Legislative Council: Tuesday, September 06, 2022


Dust Diseases Compensation

The Hon. C. BONAROS (15:07): I seek leave to make a brief explanation before asking the Minister for Industrial Relations a question about dust diseases compensation.

Leave granted.

The Hon. C. BONAROS: Due to the latency period associated with most dust diseases, the majority of cases to date have been for people whose exposure to dust diseases occurred before 30 September 1987, before the introduction of the Workers Rehabilitation and Compensation Act 1986, now repealed and replaced with the Return to Work Act 2014.

These claims have almost universally been brought as common law actions under the Dust Diseases Act 2005. The Dust Diseases Act, as we know, was introduced to help sufferers of dust diseases overcome the significant disadvantage that those diseases present insofar as accessing compensation. The Return to Work Act does not have a corresponding framework for people who suffer from latent dust diseases and, as such, these people are presently facing significant disadvantage in bringing claims for their injuries.

The particular disadvantage faced by people suffering from latent dust diseases has been identified by the full bench of the South Australian Employment Tribunal in the recent decision of Return to Work Corporation of South Australia v Rantanen [2022] SAET 41, where the full bench identified a 'lacuna', insofar as the provisions for the calculation of income maintenance, specifically, apply to those with latent dust diseases and which it calls upon the legislature to correct to prevent an unfairness.

Mr Rantanen was exposed to silica dust at work as an apprentice in the early years of his employment and developed silicosis from his exposure many years later, after he went on to have a successful career and a family. My questions to the minister are:

1. Does the minister agree with the full bench that the insurer's attempt in Mr Rantanen's case to calculate his present income support entitlement by reference to the work he did as an apprentice some 30 years earlier could be conceived as unfair?

2. Does the minister agree people exposed to asbestos at work, who go on to suffer from a terminal dust disease such mesothelioma, should be refused access to compensation because they die before their claims process is complete?

3. Does he agree people who suffer from progressive and terminal dust diseases such as asbestosis, silicosis and mesothelioma should be able to have the progressive or terminal nature of their dust diseases considered for the purposes of calculating their entitlement to compensation?

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:10): I thank the honourable member for her question and her ongoing interest in this matter. I also thank the honourable member for the recent opportunity to meet with her and a working group of lawyers representing, I think it is fair to say, a diverse range of views. A diverse range of views were forcefully put in that meeting about the issue, which victims of dust diseases face under current workers compensation legislation. I can assure the member that we, as a government, don't want to see victims of dust diseases left behind.

I appreciate the concern for, I think as the court described it, a 'lacuna' faced by workers such as Rantanen, who suffer a latent dust disease and are incapacitated for work years or even decades after the initial exposure. I agree that there is a need to look at the issues in cases like Mr Rantanen's, where income support entitlements are calculated on wages at the time of initial exposure, rather than when the condition presented some decades later. Almost all other injuries occur at the time and it's contemporaneous with the wages at the time.

As the full bench of SAET has identified in this case, it's the product of the drafting legislation, which is ultimately an issue for parliament to return. I have sought advice from ReturnToWork in relation to the issue and what could be done legislatively in relation to it. As I have previously outlined to the chamber, we are looking later this year to bring some further amendments in relation to section 18 of the Return to Work Act to parliament. Based on the advice I get from ReturnToWork, this may be an area that is appropriate to address at that time as well.