionally different from all other sectors of society in our workplace, and I will deal with that in more detail in a little while. For the history, the situation regarding the change from WorkCover to ReturnToWorkSA did create quite a lot of debate, not only in the parliament here but also out in the community. There was a lot of pressure on the government to actually do something about the ballooning of WorkCover costs. In fact, we had the highest WorkCover costs in Australia.

Business sectors right across the state were saying to the government, 'You have to do something about it.' Therefore, there was pressure on the government and also pressure on the parliament to try to assist the government to rein in this ever-expanding deficit when it came to WorkCover and the consequences to jobs. Of course, the government said that there would be about $180 million in a given year returned to the business sector if the parliament was to support the legislation to change from WorkCover to ReturnToWorkSA.

At that time, there was always concern expressed about the fact that South Australian police may become very disadvantaged if they were lumped into the overall structure of the reductions in WorkCover protection. In fact, whilst the union movement generally did not have a lot to say—I guess they had a fair bit to say to the government behind closed doors, but I think it is fair to say that the union movement generally did not have a lot to say about the legislation that went through at that point in time and that became gazetted and law on 1 July 2015—there was one association or one union that did have something to say. Looking at my second reading speech back then, I note and I want to put on the record what was said at that time. This is an extract from my second reading speech:

I have not had the unions come to me at all on this legislation, and I want to put that on the public record.

The reason I put that there was that obviously, generally, the union movement must have accepted that, for general workplace situations, whilst they would not have been happy with it, it would not have had the potential impact that one workplace would definitely have. I then said in my second reading speech:

In fact, the only union I have seen with any credibility that has come out has been the Police Association through its President, Mr Mark Carroll, who said on ABC radio that the changes could leave injured officers financially worse off in doing their job.

Then I go on to say: 'I will quote what he had to say', and this is the quote:

To find themselves left out in the cold if they suffer any other further injuries because, as we know, the payments under the new legislation…will cease two years after the original injury, and we just don't think that's fair and reasonable for our members who have put themselves in harm's way to protect the community.

I then went on to say:

I totally agree with the Police Association, but they are the only ones who I have seen come out arguing the case against supporting this legislation.

To put it back clearly on the public record, the Police Association had been right up front from day one arguing that there were special circumstances for protecting our police officers, and I intend to illustrate the reasons behind that. I also, up front, want to advise colleagues that it is the intention of Family First to put this particular bill to a vote in the Legislative Council on Wednesday 18 November. Wednesday 18 November is a private members' day and I flag that I will be putting the bill to a vote then, and I will be confirming that in writing to all colleagues, together with this second reading explanation and a copy of the bill.

It is interesting that, at a meeting I had to attend this morning, I met with a gentleman who is a former police officer. He had worked for over 20 years as a police officer and as a police prosecutor. He has a son-in-law now who is a police officer and a daughter who is an ambulance officer. He started to discuss these matters with me because I told him that I was going to be introducing this bill this afternoon.

He said that, when he finished being a police officer in 1990, it was far different back then from what it is today. He said that the job always had challenges but nothing like the challenges he sees police confronting today. In our discussions, we agreed that those challenges are not going to get any easier for police. In fact, the reality is that the future of policing and maintaining law and order and safety in our community will only get more complex, more challenging and involve more risks for our police.

He said that his daughter goes to some horrendous incidences as a paramedic and that they assess those situations when they get there. Whilst there may be people there who are injured and who are at risk, first and foremost they assess their own risk and they will call for what he called a blue car, meaning a police car.

Some members may have been out on patrols with police. I have certainly had the privilege to go out on general police patrols on several occasions over the years. When you go out there, it is never quiet for very long. Some of the incidents you attend are horrendous and put those officers in extreme and immediate danger and, at times, can even endanger their life.

When you go out with the ambulance officers, there are horrendous incidents there as well but, if there is an accident or a risk to safety, police will be called. Of course, many of us have been involved with the CFS and, yes, there are risks there. We know that one risk to the CFS and the MFS is that of the potential risk of contracting cancer as a result of what they come across when they attend a fire incident. The parliament has addressed that matter to make sure that those men and women in the CFS and MFS are now protected when it comes to their being faced with a more unusual situation than most.

What is the impetus for this bill? The changes to the return-to-work legislation have caused and will continue to cause serious injustice, in my opinion, for members of the police force who are unable to return to work or who will be required to pay for ongoing medical expenses once the legislatively prescribed compensation period ends.

In terms of return-to-work legislation, I suggest that one size does not fit all and that, whilst the government, for the reasons I have highlighted, tried to get one size to fit all, it is very clear that, in the few months since the legislation changed on 1 July 2015 to more draconian legislation for workers, one size does not fit all—and we are seeing that already with some injured SAPOL officers.

I am asking the parliament and the government to realise that we did not quite get it right when it came to the legislation at that point in time. I have therefore tabled today amendments to the Police Act so that we can give the police officers and their families proper entitlements.

Given the nature of policing and the injuries officers face in the line of duty, we are finding that officers need additional support over and above that of other workers, which includes extending the payment period for income maintenance and medical treatment for officers with no work capacity or limited work capacity. The key point, I believe, and the very strong argument for amending the Police Act, is that police officers have the only occupation where they are bound to enter dangerous situations. Workers in every other occupation can choose not to enter a situation where their personal safety could be placed in jeopardy.

The advice we have received is that police are different in how they are employed. Unlike traditional jobs, where someone enters a contract of employment, once police are sworn in, they are in an entirely different category to any other worker. In fact, once a police officer has been sworn in, they are effectively on duty 24/7. If they see certain situations, they are duty bound to act and they have sworn to commit to that situation, no matter what.

That is a real problem for policing when it comes to safe workplaces. They cannot refuse to go to any incident at all and I want to highlight in this second reading speech some of the consequences for police officers of doing their work—often heroic work—to ensure that the rest of South Australia is protected and kept as safe as possible.

SAPOL are self-insurers and all workplace injury matters are managed, overseen and paid for by SAPOL and not ReturnToWork SA. For all these reasons, I believe it is definitely appropriate to change the Police Act, and the amendment bill I have tabled here today puts to the parliament the opportunity to change the Police Act.

Members of SAPOL are regularly exposed to danger in their work for the benefit of the community and this bill adopts the scheme established pursuant to the Return to Work Act (RTWA) but with special modifications that support members of South Australia Police who suffer injuries at work as a way to reflect the important role SAPOL plays in our community.

On that issue, some members would ask: what is the cost going to be if we support this legislation? The government knows what that cost is. They did not have to do, and they will not have to do, actuarials as they did when they put up specific legislation for the MFS that the parliament then ensured also covered the CFS.

In that case, the actuarials were unknowns but, until 1 July this year, what is in this bill is what the police were to receive if they were injured at work. What I am saying is that, up until 1 July this year, the police commissioner of the day and the head of finance in SAPOL know exactly (on average) how much money they would have been paying these officers. I suggest that, as tough as the police budget is, given that they know the costs, they can manage this particular amendment to get equity and fairness back into SAPOL.

Let us have a look at the current law. Weekly payments for income are cut off two years from the date of injury and not from the time of the claim, so that in instances where the injury is not immediately apparent, the person can lose a period of valuable compensation to which they would have previously been entitled. In policing particularly, you do not know the extent of injuries immediately. That has been demonstrated in an excellent article in the recent edition of the Police Journal which I want to refer to and which I trust all members have had a chance to read. If they have not, I would encourage them to read it as they deliberate on this bill.

Medical expenses are cut off after three years and many SAPOL officers still require treatment as they cannot yet return to work or, if they are able to return to some form of work, they still require ongoing medical treatment. In fact, some of them would need ongoing medical treatment for the rest of their lives. Only a permanently injured worker who has a whole-person impairment of 30 per cent can receive payments beyond this point. With the new changes, obtaining a determination of 30 per cent is extremely difficult, even with some of the horrendous incidents that occur with police. Again, I will go into that in a short while.

So what does the bill do? It inserts a new schedule 1A into the Police Act. It allows police to receive ongoing payments for income maintenance and for medical treatment beyond the legislated time frames under the RTW Act. Once a police officer reaches the cut-off time under the RTW Act the Police Act amendments that I have tabled here today come into force allowing for these additional payments. After the designated two-year return-to-work period ends, the prescribed entity must assess and make a determination that the worker has no current work capacity, after which time the officer is entitled to weekly payments.

The bill makes provision for income payments for officers to be equal to 80 per cent of the officer's notional weekly. I put on the record again that the 80 per cent was something that they lost from 100 per cent when there were other amendments put through some few years ago. An officer with a limited work capacity may apply to the prescribed entity for income support. The officer can receive income support if the prescribed entity is satisfied that, due to the work injury, the employed police officer will be likely to be indefinitely incapable of undertaking further or additional employment which would increase the officer's earnings. Refusal of weekly maintenance cannot occur unless the prescribed entity has referred the matter to the tribunal for the opinion of one or more independent medical advisers, and they are of the opinion that the officer is not so incapable.

The bill provides where an officer is deemed to have a limited work capacity they will be able to receive payments equal to 80 per cent of the difference between the officer's notional weekly earnings and the officer's current weekly earnings. The income payment provisions have been drafted to reflect the wording of seriously injured workers rather than reflecting the wording under the previous act: (a) this decision was made after consultation with numerous agencies and legal professionals where it was determined that, whilst SAPOL rarely exercised its option to cut off workers payments in various circumstances, it was still a legislated possibility under the old wording of the legislation.

SAPOL, I am informed, virtually never cut off workers' payments. This may have been a policy decision—I have not been able to establish that fact—but other self-insurers frequently use this provision, and the concern for me is that SAPOL may be going down that track or will go down that track. This would create inequity for the injured workers and their families in instances where workers are unable to return to their former work capacity but fail to meet the level of seriously injured worker.

Essentially, these provisions create the same situation that SAPOL was in prior to the RTW Act, in that injured workers are able to receive ongoing payments as determined to be appropriate. That is the key to the bill. The bill has been drafted to ensure that workers who are subject to the new RTW Act will be covered retrospectively for the period between 1 July 2015, when the RTW Act came into force—and hoping that this bill is passed by both houses of the parliament, I would presume some time in 2016 it would obviously come back to where it was. There has to be that retrospectivity for those already injured police officers.

The bill prescribes that where an officer is incapacitated for work or is likely to be incapacitated for work for more than one year the prescribed entity must review the payments and, finally, decisions for extended income support for both officers with no work capacity or limited work capacity are reviewable.

I would like to turn now to some case studies. I advise the house that, in the background work leading up to the drafting and consideration of this bill, I sought some advice on certain cases and how police officers would be affected. I had 56 examples of where the draconian amendments not only disadvantaged officers but also their families. They can still have their long-term security and capacity to be able to continue a fair and reasonable life—which they clearly could have had if they had not been injured—as far as possible if we have fairness in the protection of their WorkCover entitlements and support.

The August 2015 issue of the Police Journal is extremely well written in highlighting some examples of what police have to go through. It contains an article, entitled 'Injured and abandoned', and I think that is an excellent title because it explains in three words just what has happened to our police officers who are basically caught in a trap where they are committed to look after the community but they are not having the commitment come the other way when things go wrong for them.

I would like to put on the public record a few of the case studies. Again, I encourage colleagues to read the full detail of it and, given the workload that we still have tonight, I will not go through it in huge detail but, for the general public who will be reading the debate on this matter, I also want to make it pretty clear as to what officers face on a daily basis. In fact, they do not know from call to call just what is going to cause a huge change to the future for them and their families.

One police officer, Alison Coad, a wife and a mother, was attending an incident. This incident was a potentially life-threatening incident to the people they saw in Whitmore Square where there was quite a violent situation occurring. It is worth reading all the background to this because it highlights what I said earlier where a retired police officer said to me that the challenges are greater now than they ever were when he was there and will only get more complex. I want to put on the public record some of the things that Alison Coad pointed out, as follows:

A two-year cap now applies to income maintenance and a three-year cap to medical expenses. And only a determination that an injured copper has a 30 per cent 'whole-person impairment' will get him or her coverage of income and medical expenses beyond those cut-offs.

So, if they slip out of the net and they are classified at, say, 28 per cent whole-person impairment, then for the rest of their lives they have to pick up their medical. If they have a situation where they cannot advance in policing, they have to go back to two or three days part-time or whatever, they get no support whatsoever. The article continues:

The new Return to Work Act—which contains all the unpleasant detail—defines a person so impaired as a 'seriously injured worker'. This unpopular legislation, implemented by the Weatherill government, threatens to leave Coad to foot hefty medication and treatment bills for the rest of her life.

As strong a person as she is and with her family, the reality is that she will face challenges for the rest of her life. Medicine and the medical fraternity cannot cure the fact that when Alison was spat on she received herpes in a form that is incurable as a virus and continues to come back and affect her wellbeing. As I said, the unpopular legislation implemented by the Weatherill government threatens to leave Alison and her family to foot hefty medication and treatment bills. The article continues:

And her plight is set to begin in 2018, after the government effectively abandons her. So, in fewer than three years from now, the costs of managing the disease she copped serving the community—

keeping people safe, making sure that a potentially life-threatening situation did not occur when she went in there with her partner, waiting for back-up—

will be all her problem.

It will not only devastate Alison but her police officer husband and her 11 year-old son. That is one case that is very much worth reading and the pictures tell the story as well.

I want to put on the record another case, that of Senior Constable Brian Edwards, still a young man. There was a suspect leaking tank of anhydrous ammonia at a hardware store. The CFS and Senior Constable Edwards arrived at the scene together and started to talk about a strategy to manage a potentially very high risk explosion. The risk accelerated very quickly. In fact, as Senior Constable Brian Edwards said, 'You don't often see firies panic,' but on this occasion there was panic at what was occurring. The Police Journal article states:

'but he (the captain) just said, "Get out of here!" We didn't have time to think. They (the CFS crew) scooted off and I got into the police car and started going down the road.'

But Edwards only got about 50 metres down the road when he saw a car approaching the scene of the gas leak.

He could have made the decision to just keep going but, as I said earlier, the police are sworn to protect the community. The article continues:

He swung his police car around and across the road to block the path of the oncoming vehicle, which had its windows down and a young family inside.

Edwards was desperate to stop these two vulnerable parents and their children from driving straight into the potentially deadly gas leak. And he succeeded: the car stopped and the father stepped out.

'Mate, get back in your car, get your family and just go!' Edwards exclaimed. He had no time to explain the emergency other than to bellow a hurriedly spoken warning that the tank was leaking toxic ammonia. 'I was fairly to the point' he remembers, 'and he just ran back to his car and drove away, and that was good.'

Edwards, who had likely saved that family from serious injury, if not death, turned to step back toward and into the police car, just a few paces away. But, doing his duty, directing the family out of danger, had for too long kept him too close to the escaping ammonia.

A cloud of it had crept up on him like an invisible stalker. 'And bang!' he recalls. 'It just hit me like a wall. It was like hot shards of glass down my throat after I'd taken about one or two steps to get to the car door. I gasped, but the problem with ammonia is that it shortens your breath so you gasp even more, and then, of course, you're taking more of it in. You're not getting any oxygen; you're just getting the ammonia. So, when I gasped a second time I kind of doubled over and was just exhausted.'

…Edwards, a father of three, wisely agreed to go to Modbury Hospital, where its staff brought the full reality of his condition home to him. 'One male nurse said, "In the next four hours your lungs could close over and you could die,"' Edwards recalls.

There is quite a lot more in that particular story as well as in Alison Coad's. Another story is highlighted, 'Shot in the Face'. It is another horrific case, that of injured Senior Constable Brett Gibbons. I am sure all colleagues would remember this particular incident, because it was only in 2011 when Senior Constable Gibbons and his patrol partner, Travis Emms, were the first to respond to the Hectorville triple murder. I quote:

…both determined officers crept cautiously into the house to investigate, before Corbo suddenly appeared with a shotgun! He aimed the weapon at Gibbons and fired on him from point-blank range!

Tragically, and sadly, the blast left Senior Constable Gibbons with the right side of his face ripped open, his jaw broken and his teeth and facial tissue exposed. He went through a lot of surgery, and there is still more surgery to come. Of course, Senior Constable Gibbons now has to undergo bleaching to fade the scar further and there will be more restorative work on his mouth. I quote further:

…under the new return-to-work legislation, he might yet have to pay for that surgery himself—and any other future medical bills related to his work injuries.

Extraordinarily, Gibbons may not meet the 30 per cent whole-person impairment threshold, despite the extensive damage to his body.

The reality is that, until 30 June, that was not an issue. He was covered. He had to go and work through the situation, but at least he and his family knew that they were covered and protected. At this point that is not necessarily the case. Senior Constable Gibbons says it is:

…'really worrying' that he might yet have to carry not only the physical but also the financial burden of his work injuries. He knows that he would never have the means to manage costs which, over time, could well mount up into a six-figure sum.

'It's going to impact on my whole life if this legislation is allowed to stay without police being returned back to their former situation.' That is paraphrasing what Senior Constable Gibbons said. He also said, and I think this is key:

We've always taken the risks knowing fully that the government and Opposition would support us if the worst came to the worst. We knew that if we were called upon to give something of ourselves we would be looked after but, now, that's not the case. It is going to impact on my whole life if this legislation is allowed to stay without police exemptions.

In concluding my remarks at this point, I just reiterate that one size does not fit all, as hard as you might try. We have highlighted that police are the only employees, the only men and women in a career, who have no choice when it comes to what they do in South Australia. It is equivalent to what men and women do when they go to a war zone or a war conflict; they have no choice. They have signed up and they have to go in.

I am appealing to the government and asking my colleagues in the parliament to realise that we do need to change this Police Act. We do need to give assurance to the police men and women, their families and their children, and also to those who are contemplating making policing a career, that the Police Act will protect them and give police officers the proper entitlements that they fairly and rightly deserve.

As I said earlier, and I want to reinforce, this is an urgent matter. I myself admit that I should probably have fought even harder at the time, because clearly we knew that police had to be an exception. But it is not too late. We have an opportunity now to get this right. As I said, the government cannot use an excuse that it is going to set some precedent or that it is going to cost them a lot of money. It is not setting a precedent; it is only returning them to what they deserve, what they had and what must be given back to them if we are to ensure that our police officers are protected while they go about keeping South Australia a safe community.

I commend the bill to the house. I put it up for a vote on Wednesday 18 November, and I am happy to meet with any colleagues individually, or to organise if they want to meet with some of these police officers that I have talked about to get firsthand the dangers, the risks and the commitments that we see them proudly delivering for the South Australia Police. It is our turn to get this right.

Debate adjourned on motion of Hon. J.M. Gazzola.