Legislative Council: Tuesday, February 07, 2023


South Australian Employment Tribunal

The Hon. H.M. GIROLAMO (15:03): I seek leave to give a brief explanation before asking the Attorney-General a question about the South Australian Employment Tribunal.

Leave granted.

The Hon. H.M. GIROLAMO: In December last year, it was reported that the Hon. Justice Steven Dolphin wrote to the Attorney-General highlighting his concerns with medical delays due to a lack of specialists to give advice to the South Australian Employment Tribunal. Justice Dolphin feared that delays at the court could blow out to 12 months or more, reporting, and I quote:

It has been my observations over recent times, throughout hundreds of proceedings that I case manage, that waiting times for a medical assessment is at a minimum of three months or so, more likely 3 to 5 months, and only recently becoming more than six months. The suggested waiting time in the present case of in excess of 8 months represents a very worrying trend.

Justice Dolphin went on to say that the problem was caused by a shortage of specialists on an approved list that included only four urologists. My questions to the Attorney-General are:

1. What steps has the Attorney-General taken to ensure that justice is not delayed in the courts?

2. When will the list of specialists be expanded to assist in providing experts in the court?

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:04): I thank the honourable member for her question. I am aware of the Cavuoto decision. A copy of that decision was sent to my office directly by Justice Dolphin's chambers on 23 December last year. I understand a copy of the decision was also sent to stakeholders in the workers' compensation scheme, including Business SA, SA Unions and ReturnToWorkSA.

It is not usual practice, in my experience, for a judge of chambers to directly send decisions to stakeholders. It was also unusual that The Advertiser reported that the judge's chambers directly sent a decision to The Advertiser newspaper. As members of this council will be aware, from time to time members of the judiciary will in their decisions identify a policy issue for consideration of the government of the day.

A judge or a magistrate may draw attention to a drafting error or legislative provision that gives rise to a particularly vexing interpretative difficulty and note that it is a matter that parliament may wish to consider. When this occurs it is typically done tactfully—and bearing in mind the critical distinction between the role of the legislature which creates law and the judiciary which interprets and applies it—and it is not unusual, when those sorts of difficulties or vexing interpretative issues arise, for a judicial officer to step out of their neutral decision-making shoes and point out that particular vexing difficulty.

In that context, the language of this decision is unusual. It is unusual to describe as indulgent elements of the impairment assessment guidelines which give workers the substantive right to select a doctor of their own choosing and to conduct a medical assessment or to note that perceived critics of the tribunal have failed to raise concerns directly with the judge concerned before making complaints about the tribunal's practice and procedures. It is an unusual intervention into the debate.

The tribunal and its officers do good and important work. The tribunal oversees a very significant case load of specialised and often highly complex legal disputes. It does so in time frames significantly faster than comparative civil jurisdictions. The tribunal's internal dispute resolution processes and the works of its commissioners are the envy of many other courts and tribunals across Australia.

Of course, those achievements do not mean that the tribunal is immune from inquiry. The tribunal is a creature of statute, which now has been in operation for almost eight years, and it is appropriate to take stock and consider whether there are any improvements which could help better meet its needs and objectives, particularly in terms of governing legislation. That is why the practice and jurisdiction of the tribunal is currently being reviewed by the Attorney-General's Department. That review is consistent with the government's election commitment, which we will of course keep.

It would be unfortunate if comments in this decision were seen to dissuade or discourage stakeholders, particularly legal practitioners with hands-on experience representing both employers in the workers tribunal and workers in the tribunal, from sharing their experience and contributing to the SAET review. With respect to the specific concerns raised—

The Hon. H.M. GIROLAMO: Point of order: I question the relevance because he is not actually answering the questions that have been asked—

Members interjecting:


The Hon. H.M. GIROLAMO: —rather reading from the quotes that were given to The Advertiser.

The PRESIDENT: I am sure the Attorney is going to get to the point sooner rather than later, so we can move on.

The Hon. K.J. MAHER: With the very specific concerns raised in the decision to which the honourable member refers regarding the impairment assessments, it is important to understand this is not merely a technical or procedural issue; it is a significant policy matter, which affects the substantive rights of injured workers. Workers' autonomy in the selection of their assessor is an important feature of the scheme, where the one assessment rule prioritises finality in the assessment of the impairment.

In my view, it is likely that a worker's involvement in that process generates a level of confidence in assessment outcomes and reduces the overall level of disputation in the workers' compensation system. I can appreciate the views of legal practitioners who have expressed concerns that the tribunal has chosen to publicly weigh in on a very finely balanced policy issue.

The process for selecting an assessor is governed by the impairment assessment guidelines, not the Return to Work Act or regulations. Those guidelines are currently being reviewed through a co-design process intended to finalise a third edition. That co-design process is being led by a stakeholder representative consultation group, which includes representatives of ReturnToWorkSA, the medical profession, the Law Society and workers' representatives.

I provided a copy of this decision to that reference group and requested that the issues raised by Justice Dolphin be taken into consideration during the co-design process. I have also made it clear that if changes to the current selection process are contemplated by the reference group it is important those changes are the subject of significant consultation with a diverse range of stakeholders and, as far as practicable, reflect a consensus among the workers compensation community.

The reference group to whom this has been referred has a significant breadth of expertise and experience and is well placed to consider the issues raised by the decision in the context of the holistic functioning of the permanent assessment guidelines system and the Return to Work scheme as a whole.