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House of Assembly - Fifty-First Parliament, Second Session (51-2)
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WORKERS REHABILITATION AND COMPENSATION (SCHEME REVIEW) AMENDMENT BILL

Committee Stage

In committee (resumed on motion).

(Continued from page 2748.)

Clause 24.

Mr HANNA: One of the criticisms I have already made is that the government is bringing in this new section 43, 'Lump sum calculation', without (as far as I am aware) specifying precisely what guidelines are to be used to calculate whole body impairment. Can the minister outline specifically what will be used and when it will be implemented?

The Hon. M.J. WRIGHT: The guidelines will be based on the AMA guidelines, and will be similar to what exists in other jurisdictions. In coming to those guidelines, I will consult with the AMA as well as with the unions and with employers.

Mr HANNA: One of the new provisions being brought in by this government amendment is a new section 43B. This is described as a 'no disadvantage' provision. That suggests that the worker will not be disadvantaged by this new calculation yet, as I have already pointed out, there are at least two circumstances where workers will, quite clearly, be disadvantaged by the new proposal. The first is where a worker falls under the threshold of 5 per cent that the government insists upon, and the other, where there is one of those illnesses or injuries that is off the maims table—in other words, one of those items such as disfigurement or injury to the digestive system that is not specified in the current or incoming schedule 3.

My question really is: how you can you possibly say that this new provision is truly a 'no disadvantage' provision when workers will, in fact, be disadvantaged by it?

The Hon. M.J. WRIGHT: The 'no disadvantage' is for total loss, or total loss of function, based on the existing maims table. Other injuries will be compensated under AMA guidance.

Mr HANNA: One thing I have not yet worked through (it has been impossible without the guidelines) is the situation where there are several injuries, each of which is less than 5 per cent whole body impairment in itself. So, if a worker suffers an injury to a hand, a foot and their neck, each of them less than 5 per cent whole body impairment, what is the result? Does it end up being nothing or is there an accumulation?

The Hon. M.J. WRIGHT: If it is from the same trauma, the same injury event, it would be dealt with cumulatively and within the guidelines. That is the advice I have received.

Clause as amended passed.

Clause 25.

Mr HANNA: I move:

Page 31, after line 14—Insert:

(7a) Section 44—after subsection (7) insert:

(7a) For the purposes of this section, a person with a physical or mental disability under the care of the worker (and dependent, at least to some extent, on the worker) will be entitled to the same compensation under the section as the compensation payable to a dependent child (having regard to the extent of the person's dependency and on the basis that a reference in this section to a dependent child will be taken to include a reference to such a person).

The issue here relates to compensation for a worker's family when in fact they die as a result of a work accident. The current arrangements are that the spouse—or domestic partner, as we now define people—and dependent children are eligible for compensation. What I am suggesting with this amendment is that a person with a physical or mental disability, under the care of the worker and dependent, at least to some extent, on the worker, should be entitled to the same compensation as a child of the worker.

There will not be very many of these cases. We know that there are a number of workplace deaths each year—perhaps a couple of dozen each year—and in most cases the provisions relating to partner and children would cover the relevant people, that is, those who are left behind in the aftermath of a workplace death.

I can foresee, if it has not happened already, that there will be dependent adults—for example, an adult child with a mental disability under the care of an injured worker—and the loss of income from the death of the worker will have a severe impact on the care for such a person. So, why not be compassionate and just slightly extend this to dependent adults, as I have described?

The Hon. M.J. WRIGHT: The government does not support the amendment. The proposed amendment has the effect of creating another category of claimant who may not be a spouse, domestic partner or child of the worker. The government is opposed to this, as a comprehensive coverage already exists under the Workers Rehabilitation and Compensation Act. So, although the member for Mitchell argues. 'Why not expand it and show some compassion?' we think that comprehensive coverage already exists under the Workers Rehabilitation and Compensation Act.

Mr HANNA: Clearly, we do not see eye to eye on this, but I think it is a really important provision. It will not have any significant impact on the scheme, because the number of people this is going to catch will be extremely small. We know that the Premier has to take ultimate responsibility for this. I am not directly having a go at the minister here, although he is willing to stand up and carry the can for his Premier. I think it is really heartless if Mr Rann comes in here and says that, if a worker dies in the workplace, we will give some compensation to his wife and children, but that an adult child who is mentally incapable, with disabilities, should suffer and have nothing. I think we need to put this to the test.

The committee divided on the amendment:

AYES (2)

Hanna, K. (teller) Such, R.B.

NOES (40)

Atkinson, M.J. Bedford, F.E. Bignell, L.W.
Breuer, L.R. Caica, P. Chapman, V.A.
Ciccarello, V. Conlon, P.F. Foley, K.O.
Fox, C.C. Geraghty, R.K. Goldsworthy, M.R.
Hamilton-Smith, M.L.J. Hill, J.D. Kenyon, T.R.
Kerin, R.G. Key, S.W. Koutsantonis, T.
Lomax-Smith, J.D. Maywald, K.A. McEwen, R.J.
McFetridge, D. O'Brien, M.F. Pederick, A.S.
Pengilly, M. Piccolo, T. Pisoni, D.G.
Portolesi, G. Rankine, J.M. Rann, M.D.
Rau, J.R. Redmond, I.M. Simmons, L.A.
Snelling, J.J. Stevens, L. Venning, I.H.
Weatherill, J.W. White, P.L. Williams, M.R.
Wright, M.J. (teller)

Majority of 38 for the noes.

Amendment thus negatived.

Mr HANNA: I have a question for the minister. The provision before us concerns weekly payments of compensation where a worker has been killed. Obviously, there will be many situations of this nature where a partner and children are left with a sudden drop of income. I question why this provision was not made subject to the provisional liability provisions that have been implemented for the income of the workers themselves that the government has brought in earlier.

It just seems to me that, if anything, the partner and children of a deceased worker will probably be in even more dire straits than a worker who is awaiting the outcome of a claim. Usually workplace deaths are pretty clear cut. If it is in the workplace and there is a death, you do not have to argue about how it occurred or the extent of injuries.

The Hon. M.J. WRIGHT: This subject of provisional liability was copied from the New South Wales model. To the best of my recollection, I do not think that provisional liability operates for death in the New South Wales system. I am happy to check that, but I do not think that it does.

Mr HANNA: I just want to make one other pertinent comment when we are dealing with the difficult issue of workplace death. I will not go into the issue of industrial manslaughter: I am a proponent that that is an offence which actually should be on our statute books as a discouragement of work practices which produce such a degree of danger in the workplace that people end up dying.

However, I do want to address the issue of suicide of those on work injuries. It is not a straightforward issue, and it is certainly not irrelevant here because, even though the provision—it is fair to say—was designed for people who are killed on the spot in the workplace, we have a number of WorkCover income maintenance recipients who ultimately suicide. When one looks at the causes, very often, I would suggest, they can be traced back to the workplace injury and all the consequences of that: chronic pain; difficulties in relationships and social life arising from the injury; psychiatric sequelae, that is, consequences of the injury including depression, feelings of helplessness and so on, feelings of anger and frustration—sometimes directed at the claims manager, for good reason, or maybe not good reason. Ultimately all these things can be traced back to injury in the workplace.

I simply put the query that these provisions possibly should be applicable to those who suicide as a result of a work injury where that causal link can be shown. Interestingly, WorkCover's own statistics about known suicides seem to suggest that there is a much higher rate of suicide among WorkCover income maintenance recipients than in the general population. For the reasons I have expressed, one can readily understand that. So, it is a serious issue. It may not affect a huge number of workers and families but, for those it does affect, it is an absolutely critical issue. I have a lot of sympathy for the families of those who are soldiering on after the injured worker in their family has taken their own life.

The Hon. M.J. WRIGHT: The question of course relates to suicide, and the member made the point, amongst other points, that it could be due to workplace injury, chronic pain, difficulty with relationships and depression. I understand that if a worker suicides due to psychiatric disability, say, depression, it may be compensable.

Clause passed.

Clause 26.

Mr HANNA: I have a similar question to the one I raised on the last clause, particularly about counselling services and funeral benefits. I am not going to make a big deal about this, but I hope that the minister, using all the power of persuasion he has within the Labor leadership group, has a good look at the possibility of provisional liability for funeral benefits and counselling services. It seems to me that this is a classic case where you need those payments and things such as counselling upfront. You do not want to be waiting for months while insurance loss assessors work out exactly how the death took place and wait for a coroner's report, etc. It is the sort of thing where you want a payout quickly in the same way that I referred to compensation payments for remaining family members.

The Hon. M.J. WRIGHT: Provisional liability is all about rehabilitation and getting people back to work. It is about early intervention. With regard to these payments that the member is concerned about, whether it be counselling or funeral costs, I would be happy to raise that with WorkCover and ensure that these payments are made as speedily as possible.

Clause passed.

Clause 27.

Mr HANNA: I move:

Page 35, after line 10—Insert:

(2a) Section 46(3)(a)—Delete 'two weeks' and substitute:

4 weeks

(2b) Section 46(3)(b)—Delete paragraph (b) and substitute:

(b) if the period of the incapacity is more than 4 weeks—for the first 4 weeks of the period of incapacity.

(2c) Section 46(4)—Delete 'twice' and substitute:

4 times

This is essentially to place a bit more of the cost back on employers where there are actually injuries at work. I made the point earlier that in one sense, the economic sense, this is all about a choice about who bears the cost of work injury. So, when there is time lost from work and there are lost wages, who is going to bear the cost of that? Where I am coming from is that in a no-fault scheme it certainly should not be the injured worker. Another option is to pay from the money which is derived from all the levies from all the employers in South Australia.

The other option is to look at the particular employer where a work injury occurs and ask them to pay, in insurance terms, what is essentially an excess payment—in other words, on top of their levies, to pay something towards the immediate cost of the work injury. That already happens in the legislation. Employers have to pay the first two weeks of income maintenance. I am simply suggesting that this be extended to four weeks, and this would have a substantial savings effect for the scheme. It would mean that, instead of all employers collectively through their levies paying for that third and fourth week off work, it is the employer who has a workplace where there has been an injury who would end up footing the bill for those third and fourth weeks of income maintenance, if indeed a worker is off work for that long.

Of course, there is a very good spinoff effect here, and that is that an employer is going to redouble their efforts to get a worker back to work in the first couple of weeks, which is one of the goals we have been talking about, not only for the last 20 years but particularly since the government came up with these proposed amendments.

The Hon. M.J. WRIGHT: The government opposes this amendment. We say that this is an unwarranted and direct cost shift to employers. In addition, we proposed in the original amendment bill to give employers an incentive for early reporting of injuries by waiving their employer excess. This amendment, rather than giving employers a reason for early reporting, punishes them for no good reason by doubling their excess. Requiring an employer to pay the first four weeks of income maintenance would also have the potential to reduce contact between the injured worker and WorkCover, with possible adverse effects on their rehabilitation and return to work. I think we all agree that it is important that we start rehabilitation as quickly as possible and try to get people back to work by starting that rehabilitation early.

Mr HANNA: In response to the minister's remarks, I point out that I am actually not doing anything here to change the provision in clause 27, which the government wants to bring forward, which gives a free go to employers where there is a very prompt reporting of the work injury via the claim. So, by all means, keep that bonus to employers, but I am saying that the excess should be greater.

In fact, if you think of the psychology of it, the greater the excess, if you leave the bonus in there for immediate reporting, the employers will save even more. So, on the government's own rationale, the employers will have an even greater incentive to have injuries reported immediately.

Secondly, it is bitterly ironic that the reason why the government is enforcing these step-down provisions in relation to income maintenance for workers is it says that the psychology is that there will then be an incentive for workers to go back to work more quickly, whether or not they are injured. However, the government does not want to apply the same psychology to employers by saying, 'Gee, you will have to pay four weeks' income maintenance if the worker is off for that long, so you had better be motivated to get them back to work sooner than two weeks.' That is the psychology behind this amendment, and there is an element of hypocrisy in rejecting this.

Dr McFETRIDGE: Has the member for Mitchell done any costings on this change for business and the savings for the scheme? It seems to me, having run a small business, that it would be a very small incentive but a very large impost on running the business if this was to occur, because it is a no-fault compensation scheme.

Mr HANNA: To take the last point first, it is a no-fault compensation scheme. What that means is that we do not necessarily look at what caused the work injury. However, that is a separate issue from the excess that is paid by businesses. That has been in the scheme for a long time, for two reasons. One is the cost saving to the scheme; in other words, it is accepted in the current scheme that there is an element of cost shifting to employers rather than having all employers, even those without injury records, paying for the first couple of weeks of income maintenance per claim.

I am proposing to extend that, and I suppose the way to calculate it (I am afraid it is the minister, not I, who has these figures) would be to look at the number of claims which exist after two weeks and the number of claims which exist after four weeks; those claims which are current for the third and fourth weeks. I am not sure of the number, but I suppose it would probably run into the hundreds of workers who are off for at least two weeks—or, in fact, at least four weeks—and you would then work out how much employers are paying for the first two weeks, and I suppose you could double it to get a rough figure of savings to the scheme.

However, I acknowledge that for individual employers it means that, instead of paying the first two weeks for a worker who is off, they would be paying the first four weeks. I understand the pain of paying four weeks of a worker's wages when, in fact, they are not there to do the work, but the point is that that is a lot less pain than what the injured worker is facing if they have an injury that is serious enough to warrant their being off for four weeks.

Amendment negatived; clause passed.

Clause 28 passed.

Clause 29.

Dr McFETRIDGE: I have a couple of issues that I ask the minister to explain. How will the scheme benefit from non-recovery when no claim exists? When no claim is found to exist, these costs are unrecoverable unless the worker is proved to have acted dishonestly—which, in practice, is a very high burden of proof. Provisional liability is intended to facilitate early medical and rehabilitation action when claim determination is delayed, which is commendable where an actual claim exists, but this is pointless when no claim is found to exist.

The Hon. M.J. WRIGHT: These cases will be few and far between. I think I said during an earlier part of the debate that about 97 per cent of claims are accepted. However, what this is all about is rehabilitation and getting people back to work quickly.

Mr HANNA: I was looking at new section 50I, and thinking of the WorkCover ombudsman's right to review discontinued payments, but the payments are discontinued when there is a pending resolution of a dispute. I see that that, in fact, is not listed in new section 50I. Can the minister just confirm that?

The Hon. M.J. WRIGHT: Yes, that is correct.

The Hon. S.W. KEY: My question is very similar to the one asked by the member for Mitchell. Will the minister elaborate on section 50I 'Status of decisions'? The section says that the following decisions under this division are not reviewable. Could the minister explain why that would be the case?

The Hon. M.J. WRIGHT: The advice I have received is that the provisional liability is getting payment under way quickly (as we have talked about previously) and, if there is a dispute, the worker can make a claim and then dispute that in the dispute resolutions system.

The Hon. S.W. KEY: I refer to section 50I again. Some amendments have been made regarding the period of notice which appears earlier in the bill. Under this particular clause, which is insertion of part 4 division 7A, could the minister take us through the amount of notice the worker will get, when, for example, a decision is made to make a provisional weekly payment of compensation or a decision is made not to make a provisional weekly payment of compensation?

The Hon. M.J. WRIGHT: Under the provisional liability, payments must start within seven days, unless there is a reasonable excuse not to do so.

The Hon. S.W. KEY: That is good. I am pleased to see that a worker will be paid within seven days, but what about when a decision is made not to make a provisional weekly payment? As a result of amendments, some changes have been made concerning the period of notice in the bill and I would like some clarification on when a worker will find out that they will not receive any more money.

The Hon. M.J. WRIGHT: I am not sure whether I have enough detail for the honourable member, but she can let me know. As I said, the payment must start within seven days. If that does not occur, the worker would be advised and then the worker could make a claim.

The Hon. S.W. KEY: I am sorry to belabour this point. My earlier point in relation to section 50I was that these decisions are not reviewable. The minister has certainly answered in relation to section 50I(a). However section 50I continues:

(b) a decision not to make a provisional weekly payment of compensation after it is established that there is a reasonable excuse under the provisional payment guidelines;

(c) a decision to discontinue weekly payments of compensation under section 50C or 50F;

Although I am heartened to hear that there is a seven day notice period for when people will get paid, what most injured workers would be more concerned about is what sort of notice would you get if you were not going to be paid, because, particularly if you are the breadwinner of the family, you would want to know fairly smartly (I would have thought) that there would not be any money coming in.

The Hon. M.J. WRIGHT: I will come back to the member for Ashford on that. Perhaps I can do that after the dinner break.

The Hon. S.W. KEY: Thank you, minister.

Clause passed.

Clause 30 passed.

Clause 31.

Dr McFETRIDGE: Under this clause, the original subsection (6a) will be deleted and substituted with new subsections (6a) and (6b). Subsection (6a) states:

The corporation may dispense with the requirement under this section.

However, in new subsection (6b) a self-insurer seems to be discriminated against in this case. Why are self-insurers being put in a separate category and having to have different requirements placed upon them?

The Hon. M.J. WRIGHT: It is the status quo for the self-insured but some expanded powers for the corporation.

Clause passed.

Clause 32.

Mr HANNA: I move:

Page 39, after line 18—Insert:

(2) Section 53—after subsection (8) insert:

(9) If the claim of a worker is rejected, the worker is still entitled to the reimbursement of any costs reasonably incurred by the worker in providing a certificate under section 52(1)(c) or any other medical evidence required by the corporation in connection with the claim unless the corporation believes that the worker has acted dishonestly in making the claim or providing information for the purposes of this division or any other provisions of this act (and a liability to make a reimbursement under this subsection will be taken to be a liability to pay compensation for the purposes of the other provisions of this act).

One issue that has come up from time to time is where a worker has been injured and there is no question that they have been injured. In order to advance their claim, they or their representatives have sought medical reports to establish the extent of the injury, and so on. Ultimately, it may be that, for some legal reason (or some technical reason, one might say), the claim is rejected. It may be that, for example, the injury occurred while the worker was driving, and there is a dispute about whether or not the driving took place as part of the worker's duty. If it did, it would be compensable; if it did not, it would not be compensable. Nonetheless, we are left with someone who has been injured.

My concern is where costs have been reasonably incurred by injured workers to get medical reports and ultimately the claim is rejected, not because the worker has been dishonest and not because they were not injured at all, but because of the legal characterisation of the work injury—in other words, how it happened. What I am suggesting is that the cost of obtaining medical evidence should be recoverable from the scheme in any case. I stress that this is where the worker has been honest, the worker has been injured and the worker has obtained a medical report in order to establish the extent of their injuries believing in good faith that they have a claim, and then, for some legal reason, it appears there is no claim. This will not happen often, but I think that where it does happen it is only fair that the worker in that situation be compensated for medical evidence which they have obtained in good faith.

The Hon. M.J. WRIGHT: We say that provisional liability overcomes the need for this amendment. The costs of preparing and lodging a claim for compensation, including the gathering of medical evidence, have not traditionally been born by compensating authorities. There has been little evidence to suggest that these costs are problematic for workers. Nevertheless, any problems suffered by injured workers in this area should be rectified by the bill, which sets up provisional medical expenses about which we have already talked. It is not necessary for workers to make a claim in order to be eligible for provisional payments. Notification of the disability is sufficient. Therefore, it is quite possible that claimants could receive provisional payments when preparing their claim and use some of those payments to foot their administration costs.

Amendment negatived; clause passed.

Clause 33.

Mr HANNA: I believe that my amendments Nos 54 through to 62 are consequential on one decision or another that we have already taken, so I will not be proceeding with those amendments.

Clause passed.

Clause 34 passed.

Clause 35.

The Hon. M.J. WRIGHT: I move:

Page 39, lines 29 to 34—Delete subclause (1) and substitute:

(1) Section 58B(1)—at the foot of subsection (1) insert:

Maximum penalty: $25,000

This amendment reverses the proposal of clause 35 in the original amendment bill leaving section 58B(1) the same as in the current Workers Rehabilitation and Compensation Act. This means that an employer will still have to provide suitable employment and, so far as reasonably practicable, the same as or equivalent to the work they were doing prior to their injury. This amendment also inserts a penalty of a maximum of $25,000 at the foot of subsection (1) to ensure that employers comply with this section. Really, we are suggesting a strengthening of section 58B, which is an important part of the legislation, as members would be aware. We are also inserting a maximum penalty of $25,000.

Mr HANNA: My question is about the minister's amendment. It is really about the prosecution of employers for failing to comply with their 58B obligations virtually through the history of this workers compensation legislation. For those who are less familiar with it, one could simply describe it as the obligation to provide work for an injured worker. It is more complex than that, but that is the essence of it. Over the years, there has been a terrible history of employers seeking to dump workers out of their workplace, and they have been able to do so with wanton disregard for WorkCover's ability to supervise that and prosecute them for it. I doubt whether the minister could name many cases where employers have ever been prosecuted for failing to comply with their obligations to provide employment. That being the case, given that there is some generic penalty in the legislation at the moment and there has been no prosecution of this section 58B provision, what will the imposition of a $25,000 fine do if it is not going to be supervised or prosecuted?

The Hon. M.J. WRIGHT: Currently, there is no specific penalty provision. There is a general penalty, but I think he is right in regard to the lack of prosecutions. What tends to happen now is that WorkCover can penalise an employer through the supplementary levy system. What we are proposing here is that in addition to still using the supplementary levy system, if need be, there can be a penalty of up to $25,000.

Mr HANNA: I have been provided with a WorkCover document which describes the approach to section 58B. It refers to WorkCover having a six-person unit to examine referrals to WorkCover to get permission for workers to leave employment and simply go onto income maintenance.

The unit appears to have a huge workload, because I believe the number of referrals to WorkCover has increased from 1,300 a year to approximately 2,000 a year, and this is from employers essentially not wanting to continue with employment of an injured worker. I believe that a proportion of these referrals are rejected and some pressure is applied to employers.

So, it is not a case of the claims managers or WorkCover not knowing that this goes on: it is just that there is absolutely no prosecution policy. So, I ask again: you can have a $2,000 fine or a $25,000 fine, but what is the minister going to do to change the culture and actually have this enforced?

The Hon. M.J. WRIGHT: It is a fair question. I think that by the provision in itself we are sending a message to WorkCover, and also to the broader community. Having said that, that may well not be enough. I have spoken previously about another bill that we are going to be dealing with following this bill in respect of performance agreements, with which we will be ensuring that certain things are achieved.

The 58B functions sit within the agent. This function is supervised by WorkCover. It is based on Clayton's previous recommendation to WorkCover, and I think that WorkCover and the agent would know full well that the policing of 58B is a priority for this government.

Amendment carried.

Mr HANNA: My question to the minister in relation to the new section 58B concerns the wording, which I thought was different to that which is in the current legislation. Is there a different requirement for the nature of the work which an employer must provide to an injured worker? I see that the government provision insists that it be suitable employment.

We know from the definition that that includes a reference to education, training, experience and the medical capacity of the worker, but there is no requirement for the work to be comparable to the pre-injury employment. It seems to be clear that the employment offered need not be anything near as rewarding or suitable, in the usual sense of the word, to the worker.

My understanding is that the words 'employment for which the worker is fit, and subject to that qualification, so far as reasonably practicable the same as, or equivalent to, the employment in which the employee was employed immediately before the incapacity' have been deleted. This seems to open the door for employers to abuse the provision by allotting the lightest and most meaningless tasks available in the workplace.

The Hon. M.J. WRIGHT: The member for Mitchell makes some good points, but I think he may have misinterpreted what we are doing here. We have actually deleted 58B(1) with our amendment, so that has now gone, and that means that the original wording of 58B(1) stands, which I think the member for Mitchell is probably speaking in favour of, and that came as a result of the consultation that the government held. So, just to repeat—

Mr Hanna: With big business?

The Hon. M.J. WRIGHT: No, with everybody. I do not know whether business actually support this.

Mr HANNA: I want to explain my earlier remarks. In the current legislation there are these words which provide a minimum requirement in relation to the work which the employer must offer the injured worker:

...employment for which the worker is fit and, subject to that qualification, so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was employed immediately before the incapacity).

Existing clause 58B(2) gives some outs, and allows the excuse of not providing such work in certain circumstances. However, the problem I have with the government's amendment is that it deletes that proviso altogether so that we are left only with the minimum requirement that the employer offers what the government defines as 'suitable employment' in the new interpretation clause—that is, by reference to the worker's capacity and training and so on. It is not work which needs to be comparable to the pre-injury employment, and that seems to me to greatly weaken the employer's obligation to find work. Instead of finding work that is close to what the worker was doing before the injury it could be anything, under the fairly fluid 'suitable employment' definition.

The Hon. M.J. WRIGHT: I ask the member for Mitchell to look at the government's amendment because I think we are probably pretty close on this one, although we do not seem to be on the same page at the moment. What we are doing is deleting clause 35(1); so, we delete subclause (1) and then substitute section 58B(1), which says the same.

Mr HANNA: This is my third contribution on the clause. I do not want to pursue it; I am quite happy to go away and look at the existing 58B and look again at the government's amendment. I must admit I cannot see it at the moment, but I will have another look at it—I hope the minister will as well.

However, I must put on record the mischief I believe is being opened up here. There is an existing practice by some bad employers—which, I think, could become more rife under the wording the government is providing—where an employer recognises that there is a section 58B obligation to provide work but, in fact, wants to get rid of the worker; they do not want someone who has been injured once and who they think may be injured again. So, the employer will give the injured worker work that is the closest thing to working in a cesspool they can find. There was recently one case at an Adelaide Hills meatworks where injured workers were actually put on the job of cleaning out the animal excrement. It was the worst job in the whole place, and the employer was just waiting for the employees to leave, to get any other work, or to just quit work altogether.

That is the sort of mischief that, I think, needs to be overcome, and I will be re-examining the wording to ensure that the work that must be provided must, if reasonably practicable, be as close as possible to the pre-injury employment. That is my goal.

Clause as amended passed.

Clauses 36 to 41 passed.

Clause 42.

The Hon. M.J. WRIGHT: I move:

New clause, page 44, after line 38—Insert:

42A—Amendment of section 65—Preliminary

` Section 65—After subsection (4) insert:

(5) The levy under this act is subject to any GST payable under A New Tax System (Goods and Services) Tax Act 1999 (Commonwealth) and any such GST is additionally payable by an employer.

(6) Subsection (5) does not extend to a fine imposed under section 70 or any penalty interest or fine imposed under section 71.

This amendment relates to the WorkCover levy and making sure that it is GST exclusive. It is what happens in practice, but putting it in the legislation leaves no doubt.

Amendment carried; clause as amended passed.

Clause 43.

The Hon. M.J. WRIGHT: I move:

Page 45, lines 8 to 11—Leave out subclauses (3) and (4)

This amendment is in regard to the levy cap. As members would be aware, the levy cap in South Australia has been 7.5 per cent, and I understand that we are one of the few jurisdictions (if not the only jurisdiction) that has a levy cap. It was recommended by Mr Clayton that we go to 15 per cent. Any change to this would, of course, result in winners and losers. What the government did as a result of bringing this bill forward was obviously to consult. It seemed to be a reasonably common view that, because this was revenue neutral, we were not going to be any better off going from 7.5 per cent to 15 per cent. Quite the opposite: it was better to stay with the existing 7.5 per cent, and that is what I am proposing with this amendment.

The Hon. S.W. KEY: I am very interested in this particular area because, as the minister noted, certainly recommendations were made in the Clayton Walsh review, and we end up with a bill that talks about deleting 7.5 and substituting 15. Now we have amendments moved by the minister to go back to 15. Can the minister elaborate on whether that has any effect with regard to the unfunded liability—which is a major concern to the government—and indicate the reasons for the change of figure?

The Hon. M.J. WRIGHT: It does not have an effect on the unfunded liability. As I said, it is revenue neutral, but I suppose the reason for the change with our amendment is that going from 7.5 to 15 per cent would have a pretty serious effect on some industries.

The Hon. S.W. KEY: Can the minister clarify one of the things that may be a myth? It has been said that, with regard to the levy, it is the good employers—the employers who actually look after their workers by having proper health and safety practices, as well as a compensation and rehabilitation system—who are subsidising the so-called bad employers. Is that a myth, or is it a reasonable issue to bring forward?

The Hon. M.J. WRIGHT: It is true that low-risk industries subsidise high-risk industries but, of course, individual employers can have an effect upon their levy rate through the bonus penalty system.

Mr HANNA: First, I want to clarify that I have corrected my thinking in relation to the section 85B question we were discussing earlier. I am just keeping track of it all. I turn to this government amendment in relation to levies. Why should I be concerned with the employer levies? It is a matter of fairness. I do not care whether we are talking about workers or employers: I want to see fairness and good behaviour rewarded, and bad behaviour penalised. That is already a principle in the scheme.

Industries which have a high rate of claims—whether due to a lack of care or due to the danger of the work—pay higher levies. Individual worksites with a higher number of claims lead their employers to pay higher levies, and that is as it should be. But there has always been a level of cross-subsidisation in the scheme. It means that those industries and workplaces that are relatively safe—where the employers are model employers, careful to prevent workplace accidents—are paying for workplace accidents. They are paying for some of the danger and some of the lack of care on the part of bad employers. How does that happen? For those who are less familiar with the scheme, I think I had better explain that.

We set an average levy rate—and for some time it has been 3 per cent—but those factors of industry accident statistics and individual employer accident statistics have a bearing on the setting of levies for particular businesses. So, the average levy rate, in a sense, is meaningless to individual companies or individual employers. It is simply a figure that is picked so that, in total, a certain amount of revenue goes into the scheme. In the case of relatively safer workplaces, it will be a lot less, or somewhat less, than 3 per cent, and for those industries with more claims it will be somewhat more than 3 per cent. The current limit is up to 7½ per cent, so that is a complete range. I do not know what the lowest is but, theoretically I suppose, it could be 0.1 per cent right up to 7.5 per cent.

Lest it be thought that this is just some fancy of Mr Clayton, I point out that there was considerable history to the recommendation to increase the range of levies so that the more dangerous industries and the worst behaving employers pay relatively more, and the safer industries and the better behaving employers pay relatively less. The recommendation was made in the Stanley report (recommendation 9.29) to increase the levy cap to 10 per cent. The Mountford report, to which the minister has already referred in debate, was commissioned by the WorkCover Board, and it recommended the reduction of cross-subsidies within the levy system, which means increasing the levy cap.

The WorkCover Board 2006 proposal for legislative change recommended increasing the levy cap to 15 per cent. The Clayton report then recommended increasing the levy rate cap to 15 per cent. What I want to know first of all is: who exactly told the government that the 15 per cent cap was unacceptable?

The Hon. M.J. WRIGHT: I do not know to whom exactly I can point, but what I can say is that, as the government went through its consultation phase, there was opinion that we would be no better off going from 7.5 to 15 per cent. You are right: there is obviously a level of cross-subsidisation, whether it be at 7.5 or 15 per cent. High-risk industries are not necessarily poor performers, but they may well be. Good practices may be put in place in a high-risk industry but, because of the nature of the industry, there are still injuries.

We do have the bonus penalty system that I referred to earlier: up to 30 per cent bonus, up to 50 per cent penalty. It is on the levy, based on performance. You can make a case either way and, as the member for Mitchell has highlighted, there have been a number of recommendations in regard to going from 7.5 to 15 per cent. The government determined that it was best to stay at the existing levy rate.

Dr McFETRIDGE: The opposition certainly supports the government amendment here because we were quite alarmed that, with the rise to a 15 per cent cap, when you added on the 50 per cent levy it was quite possible for some employers to be paying 22 per cent. To me, that is a burden that many businesses just could not bear because, once again, it is a no-fault compensation scheme, and I could envisage circumstances, albeit rare, where a series of claims could be made that are not the fault of the employer.

I still have issues with this whole scheme. There are accidents and incidents that happen—and they involve a WorkCover claim because they happen at work—which are not really part of work duties, so I am pleased that the government has done this. It is interesting to note that we have a number of high-risk industries in South Australia, and we do have risky industries, according to the Clayton report. One of those is shipbuilding, and I think that, with the air warfare destroyer contracts coming on board, the industry average now is 7½ per cent.

Interestingly, though, submarines are paying 2.25 per cent. A relative of mine running a business was paying 11½ per cent under the old scheme, and I think that he would have been paying 22 per cent under the new scheme if he had not cleaned up his act; however, because of SafeWork SA and the way the scheme has the penalties working already, he has cleaned up his act and certainly now he is employing 40 people, and it is a very safe workplace. I think that he is down to 8.3 per cent now.

The scheme is working well and he was having to pay penalties there. I should say that an example perhaps of how something can happen that was not entirely his fault was that he had an employee who he understood to be quite literate and who was able to comprehend instructions given to him about working a machine. This fellow actually took off all his fingers and half of his hand on this machine because he could not read the safety instructions, even though these had been explained to him and he had indicated that he could understand. It was just one of those cases where employers sometimes end up being on the wrong side of the argument because of circumstances beyond their control.

If there were a possibility of paying 22 per cent, I think that would be totally unacceptable to business. Even at the current rate of 7½ per cent, with a 50 per cent penalty you can still be paying 11½ per cent, so it is a significant disincentive for any employer. I think that South Australian employers, through Safework SA, are doing their very best to try to do that and, with the difficulty of getting people to come to work now with the low unemployment rates in South Australia, employers are tending to look after their employees. At the same time, I think that there is enough in this legislation to make sure that irresponsible and bad employers are being penalised sufficiently.

Mr HANNA: To me, there is an air of unreality about this debate because we seem to be discussing it as if—by going with the government amendment and rejecting the original proposal they had in the bill—we are somehow lowering levy rates. With respect to the member for Morphett, it is all very well to say that this or that employer will not have to pay 15 per cent or 22 per cent or whatever but, of course, the corollary to that is that we are asking a whole range of employers to pay more. In fact, most often it is the small businesses, the small employers, who will pay more because they are often in a simple enterprise—clerical sort of operations primarily—and they are the ones who will cop it.

I just want to run through some of the relatively safe employers who government members and Liberal Party members will vote to pay more in WorkCover levies. Let us be quite clear about that: it means that instead of their paying perhaps half a per cent, they might end up paying 2 per cent because of the requirement to subsidise those who are in more dangerous fields. I think that a good example would be accounting or insolvency firms: they will not be high up the list of risk factors. Firms like Bernardi Martin, Ernst & Young, Sims Lockwood—there are a hundred of them around Adelaide—will be paying more levy as a result of what Liberal and Labor members will vote for now.

What about community groups? They are often at the lower end of the scale. Sporting clubs with bar staff, and surf-lifesaving clubs, which have a small staff and do not engage in dangerous work with machinery or mining or whatever, will be at the lower end of the scale. They will be paying higher WorkCover levies under this government amendment. Finance companies throughout the whole finance sector: BT Finance, Colonial First State, credit unions—the whole range of them will pay more WorkCover levies as a result of what the Liberal Party is about to vote for. Hotels (somewhat the darling of Liberal and Labor members usually!) will in this case end up paying more WorkCover levies, despite being one of the relatively safe industries.

Think of professionals—I will not mention lawyers, because I do not want to be accused of any self-interest—but doctors rooms and veterinary clinics will pay more (although I stand to be corrected by the member for Morphett about how dangerous the veterinary clinics might be).

Then there are non-government schools. Schools are relatively safe employers, and they will end up paying higher WorkCover levies to subsidise those in the mining and manufacturing industries. Church-based organisations such as Anglicare and the Salvation Army have most of their people in clerical or social worker roles involving counselling, talking to people, and so on. Those sorts of organisations will pay higher levies to subsidise the more dangerous businesses. Trade unions themselves will be paying higher levies as a result of this government amendment.

You can also think of a whole range of non-government organisations such as regional progress or development boards that would be paying more. Tourism businesses generally would be paying more, as relatively safe employers. Bakeries would be another example. Maybe they are more towards the middle of the range, but I imagine they would be much safer than the mining and manufacturing sectors to which I have referred.

Real estate agents; property management companies; charities such as the Cancer Foundation, Riding for the Disabled, Red Cross and so on; and human resource and recruitment companies would all be paying more. Even shopping centres managers such as Westfield would be paying more, because they are relatively safer employers and, in some cases, more careful employers than the mining and manufacturing sectors. So, there is a whole range of relatively safe employers who will pay more levy—a higher percentage levy—as a result of this government amendment.

It is all very well listening to the big business end of town. Yes, Labor Party: listen to big business. Yes, Liberal Party: listen to big business. They are telling you, 'We don't want to pay this high rate of possibly 15 per cent if we are at the high end of the scale', but it means that all the other people in clerical, financial and charitable services are going to be paying more. I do not want to vote for that.

The Hon. M.J. WRIGHT: I thought I might share with the house some advice that I have. I know I am not going to convince the member for Mitchell, but I think he and others may be interested. The advice I have received is that it is estimated that the change would lead to an average increase in levies of $5,000 for approximately 4,200 business locations; no change in levies would be experienced in 9,400 locations; and an average decrease in levies of $360 would result for 58,600 locations. So there is a small benefit for many employers, but there is a large hit for some employers. As I said previously, you have cross-subsidisation under the current system. If you went to 15 per cent you would still have cross-subsidisation. It is revenue neutral and, on balance, the government determined to come forward with an amendment.

Amendment carried; clause as amended passed.

Clauses 44 to 46 passed.

Clause 47.

Dr McFETRIDGE: Will the minister explain how the transition arrangements will work so there is not going to be a double whammy effect on businesses?

The Hon. M.J. WRIGHT: The legislation is flexible and it sets up payment regimes so you can pay in instalments. So, by going to a whole new system of levy payment in advance, as I say, the legislation is flexible so that if, for example, a company is paying 12 months, it can elect to pay on a monthly basis in that transition phase.

Dr McFETRIDGE: If there are overpayments, is WorkCover Corporation compelled to pay back those overpayments, or are they going to be offset against future levies?

The Hon. M.J. WRIGHT: They will be offset. I should also say in regard to the transition phase that this will all be done in consultation with the industry.

Clause passed.

Clauses 48 and 49 passed.

New clause 49A.

The Hon. M.J. WRIGHT: I move:

Page 50, after line 21—Insert:

49A—Insertion of section 76AA

After section 76 insert:

76AA—Discontinuance fee

(1) An employer who—

(a) ceases to be registered under section 59 (including in a case where the employer is then registered as a self-insured employer under section 60); or

(b) ceases to be registered under section 60 (but not including in a case where the employer is then registered under section 59),

is liable to pay to the Corporation a fee calculated in accordance with the regulations.

(2) A fee payable under subsection (1) is a debt due to the Corporation and may be recovered by the Corporation in a court of competent jurisdiction.

This is an exit fee for self-insured employers. The regulation would operate in much the same way as practices that are currently applying, so we see some sense in putting in exit fees with regulation.

Mr HANNA: I do not think he would mind my saying this, but I met Mr Robin Shaw, of the self-insured employers association (I keep forgetting what the acronym SISA stands for). In any case, he put some very strong submissions to me on behalf of self-insured employers and he objected in the strongest possible terms to the insertion of this discontinuance fee when it was not in the government's bill. I think the minister in the course of debate has already acknowledged that there was not further consultation with the self-insured employers after the initial round of consultation leading to the bill. It is potentially a heavy impost. Who spoke to the government to say that this should be reintroduced, and why has it been done?

The Hon. M.J. WRIGHT: This is an exit fee for self-insured organisations. The regulation would operate in much the same way as current practices. We are formalising what is already in place. I understand the concerns of Mr Shaw: obviously, he has his point of view. However, what we are doing here is simply regulating what is the current practice.

Dr McFETRIDGE: Along the same lines, I have had approaches from the self-insurers and, while I understand that this is just bringing regulation into legislation, the impression I am getting is that this will be a significant disincentive to some employers to come to South Australia, because by merging with companies that are currently self-insured they will have to pay the exit fees, which I am told can be anything between hundreds of thousands of dollars and millions of dollars. Is it true that, when a company becomes self-insured, they take all the liability with them as well? This really is a grab for cash, as it has been described by some people, on behalf of WorkCover.

The Hon. M.J. WRIGHT: Generally speaking, they take the liability with them. With respect to this regulation, I will be consulting with SISA to ensure that we get it right.

New clause inserted.

Clauses 50, 51 and 52.

The Hon. M.J. WRIGHT: I move:

Delete these clauses and substitute:

50—Amendment of section 78—Constitution of Tribunal

Section 78(c)—delete paragraph (c) and substitute:

(c) a single conciliation officer.

51—Substitution of heading to Part 6 Division 5

Heading to Part 6 Division 5—delete the heading to Division 5 and substitute:

Division 5—Conciliation officers

52—Amendment of section 81—Appointment of conciliation officers

Section 81—delete 'and arbitration' wherever occurring

52A—Amendment of section 81A—Conditions of appointment

Section 81A—delete 'and arbitration' wherever occurring

52B—Amendment of section 81B—Administrative responsibilities of conciliation officers

Section 81B—delete 'and arbitration'

52C—Amendment of section 84D—Issue of evidentiary summonses

Section 84D—delete 'and arbitration' wherever occurring

52D—Amendment of section 86A—Reference of question of law and final appeal to Supreme Court

(1) Section 86A—after subsection (1) insert:

(2) Subject to subsection (2a), an appeal also lies on a question of law against a decision of the Full Bench of the Tribunal to the Full Court of the Supreme Court.

(2a) An appeal cannot be commenced under subsection (1a) except with the permission of a Judge of the Supreme Court.

(2) Section 86A(3)—after 'reference' insert:

or appeal

(3) Section 86A(3)(a)—delete 'referred to the Court'

52E—Amendment of section 88—Immunities

Section 88—delete 'and arbitration' wherever occurring

52F—Amendment of section 88A—Contempts of Tribunal

Section 88A(b)—delete 'and arbitration'

52G—Amendment of section 88E—Rules

Section 88E—delete 'and arbitration' wherever occurring

52H—Amendment of section 88H—Power to set aside judgments or orders

Section 88H(2)—delete 'and arbitration'

This is a new dispute resolution system. The new dispute resolution structure would now comprise the following stages: conciliation, judicial determination by a single presidential member; appeal to the full bench of the tribunal; and appeal to the Supreme Court with special leave. This model that is before us and also the earlier model that came out of the review by Clayton and Walsh were certainly discussed by most of the organisations, whether they be employer or employee organisations, and there seemed to be some commonality in regard to not going with the recommendation of Mr Clayton in respect of arbitration.

Mr HANNA: I wish to express furious agreement with the minister's amendment.

Amendment carried; new clauses inserted.

Clause 53 passed.

New clause 53A.

Mr HANNA: I move:

Page 51, after line 35—Insert:

53A—Amendment of section 89A—Reviewable decisions

Section 89A(1)—after paragraph (b) insert:

(ba) without limiting paragraph (b)—a decision on a request for assistance with rehabilitation made by a worker;

I want to make it absolutely clear that, if a worker requests assistance with rehabilitation, it should be a reviewable decision. I think everyone pretty well knows what that means. There was some discussion about this earlier, but I do not think it is directly consequential: it stands by itself. This is the situation where a worker requires perhaps some material aid, or some assistance somehow with rehabilitation, in order to get back to work. We have had cases where, for months and months, the claims manager has stuffed around, or perhaps there has been a whole series of claims managers in the course of six or 12 months, and no decision has been made. We need to make it clear that this can be taken to the tribunal and a decision be made more promptly in those situations.

The Hon. M.J. WRIGHT: I oppose this amendment. We think that the current provisions are adequate. A worker can already seek an expedited decision for a rehabilitation plan.

New clause negatived.

Clause 54 passed.

Clause 55.

The Hon. M.J. WRIGHT: I move:

Page 53, line 6—Delete 'for arbitration' and substitute: for judicial determination

It is consequential to the dispute resolution system.

Amendment carried.

Mr HANNA: Why is the government not doing anything about some limit on the amount of conciliation proceedings that can take place before a review goes to judicial determination? It seems to me that, in some cases, employers have big pockets and are willing to string out conciliation proceedings. We have had cases where there have been eight, nine, 10 conciliation meetings. It seems to me that, if you have not conciliated by that time, it is time to put it to the test and have a judicial determination. Why is the government not acting on that?

The Hon. M.J. WRIGHT: It is really a matter that is up to the parties. The parties can determine if and when they think conciliation will or will not work. Really, it is for the parties to determine.

Clause as amended passed.

Clauses 56, 57 and 58.

The Hon. M.J. WRIGHT: I move:

Delete these clauses and substitute:

56—Repeal of part 6A division 5

Part 6A division 5—Delete division 5

57—Repeal of section 94

Section 94—Delete the section

58—Amendment of section 94C—Determination of dispute

(1) Section 94C(1)—Delete 'rehear the matter in dispute and'

(2) Section 94C(2)—Delete subsection (2) and substitute:

(2) However, if the amount of lump sum compensation is disputed by a worker and the amount the tribunal proposes to award is less than, or the same as, or less than 10 per cent above, the amount offered in conciliation proceedings, the worker is not entitled to costs of the proceedings under this division.

Mr HANNA: It has always struck me as strange that, if the worker challenges an amount which has been determined for section 43 lump sum compensation, if the tribunal awards less than, or the same as, 10 per cent less than the determination, then the worker does not get costs. However, if it goes the other way, there is no penalty on the compensating authority and there is no additional benefit to the worker. Clearly, this is designed to stop workers challenging section 43 determinations which are in the ballpark, so to speak, yet claims' agents or employers, particularly the self-insured employers, can challenge to their heart's content without any such discouragement of litigation.

The Hon. M.J. WRIGHT: It is all about resolving disputes.

The CHAIR: I want to make sure that all the procedures are fair. Is the member for Mitchell happy for us to continue with the minister's amendments?

Mr HANNA: Yes. I will not be proceeding with my amendment No. 68, but I will want to proceed with my amendment No. 69.

The CHAIR: That is after we have considered the minister's amendment No. 35. That is still relevant.

Mr HANNA: Yes.

The CHAIR: I think that I will put that clauses 56 and 57 as amended be agreed to, and then we still consider clause 58 separately.

Mr HANNA: Can I just have the procedure clarified then?

The CHAIR: The member for Mitchell's amendment No. 69 amends clause 58. It would still, it appears to us, apply in the light of the new clause 58. Therefore, with the amendment which we have just put and which has been carried, I am just putting that clauses 56 and 57 as amended be agreed to, and then we will deal with clause 58 so that the member for Mitchell has the opportunity to move his amendment No. 69. Is that clear?

Mr HANNA: Yes. I just point out that amendment No. 69 now has the effect of introducing a new clause, because I do not have the intention of deleting clause 58, which the minister has just successfully inserted.

The CHAIR: In that case, we will deal with new clauses 56, 57 and 58, and the member for Mitchell will need to move his amendment in an amended form, that is, to introduce new clause 58A.

Amendment carried; new clauses inserted.

New clause 58A.

Mr HANNA: I move my amendment in an amended form so as to insert new clause 58A:

58A—Amendment of section 95—Costs

Section 95(5)—delete subsection (5) and substitute:

(5) A person acting as a representative of a party to proceedings under this Part cannot charge for representation at a rate that exceeds the amount that would be allowable under the relevant Supreme Court scale if the proceedings were in the Supreme Court (and any amount charged in excess of the amount that may be charged under this subsection is not recoverable).

(6) In connection with the operation of subsection (5), an award of costs under this section cannot exceed the amount that would be allowable under the relevant Supreme Court scale if the proceedings were in the Supreme Court.

The heading and the text are exactly the same as is printed in my current amendment No. 69 on file; so, we all know what we are talking about. WorkCover and the government, I believe, have taken the view that there should be a fixed-costs system in relation to judicial determinations. My submission is that that will lead to a number of unfair rulings. In some cases WorkCover will end up paying too much for legal costs, and in other cases WorkCover will be paying hopelessly poor legal costs to the parties involved. The implication of this is that it may lead to some workers being unrepresented and, contrary to what Premier Rann consistently says about them, in fact, lawyers are rather useful when it comes to presenting a case before a tribunal.

Generally speaking (and this can be corroborated by the experience of Family Court judges), litigation usually goes much quicker when lawyers are involved rather than having unrepresented litigants. I put forward a different approach, that is, simply to limit the payment to any lawyer representing someone in judicial determination proceedings to an amount that would be allowable under the relevant Supreme Court scale as if the proceedings were in the Supreme Court. For those members who are not familiar with how lawyers charge, the most common reference point is a scale of fees which is published by the Supreme Court. It has an hourly rate and it has amounts for a different range of activities which can be carried on by lawyers. So, it is a handy reference point for just about every legal firm in Adelaide. Some will charge more; some will charge on that scale; and if you are lucky you will find some that will charge less than that scale, at least for particular matters.

What I am suggesting is putting a limit on lawyers' fees. I want to be clear about that: it is a ceiling on lawyers' fees. That means that there is some flexibility: lawyers can charge less if they want to, but it means that nobody gets to charge more than that scale of fees which is published by the Supreme Court. One good thing about that is that it puts everyone on the same playing field. Whether you are representing a worker, an employer or the corporation, you are receiving the same fees. I think that is how it should be if you want a level playing field in the justice system.

The Hon. M.J. WRIGHT: We do not support the amendment. The government supports the general thrust of the member for Mitchell's proposal but proposes to deal with the problem in a different way. The government believes that legal representatives should be held to the prescribed costs scale under the scheme and be prevented from charging exorbitant gap payments to injured workers.

We believe that the dispute process in general should be a negligible cost to workers. It is to be noted in the Clayton review that he broadly supported the WorkCover Board's submission on dispute resolution costs. Board recommendation 13.2 was to:

...pass a regulation pursuant to section 88G of the Workers Rehabilitation and Compensation Act to limit the amount a worker's solicitor can recover from a worker by way of costs to that amount which is payable by WorkCover to a worker under the act.

Clayton stated:

There is a sense of justice and equity that a worker should receive the full amount of their entitlement, not an amount that is devalued through the impact of additional legal fees.

Clayton qualified his remarks by saying:

However, the very best legal representation may involve some premium payment which a worker may be willing to bear.

The government intends to largely adopt Mr Clayton's recommendation, however not through legislation. As recommended in the board proposal, it is quite possible to limit legal fees via regulation under section 88G. That is the government's preferred option. The government intends to progress such a regulation shortly after the bill is passed. The difference in the government's plan is that, while its regulated fee limits will be based on the Supreme Court scales, they will be a lesser proportion.

WorkCover has provided advice to me that the current Supreme Court scales are regarded as excessive for the kind of preparation and representation work required for workers compensation matters and that it would be appropriate to set a lower scale, and we will be consulting in the development of these new cost regulations.

Mr HANNA: I am encouraged by those remarks to some extent, although I would challenge that matters in the Workers Compensation Tribunal are necessarily less complex or demanding of legal acumen than matters in the Supreme Court—some will be, some will not be. That is why I think there needs to be some flexibility. The important thing that I would stress to the government, if they are going to do something like this in regulation, is that it has to be equal as between worker representatives and employer representatives.

Mr Clayton referred to some ability to charge more because some workers might want to pay more for better legal representation. The point is: if you set a ceiling for all representatives then everyone is on a level playing field. I hope that the Labor government will not be, once again, sucking up to big business and allowing higher legal fees as an option, because we know who usually gets to hire the best lawyers, and that is the corporation and the employers.

New clause negatived.

Clause 59.

The CHAIR: I am going to suggest that we break now. I would point out to the member for Mitchell that he may like to re-examine his amendment 72 over the dinner break, as the first part of it is identical with the minister's amendment 38—that he may seek to move amendment 72 in an amended form in order to have the second part of his amendment 72 considered by the committee.

Mr HANNA: If I may respond to that, Madam Chair. Given that the first part of the amendment is identical to an amendment of the minister, if I simply move that amendment it is not going to do any damage if an amendment by the minister is dealt with first. In fact it might be better not to put the minister's amendment first but to put this amendment.

The CHAIR: It is not the way we work. We have to take them in order of precedence. So, if you would like to have a look at that during the dinner break, and we will go to dinner now so that you can do that.

Mr HANNA: That is fine, but what I would be inclined to do is simply move it in that form, unless there is any reason that that would be out of order, as such.

The CHAIR: We need to deal with it chronologically when we get to it, so you are not moving it now.

Mr HANNA: Yes; no problem.

The CHAIR: However, at that time your amendment will not make sense unless you seek to move it in an amended form so that you just move the second part of it.

Mr HANNA: I do not want to dispute that ruling, but it seems to me that it will still make sense even though there may have been an amendment in identical wording that has already been passed. In other words, it will not dislodge what has already gone before it.

The CHAIR: No, it will not.

Mr HANNA: Well, we are agreed on that.


[Sitting suspended from 17:59 to 19:30]


The Hon. M.J. WRIGHT: I move:

Page 54—

Lines 25 and 26—Delete 'and arbitration'.

Line 35—Delete 'and arbitration'.

These amendments are consequential on dispute resolution.

Amendments carried.

Mr HANNA: We are talking about the costs liability of representatives, and clearly there is an element of punishment for lawyers or others who do the wrong thing when representing a client and cost them money along the way. One of the things that puzzles me about the focus on legal costs is that (according to the information given) the money spent by the fund on legal costs in South Australia is actually less than that spent in other states. If that is the case then perhaps we do not need to do as much in relation to legal costs after all.

Of course, on the rare occasions when lawyers do the wrong thing we want protection for workers but, if I am right in thinking that the South Australian scheme spends less on legal costs than is spent interstate, then perhaps there does not need to be so much focus on legal costs.

The Hon. M.J. WRIGHT: Our amendment is about ensuring that there are no delays in the dispute resolution with regard to legal costs and money spent in South Australia compared to other states. It may be the case that it is less.

Mr HANNA: The other question I have of the minister about the clause is: why is it cast differently to the provisions covering lawyers appearing in the Supreme Court? It seems to me that the rules are expressed differently for matters where there has been some fault on the part of the lawyer. I wonder why there would be a difference.

The Hon. M.J. WRIGHT: The reason for that is that we are following the Victorian model with respect to workers compensation.

Mr HANNA: It is kind of amusing that we are copying Victorian provisions when we have our own existing South Australian provisions.

The Hon. M.J. WRIGHT: I am advised that the new rules are more relevant to the workers compensation jurisdiction.

Clause as amended passed.

New clause 59A.

The Hon. M.J. WRIGHT: I move:

New clause, page 54, after line 37—Insert:

59A—Amendment of section 97A—Constitution of Tribunal for proceedings under this Part

Section 97A—delete 'and arbitration'.

This is also consequential on dispute resolution.

New clause inserted.

New clause 59B.

Mr HANNA: I move:

New clause, page 54, after line 37—After clause 59A insert:

59B—Amendment of section 97B—Powers of Tribunal on application

Section 97B—After subsection (1) insert:

(1a) The tribunal should act under subsection(1) if the tribunal is satisfied that the decision-maker has not taken timely and reasonable action to determine the matter (unless the tribunal considers that there are special reasons for not acting under that subsection).

I move this amendment in an amended form. This is a fairly simple point that speaks for itself. I make the amendment in relation to current section 97B in the existing legislation which deals with the powers of the tribunal. I am simply making clear the circumstances in which the tribunal would give directions to expedite the determination of a matter. To put it more plainly, the tribunal would provide directions to expedite determinations if the decision maker had not acted in a timely and reasonable manner. That is the point of the amendment.

The Hon. M.J. WRIGHT: Existing section 97 for expedited decision making is sufficient and, for that reason, we do not support the amendment.

New clause negatived.

Clause 60.

Mr HANNA: I move:

Page 55, after line 21—Insert:

(5a) On completion of the processes under subsections (3) and (4), the Minister must provide the name and details of any person under consideration for appointment by the Governor under subsection (2) to—

(a) the United Trades and Labor Council; and

(b) South Australian Employers' Chamber of Commerce and Industry Inc,

and either of those bodies may, within 4 weeks after receiving the name and details, object to the person being recommended to the Governor.

(5b) If the Minister receives an objection within the period contemplated by subsection (5a), the Minister must consult with the body making the objection and if after consultation the body still maintains its objection and the Minister proceeds to make the recommendation, the Minister must cause a report on the matter to be prepared and have copies of the report laid before both Houses of Parliament.

I say at the outset that I have serious concerns about the medical panels and how they will work. I will have a little more to say about it when we look at the clause itself. The very concept, I believe, is flawed: the notion that one party to a dispute can choose the people who are going to decide the dispute; the people who are going to decide the dispute do not even have to listen to the other side; and, when they make a decision, it is final and binding on the other party. It really is a complete transgression of a whole range of common law protections built up over 100 years. By moving this amendment, I think we can make it a little bit better if it does go through.

One of the objectionable points then is that WorkCover effectively gets to choose a whole series of doctors who are philosophically, or otherwise, unsympathetic to workers. Everyone who practises in the workers compensation jurisdiction, everyone who knows a little bit about it, every union advocate who has worked in the area and every employer who has dealt with the area extensively knows that there are certain doctors you go to if you want a view of a medical problem that is generous to workers or that gives them the benefit of the doubt. There are certain doctors you go to if you want a harsh, cynical view of injured workers, and there are a number of doctors in between, of course.

The use of preferred doctors because of a known predisposition to take a view about injured workers has been one of the unfortunate features of the scheme since it has existed. Of course, that applies in other relevant fields as well. When dealing with damages for motor vehicle accident claims, the same thing applies.

The problem here is that it is up to WorkCover to pick the people they want to be on the medical panel and make, essentially, a binding decision. I realise that there is a formula which is a little more elaborate. There is actually an appointed convener and deputy convener appointed by the minister. The convener will have an important role to play in each case. The members themselves will be determined by the convener of the medical panel in each case. However, when it comes to those who applied to be on the panel, that itself will greatly restrict the spectrum of views of potential members of a medical panel. All it takes is for one minister in the future to be unsympathetic to the plight of injured workers to essentially be able to stack the medical panel with those doctors who have a harsh and cynical view of injured workers, and this is what is going to happen in the future.

My amendment provides that, after the selection committee is established in accordance with regulations and nominations are sought, the minister must provide the name and details of any person under consideration to the United Trades and Labor Council on the one hand, and the employers chamber on the other hand, and either of those bodies may, within four weeks after receiving the names, object to the person.

Even that is not conclusive, but if there is an objection then the minister must consult with the body making the objection and if, after consultation, one of those two bodies still maintains its objection and the minister proceeds to make the recommendation, the minister must cause a report on the matter to be prepared and laid before parliament.

I am not actually giving the right of either the UTLC or the employers chamber to object and block nominations because, after all, in some fields of specialisation, there may be very few nominations to choose from in reality, and I understand that dilemma. At the very least there should be the right of objection if the medical provider nominated is one with a particular reputation either way.

If you give that right of objection to both the UTLC and the employers chamber, I am hoping that ultimately you will end up with medical practitioners who have a more middle of the range view of work injuries and injured workers. I have used the formal names (as one must in legislation) of the UTLC and the employers chamber, but we know that these days they are known by the flash new names of Business SA and SA Unions: they are the groups I am talking about.

At the end of the day, it is a fairly modest safeguard to be built in, so that, if there is an objection to one of the medical practitioners who was about to be nominated to the panel, if the minister feels strongly enough that it really has to be that person—perhaps because the range to choose from is so limited—then let there be some transparency. Let there be a record laid before the houses of parliament and at least there will be a public airing of the debate about that.

Quite frankly, those medical practitioners who have something of a reputation for being particularly pro-worker or anti-worker may well be put off by the process, and I think that would be a good thing. At least it will be a range of medical practitioners at the end of the day, then, who will have a middle range of views and not have a fixed view at the outset.

The Hon. M.J. WRIGHT: The government does not support the amendment. Perhaps I could speak also a little bit about medical panels because, as you said, it is a fairly big clause and one that is important to the bill. The minister would appoint a selection committee. That selection committee, for example, could be made up of: a representative of the AMA; a representative of the medical colleges; certainly you would need an employer and an employee representative; perhaps someone from WorkCover. That selection panel, once in place, then selects the pool of doctors, and the Governor appoints the panel on the minister's recommendation.

From the pool, the minister appoints a convener and may appoint a deputy convener. The convener and the registrar appoint a panel of no less than three and no more than five doctors. We think that the proposed selection process for appointments to medical panels is transparent and adequately representative of employee and employer interests. The minister will be advised by a selection committee, as I said, on the most appropriate appointments to the panel. The selection committee will be made up of those representatives to whom I have referred, so you would already have Business SA and SA Unions playing an important role.

By the way, WorkCover does not pick the medical panels. I think that the proposal put forward by the member for Mitchell would be just a wee bit cumbersome.

Mr HANNA: I do stand corrected in that WorkCover does not pick the membership of the panels itself, but I am looking to the future where there may be a minister who wants to do a job on injured workers who is able to take the advice of either WorkCover or the employers chamber about those medical practitioners who have a particular reputation for being harsh on injured workers. They could well be the sole range of nominees for the medical panels in the future. That way, it would not even matter what the convener thought—the end result would be several medical practitioners who have that particular view.

It is very easy to see how this system can be abused, and that is inevitable as soon as you take the choice of medical practitioners away from the parties themselves. It means that whoever ultimately has control of the ministry is able to determine the flavour of medical assessments for injured workers in South Australia. I am corrected on that point, technically speaking, but I can see that this will be a very one-sided affair in the future.

Dr McFETRIDGE: Even I, while relatively new to this portfolio, understand that there is a long history of tensions between sections of the medical profession and some of the allied health professionals and WorkCover. As you have quite rightly pointed out, there are some insurance doctors and there are some workers' doctors. Are you aware of any research that has been done to give us confidence that there are enough willing participants for these panels in South Australia without having to have fly-ins and fly-outs? I do not know what will happen there. Are you aware of anything like that at all?

Mr HANNA: I am not aware of research as such. Maybe somebody has done a PhD on it, but I am really relying on anecdotal evidence. People who practise in the area all the time can give you a pretty clear idea of how particular medical practitioners will approach the issue of assessing an injured worker. There are going to be real problems in areas of fine specialty so, when it comes to the diagnosis of rare diseases and even something such as asbestosis, there are very few specialists in Adelaide who are going to be able to give a qualified opinion. Then, of those, one has to wonder how many will want to go through the rigmarole of being on a medical panel and determining the fate of injured workers' claims. So, one can be sceptical about whether this is going to work.

Dr McFETRIDGE: I have a further question of the member for Mitchell. Have you had any contact with any of the professional associations—the various bodies such as the AMA and the professional colleges (the college of surgeons and such like)?

Mr HANNA: I have not. I think that is more a question for the minister. I have a couple of amendments that ameliorate the excesses of the medical panel proposal but, really, the proposal is from the Rann government and I do not take any responsibility for that.

The Hon. M.J. WRIGHT: Even though it is not my amendment, and provided the chair is happy, I am happy to make a comment on that. It is my understanding that Mr Clayton did take some soundings from the AMA and he was assured that there is the pool of resources available in South Australia to be able to establish the medical panels. The other point I would make is that there is a similar balance selection model working well in Queensland. As members would probably be aware, medical panels exist in Queensland and Victoria, and we are picking up elements from both.

Dr McFETRIDGE: Perhaps the minister can take this on board as well, but to the member for Mitchell I say this. I am not a lawyer. My background is veterinary medicine, and I know how difficult it can be to distinguish between a medical fact and a legal fact. I know from some of the cases of animal cruelty I have been involved in that medical evidence has been presented and then interpreted by lawyers, and one of the big issues that has been put to me by members of the legal profession is that there will be legal questions put to members of this medical panel and how will we know whether that line is overstepped? Does the member have any information with which he can enlighten the committee?

Mr HANNA: With the indulgence of the member for Morphett, I might come back to that when we are discussing the clause itself.

Amendment negatived.

The Hon. M.J. WRIGHT: I move:

Page 59, after line 9—Insert:

(2a) In addition, a medical question that constitutes or forms part of, or arises in connection with, a matter that is the subject of a dispute under Part 6A must be referred to a Medical Panel.

This clarifies the need for medical questions to be sent to the medical panel.

Amendment carried.

Mr HANNA: I move:

Page 60, after line 18—Insert:

(1a) A Medical Panel must, before finalising its opinion—

(a) furnish a draft opinion (including reasons) to—

(i) the worker; and

(ii) the Corporation or the self-insured employer (as the case requires); and

(b) provide the parties with an opportunity (over a period not exceeding a limit prescribed by the regulations) to make a submission to the Medical Panel (in such manner as the Medical Panel thinks fit) in relation to the matter.

This is the very least that we could do, I think, to soften the harsh impact of introducing medical panels. I am suggesting that the medical panel must, before finalising its opinion in the matter, furnish a draft opinion to the worker and the corporation or the self-insured employer, as the case may be, and give the parties an opportunity to make a submission to the panel in relation to the matter.

This is what we call natural justice—give the parties a chance to be heard. This is a principle that has underpinned our courts and tribunals for ages and, if the Rann government wants to come forward and make these medical panels conclusive in their determination, the very least that can be done is to apply the principle of natural justice and allow the parties to be heard in terms of what they are proposing. In other words, this group of doctors can meet behind closed doors and suddenly come out with an opinion from left field which neither the corporation nor the worker would have thought might have arisen from the evidence. So it is most unfair. It is absolutely a denial of natural justice, and I think everyone can understand that.

The Hon. S.W. KEY: Because this is such a large section of the bill, I have a number of questions. In following on from what the member for Mitchell has just said and also in relation to his amendment, I draw members' attention to new section 98B, 'Procedures', on page 56 of the bill which states:

(1) A medical panel is not bound by the rules of evidence but may inform itself in any way it considers appropriate.

(2) A medical panel may act informally and without regard to technicalities or legal forms.

To a certain extent I think this builds on what the member for Morphett was asking with regard to the differences that have certainly happened in the past and, I suspect, will happen in the future between a legal opinion on a matter as well as a medical opinion on a matter. We will get on to medical questions later on and what they mean, but the medical questions here, as I understand it, and I have spoken to the minister about this in the past, are based on the Victorian legislation, as opposed to the New South Wales legislation, with regard to a medical question. But it can include anything from injury, causation, capacity to work, return-to-work plans and suitable employment.

As much as I know there is a lot of fantastic medical personnel out there, I would be very interested to know whether they can make informed decisions on not only legal matters and matters of fairness in a legal sense but also some of those other areas. They would have to be extremely multitalented and multidisciplined people to be able to do that.

Mr HANNA: I am not after sympathy: I am after votes.

The committee divided on the amendment:

AYES (2)

Gunn, G.M. Hanna, K. (teller)

NOES (36)

Atkinson, M.J. Bedford, F.E. Bignell, L.W.
Breuer, L.R. Caica, P. Ciccarello, V.
Conlon, P.F. Evans, I.F. Foley, K.O.
Fox, C.C. Geraghty, R.K. Goldsworthy, M.R.
Hamilton-Smith, M.L.J. Hill, J.D. Kenyon, T.R.
Kerin, R.G. Key, S.W. Koutsantonis, T.
Maywald, K.A. McEwen, R.J. McFetridge, D.
O'Brien, M.F. Penfold, E.M. Pengilly, M.
Piccolo, T. Pisoni, D.G. Portolesi, G.
Rankine, J.M. Rau, J.R. Redmond, I.M.
Snelling, J.J. Stevens, L. Venning, I.H.
White, P.L. Williams, M.R. Wright, M.J. (teller)


Majority of 34 for the noes.

Amendment thus negatived.

Mr HANNA: I move:

Page 60, lines 21 and 22—Delete subsection (3) and substitute:

(3) An opinion under subsection (2) must include a statement setting out—

(a) the reason or reasons for any conclusion drawn or opinion given by the medical panel; and

(b) details of any dissenting view of a member of the medical panel on any relevant question.

This is another amendment (a bit like the previous one) of elementary simplicity drawing on principles of natural justice again. In moving this amendment, I am suggesting that, when the medical panel—assuming the Rann government gets its way on this—comes out with an opinion, it must include a statement setting out the reason or reasons for its conclusion and the details of any dissenting view of a member of the medical panel on any relevant question.

I imagine that what we will have here is perhaps three doctors, sometimes it might be five doctors, sometimes it might be two doctors, I do not know, but there are two aspects to this. We all know that there are some medical questions, especially at the edges of medical science—for example, in the onset of certain diseases and their aetiology in the behaviour of aspects of the spine when it is damaged and how that might cause related pain in the leg through sciatica and so on—where two reasonable and qualified doctors will disagree.

I think that all the parties have the right to know whether the medical panel has come up with something other than a unanimous opinion. It is not a particularly radical idea: it is simply that the parties have the right to know why the medical panel has come up with the decision it has. They should state reasons. It is a common requirement in our tribunals these days—and it has been the practice of our courts for centuries—to state the reasons for decision. What were the facts upon which the decision was based? What was the reasoning and therefore what are the conclusions?

It is not good enough to have just a paragraph on the conclusions: 'Yes, the worker can do this because of that.' Everyone should have the right to know why the medical panel came to a particular conclusion, particularly when it means perhaps the difference of tens of thousands of dollars to the worker in a lump sum or, indeed, the question of whether or not their income maintenance continues. One of the minimal improvements we could make to this provision is to ensure that the medical panel must provide reasons.

The Hon. M.J. WRIGHT: We are opposing this amendment, as we believe the proposed legislation around the medical panel's decisions is already transparent. Their role is to determine a factual answer to the medical question and it is considered unnecessary for them to detail conclusions they may have drawn during this process and also unnecessary for a dissenting opinion to be provided. The panel will determine the answer between them and their decision is then final and binding. So, even if there was a dissenting opinion, there is no reason to provide the detail as there is no avenue for appeal. I also understand it is relatively uncommon for there to be dissent in other jurisdictions. I also refer the honourable member to section 98H(3), which states:

An opinion under subsection (2) must include a statement setting out the reason or reasons for the opinion provided by the medical panel.

The Hon. S.W. KEY: I want to clarify a point with the member for Mitchell. My understanding is that medical panels—and I certainly have some memory of them in the late 1980s and early 1990s under this system—were scrapped. If I recall correctly, the reason they were scrapped was that excessive delays and poor quality decisions were not transparent and understandable. There were also some difficulties, certainly if my memory serves me correctly, in constituting panels that could come up with sensible opinions or decisions that were understandable to the non-medical part of the workers compensation system. Is that one of the reasons why the honourable member is looking at being so explicit in moving this amendment?

Mr HANNA: Yes. All those circumstances are valid concerns in relation to the introduction of medical panels in this way. This amendment is a simple amendment about transparency—and that was the word the member for Ashford used. It is about transparency. One might bear in mind, too, that the decisions of medical panels will be used—and I think this is how they are used in other jurisdictions—as something of a guideline for subsequent parties in dispute. Obviously every case is different, but when a medical panel makes a decision that a person with a certain type of injury can do a certain type of work, it is quite likely that subsequent injured workers with the same kind of condition will base their response to determinations or claims manager directions on previous medical panel decisions.

In other words, where a worker disputes a particular direction by a rehab provider or a claims manager, their attention might be drawn to previous medical panel decisions which cover injuries similar to that of the worker. And so, it is all the more important for the opinions of the panel to display the full variety of opinion, if in fact that occurs, and that is the reason for this amendment. It is transparency not just for the injured worker and the other parties involved in a particular dispute but it may well be the subject of scrutiny by other parties with similar medical issues to be resolved.

The Hon. S.W. KEY: I want to ask a further question about that bearing in mind that later we will get to the functions and powers of medical panels and look at the interpretation of what a medical question would mean. I know that, certainly, there has been a lot of discussion amongst legal associations and unions about this question. Does the member for Mitchell believe that his amendment in any way assists with clarifying that question? As I understand it, this is something of great concern to many people outside this place. Certainly it will be a question I will ask the minister when we get to that part of the bill which he has put forward. It seems to me not only that the reasons and grounds need to be transparent but also that they are within the purview of what a medical question actually is.

Mr HANNA: When one looks at the definition of 'medical question' in the proposed new section 98E, one sees a very long list of possible questions. A very large number of those issues can be characterised as both medical and legal issues. For example, there may be a member of a particular medical panel deciding a question who considers that the medical panel is not qualified to make a conclusive decision about a particular question because that particular medical practitioner thinks it is really more a legal issue than a medical issue. Therefore, there might be a caveat to the medical opinion provided by that medical practitioner.

If the statement of reasons by the medical panel is just some sort of summary of the broad view without going into some of these reservations that certain members might have in a particular case, then none of the parties will be alerted to live medical issues which are actually outside the jurisdiction of the medical panel when there is an opportunity for medical practitioner panel members in a particular case to raise that very point. Let us just take one example. It might be capacity to return to work, or a question as to what employment would or would not constitute 'suitable employment' for a worker. That might be a good issue to deal with because, clearly, medical practitioners can look at the worker and say, 'The worker has this type of injury, and it is likely to cause these types of limitations.'

But, of course, 'suitable employment' is not what we ordinarily mean by 'suitable employment'. It does not have to be a real job at all. So, legal issues are bound up in interpreting simple words such as that. A member of a particular medical panel might think, 'Well, I can give an opinion about the state of the worker's health. I can give an opinion about how far that worker can comfortably move their arm up and down repetitively. Someone can tell me that a certain job involves a task of moving the arm up and down to a certain extent, but I cannot really determine whether or not that is suitable employment because that brings in a definition which, ultimately, is a legal question.' Those sorts of reservations, in my view, should be expressed in a panel determination.

Amendment negatived.

Mr HANNA: I move:

Page 60—

Line 23—Delete 'For' and substitute:

Subject to subsection (5), for

After line 28—Insert:

(5) Subsection (4) does not prevent the Tribunal making a finding of fact on the basis of other evidence that it receives in proceedings before the Tribunal (and then any relevant opinion of a Medical Panel will not apply to the extent of any inconsistency with the finding of the Tribunal).

This is another elementary improvement to the medical panel concept put forward by the Rann government, and it goes to one of the fundamental objections that I have to the medical panel model that it is using. Basically with this amendment I am seeking to ensure that the opinion of the panel will not be conclusive of the issue. I say that, when a decision is being made about a worker's entitlements (whether it be to income maintenance or lump sum compensation), it should be made by a duly constituted tribunal or a court—it should not be made by a few doctors meeting behind closed doors.

I have barely begun to mention the problems of natural justice that apply to the way in which these medical panels will work. They do not even have to ask the worker to appear before them, although they may. They can skulk around in the workplace, asking questions of people and gathering bits of anecdotal evidence to inform their subsequent opinions when they meet to deliberate, and all of that seems to be allowed by the proposed section 98B. The way in which they operate is absolutely nothing like any tribunal or court we have ever had in this state or in this country, yet the Rann government wants to make their decision final when it comes to determining people's entitlements.

If you intend to have this sort of lax approach to fact finding and you are going to have people meeting behind closed doors and not necessarily hearing from the parties concerned, whether about factual matters or legal matters, I say that we must leave the final decision to the tribunal. If you must have the medical panel, have the doctors meet and make their determination however they might, but leave it essentially as at least evidence to be put to the tribunal so that the tribunal member can make the final decision.

We have already discussed an appropriate dispute resolution system; the government and I share the same view about that process. But we are absolutely at odds in this regard: it is absolutely appalling for any group of people, whether they be lawyers, doctors, judges, or whatever, to be given these guidelines under which to operate and then to come up with a final decision which is going to determine people's entitlements and may indeed determine whether they have a livelihood or not.

The Hon. M.J. WRIGHT: We are opposing these amendments as we consider it inappropriate to undermine the final and binding nature of the medical panel's decision. The government's proposed legislation sets out that, once a medical panel issues its determination, the decision is final and binding and is only reviewable through judicial review on procedural fairness grounds. The purpose of making decisions by medical panels final and binding is that the decisions are on medical matters, with the appropriate legal support provided by the registry, and that there is no role for judges in decision making on medical issues. This is left to the medical experts to decide.

Mr HANNA: I must say when the board recommendations came out and when the Clayton report came out I thought there really was a fundamental misunderstanding about what doctors do in courtrooms and what judges do, on an everyday basis, with the evidence that they receive about medical issues. It happens in the Magistrates Court, the Supreme Court, the Workers Compensation Tribunal—it happens around the country.

The fact is we have always had this adversarial system whereby evidence is put forward by one party, evidence is put forward on behalf of the other party, and then, no matter how scientific or esoteric the nature of the evidence, the judge, or tribunal member, as the case may be, is left to decide ultimately what the facts are and what the legal consequences are to reach a decision.

So this is actually a radical departure from the way we have run any of our justice systems ever before in South Australia. The radical nature of this cannot be underlined enough. The problems of natural justice I have begun to outline. It is something that has been refined over time in relation to our courts and tribunals. We insist on our courts and tribunals, generally speaking, being open, giving the parties a chance to be heard, giving the parties a chance to ask questions of each other, and having a variety of evidence presented on an issue, some evidence presented by one side, some evidence presented by the other side. That is the way we do things, because it is the fairest way to reach a decision. There is no pretence of fairness in the way that this medical panel operates. It is going to lead to a great many injustices, and it is going to be a heavy burden on the conscience of those members who vote for it.

The committee divided on the amendments:

AYES (2)

Hanna, K. (teller) Williams, M.R.

NOES (34)

Atkinson, M.J. Bedford, F.E. Bignell, L.W.
Breuer, L.R. Caica, P. Ciccarello, V.
Conlon, P.F. Evans, I.F. Foley, K.O.
Fox, C.C. Geraghty, R.K. Goldsworthy, M.R.
Hill, J.D. Kenyon, T.R. Kerin, R.G.
Key, S.W. Koutsantonis, T. Maywald, K.A.
McEwen, R.J. McFetridge, D. O'Brien, M.F.
Penfold, E.M. Pengilly, M. Piccolo, T.
Pisoni, D.G. Portolesi, G. Rankine, J.M.
Rau, J.R. Redmond, I.M. Snelling, J.J.
Stevens, L. Venning, I.H. White, P.L.
Wright, M.J. (teller)

Majority of 32 for the noes.

Amendments thus negatived.

The Hon. M.J. WRIGHT: I move:

Page 63, after line 12—Insert:

(ba) without limiting paragraphs (a) and (b)—

(i) to receive and investigate complaints about failures to comply with section 58B or 58C and to give directions to the corporation or any relevant employer in connection with the operation or requirements of either section;

(ii) to investigate other matters relating to providing for the effective rehabilitation of disabled workers and their return to work on a successful basis;

This amendment to section 98D emphasises the importance of sections 58B and 58C of the Workers Rehabilitation and Compensation Act, which set out an employer's duty to provide work and notice of termination of employment to be given in certain cases respectively. The amendment has similar purpose to government amendment No. 2 to clause 7 of the WorkCover Corporation (Governance Review) Amendment Bill, which requires the new corporation charter to deal with steps and initiatives around maintaining effective rehabilitation and return to work systems for injured workers, including the administration and enforcement of sections 58B and 58C.

Amendment carried.

Mr HANNA: I move:

Page 64, after line 14—Insert:

(6a) Without limiting a preceding subsection, the WorkCover ombudsman must include in the WorkCover ombudsman's annual report information about the extent to which disabled workers have been able to return to work during the course of the relevant financial year (whether on a permanent or temporary basis and whether in previous or new employment or work).

This is another simple amendment. In the whole section of the act dealing with medical panels—that is, part C of the act—there are a number of provisions, and then we get to a different part of the same amending clause of the bill. In this part we are dealing with a proposed new part 6D in the legislation that refers to the WorkCover ombudsman, so we are actually changing the topic although we are still dealing with the same clause (and when we come back to discuss the clause itself I will say some more things about medical panels).

In relation to the WorkCover ombudsman, I have moved this simple amendment to suggest that information about the extent to which disabled workers have been able to return to work in the relevant financial year should be included in the WorkCover ombudsman's annual report. It is as simple as that. We have a proposal for a WorkCover ombudsman (which I do not see as being a bad thing in itself) and we have an annual report that the WorkCover ombudsman has to file anyway and present to the minister for presentation to parliament. All I am saying is this: let us ensure, by statute, that there is a report in that on the extent to which disabled workers have been able to return to work.

The government and I share the view that return to work should become more of a focus in the legislation—and, more importantly, in the culture of the claims managers, employers and workers. If we are to achieve that, let us give the WorkCover ombudsman that focus as well, and that will be manifest in the annual report required of the WorkCover ombudsman.

The Hon. M.J. WRIGHT: We are opposing this amendment. It is completely unrealistic to be able to provide that sort of detail around the return-to-work rates. Additionally, reporting on statistics is not the role of the WorkCover ombudsman. Development of data about return-to-work rates is a complex exercise. This is currently conducted independently and nationally through the Comparative Performance Monitoring reports and Campbell's Return to Work survey. These projects have been operating for a number of years, and have been developed with extensive technical input. We believe that it would be unrealistic to expect the ombudsman to undertake such a role.

Mr HANNA: I am familiar with the Campbell's Return to Work Monitor to which the minister has referred. It is a good read if you are into that sort of thing. The problem is that members of parliament do not generally look at it. If we have a WorkCover ombudsman's annual report tabled here, it seems to me that the important statistics about return to work should be in it, so members of parliament would at least have a browse through it to get a sense of where we are at in South Australia.

There is nothing in this amendment that suggests that the WorkCover ombudsman has to travel around the country or around all the worksites to work out what the return-to-work rates are. They are publicly available. The WorkCover ombudsman could talk to WorkCover, to the claims agent and to Campbell's, and publish the figures, even if they have been published elsewhere. The point is that it is something that needs to be brought to the attention of members of parliament, and an appropriate way to do that would be in the WorkCover ombudsman's report.

Amendment negatived.

Mr HANNA: I will now make some remarks about this clause and, in particular, the whole concept of medical panels. Before I do that, I will divert briefly to make a comment about the WorkCover ombudsman. I do not have any great objection to the WorkCover ombudsman.

Some of the functions provided to the WorkCover ombudsman in this proposal would have been carried out by the WorkCover Advocacy Unit, which was in WorkCover. That unit, of course, was axed by this Labor government so that it could set up another agency, funded through SA Unions by the Labor government. That advocacy unit did a powerful amount of good for individual workers in taking their claims forward.

I appreciate that the functions of the ombudsman are somewhat broader, and they are there to make recommendations on a systemic level as well. So, I suppose it is a good thing to have someone thinking about those things. Let us not forget that we also have a standing committee of the parliament which is meant to deal with these same issues.

I do not object to the WorkCover ombudsman position being created, and I think that all the functions and powers seem reasonable. I have already referred to the extraordinary power of the ombudsman to intervene in the case of discontinued payments pending resolution of a dispute being recommenced under the direction of the ombudsman—an extraordinary mishmash of tribunal powers with statutory authority powers.

I really want to address my remarks to the medical panel proposal. The point has already been made briefly that there are doctors to make conclusive decisions about workers' entitlements behind closed doors. There is no real requirement to ensure procedural fairness. I acknowledge that the minister may, if the minister wishes, establish some procedural fairness guidelines for the medical panel, but there is nothing really to make the medical panels comply with them, because their decisions are final.

The medical panel could operate a bit like the old Star Chamber. It was through the excesses of the Star Chamber in England a few hundred years ago, whereby suspects could be arrested, imprisoned, sometimes tortured, kept in isolation, etc., that our subsequent philosophy of natural justice was developed. I think that is a broad, sweeping statement, but it can be justified with the development of our jurisprudence of natural justice.

The problem is that once they are selected they are not bound by the rules of evidence, but they can inform themselves in any way they consider appropriate. So, doctors could go down to the workplace and have a chat to the local workers about what they think is fair in terms of the duties they do or the physical requirements of the job. They could go down to the local pub where the workers drink and have a chat to them to get the inside gossip on what happens in the workplace. My point is that there are no limits.

The medical panel can engage consultants and seek expert advice as it considers necessary. That is interesting because it means that, if statistical evidence or legal opinion were required in the opinion of the medical panel and it sought advice from an economist, a statistician, an occupational therapist, a rehabilitation provider or even a lawyer to establish the legal guidelines underpinning their decision, they would nonetheless come up with this conclusive determination. Contrast that with the position if such a decision were made in a tribunal, where any one of those expert witnesses would need to be called to give evidence and could be cross-examined for the reasonableness, bona fides and, indeed, professional standards of the advice being given.

I have made the point that it is extraordinary that we give to this collection of professionals the power to decide medical questions but, of course, they can draw upon lawyers, statisticians or any other kind of expert to come to their conclusions, and yet those types of evidence cannot be tested by any of the parties. It is important to note that the medical panel need not call the worker to give evidence. It may look at documents and it may ask the worker to meet with them and answer questions, but it does not have to. It could do the whole thing without consulting the worker at all.

A worker, of course, who is brought before this Star Chamber of medical experts cannot really refuse, because under proposed new section 98G(5) their payments can be cut off. So if the worker is told, 'You need to be before the medical panel next week. Come alone. Bring your documents with you,' and the worker does not comply with that request, their payments can be cut off.

I turn to the matter of medical questions. Under the proposed new section 98E there is a long list of about 17 different possible questions plus the catch-all provision 'any other prescribed matter'. Many of these issues contain mixed questions of law and fact. In fact, one could create a legal issue out of just about any one of them, even the question of whether a worker has a disability.

For example, if the worker has depression, is not working and has put in a claim for income maintenance, to what extent does that worker have to be depressed for it to be a disability? What if the worker can turn up to work, perform some of their functions, but not all of them: does the worker have a disability? What if the worker feels bad, even though they can do everything at work: does the worker have a disability?

There are questions that will inevitably arise when it comes to the questions of return to work and the implementation of rehabilitation plans. I pointed out earlier that as soon as you introduce terms such as 'current work capacity' or 'suitable employment', you cannot afford to think only of the plain meaning of those words. The medical panel will need to have a look at the interpretation section of the revised Workers Rehabilitation and Compensation Act to figure out how to answer what is supposed to be a medical question before them.

There are also issues of mutuality. When a worker says that they have to leave work because of medical issues, there will always be some circumstances where there is a question not only about the medical side of it, but about whether, in fact, there has been a breach of mutuality that warrants discontinuance of payments. There is no clear guidance about how far the medical panel itself will go in the sense that it is going to be dependent somewhat upon the question that is put to them, and how it is framed. Even if they do go over the mark into legal issues, there seems to be absolutely no chance of challenging their decisions.

The only thing I can think of is that there may be a judicial review of the decision which seems to go beyond what is strictly a medical question. I ask the minister: is it intended to restrict in any way judicial review of medical panel decisions if there is an allegation that they have gone beyond answering what we would consider strictly a medical question?

The Hon. M.J. WRIGHT: No.

Mr HANNA: The interesting thing about that is that what might have been a straightforward issue being resolved before a single member of the tribunal on a question of medical issues and law then ends up being a Supreme Court case on whether the medical panel has gone outside its jurisdiction.

So I can see how the intention of the legislation could well backfire, because a worker who receives a decision from a medical panel which has the effect of cutting their income maintenance or drastically reducing lump sum compensation will have very little to lose other than to resort to the Supreme Court and point to where the medical panel may have overstepped the mark in terms of its jurisdiction. So, although the minister says that this has worked well interstate, there are real problems in terms of whether this is really an efficient means to deal with these questions.

Dr McFETRIDGE: This particular clause has come under a lot of discussion and questioning. Certainly, the issue of medical questions has been raised by a number of lawyers and employers that I have spoken to. One lawyer has sent me a bit of information, and this probably sums it up better than I could, not being a lawyer. It talks about the definition of a medical question and says that it includes matters that are not traditionally seen as being medical questions. For example, the first question talks about empowering the medical panel to determine whether a disability arose out of or in the course of employment.

The person who sent me this information says that there is a long list of case law going back some 100 years, with a series of decisions in the High Court of Australia in this area. It is a very complex and evolving area of the law. He says that a conclusion can only be made after findings of fact are made and the difficulty is that the medical panel is not trained for such decisions and, worse still, the medical panel effectively can operate in secret. In fact, I think the expression the member for Mitchell used was 'star chamber', and I think he must have been speaking to the same lawyers as those I was speaking to. They were not rapt with it.

For my own non-legal mind, I got a little excited about the fact that there was a question whether a worker's employment was a substantial cause of a worker's disability consisting of an illness or a disorder of the mind. For me, that raised the issue of whether this was really a no-fault compensation scheme again, because the question was whether a worker's employment was a substantial cause of a worker's disability. So, was it one of those accidents that happened just because you happened to be at work, or was it something that happened as part of your work? That is an issue.

The minister also mentioned in a previous answer a medical registrar assisting the medical panels in the interpretation of legal fact because, to me, that is the big issue for all the people I have spoken to. They say these doctors are not lawyers so they cannot interpret the facts. If there is something that can reassure us that it will work, that would be good.

I understand the ombudsman gets only about 50 complaints a year about WorkCover issues, so whether the WorkCover ombudsman will relieve him of much work I am not sure, but perhaps it is a necessary role. I have been asked by one of the employer groups to ask a question (because they have some concerns) about the power and role of the WorkCover ombudsman. I think if they refer to the bill they will see that, but also they have made the comment about the suitable alternative employment provision, 'increasing the WorkCover ombudsman's powers to ensure that employers meet their obligation to provide suitable employment for injured workers (this will be further strengthened by a new penalty of up to $25,000 for any breaches)'. If the minister can give me information on that I would appreciate it.

The Hon. M.J. WRIGHT: In regard to the registrar, there will be staff to support the medical panels to ensure the quality of their decision. So that is really the function of what would be required of the staff.

We have talked about the medical questions. It is to deal with medical issues, for example, a worker's capacity or appropriate treatment. The clause that we came forward with is based on the Victorian provisions. New section 98F(3) allows the panel to determine that the question before it is not a medical one.

The issue of the illness or disorder of the mind relates to the need for a power to consider section 30A issues and psychiatric disabilities. What was the question about the ombudsman? Can you repeat that?

Dr McFETRIDGE: That question was about clarifying the powers and roles of the ombudsman, but I think the people who have asked me these questions can look at the act themselves. They have a particular query, and that is about the suitable alternative employment provision, 'increasing the WorkCover ombudsman's powers to ensure that employers meet their obligation to provide suitable employment for injured workers (this will be further strengthened by a new penalty of up to $25,000 for any breaches)'. I cannot find that for myself at the moment, and it would be good if the minister could help me.

The Hon. M.J. WRIGHT: I think we have already moved an amendment in regard to that. It is section 58B, where there is a new penalty of up to $25,000.

The Hon. S.W. KEY: I should say at the outset that I am very concerned about medical panels. I found it very difficult to find anyone who thought medical panels were a good idea, so I guess my first question to the minister is about the establishment of medical panels. In fact, I would expect to see a lot of legal disputes, because there is no opportunity to question the decisions of the medical panel. I suspect that a lot of issues will be referred to the Supreme Court. How is this going to assist the unfunded liability, and will this be another layer that will be very expensive for WorkCover to try to deal with?

The Hon. M.J. WRIGHT: Dealing with the last part of the question, I do not believe that to be the case, with respect to the expense to WorkCover. However, the introduction of medical panels in the South Australian scheme would enable disputes over medical matters to be decided by medical experts, not by non-medically trained arbitrators or members of the judiciary, as is currently the case. They would also improve the quality and speed of decision making, thus improving return to work and claims management outcomes. Medical panels are used by and have proven to be effective and successful in other jurisdictions, namely, Victoria and Queensland. It is believed that they would generate conditions under which these key improvement areas were more likely to be achieved, rather than having an immediate and tangible outcome in the short term.

Based on the experience in other jurisdictions, efficiently managed medical panels are likely to contribute to improved quality of decision making; final and binding decisions not subject to review on medical grounds; improved speed of decision making; and change in behaviour and culture. In conjunction with other proposed changes, these areas of improvement are likely to be central to the achievement of scheme outcomes, particularly improving return-to-work rates and getting injured workers back to work sooner. In the longer term, the effective functioning of medical panels would contribute to the achievement of the principal objectives outlined above.

The Hon. S.W. KEY: A number of questions have been raised by the Law Society, which I would like to follow up. Some have been dealt with, to a certain extent, in the amendments moved by the member for Mitchell, and also in the discussions that we have had previously. Concerns have been raised by the Law Society and also by the unions—SA Unions, in particular, in its submission—that they believe that the medical panels have too much power and that, despite the efforts of the member for Mitchell, there will not be the opportunity to go into the reasons why a medical panel made a particular decision and the details of that.

There is a view that decisions will be made by people who are not necessarily qualified to make decisions about issues to do with rehabilitation, employment and other non-medical areas and that, if this is such a good idea, why can it not be more transparent and appealable, or reviewable, within the WorkCover system, rather than having to go into other territory—for example, the Supreme Court—to have definitions and decisions clarified, when we have a very good system in place at the moment which, as far as I can see, will not be necessary if we introduce these medical panels. I understand what the minister is saying with regard to this not making an additional impost on the unfunded liability, but I am wondering how it can possibly be an economically more efficient way of dealing with concerns of this sort.

The Hon. M.J. WRIGHT: Some of the questions that the member for Ashford raised have already been answered, as she correctly said. With respect to the representation from SA Unions in regard to medical panels, we are aware that it does not support this measure, but we think it is a good idea. It has worked in other jurisdictions, and it will work here.

The Hon. S.W. KEY: My last question relates to who will be on these medical panels. Those of us who have had the opportunity to advocate in this area have had concerns, I think it would be fair to say, about some of the professionals who were employed either in the bad old days of the insurance companies or in the less bad old days by some of the self-insured employers, and also by the different claims managers. There has been quite a history, certainly in my time, of medical practitioners who come up with medical reports that seem to suit whomever they are working for. On a practical level, I am obviously very concerned about this area.

I understood that one of the reasons the medical panels were closed down in the early 1990s was because it was not possible to bring together in a timely fashion medical experts who were appropriate for the particular decision or advice on which they were to confer. We are always hearing about the shortage of doctors and health professionals in Australia, not only in regional areas but also locally, and I wonder what has happened to make the minister think that we will be able to have appropriate medical personnel on medical panels who have the expertise that is spelt out in the questions that a medical panel is supposed to answer, and that we will be able to do so in a timely fashion.

The Hon. M.J. WRIGHT: With respect to the reference that the member made to the panels in the early 1990s, it is my understanding that they were not effective because they were not final and binding. As I said before, Clayton says that the doctors are available, and the AMA agrees. I spoke earlier about the minister's appointing the selection committee made up of key stakeholders, and that selection committee would select the pool of doctors to be on the medical panel.

The CHAIR: The question is that clause 60 as amended be agreed to. I put the question. Those in favour say aye; against say no. The ayes have it.

Mr HANNA: Divide!

While the division was being held:

The CHAIR: No count is required, there being only one member voting no.

Clause as amended passed.

Clause 61.

Mr HANNA: I move:

Page 67, after line 30—Insert:

(2) Section 103A—after subsection (2) insert:

(3) Without limiting any regulation made under subsection (1), the following classes of persons performing the following classes of work will be taken to be prescribed for the purposes of this section:

(a) volunteer fire fighters with respect to the following classes of work:

(i) any activity directed towards—

(A) preventing, controlling or extinguishing fires;

(B) dealing with other emergencies that require SACFS to act to protect life, property or the environment;

(ii) attending in response to a call for assistance by SACFS;

(iii) attending a SACFS meeting, competition, training course or other organised activity;

(iv) carrying out any other function or duty associated with the activities of SACFS under the Fire and Emergency Services Act 2005 or the Emergency Management Act 2004;

(b) SASES volunteers with respect to the following classes of work:

(i) any activity directed towards dealing with an emergency, or undertaking a rescue;

(ii) attending in response to a call for assistance by SASES;

(iii) attending a SASES meeting, competition, training course or other organised activity;

(iv) carrying out any other function or duty associated with the activities of SASES under the Fire and Emergency Services Act 2005 or the Emergency Management Act 2004.

(4) In this section—

emergency has the same meaning as in the Fire and Emergency Services Act 2005;

SACFS means the South Australian Country Fire Service;

SASES means the South Australian State Emergency Service;

SASES volunteer means-

(a) a member of SASES; or

(b) a person who, at the request or with the approval of a member of SASES who is apparently in command of any SASES operations, assists with dealing with an emergency or the threat of an emergency

who receives no remuneration in respect of his or her service in that capacity;

volunteer fire fighter means—

(a) a member of SACFS; or

(b) a fire control officer under the Fire and Emergency Services Act 2005; or

(c) a person who, at the request or with the approval of a member of SACFS who is apparently in command of any SACFS operations, assists with dealing with a fire or other emergency or the threat of a fire or other emergency

who receives no remuneration in respect of his or her service in that capacity.

In the course of consultation on this legislation, it was brought to my attention that, under the current regulations of the legislation, the Country Fire Service volunteers are covered essentially by WorkCover entitlements. In other words, if they are injured in the course of their volunteer duties they will be able to receive the benefits of the WorkCover legislation. I wholeheartedly support the prescribing of that class of persons as eligible for WorkCover benefits. Our volunteer firefighters, in many cases at particular critical times, do work just as extensive and as dangerous as our professional firefighters.

I do not mean every day, I mean that, when the going gets tough and there is a bushfire, these people are out there facing mountains of flame protecting lives, property and whole communities. It is a mark of respect by the government and the parliament that they be accorded appropriate compensation rights for the unpalatable event when they might be injured in the fires they are out there to extinguish. My amendment takes the volunteer firefighters and actually names them in the legislation, so that there can be no doubt for the future that volunteer firefighters will be included and be effectively deemed to be workers on behalf of the State of South Australia, and thus receive WorkCover benefits if they require them.

In my opinion, one group is left out, that is, our emergency services volunteers, the South Australian SES volunteers. They get out there when there is an emergency—sometimes it will be in conjunction with the CFS in relation to bushfires, sometimes it might be floods, and sometimes it might be a horrific road accident. The SES will be out there directing traffic—possibly hands-on in dangerous situations—securing the rescue of people from the circumstances in which they have been injured. Of course, whether volunteer firefighters or SES volunteers, there is a range of peripheral activities to the actual life-saving work they do. They need to drive around, they need to be trained, they go into competitions in other ways, and they maintain their fitness and so on.

It seems to me that in all these activities—in terms of the core functions of the volunteer firefighters and the SES volunteers and those other things they need to do to be able to respond at the critical times—they ought to be covered under this legislation; and if they are injured when they go out voluntarily to do their bit for the community they deserve to be covered by this legislation. It is as simple as that. I am suggesting that both these types of worthy volunteers ought to be included in this legislation and given coverage. I will communicate with the SES about how people vote in relation to this, and we will see whether the other members of parliament share my view that these groups are worthy of protection under compensation legislation.

The Hon. M.J. WRIGHT: This is not something that was raised by Clayton. It is not an unreasonable proposal, and the government may consider it in time. However, any decision to deem classes of person or work within the ambit of the Workers Rehabilitation and Compensation Act is a serious one. It deserves detailed and careful analysis and can be done by regulation at a later time. For those reasons, as I say, it is not an unreasonable proposal and we may look at it in time.

Dr McFETRIDGE: No pun is intended but this amendment rings alarm bells with me. With respect to CFS volunteers (and I will correct the member for Mitchell a little), certainly they are volunteers but they are truly professional in their job. In fact, I recently rejoined the Kangarilla CFS. I was the captain of the Happy Valley CFS—

The Hon. M.J. Wright interjecting:

Dr McFETRIDGE: Actually, I have been to hundreds of incidents with the CFS over the years. I rejoined just before the Willunga fires. The CFS, as we all know nowadays, is dependent on a lot of people who are working during the day. Many people just do not have the heavy truck licences, and the CFS does need people to drive the big water tankers. I may not be ready for a first alarm, but as a back-up driver on a heavy tanker I am proud to say that I would be happy to do that for the CFS, because it does a terrific job.

That is why I am really quite concerned that there is any doubt whatsoever about this in relation to volunteers, whether they are CFS volunteers doing a professional job, doing the complete role that any MFS officer would be asked to do, from bushfires to structure fires to accident rescue, Hazchem, the whole lot, it is all there. I am really concerned that they are not covered under the current legislation. If there is any doubt about it I would like to know. Certainly, I would have assumed that SES volunteers would have been equally protected.

So I would ask the minister to take that on board, and perhaps in his response later on he can assure me that this is the case, because there is no way that we would ever leave our volunteers out there without adequate protection. They are giving up their time, many, many hours, saving the state millions of dollars, if not billions of dollars, and, certainly, when you add up the property saved by the work of these volunteers, and lives saved, it does count in the billions of dollars. So, to make sure they are covered is something the opposition would be very concerned to see in this new legislation—and I assumed it was in the current legislation.

The Hon. M.J. WRIGHT: CFS is covered by regulation.

Mr HANNA: Yes, I was going to clarify that for the member for Morphett. There is coverage for CFS volunteers by regulation. So, it can be made or unmade by a minister at any time. I think that the CFS deserves recognition in the legislation so that this cannot be taken away from them at a future time. This consideration led me to think, well, if we are going to do that for the CFS surely we should do that for the SES as well. So often they work together on the same sort of incidents. I hasten to add, in response to the member for Morphett, that when I made comparisons about professionals I certainly was not detracting from the professional standards of the CFS and SES volunteers. But, of course, our professional firefighters in the MFS are going to be covered as employees, pursuant to definition under the legislation. That is why we have to make a special case for these brave volunteers.

I would be more relaxed about this amendment if the minister could actually make a commitment that the SES are going to be prescribed under the regulations. At the moment it seems that the minister is just saying that he will look at it, but I do note that these amendments have been available for about a week, so there has been a chance for the minister to consider this option. There has been an opportunity for cabinet to discuss it, if need be. I really would like to hear of such a commitment tonight. But if that is not possible, fair enough. Let's proceed with the amendment, and I hope that members will support it.

Ms BEDFORD: I would just like to ask the member for Mitchell a couple of further questions on this amendment. Are there any other volunteers that you think could be considered for this sort of protection and, in particular, I am talking about things like surf lifesaving, with the sudden upsurge in the number of deaths and problems at the water level? We know how dangerous surf can be. Have you given that any consideration?

Mr HANNA: I think there is merit in that, and perhaps consideration should be given to all of these groups. Think of St John's volunteers, think of surf lifesavers. Both of those types of volunteers also can get into dangerous situations. St John's volunteers might be lifting a patient or get involved in some sort of aftermath of a motor vehicle accident. Surf lifesavers obviously face dangerous situations at times when going out to save people. I think there is room to expand this amendment, if nothing else.

I put the amendment tonight because I am sure that the CFS and the SES should be covered, and especially when one is but the other is not. I suppose more than any of those other groups of volunteers I think of the SES as warranting coverage, because their work in many ways is similar to what the CFS does. When there is a major community emergency they will be out there. With the CFS obviously it is a fire emergency, but with the SES it could be any kind of emergency, as I said. So there is actually some similarity, some congruity with those two. But I would appreciate it if the government would consider coverage for other similar groups of volunteers.

Ms BEDFORD: I would also like to ask the member if you think it would encourage people to volunteer for services such as the SES, or other groups, if they knew or thought that this sort of protection was available if they were injured.

Mr HANNA: Well, that's right. I have not actually had a discussion with people about whether this is a reason that you would volunteer or would not volunteer. I do not think it is as simple as that. In fact, people usually do not think about compensation for injuries until after it has happened to them, in my experience. These people are going out there, knowing the danger, facing the danger, but I think every one of us would be sorry to hear of a case happening tomorrow where an SES volunteer went out to an emergency, was injured, and left without income, perhaps being left without being able to pay the mortgage, and without being able to feed the children, etc., because of courageous work in the community. So it is to prevent this sort of thing that I put this forward. I think it could actually be a point of attraction when seeking volunteers to say, 'Look, you are covered. You might be going into a dangerous situation, but it is some comfort, not that you ever want to be injured, and we will take care that you are not injured, but there is some comfort that if you are there is compo available.'

The committee divided on the amendment:

AYES (2)

Hanna, K. (teller) Williams, M.R.

NOES (34)

Atkinson, M.J. Bedford, F.E. Bignell, L.W.
Breuer, L.R. Caica, P. Ciccarello, V.
Conlon, P.F. Evans, I.F. Foley, K.O.
Fox, C.C. Geraghty, R.K. Hill, J.D.
Kenyon, T.R. Kerin, R.G. Key, S.W.
Koutsantonis, T. Lomax-Smith, J.D. Maywald, K.A.
McEwen, R.J. McFetridge, D. O'Brien, M.F.
Penfold, E.M. Pengilly, M. Piccolo, T.
Pisoni, D.G. Portolesi, G. Rankine, J.M.
Rau, J.R. Redmond, I.M. Simmons, L.A.
Snelling, J.J. Stevens, L. Venning, I.H.
Wright, M.J. (teller)

Majority of 32 for the noes.

Amendment thus negatived; clause passed.

Clauses 62 and 63 passed.

New clause 63A.

Mr HANNA: I move:

Page 68, after line 4—Insert:

63A—Amendment of section 107A—Copies of medical reports.

Section 107A(1)—delete subsection (1) and substitute:

(1) The corporation must, within seven days after receiving a request from a worker's employer, provide the employer with copies of reports, or relevant extracts from reports, in the corporation's possession prepared by medical experts if (and only if) the corporation is satisfied that the request is directly relevant—

(a) to the worker's progress in rehabilitation or in being able to return to work; or

(b) to the extent of the worker's incapacity for work.

I well recall the debate that was had about medical reports in 1994-95 when the Liberal government was putting through cuts to WorkCover—nowhere near as severe as what this Labor government is doing now, but they did have a go, and there was an issue about medical reports. According to my recollection, which may be faulty at this time of night, it was then that a provision was inserted to insist that medical reports must be sent to the employer of the injured worker.

There is a certain rationale behind that. I have already spoken tonight about natural justice. Where there is a medical report concerning the worker's ability to carry out duties in the workplace, one can understand that the employer would want to know the abilities or disabilities of the worker. So, that is fair enough, but the problem arose in this way, and it has been a problem ever since. It is very common that psychiatric reports are prepared on the worker because for so many workers there are psychological complications arising from the injury, whether it is when the injury happens or because of the claims management and the consequences of not being able to work and so on.

It is quite common for psychiatric reports to be prepared. One can understand claims managers seeking those when there is a suggestion by the worker that there has been some psychological harm. When these psychiatric reports are prepared—and most often they are done by psychiatrists, but sometimes by psychologists—there is often a great deal of detail about the worker's entire life story, including every trauma that the worker might ever have suffered. There might be details of teenage abortions, schoolyard bullying, parents dying prematurely, siblings being in gaol, all kinds of skeletons in the closet, and these are things which employers simply do not need to know.

It is not so much a problem in a large corporation where there is a human resource department and such reports are filed away professionally by someone in the human resources team. Where it does become an issue is in the small workplace—a deli or a small factory (five or 10 workers) or a small office (a real estate agency or an accountancy firm)—and you have got a psychiatric report detailing every trauma the worker has ever been through in their life going to the employer. On occasion, these details have been leaked in the workplace and then used insidiously against the worker. Because of the details about their past history, they may be bullied or teased.

There is a serious issue about the worker's dignity here, and I think there is a way around it, and that is what this amendment is about. This amendment provides for the corporation (in effect, the claims manager), within seven days of receiving a request from a worker's employer, to provide the employer with copies of reports or relevant extracts if (and only if) the corporation is satisfied that the request is relevant to the worker's progress in rehabilitation, return to work, or in relation to the extent of the worker's incapacity for work.

Sometimes the worker has been off work for some time and the employer legitimately wants to know why the worker is allegedly unable to work. So, it seems reasonable for medical reports to be provided to give the employer the assurance that, in fact, the worker is so badly injured that they can no longer go back to that workplace.

The key change here is that such reports or extracts should be provided only if they are relevant to those issues, and those issues are really the only things that need to concern an employer. What is the worker's progress in rehabilitation? Is the worker able to return to work, or what is the worker's incapacity for work? I think we all agree that those are all issues employers would need to know.

They do not need to know what happened in the worker's family when they were five years old; they do not need to know whether the worker was raped when they were 10 years old; and they do not need to know whether the worker had a traumatic experience in an orphanage when they were 15. That is the stuff that is often contained in psychiatric reports, and employers, especially in small workplaces, do not need to have that information. It is not likely to help the relationship between the worker who is trying to get back to work and the employer. The reason for the amendment is to afford the injured worker dignity and privacy.

The Hon. M.J. WRIGHT: The government believes that the current provisions are adequate and consequently does not support the amendment.

The committee divided on the new clause:

AYES (2)

Hanna, K. (teller) Williams, M.R.

NOES (35)

Atkinson, M.J. Bedford, F.E. Bignell, L.W.
Breuer, L.R. Caica, P. Ciccarello, V.
Conlon, P.F. Evans, I.F. Foley, K.O.
Fox, C.C. Geraghty, R.K. Hill, J.D.
Kenyon, T.R. Kerin, R.G. Key, S.W.
Koutsantonis, T. Lomax-Smith, J.D. Maywald, K.A.
McEwen, R.J. McFetridge, D. O'Brien, M.F.
Penfold, E.M. Pengilly, M. Piccolo, T.
Pisoni, D.G. Portolesi, G. Rankine, J.M.
Rau, J.R. Redmond, I.M. Simmons, L.A.
Snelling, J.J. Stevens, L. Venning, I.H.
White, P.L. Wright, M.J. (teller)

Majority of 33 for the noes.

New clause thus negatived.

Clause 64 passed.


[Sitting extended beyond 10:00 on motion of Hon. M.J. Wright]


New clause 64A.

Mr HANNA: I move:

Page 68, after line 10—Insert:

64A—Insertion of section 107C

After section 107B insert:

107C—Worker's right to be accompanied to a medical appointment

(1) Subject to subsection (2), a worker who is attending an appointment with a medical expert or Medical Panel in connection with the operation of this Act is entitled to be accompanied by a companion.

(2) Subsection (1) does not apply if the medical expert or Medical Panel requests on any reasonable ground that the companion not attend.

This proposal for workers to have the right to have someone accompany them to a medical appointment has come directly from my consultation with injured workers recently A number of workers feel intimidated by going to medical practitioners, especially those to whom they are directed by claims managers. This is even more so where claims managers over-work the file and repeatedly send workers back to medical assessments. The level of frustration can increase if the worker has a reasonable view that, in fact, they are being shunted around to no obvious benefit.

There are a number of classes of vulnerable workers. Those who have poor English—not necessarily to the level requiring a formal translator, but, nonetheless poor English—is one category where they would like someone to go with them to medical appointments. Some workers are distressed psychologically either because of a work injury or some pre-existing mental illness. They are often extremely fearful of medical examinations which might be required by the claims manager. One can imagine other examples as well.

To be clear about the amendment, I am suggesting that there is a right for a person attending an appointment with a medical expert, or the medical panel, to be accompanied by a companion. There is an out-clause—an exclusion—if the medical expert, or the medical panel, requests on any reasonable ground that the companion does not attend. I can imagine cases where there might be an extremely vexatious companion, and the presence of the companion might be incompatible with an appropriate examination. It might be that the examination is of such an intimate kind, that the medical expert considers that it is inappropriate for the companion to be present.

There might be an interview by a psychiatrist where there cannot be any interruptions or leading in any way of a story being given by an injured worker; so there might be some reasonable ground for the companion not to attend. The principle is sound. This is something that will not be used by the majority of workers, but it could possibly be used by a majority of vulnerable workers.

The Hon. M.J. WRIGHT: The current practice provides injured workers with the right to request that a relative, friend or representative may attend independent medical examinations. If a third person is present, however, they are not to take an active part in the examination and they are not to act as an interpreter. The legislation allows the minister to establish guidelines for the operation of the medical panels, and I expect that this issue could suitably be addressed in those guidelines.

Ms BEDFORD: Member for Mitchell, I would like to go a bit further into that. If it is not an examination of an intimate or highly personal nature, to what sort of situations would 107C(2) apply? What would be a reasonable ground for a support person not to attend? Would there be any others?

Mr HANNA: I have listed the obvious ones that I can think of, and I am trying to give an appropriate exclusion there for the medical expert. If, for example, an injured worker is being asked to attend for an X-ray or a CAT scan, it would be entirely appropriate for a support person to come with them; similarly, if an occupational physician was accompanying the worker to a worksite. It is simply a demonstration of what duties might be involved, and to see how far the worker can actually carry out some of those duties on the spot.

I cannot imagine a good reason why there should not be a companion of the worker's choice to go with them. As I said, there may be some companions who just would not be suitable as companions; so there has to be some exclusion clause. But, if this is passed, I hope that in most cases it would be respected as the worker's wish that someone go with them.

Ms BEDFORD: Outside of a situation where there are reasonable grounds for a support person not to attend, do you see any negatives attached to this amendment?

Mr HANNA: The purpose of the interaction with the medical expert or the medical panel is likely to be some form of medical assessment. It might conceivably be at the workplace; it is more likely to be at professional rooms. I cannot see any negative impact so long as the examination can be carried out professionally.

If anything, I would have thought that having the support person there makes it more likely that there will be full cooperation from the worker, especially if we are talking about one of the medical practitioners who have been selected by the claims manager, and there might be some fear or even hostility in the background because of the relationship with the claims manager. It might actually mean that there is a more frank and cooperative relationship with the medical expert if there is a support person there.

New clause negatived.

Clause 65 passed.

New clause 65A.

Mr HANNA: I move:

Page 68, after line 15—Insert:

65A—Insertion of section 111A

After section 111 insert:

111A—Inspection of workplaces by officials of employee associations

(1) An official of an employee association may, at any reasonable time, enter any workplace at which 1 or more members of the association work if the employee association has assessed, on reasonable grounds—

(a) that workers at the workplace have suffered a significant number of compensable disabilities; or

(b) that a significant number of workers at the workplace are concerned about the rehabilitation programs and arrangements that apply at the workplace.

(2) An official of an employee association who has entered a workplace under subsection (1) may—

(a) inspect work carried out at the workplace and note the conditions under which work is carried out; and

(b) interview any person who works at the workplace about—

(i) the performance of work at the workplace; and

(ii) arrangements associated with rehabilitation programs at the workplace and the implementation of relevant rehabilitation and return to work plans.

(3) The powers conferred by subsections (1) and (2) may be exercised at a time when work is being carried out at the workplace.

(4) Before an official exercises powers under subsections (1) and (2), the official must give reasonable notice to the employer.

(5) For the purposes of subsection (4)—

(a) the notice must be in writing; and

(b) a period of 24 hours notice will be taken to be reasonable unless some other period is reasonable in the circumstances of the particular case.

(6) An official exercising a power under subsection (1) or (2) must not interrupt the performance of work at the workplace.

Maximum penalty: $3,000.

(7) In this section—

employee association means an association of employees registered under the Fair Work Act 1994 or the Workplace Relations Act 1996 of the Commonwealth.

We have just passed a clause which allows inspection of the place of employment by a rehabilitation adviser. We understand why that would be: it is so that the rehabilitation adviser can better assess what work would be appropriate, whether the injured worker can do it, how they might get back to their full pre-injury duties and so on. The amendment I now propose is a very important safeguard to ensure that efforts towards workplace safety are improved.

This amendment provides for the inspection of workplaces by officials of employee associations and, to put that in plain English, essentially I want unions to have the right to go to workplaces where there is a bad accident record. To put it in terms of the amendment, I believe that a union official should be able to go at any reasonable time (where there is at least one member of that trade union) to assess why at that workplace there are a significant number of compensable disabilities.

A worker by themselves may feel reluctant to blow the whistle in a workplace where there is a bad safety record, and we cannot necessarily rely on government workplace inspectors to go around and check every workplace. Even though I give credit to this government for increasing the number of workplace inspectors, they cannot be everywhere at once. Where there is a union member who asks their trade union to come and have a look at this workplace because of a bad safety record, then there is a vested interest and one would expect the trade union to be on the spot and appropriately making an assessment of the workplace.

If the official comes to the workplace under this amendment, I am suggesting that they should be able to inspect the work carried out at the workplace and note the conditions under which the work is carried out. I am suggesting that they should be able to interview people at the workplace about how work is done there and about how rehabilitation and return-to-work plans are implemented. The official must give reasonable notice to the employer. So, we are not talking about snap inspections and we are not talking about something that is going to be disruptive of the employer's production line—whether it be clerical, manufacturing or whatever.

I specify that the notice must be in writing and that it should be 24 hours' notice, unless there is some special reason for something else to be considered a reasonable period. I am actually putting in there a provision to say that a union official, if they go there under these circumstances to a dodgy workplace, must not interrupt the performance of work at the workplace, with a fine of $3,000. I am making it absolutely clear: I want the right of entry for a union official to check out a shonky workplace, but they cannot interfere with the work that is going on—that is absolutely not the intention.

We have here a very important safeguard to ensure that workplaces are being properly administered as far as workplace safety, rehabilitation and return to work plans are concerned. We cannot have government inspectors everywhere, and sometimes individual workers will not feel that they can speak up for themselves. It is appropriate, in those circumstances, for a worker who is concerned about either a number of injuries at the workplace, or where a number of workers are concerned about the safety record of the place, to call in a union to inspect. That is all it is: to be able to come and make an assessment.

From there the union may take a whole range of actions. The union may negotiate with the employer about how to improve the safety record; the union may talk to the employer about the workers' concerns, whether it is one worker, or a number of workers; and, of course, the union can do that without necessarily disclosing the identity of the worker—so it allows a safe outlet for a whistleblower where there are poor workplace safety practices. The union might facilitate taking the matter to SafeWork SA, or to the WorkCover ombudsman, depending on what the issues are, but what could be wrong with allowing the union to come in and just make an assessment of safety practices where there have been genuine concerns by the worker? They are not to interfere with the work, but they should be able to come in and make an assessment. That is all I am asking.

The Hon. M.J. WRIGHT: We do not see the need for the amendment at this stage.

Ms BEDFORD: I ask the member for Mitchell: what about other states that have right of entry for occupational health and safety?

Mr HANNA: I confess to the member for Florey that I have not looked at interstate provisions in relation to this. I am more familiar with historical provisions, when there were greater free rights of entry of unions for safety and industrial practices. In terms of industrial practices, that has been considerably tightened up and Howard's WorkChoices legislation has limited things even more. Rann's 'WorkChoices' in terms of this legislation is greatly restricting the rights of workers when it comes to their entitlements. The least we can do is have a watchdog out there in the form of the unions—at least there are some active unions who would fulfil this role—so that we can ensure that the highest standards of work safety are maintained.

Ms BEDFORD: Obviously you are not aware of any problems interstate, if you have not had a look at that, but, in light of the specific assurances that you have made in your amendment about not interfering with the work on the site, why would employers object, or have concerns about right of entry?

Mr HANNA: Some employers will just instinctively have a knee-jerk reaction against union officials coming into the workplace. We cannot do much about that, but I would have thought that if there is to be no interference with the work then there is no reasonable basis for an objection because it is simply someone coming to have a look. It is not really terribly different to a government workplace inspector coming to have a look at the site. It is only an assessment. That is all that this provision allows for.

Of course, if there are genuinely bad safety practices in the workplace, then, naturally, a shonky employer would not want anyone coming to blow the whistle on that and, if those work practices involved shortcuts which allow for greater profitability with the risk to workers' health concomitant with that, then the employer may well resist the entry of union officials—or anyone else, if they can possibly help it. They are exactly the circumstances in which this provision would be of benefit.

The committee divided on the new clause:

AYES (2)

Hanna, K. (teller) Williams, M.R.

NOES (35)

Atkinson, M.J. Bedford, F.E. Bignell, L.W.
Breuer, L.R. Caica, P. Ciccarello, V.
Conlon, P.F. Evans, I.F. Foley, K.O.
Fox, C.C. Geraghty, R.K. Hill, J.D.
Kenyon, T.R. Kerin, R.G. Key, S.W.
Koutsantonis, T. Lomax-Smith, J.D. Maywald, K.A.
McEwen, R.J. McFetridge, D. O'Brien, M.F.
Penfold, E.M. Pengilly, M. Piccolo, T.
Pisoni, D.G. Portolesi, G. Rankine, J.M.
Rau, J.R. Redmond, I.M. Simmons, L.A.
Snelling, J.J. Stevens, L. Venning, I.H.
White, P.L. Wright, M.J. (teller)

Majority of 33 for the noes.

New clause thus negatived.

Clauses 66 to 68 passed.

New clauses 68A and 68B.

Mr HANNA: I move:

After line 37—Insert:

68A—Amendment of section 115—No contribution from workers

Section 115(2)—delete subsection (2)

68B—Insertion of sections 115A and 115B

After section 115 insert:

115A—Discrimination against workers—employers

(1) An employer must not—

(a) injure a worker in employment; or

(b) threaten, intimidate or coerce a worker; or

(c) discriminate against a worker in connection with employment

by reason of the fact that—

(d) the worker has made a claim under this act; or

(e) the employer is liable to pay any sum under this act to or in relation to the worker.

Maximum penalty: $2,000.

(2) If in proceedings under this section all the facts constituting the offence other than the reason for the defendant's action are proved, the onus of proving that the act of the employer was not actuated by the reason alleged in the charge lies on the defendant.

(3) If a person is convicted of an offence against this section, the court may, in addition to any penalty that it may impose, make an order requiring the person to compensate a worker for any monetary loss suffered by virtue of the contravention constituting the offence.

115B—Discrimination against workers—medical service providers

(1) If—

(a) a worker requests a person to provide, on a fee for service basis, a medical service to the worker on account of a compensable disability suffered by the worker; and

(b) the person is—

(i) reasonably competent to provide the service; and

(ii) reasonably capable of providing the service,

as part of a business, commercial or professional enterprise carried on by the person,

the person must not refuse to provide the medical service by reason of the fact that—

(c) the worker may be making, or has made, a claim for compensation under this act; or

(d) the worker is otherwise seeking the provision of the medical service in connection with the operation of this act.

Maximum penalty: $2,000.

(2) If in proceedings under this section all the facts constituting the offence other than the reason for the defendant's action are proved, the onus of proving that the act was not actuated by the reason alleged in the charge lies on the defendant.

This amendment inserts new clauses 68A and 68B. New clause 68B inserts proposed new sections 115A and 115B into the legislation. The two different aspects I am covering here have something in common; that is, the discrimination that takes place against injured workers. Proposed new section 115A provides that an employer must not discriminate against a worker in connection with employment or threaten them or cause them harm by reason of the fact that they have made a claim under the act. In other words, one is not allowed to discriminate against injured workers because of the fact they are injured workers; and the penalty that can be imposed is $2,000. That is the first part.

The second part also concerns discrimination against workers, but it is in a very different context. What has been brought to my attention is the reluctance, if not outright refusal, of some medical service providers to treat injured workers. I thought there was something like the Hippocratic oath which imposed some sort of professional obligation on medical service providers to deal with all who come to them for healing. However, that is not always the case. There are some specialists who just will not touch injured workers' cases. They do that for a variety of reasons. They are not, in turn, treated particularly well by claims agents in terms of the payment of their fees, and so on. They do not want to be dragged into writing a series of medical reports. They do not want to be dragged off as a witness to the tribunal—or the medical panel, if the bill passes.

For various reasons medical service providers are reluctant to take on injured workers. I put this amendment to make it unlawful for refusal of medical service by reason of the fact that the worker has made a claim for compensation or is otherwise seeking provision of the medical service in connection with the legislation. It may be that a worker is going to a particular medical practitioner for a medical report—for example, an assessment of their injuries—to be provided to the claims manager.

So, there are two parts to it. I do not think there should be discrimination against injured workers by virtue of the fact that they have been injured at work. Members might note the very first part of the amending clause, which deletes subsection (2) of the current section 115. That is consequential on the two parts to which I have already referred. I put that amendment so that workers can be free of discrimination in the workplace and also when seeking medical treatment.

The Hon. M.J. WRIGHT: The government opposes the amendment. The proposed new sections are unnecessary. Existing protections under both the Workers Rehabilitation and Compensation Act and the Equal Opportunity Act 1984 are sufficient.

Ms BEDFORD: I know that I am not an orphan in this: I have many people come to my office with stories about how they have been injured at work and are trying to get alternative employment. When it comes to the part of the interview where they are asked whether they have ever had a workers compensation claim and they answer truthfully, it then becomes difficult for them to secure employment. The minister is talking about the Equal Opportunity Act, but how can we strengthen his amendment so we can make sure that workers are not discriminated against because they have been injured in an unsafe workplace, an injury from which they have fully recovered?

Mr HANNA: I think the amendment will solve the problem. The minister referred to the Equal Opportunity Act, and I have concerns about that, because the Equal Opportunity Act refers to people with disabilities. The problem for injured workers is not necessarily that they have the disability. The medical specialist I am thinking of does not say, 'I am not going to treat you because you've got a bad back.' I am concerned about the medical service provider who says, 'You've injured your back at work, and I don't want to be drawn into that whole WorkCover miasma of reports and stuffing around with the claims agent and not being paid and being called to the tribunal and then it being postponed. I want to do without all of that headache. I am not going to deal with WorkCover patients.'

The problem then is a discrimination based on the fact that you have a worker who was injured at work and is, therefore, in the WorkCover system. The problem is not discrimination because of the person's disability per se. That is why I do not think the Equal Opportunity Act is an answer.

Ms BEDFORD: Following on from what the member just said, there is obviously a difficulty in finding doctors easily these days and, as the member said, some doctors are not very happy to commit to patients who are involved in the WorkCover system. So, how will we be likely to obtain adequate, proper and good medical treatment for injured workers if there is this reluctance to pick up their cases?

Mr HANNA: The point is well made, and that is precisely why I bring forward the amendment. Once it gets out there in the medical profession that it is unlawful to refuse treatment to someone because they have been injured at work and they have a claim, a wider range of medical service providers will be available. They simply will not refuse if injured workers go to them for treatment.

New clauses negatived.

Clauses 69.

Mr HANNA: With respect to clause 69, I am intrigued about how the section 119 provision will be applied when self-insured employers seek to do a deal with workers to get them off the system. As we know, the government has moved to heavily restrict the granting of redemptions—that is, payouts to workers to effectively get them off the system. We also know that WorkCover has a poor track record of appropriate redemptions. We know that self-insured employers have a record of using redemptions to ensure that their schemes are well funded. I wonder what will happen when we see commercial pressures lead employers, in the interests of preserving their scheme, to offer payment to workers resulting in the discontinuance of payments to those workers.

I do not think that anyone will be stupid enough to write up the same sort of redemption agreement we see now, but we will see, for example, separation packages from employment and redundancy packages. We will see lump sum payments to the worker dressed up this way or that way and the worker happily leaving the employment. They will do it amicably and by agreement because it will look like a redemption, it will smell like a redemption, but they will say that it is not a redemption. I wonder whether that sort of behaviour will be policed at all and, if it is to be policed, will it be a breach of section 119 as amended?

The Hon. M.J. WRIGHT: I will ensure that WorkCover polices these provisions. Yes; it would be a breach of section 119.

Clause passed.

Clause 70 passed.

New clause 70A.

Mr HANNA: I move:

New clause, page 70, after line 10—Insert:

70A—Insertion of section 123

After section 122A insert:

123—Civil penalties

(1) Subject to this section, if the Corporation is satisfied that a person has committed an offence by contravening a civil penalty provision, the Corporation may seek to recover, by negotiation or by application to the District Court, an amount as a civil penalty in respect of the contravention.

(2) The recovery of a civil penalty under this section will be an alternative to criminal proceedings.

(3) The maximum amount that the Corporation may recover by negotiation as a civil penalty in respect of a contravention is $20 000.

(4) The Corporation may not make an application to the District Court under this section to recover an amount from a person as a civil penalty in respect of a contravention—

(a) unless the Corporation has served on the person a notice in the prescribed form advising the person that the person may elect to be prosecuted for the contravention and the person has been allowed not less than 21 days after service of the Corporation's notice to make such an election in accordance with the regulations; or

(b) if the person serves written notice on the Corporation, before the making of, such an application, that the person elects to be prosecuted for the contravention.

(5) If, on an application by the Corporation, the District Court is satisfied on the balance of probabilities that a person has contravened the civil penalty provision to which the application relates, the District Court may order the person to pay an amount as a civil penalty (but not exceeding $20 000).

(6) In determining the amount to be paid by a person as a civil penalty, the District Court must have regard to—

(a) the nature and extent of the contravention; and

(b) any detriment resulting from the contravention; and

(c) any financial saving or other benefit that the person stood to gain by committing the contravention; and

(d) whether the person has previously been found, in proceedings under this Act, to have engaged in any similar conduct; and

(e) any other matter it considers relevant.

(7) Proceedings for an order under this section that a person pay an amount as a civil penalty in relation to the contravention of a civil penalty provision, or for enforcement of such an order, are stayed if criminal proceedings are started or have already been started against the person for an offence constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.

(8) Proceedings referred to in subsection (7) may only be resumed if the criminal proceedings do not result in a formal finding of guilt being made against the person.

(9) Evidence of information given or evidence of the production of documents by a person is not admissible in criminal proceedings against the person if—

(a) the person gave the evidence or produced the documents in the course of negotiations or proceedings under this section for the recovery of an amount as a civil penalty in relation to a contravention of a civil penalty provision; and

(b) the conduct alleged to constitute the offence is substantially the same as the conduct that was alleged to constitute the contravention.

(10) However, subsection (9) does not apply to criminal proceedings in respect of the making of a false or misleading statement.

(11) Proceedings for an order under this section may be commenced at any time within 3 years after the date of the alleged contravention or, with the authorisation of the Attorney-General, at any later time within 5 years after the date of the alleged contravention.

(12) An apparently genuine document purporting to be under the hand of the Attorney-General and to authorise the commencement of proceedings for an order under this section will be accepted in any legal proceedings, in the absence of proof to the contrary, as proof of the authorisation.

(13) The District Court may, in any proceedings under this section, make such orders in relation to the costs of the proceedings as it thinks just and reasonable.

(14) An amount recovered as a civil penalty under this section—

(a) may be paid into the Compensation Fund; or

(b) may be paid to a worker who has been adversely affected by the contravention of the relevant provision; or

(c) may be divided into 2 parts with 1 part being paid into the Compensation Fund and 1 part being paid to a worker who has been adversely affected by the contravention of the relevant provision, as determined by the Corporation in the case of an amount recovered by negotiation or as determined by the District Court in the case of an amount paid under an order of the court.

(15) In this section—

civil penalty provision means—

(a) section 58B, 58C, 115A, 115B or 119; or

(b) a provision of the Act prescribed by the regulations for the purposes of this definition.

One of the things that has undoubtedly been missing in the scheme has been the prosecution of misbehaviour under the act. In the case of section 58B, the minister has acknowledged that there has been a lack of enforcement in relation to employers' obligations.

The amendment is quite long, but the concept is quite simple: it is to provide civil penalties for a range of misbehaviour specified under the act. At the end of the provision, it is spelled out that, whether it be section 58B or avoiding the act (section 119), where there is misbehaviour there ought to be the ability for a civil penalty to be pursued, that is, not just criminal prosecution. We know that that has not happened in the past.

There is no reason to believe that resources or attitude will be different in the future in regard to enforcement, so I think it is appropriate that there be civil penalties that can be pursued, and that will be a more realistic threat to employers and will encourage better behaviour.

As this amendment is drafted, it says that the corporation may seek to recover an amount by civil penalty, and the amount is up to $20,000. This is another of those amendments that, when I look at it again, I believe the right to recover probably should be in the hands of the injured worker. So that, when an injured worker sees that there has been a failure to employ them under section 58B, then they should have the right to seek a civil penalty. One will see the prosecutions escalate very sharply and section 58B, the obligation to employ injured workers, will have some real teeth.

One could even extend this to employee associations acting on behalf of an injured worker so that unions, injured workers, or the corporation could seek this penalty of up to $20,000 for misbehaviour under the act. If the corporation has not been able to enforce these provisions in the past, if we do not have enough inspectors to prosecute people, then let it be done in the civil courts and, undoubtedly, the motivation of receiving the civil penalty will provoke more prosecutions, and that will simply mean that the obligations under the act are being enforced.

The Hon. M.J. WRIGHT: The government does not believe that a detailed civil penalties framework is necessary under the Workers Rehabilitation and Compensation Act. There are other appropriate penalty and levy arrangements in place, and for that reason we oppose it.

Ms BEDFORD: Is the member for Mitchell aware of how it works in other states? Are there similar provisions in other states?

Mr HANNA: I am fairly sure that there are not. The use of civil penalties is relatively limited across industrial and workers compensation law around the country, but the attraction of it as a means to greater enforcement is obvious. I have already referred to the fact that there is actually money in the hand of the person who successfully prosecutes where there has been misbehaviour under the legislation.

I do not think it will result in vexatious litigation because the usual costs orders would apply, and if someone sues and fails, they would be at risk of losing their legal costs. It is not something to be entered into lightly, but there is no doubt that the prospect of recovering up to $20,000 by civil penalty will mean that more people will be involved. I know that is not a full answer to the honourable member's question. I am not as familiar with interstate legislation as I might be, but I am confident that this will work.

Ms BEDFORD: Would it work in a similar fashion to where workers or unions could pursue civil penalties for award or maybe EBA breaches?

Mr HANNA: Yes, there are examples of civil penalties in industrial law as opposed to workers compensation law per se. It gives power to the workers and the unions not to make something out of nothing, but simply to see that legislation resolved by the parliament is actually enforced. We know that this has not happened with the WorkCover legislation in the past, and the minister has even acknowledged that in the course of debate.

Ms BEDFORD: Where would the fines be paid? Would they be paid directly by the employers to WorkCover?

Mr HANNA: Yes. The way in which the amendment is currently framed, it would be the WorkCover Corporation which would sue for the civil penalty. The application would be to the District Court. It would be an alternative to criminal proceedings, so it would knock out the possibility of double jeopardy or a criminal prosecution as well. If satisfied on the balance of probabilities that there was a contravention, then the wrongdoer (who would be an employer in this case) would be ordered by the District Court to pay the civil penalty.

There is a range of factors listed in subclause (6) which the court would have regard to: the nature and extent of the contravention; any detriment resulting from the contravention; any financial saving or other benefit that the person stood to gain by committing the contravention; whether there is a history of offending; and any other relevant matter. One can see that there is the usual range of considerations in terms of imposing a penalty.

The detriment in the case of an employer failing to find appropriate employment for the worker (where it is, in fact, reasonably possible) can result in substantial detriment, because it could result in the complete loss of income maintenance for the injured worker, bearing in mind the section 35 provisions that were discussed earlier in the debate.

The amount of the penalty would then be paid by the wrongdoer to WorkCover. As I say, this provision probably could be improved by allowing injured workers themselves, who are directly affected by the wrongdoing, or employee associations—that is, trade unions—to pursue several penalties, as well. I think, upon reflection, that that would improve this provision. That is something that the Legislative Council might consider. If that was the case, I am absolutely positive you would see better enforcement of this legislation.

New clause negatived.

Clause 71.

Mr HANNA: I have a question for the minister about this code of claimants' rights. I really wonder what value it will have. It also seems to me somewhat ironic that the government is considering a code of claimants' rights when it has set up a medical panel which can make binding decisions determining workers' livelihoods without any appeal, without necessarily any input into the decision, and without any comment on the reasoning of the medical panel. You can have a code of claimants' rights as a statement of general principles but, when you give with one hand and grab the worker by the throat with the other hand, it does seem to be a bit empty.

The Hon. M.J. WRIGHT: It sets up a framework of how workers should be treated. It was proposed by Clayton. It is based on a successful New Zealand model, and I hope it would have the same results here in South Australia.

Clause passed.

Clause 72 passed.

Clause 73.

The CHAIR: Are you proceeding with amendment No. 88, member for Mitchell?

Mr HANNA: Amendment No. 88 was the subject of our earlier discussion on lump sum compensation. It is consequential to the earlier question so I will not be proceeding with it.

The Hon. M.J. WRIGHT: I move:

Page 71, line 33, after '43(4),'—Insert: (4a),

It is consequential on removing psychiatric disabilities.

Amendment carried.

Mr HANNA: One thing that has not been explored is the interrelationship of this schedule, this table of maims, with the AMA guidelines. The minister has suggested that whole body impairment will be worked out according to the American Medical Association guidelines. How will these individual items referring to body loss or function loss be translated into whole body impairment?

The Hon. M.J. WRIGHT: It is the minimum level of compensation for total loss if AMA has a lower result.

Clause as amended passed.

Schedule 1.

The Hon. M.J. WRIGHT: I move:

Page 75—Delete clause 8

This amendment is consequential on the removal of leave entitlements.

Amendment carried.

Mr HANNA: I move:

Page 75—

Line 13—Delete 'subclause (2)' and substitute: this clause

After line 24—Insert:

(2a) A worker—

(a) who suffered a compensable disability more than 2 years before the relevant day giving rise to a relevant liability that has not been the subject of a notification to the worker under section 42(4) of the principal act before the relevant day; and

(b) who has a permanent impairment on account of that compensable disability; and

(c) who makes application under this subclause before the expiration of one year from the relevant day; and

(d) who, after making the application, qualifies for an agreement under paragraphs (a) to (d) (inclusive) of section 42(2) of the principal act

is entitled to—

(e) a redemption calculated in accordance with the following formula:

AR=NYRxAExPI

where—

AR is the amount of the redemption

NYR is the number of whole years remaining until the worker's retirement age (as defined by section 35 of the principal act, as enacted by this act)

AE is the worker's notional weekly earnings at the time of redemption multiplied by 52

PI is the worker's degree of permanent impairment (expressed as a degree of impairment of the whole person), as determined under section 43A of the principal act, as enacted by this act; or

(f) a redemption calculated in accordance with the following formula:

AR=10xAE

where-

AR is the amount of the redemption

AE is the worker's notional weekly earnings at the time of redemption multiplied by 52

whichever is the lesser (any such redemption will result in subclauses (1) and (2) not applying in relation to the worker).

(2b) The corporation or a self-insured employer may delay proceeding with a redemption under subclause (1) with respect to a worker within the ambit of subclause (2a)(a) and (b) until—

(a) the period referred to in subclause (2a)(c) has expired (and the worker has not made an application under subclause (2a)); or

(b) the worker finishes a notice in writing to the corporation or the self-insured employer (as the case requires) declaring that the worker will not be making an application under subsection (2a)(c) (and the declaration will be irrevocable on the part of the worker).

I move these amendments together because they are part of a scheme in relation to redemptions. At the same time I will just briefly indicate that my amendment No. 91 is consequential so I will not be dealing with that. I think it is appropriate that amendments Nos 89 and 90 are tested together.

This comes back to the issue of redemptions. I have suggested that WorkCover has mismanaged redemptions over the years. I understand the point the minister has made drawing on the evidence of the Mountford report and other sources that redemptions can create a lump sum culture. They can encourage workers allegedly to stay on the scheme in order to be paid off. That may happen in some cases, but we have a scheme now which has been so messed around that we have a long tail.

The culture of the 3,000 or so people who have been on the scheme for more than two or three years is such that the vast majority, I believe, are never likely to get back to work. So, in a sense, we are better off doing something with that tail through redemptions, clearing it out, and then starting again. If you want to have a system where there are not redemptions, that is fine. I can understand the reasoning, although I am not sure that it is the right thing to do. However, if you are going to impose that scheme, in a sense, you have to start again. There is no point in starting a no redemption scheme if you already have several thousand workers receiving income maintenance to retirement.

I think there ought to be a right for injured workers who have been injured for some time to take a lump sum—not an extravagant amount but enough to leave the scheme with dignity. By and large they have not been offered that up until now because of the redemption policies of WorkCover, as well, perhaps, as other reasons.

The scheme I propose is set out with a formula in amendment No. 90. Amendment No. 89 is really there as a consequential amendment to the main one and removes the part of the clause in the government bill that deals with redemption of liabilities. I suggest it should only apply to workers who have been on the scheme for more than two years prior to the relevant date (which is, I think, proclamation of the bill). So, we are not talking about workers who have been on the scheme for a month and then they can scam, they can wait until they get an opportunity to get a lump sum payment; we are talking about people for whom the prospect of either return to work or of a suitable redemption has, basically, already evaporated.

I also have the requirement that these people have a permanent impairment, and that there has been a calculation of their permanent impairment expressed as a degree of impairment of the whole person, as determined under section 43A of the principal act. We are talking about people whose injuries have settled, who have been on the scheme for more than two years, and who have a permanent impairment. I suggest that these people have, effectively, a year to take a package, they have a year to apply for redemption, and that redemption is at a fixed amount according to a formula.

I stress that up until now redemptions have been available by agreement only since the WorkCover legislation came into place in the 1980s. This provision for a short time only, for one year only, gives workers the right to take a redemption and get off the system. If the minister had been at the injured workers meeting held about a month ago at Enfield he would have met dozens of injured workers who would like nothing better than to get off the scheme and not be hassled by the claims agents.

The formula I have set out in the provision is quite conservative. For one thing, it has a cap of 10 years; secondly, it looks at the amount of time the worker has to go until retirement and multiplies that by their whole person impairment. Now, most injured workers—even if they have been on the scheme for more than a couple of years—might have 10 or 20 per cent, perhaps 25 per cent, whole person impairment, so I am taking the number of years to retirement (which might be anything between 10 and 40, I suppose) and multiplying it by that percentage.

In a lot of cases what you would end up with is two years', four years', five years' payout, and that is capped at a maximum of 10 years. However, for that, the scheme is benefiting all of the income maintenance up to retirement age—whether it be 10, 20 or 40 years. It is allowing an exit from the scheme with dignity. A lot of workers would want it, and it would improve the unfunded liability statistics of the scheme overnight. I dare say that if this was put through it would even put the scheme into the black.

The Hon. M.J. WRIGHT: The government does not support these amendments. We have put in place what we think are appropriate transitional arrangements for redemptions and, for that reason, we do not support the amendments.

The committee divided on the amendments:

AYES (2)

Hanna, K. (teller) Williams, M.R.

NOES (35)

Atkinson, M.J. Bedford, F.E. Bignell, L.W.
Breuer, L.R. Caica, P. Ciccarello, V.
Conlon, P.F. Evans, I.F. Foley, K.O.
Fox, C.C. Geraghty, R.K. Hill, J.D.
Kenyon, T.R. Kerin, R.G. Key, S.W.
Koutsantonis, T. Lomax-Smith, J.D. Maywald, K.A.
McEwen, R.J. McFetridge, D. O'Brien, M.F.
Penfold, E.M. Pengilly, M. Piccolo, T.
Pisoni, D.G. Portolesi, G. Rankine, J.M.
Rau, J.R. Redmond, I.M. Simmons, L.A.
Snelling, J.J. Stevens, L. Venning, I.H.
White, P.L. Wright, M.J. (teller)

Majority of 33 for the noes.

Amendments thus negatived.

The Hon. M.J. WRIGHT: I move:

Page 76—Delete clause 17

This amendment is consequential on dispute resolution.

Amendment carried.

Ms BEDFORD: Will the minister give examples of previous occasions when parliament has passed retrospective legislation like this which takes away people's rights when, as in this case, they are injured or, in other cases, perhaps when the event which gave them their rights had happened?

The Hon. M.J. WRIGHT: I do not have that information with me, but I can provide it to the member later.

Ms BEDFORD: Will the minister advise whether consideration has been given to changing the provisions so that partially incapacitated workers who were injured before this bill was introduced at least will not be cut off until WorkCover has made a decision, as opposed to their pay automatically ceasing, with the worker then having to apply for their payments to be reinstated?

The Hon. M.J. WRIGHT: Consideration has been given to many things to get us to the introduction of this bill.

Mr HANNA: I want to ask the minister a question about retrospectivity. When the Premier gave a ministerial statement to the house about the Clayton report, he seemed to be suggesting in fairly clear terms that this legislation will not be retrospective, but clause 4 of schedule 1, in relation to weekly payments, clearly is retrospective, is it not?

The Hon. M.J. WRIGHT: From memory, the Premier was talking about step-downs, and what the member is talking about is the work capacity reviews.

Mr HANNA: One of the implications I am questioning in relation to the transition to new sections 35 to 35C inclusive is the situation of a worker who has already been receiving income maintenance for 2½ years by the time the act is proclaimed. Will there be any sort of automatic cessation of the worker's income maintenance, or will they continue until they are put off?

The Hon. M.J. WRIGHT: No; the legislation requires 13 weeks' notice.

Ms BEDFORD: Will the minister let us know whether actuarial advice has been received on the financial impact of perhaps making these changes prospective rather than retrospective?

The Hon. M.J. WRIGHT: Not specifically; but the application of these clauses is fundamental to achieving the outcomes that have been defined by the terms of reference.

The Hon. S.W. KEY: I just want to be clear on the transitional arrangements, minister. Do the provisions set out in schedule 1 mean that, if someone has been on WorkCover and receiving weekly payments for the past six months, they will at the time of this legislation being proclaimed be subject to the provisions of this bill when it becomes an act?

The Hon. M.J. WRIGHT: Once they have reached 2½ years of receiving income maintenance.

The Hon. S.W. KEY: Further to that, I would also like to clarify the fate of workers currently going through the process of the redemptions if their case has not come up for hearing, or if they are in dispute in any circumstances. What will be the fate of their weekly payments and perhaps a lump sum payment if they are currently going through the process after the act has been proclaimed?

The Hon. M.J. WRIGHT: The advice I have received is that, where redemption negotiations have commenced for workers on the scheme for more than three years, those negotiations can continue.

Schedule as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. M.J. WRIGHT (Lee—Minister for Industrial Relations, Minister for Finance, Minister for Government Enterprises, Minister for Recreation, Sport and Racing) (23:02): I move:

That this bill be now read a third time.

Mr HANNA (Mitchell) (23:03): It appears that I will be the only speaker in relation to this final vote on the bill. It really is an historic occasion, because the Labor Party is transformed by this whole experience. There is the internal agony suffered by those with a conscience who came into this place to improve the lot of working people and disadvantaged people. Many have had to swallow their conscience and their pride to vote for this and for the many measures which take money out of the pockets of working people and their families.

In one way, it is the slaughtering of the last of Labor's sacred cows. After this, there is nothing which really defines the Labor Party as distinct from a centrist party like the Democrats in the US, or perhaps, say, the wet faction of the Liberal party. The Party becomes perhaps a slightly softer, fairer version of a party that is ultimately there for big business. There is no doubt that the motivation behind this legislation is to please big business. Of course, the unfunded liability is a concern but, as numerous speakers have pointed out, there are other ways of dealing with that problem other than cutting workers' benefits.

I have called it an amputation approach. If you have a patient lying in hospital with a sore leg, there are a lot of conservative ways to treat it before you cut off the leg. There is no denying the logic of the WorkCover Board's proposals, the Clayton report's proposals and the government's proposals: if someone has a sore leg and you cut it off, then it is no longer a sore leg. There is no issue that the measures that the Labor government is bringing in will reduce unfunded liability.

It has been explicit from the outset—and Clayton said something about this also—that the goal is to reduce employer levies possibly by half to three-quarters of 1 per cent. That is possible simply by reallocating the cost of work injury from employers to injured workers, from those who can afford to pay the insurance premiums to those who will have to do without their income.

It is a betrayal of working families by the Labor Party. It is a betrayal of the hard-working police officers, nurses, teachers, miners, and manufacturing and building workers who are out there day after day making South Australia a better place in which to live. It is also a betrayal of the trade unions. We have not heard the last of the internal haemorrhaging that this transformation of the Labor Party causes.

We can talk about the events of the immediate future: the passage of this bill in the upper house; the Labor Party State Council; and the Labor Party Convention, which they will have to have sooner or later to debate this issue, and we know will happen at such convention. There will be a lot of agony, a lot of recrimination, a lot of dissent and a lot of pointing the bone at the Labor leadership. Frankly, I do not think the Labor leadership will care less. They are so arrogant, so firm, so confident in their position that they will not only disregard the pain that this legislation causes to working families, they will also disregard the anger of many members within the Labor Party, even members within the Labor caucus, because they are so sure that they have the numbers to stay in place, and they are so sure that they will retain the confidence of the community because of the positive image that Rann is able to perpetuate in the media.

In the long run, the pain caused by WorkCover cuts here will have an immediate impact on just a few thousand people. If you include the injured workers currently on benefits, and their families, you could say, 'It's just a few thousand people.' But, every day there are more people injured, and everyone, when they turn their mind to it, wants to see a decent level of protection for people who are injured at work.

Certainly, there will be people out there in the community, including the trade unions, who will raise awareness of just what Rann is doing with this legislation. I am sure that the Labor backbenchers have made their calculations. They know that if they cross the floor they are risking their career. I went through that difficult stage of thinking, 'How long can I put up with this rubbish? How long can I put up with the bullying? How long can I put up with being told what I can and can't say in this place?' I know that is what a number of Labor backbenchers are going through at the moment.

At the end of the day, though, what they are trying to salvage may be taken from their grasp any way, because it will not be me but it will be someone, who has a leaflet, going out into the electorate of every marginal Labor member. It will have a list of the provisions where people have voted to cut income maintenance for workers, to cut the level of lump sums they receive, to cut their pay if they challenge a dispute, to have decisions made by a medical panel without representation or without the member present and to have no appeal to a legal decision made by a bunch of doctors. All of these things will be spelled out.

They will be in a leaflet and they will have the name of the Labor Party member on the leaflet. I do not know whether it will come from the Greens or the Liberals or an Independent Labor candidate, but it will say, 'Your Labor MP voted for these things. Do not vote Labor this time around.' And if you think that there will not be a backlash, I think that you are kidding yourself. I say that rhetorically to the half a dozen or more Labor backbenchers who are at real risk of losing their seat at the next election.

The main points are really that workers face the loss of income maintenance completely after 2½ years: that is what I have described as the cornerstone of the bill. There are many other nasty elements to the bill. Tonight we have talked about the medical panels, which operate something like the Star Chamber which was a harsh, unaccountable means of interrogating and punishing people in England a few hundred years ago before we developed our modern principles of natural justice. That will be how medical questions and related issues are resolved under the current system. Workers will be starved out of the dispute tribunal because a very large proportion of them will have their payments discontinued if they even seek to fight a claim.

There will just be so many workers, hundreds every year, who will face the wretched decision of either accepting some sort of cut or an unwanted determination from a claims manager or risking the loss of their income entirely in order to challenge the decision. That is not justice. There were various things I sought to do to ameliorate the harsh effects of the bill—and I have called it cruel because it means the loss of workers' livelihoods.

I sought to have a union right of entry to make sure that workplaces are safer. The Labor leadership dictated that that should be rejected. I sought the right for workers to sue negligent employers, but Rann and the Labor leadership dictated that that should not be the case. This point is important because, over and over again, Premier Rann and others have said that this will be fair and generous legislation and, during the course of debate, I specifically quoted Premier Rann's radio comments claiming that this would be 'the most fair and generous legislation in the country'.

That can very easily be demonstrated to be an absolute lie. The fact is that the other states, if they are examined, have the common law right for injured workers to sue negligent employers albeit with harsh restrictions, but at least a substantial amount is paid out in other states, including Victoria, to other workers because employers had been negligent and caused nasty injuries. The shocking thing in a way—notwithstanding the difficulty of crossing the floor on such an issue—is that so many people in this room have had a lot to do with injured workers.

There are so many people here who have been members of unions—still are members of trade unions—or who are closely linked, in one way or another, to injured workers. Even among the Labor leadership we have a couple of people with union experience who must have come across the hardship of work injury. I am on record as saying that the only four people in the Labor Party who really want this legislation through are Premier Rann, Deputy Premier Foley and ministers Atkinson and Conlon. We all know that, in fact, they have been given enough power, through the feudal system of the Labor Party, to dictate their way to all the Labor Party members, notwithstanding they know that just about every other honest, ordinary, sincere branch member of the ALP is dead against what they are doing.

I suppose you could say it is courageous, but only in the sense that bank robbers are courageous when they go in and point a gun at someone and take money from them. The fact is that minister Conlon had a lot to do with I think it was the firefighters' union, as did minister Caica. They have met people who have been badly burned and had their backs twisted in dangerous conditions when they have been crawling through ceilings and that sort of thing. They would know the sort of suffering that people can go through as a result of work injury, and yet Conlon has been at the forefront of heading off party revolt on this issue.

Going along the front bench you see people like the minister, Michael Wright, himself. He knows full well the role played by the Hon. Jack Wright in setting up this legislation. He was out of the parliament by the time that it was introduced. I am not going to play on this point—it would be unfair to do so—but with the minister's experience in the AWU, he would well know the experience of injured workers and how hard it is when someone's income is cut off as a result of bastardry by an employer, or a claims agent.

You go down the front bench and look at someone like minister Weatherill: he fought for many years as a lawyer in the tribunal, in the courts, for the rights of injured workers, and he would have met hundreds, if not thousands, over the years who would have been in a serious plight as a result of nasty decisions by claims managers—stupid, incompetent decisions by employers and claims managers. This legislation is basically going to give the stamp of approval to harsh decisions by claims managers and careless safety practices by employers.

Then you have people such as the member for Torrens who knows very well through her own experience and through her husband that workers can suffer seriously as a result of being injured at work. Even the Deputy Speaker, the member for Reynell, knows from her history as a union advocate for white collar workers that clerical workers are not immune from serious injury at work. She would know very well the hardship that falls upon people who have been injured at work.

Going around the room, there are other members who also know very well what it is like to have your income cut off and to be sweating about where the next mortgage payment is going to come from. Yet these bastards are willing to transfer the cost of work injuries to the injured workers—

The Hon. K.O. FOLEY: I have a point of order. Mr Speaker, we as a government have very patiently listened to the member for Mitchell, but to refer to us as bastards is both unparliamentary and a reflection on us, and I ask him to withdraw.

The SPEAKER: I uphold the point of order. It is unparliamentary.

Mr HANNA: I will withdraw the reference to 'bastards'. I will just say that the Labor leadership full well knows that this is a nasty piece of legislation, and it will have a very cruel impact on thousands of South Australian families—those who are currently on WorkCover and those who are going to be.

From time to time we hear stories in the newspaper about bludgers—people who are on WorkCover who we might see on the current affairs show on TV. There is the odd 1 per cent of workers who might be trying to get away with a bit too much, but the vast majority of police officers, nurses, teachers, builders and miners who go on WorkCover face serious injuries. I have given a couple of examples of work injuries, and one that affected me particularly was the story of the butcher's apprentice who was instructed to use an unguarded machine. After having his hand sliced off, I wonder how he is ever going to get employment again. After 2½ years his income can be taken away from him and he will be left with the dole and possibly the disability pension.

It is that sort of case which just about makes one weep, because the intention of the legislation 20-odd years ago was to see that such people, if they could not get employment, even if they tried, would be looked after with income maintenance until retirement age. That in itself was brought in in place of the common law, which fully compensated people for their injuries both in terms of the pain and suffering and also loss of income.

The Hon. K.O. Foley interjecting:

So, to bring things to a conclusion, I note in passing that the Deputy Premier actually laughs while I am giving this speech. It is hard to convey, as one reads Hansard, the atmosphere of the parliament as one gives a speech such as this at 20 past 11 at night, but to have the mockery that goes with it demonstrates where these people are coming from. It is unnecessary legislation. We could have fixed WorkCover without this. With better management and proper use of redemptions this all could have been avoided. Sadly, it is a combination of the Labor Party and the Liberal Party that is sticking the knives into some of the most vulnerable people in our community through this legislation.

Time expired.

Members interjecting:

The SPEAKER: Order! The member for Giles has the call.

Ms BREUER (Giles) (23:23): Mr Speaker, as you can tell, it has been a very difficult week in parliament for members of the Labor Party. I do not believe there is any question about the need for a bill. There is no question about the problems WorkCover is having, and it is no secret that it has been very difficult for many members of the Labor Party. It is certainly no secret that it has caused some division among us in the Labor Party, and it is no secret that it has caused a division with the unions.

I came into this place to represent my constituents in the seat of Giles. I came in on the support of many workers, particularly in Whyalla, and many of them will be affected in one way or another by this bill, but I also came in as a member of the Labor Party, and I would not be here without the party. Consequently, I signed an agreement to abide by caucus decisions, and I will continue to do so.

I respect my peers, the leadership of the party in this place and this government. I trust their judgment on this bill. I want to pay tribute to the minister in his role in carrying this bill this week. It must have been a very difficult time for him. I trust the leadership's judgment on this bill. I hope this bill fulfils its promises and that WorkCover will provide for the needs of those people who have the misfortune to be injured at work. Therefore, I support the bill.

Ms BEDFORD (Florey) (23:25): This bill brings about changes and all parties, I am sure, believe that change is necessary in order to create a better WorkCover system. The changes in much of the bill, which copies the Victorian legislation, have at least one major difference. Of course, in Victoria, as in every other state, injured workers can have action for serious employer negligence. A number of other things in the bill concern me, and every other member, I am sure, has canvassed most of them during the week. I know it is late and members do not want hear all that again, so in the interests of everyone having an earlier night I will not go over them again.

There are particular considerations around how the bill will have psychological effects on the people who are on WorkCover already. All MPs have encountered injured workers who have had problems, not only received through their injury but also caused by their participation in the WorkCover scheme. This is the thing that concerns me most about the bill.

We all are concerned about workers having safe workplaces, and we all are concerned that workers injured through no fault of their own or on their part have the opportunity to heal and return to the workforce and continue to lead the sort of life they enjoyed before their accident. This bill strikes at the very reason all members are in this place. It reminds me of the very first case to come to my office shortly after I was elected. A woman had lost her husband due to a work accident. While he may have died, she did say that he could have been lucky to have survived with really bad injuries. It is a life sentence for her, and a life sentence for anyone who is injured so badly that they will never return to work.

There are many other cases in my electorate about which I could talk where, through negligence on the part of the scheme, these people have never returned to work. I want to assure everyone who comes to my office—those who are already injured or those who may be injured in the future—that they will be looked after in their healing and rehabilitation process by a system that is fair and well managed, so that it and they will have a future.

The Hon. M.J. WRIGHT (Lee—Minister for Industrial Relations, Minister for Finance, Minister for Government Enterprises, Minister for Recreation, Sport and Racing) (23:28): I thank all members for their contribution. This is a complex and very emotive piece of legislation. I do appreciate the contributions that have been made on both sides of the house. I also thank all the stakeholders with whom I have met. I acknowledge the contributions of both the Deputy Premier and also minister Conlon at meetings we held with the trade union movement. Generally speaking, this legislation does not have the support of trade unions. We understand where they are coming from. We appreciate what they had to say to us.

At the end of the day, government is about making the tough decisions. This has been a particularly tough decision for a Labor government to make. We are not doing something here that we want to do but, rather, we are doing something we need to do. One has to look at the stark reality of the unfunded liability. Just last week WorkCover announced another rise in the unfunded liability. As at 31 December 2007, the unfunded liability was $911 million. The average levy rate is 3 per cent. The costs are too high. We are not good at getting people back to work. If one looks at those basic barometers, South Australia, sadly and disappointingly, is not doing well. We need to go back to the 1990s to look at a point in time when we started to do poorly in relation to return to work. As time has gone by, ultimately the actuarial results have caught up with us. We just cannot sustain an unfunded liability of $911 million.

So, what did we do? As members would be aware, recommendations were made to the government, which came to me as minister, by the WorkCover Board back in November 2006. They were far-reaching—more far-reaching than this bill—and, of course, we then had to decide whether we would back those recommendations by the WorkCover Board or whether we would reject them. We ultimately decided to get two experts, Clayton and Walsh, to undertake an independent review for us to consider the recommendations that were made by the WorkCover Board and, obviously, to apply themselves to the terms of reference (which I do not need to go back over tonight). The report that was given to us largely formed the basis of the bill that, on behalf of the government, I brought before the parliament. Following a further round of consultation, some government amendments were also filed.

There are some measures within this package that we understand are blunt instruments—whether they be step-downs or the work capacity reviews—but a key objective of the South Australian WorkCover scheme is to get injured workers back to work at an affordable cost, and we simply have not been doing that well for quite some time. It probably goes back as far as at least 1995, or thereabouts.

I am advised that our reforms will help to achieve the objective of getting workers back to work, and that is what we have to be about. There is a range of measures (and I will not go through them all), which include simplification of the calculation of average weekly earnings by looking back over the past 12 months. I have mentioned that step-downs for payments to injured workers are to be 100 per cent for the first 13 weeks, 90 per cent for the next 13 weeks and 80 per cent thereafter. Maximum compensation for non-economic loss is increased to $400,000, up from $230,983. Similarly, the lump sum payable on the compensable death of a worker will be significantly increased to $400,000.

Entitlement to counselling services will be introduced for family members of workers who die of a workplace injury. Totally and permanently incapacitated workers will continue to be supported until retirement. New provisional liability provisions will allow for the fast tracking of rehabilitation, supported medical treatment and other benefits for injured workers. Accredited rehabilitation and return-to-work coordinators will be mandatory for all employers with 30 or more employees. There will be a return-to-work inspectorate, expert medical panels, a WorkCover ombudsman, a code of workers' rights, the establishment of a $15 million return to work fund—and I can go on and on, but I will not, because I know it is late.

Can I say to all members that this has been a difficult decision for the government. It is a particularly difficult decision for a Labor government to make. However, we had to make a hard decision because, as I said, when one looks at the unfunded liability, the average levy rate and the poor return-to-work rate, sadly, South Australia is way behind what is happening in other states around Australia, and the time to act is now.

The house divided on the third reading:

AYES (34)

Bedford, F.E. Bignell, L.W. Breuer, L.R.
Caica, P. Ciccarello, V. Conlon, P.F.
Evans, I.F. Foley, K.O. Fox, C.C.
Geraghty, R.K. Hill, J.D. Kenyon, T.R.
Kerin, R.G. Key, S.W. Koutsantonis, T.
Lomax-Smith, J.D. Maywald, K.A. McEwen, R.J.
McFetridge, D. O'Brien, M.F. Penfold, E.M.
Pengilly, M. Piccolo, T. Pisoni, D.G.
Portolesi, G. Rankine, J.M. Rau, J.R.
Redmond, I.M. Simmons, L.A. Stevens, L.
Thompson, M.G. Venning, I.H. White, P.L.
Wright, M.J. (teller)

NOES (2)

Hanna, K. (teller) Williams, M.R.

Majority of 32 for the ayes.

Third reading thus carried.


At 23:38 the house adjourned until Thursday 10 April 2008 at 10:30.


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