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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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MOTOR VEHICLE ACCIDENTS (LIFETIME SUPPORT SCHEME) BILL

Committee Stage

In committee.

(Continued from 19 March 2013.)

Clause 4.

Mrs REDMOND: I was about to ask a question when we stopped yesterday to report progress on the advice the minister gave in relation to section 4(2) in which he suggested that, in fact, it meant exactly the opposite of what I think it means because of the very words 'despite subsection (1)'. The point we had been addressing was the fact that under this provision of subsection (2) it is quite clear that the LSS rules can be, if they chose to be, declared to be such to exclude any of the treatment that is listed in subsection (1)(a) through (m).

Whilst I accept what the minister said in the previous response about the intention being that, because the things listed in (a) to (m) are so broad that the rules are there and subsection (2) is designed to enable you to narrow it so that crock medical treatment or some fanciful training program can be excluded, the very words, I would suggest, 'despite subsection (1)' mean that the LSS rules can indeed be used to exclude any of the treatments in (a) to (m).

I just want the minister to confirm and perhaps consult with his advisers as to what is meant then by the term 'despite subsection (1)' if not specifically to say that, regardless of what has been said in subsection (1) these rules can exclude any treatment in (a) to (m).

The Hon. J.J. SNELLING: Parliamentary counsel advise me that a rule that excluded a whole category—so that is a category from (a) to (m)—would be ultra vires, which I am told means 'beyond power'. An example of the sort of thing which, despite this comprehensive list of things, the rules might exclude is home and transport modification. Obviously, if there is a need for home and transport modifications arising out of a person's injuries, home modifications would be done, but you would not expect that a person who is injured, under this scheme, would be able to have their bathroom redecorated. There are home modifications and home modifications.

Essentially, it is to enable, under the rules, provisions to be made so that whatever home modifications are done are to assist that person with their injuries. Nonetheless, the advice from parliamentary council is that it would not be possible under the rules to rule out an entire category as spelt out under (a) to (m) and that would, in fact, be ultra vires.

Mrs REDMOND: Thank you, minister, and I understand the term 'ultra vires' and I understand that advice. Nevertheless, the minister did suggest yesterday that subsection (2) did not mean that whole legitimate areas could be excluded. It seems to me that it would be possible, for instance, and just to take a ridiculous example (that I accept will never happen) in terms of the way it is drafted, dental treatment but excluding, for instance, dental treatment from a dentist registered in South Australia. It would not exclude the whole category of dental treatment but it would delete the legitimate use of the section that we anticipate. I simply do not accept the advice that the minister gave yesterday that the words 'despite subsection (1)' have any other meaning than that can be basically ignored and the LSS rules are free to go where they will.

The Hon. J.J. SNELLING: Parliamentary counsel cite South Australia v Tanner (1989), a case in the High Court, which essentially established the proportionality test, where regulations had to be proportionate, for want of a better word. At the end of the day, these regulations are subject to disallowance. If the government was attempting to be silly in the regulations, then it would be running the risk of those regulations being disallowed by the parliament.

Clause passed.

Clause 5.

The Hon. I.F. EVANS: Clause 5 sets out the application of the act and it sets out the types of injuries that are going to be covered for the participants in the scheme. I am interested in clause 5(3)(b) which sets out:

any other injury that, under the LSS Rules, will be covered as part of the person's participation in the Scheme;

It seems to me that subclause (3)(a) defines what the scheme is about, and that is:

any injury that is wholly or predominantly related to the motor vehicle injury that gave rise to the person's participation in the Scheme;

Given that all of the motor vehicle injuries are covered by paragraph (a), then what is intended to be covered by paragraph (b)? Is it possible that a participant who was in a non-motor vehicle accident can come into the scheme under that paragraph?

The Hon. J.J. SNELLING: Essentially, it is to provide some discretion. No, its purpose is not to allow people who have been catastrophically injured through something other than a motor vehicle accident to access the scheme. It is, rather, to allow some discretion to enable the scheme to provide or cover for the costs of injuries of people who have been injured in motor vehicle accidents but for injuries that are not directly related to the motor vehicle accident.

An example that has been suggested to me is that if someone suffers an impairment from a motor vehicle accident, if they then injure themselves because of that impairment, that enables the costs of the care of those secondary injuries to be provided for. So, it is simply to provide some additional discretion with the authority in those sorts of cases to be able to provide for injuries. That is its intention.

The Hon. I.F. EVANS: So where does it say that the LSS Rules cannot be so worded as to allow non-motor vehicle accidents to be included in the scheme? For instance, why can't the LSS Rules at that point say we are going to bring in horse riders? It talks about the motor vehicle injury being in the first clause, so they are covered, and then I think paragraph (b) is so broad as to be 'any other injury' that the LSS Rules wants to dream up. So where is the restriction around it?

The Hon. J.J. Snelling: You have to be a participant in the scheme.

The Hon. I.F. EVANS: No, to become a participant in the scheme you have to abide by the LSS Rules. The LSS Rules, under paragraph (b), can be any other injury that the rules say. It does not say any other injury that results from the participant's reason for being in the scheme under paragraph (a).

The Hon. J.J. SNELLING: The member for Davenport is confusing this clause with eligibility for the scheme. Eligibility for the scheme is covered in clause 24, which we will get to. What this clause relates to is what the scheme can essentially pay for. If you are injured in some other catastrophic accident, other than a motor vehicle accident, what determines the relevant section of the bill that determines your eligibility for the scheme is determined by other provisions in the bill in clause 24. The rules cannot override the provisions in clause 24.

The Hon. I.F. EVANS: The minister has raised clause 24; what I am arguing relates to clause 5. In clause 24 it provides that to be eligible for the scheme 'the injury suffered by the person satisfies the criteria specified by the LSS Rules for eligibility'. So, as long as it meets the rules of eligibility, it can be paid for. What I am trying to clarify is: where is the restriction that limits it solely to injuries that are caused through motor vehicle accidents?

The Hon. J.J. SNELLING: Since we are dealing with clause 24, we might move that it be printed at the same time. If you look at clause 24(1) it provides:

A person is eligible to be a participant in the Scheme if—

(a) the person suffers a bodily injury; and—

not 'or', but 'and'—

(b) the injury was caused by or arose out of the use of a motor vehicle; and

(c) the relevant motor vehicle accident occurred in South Australia; and—

Those are the criteria to be a participant in the scheme. If you do not fulfil those sections—and they are not 'ors', they are 'ands'—you cannot be a participant in the scheme. There is nothing in the rules that could override that section of clause 24.

Mrs REDMOND: I would like to go back to clause 5(1)(b), and I will canvass this now rather than under clause 6, although it may need further explanation under clause 6. I am puzzled as to who it is who is anticipated will apply for acceptance under the scheme and what 'buying into' the scheme will entail. I will cover that more fully in clause 6, but who is it who is anticipated will apply? If they have an injury that pre-dates the commencement of this act, who does the minister think will apply for acceptance into this scheme, and on what basis are they going to buy in?

The Hon. J.J. SNELLING: One of the examples where we may expect people might want to buy into the scheme are people who received a lump sum under the old rules, before the act comes into operation. They have received a lump sum and they may want to buy into the scheme using the lump sum payment they have received as part of their head of damages.

The Hon. I.F. EVANS: For clarity, my understanding is that the other people who can buy into this scheme are the people who have currently already suffered a catastrophic injury, as would be defined under the act, but who had no cover at all. So, if they could raise the money, they could buy in.

The Hon. J.J. SNELLING: If they could raise the money, indeed.

Mrs REDMOND: On clause 5(2), my reading of it is that it is quite broad; that is, the act applies in relation to a motor vehicle injury whether or not the injury was caused by the fault of the driver of the motor vehicle and so applies even if the injured person was at fault, whether as owner or driver of the vehicle or otherwise.

Does that mean that if you are engaged in a road race—going back to yesterday's question—down Magill Road, two Subaru WRXs in a road race down Magill Road, then the subsequent provision that we discussed yesterday would exclude that, but if you were just gunning it all by yourself to see how fast your WRX would go down Magill Road, then you are covered by this legislation? Is my understanding of that correct?

The Hon. J.J. SNELLING: So just to correct the member for Heysen, it does not matter how many Subarus there are racing; these provisions apply. You could be engaged in a race with someone and catastrophically injure yourself—the act applies—or you could be driving on your own. This was a debate we had: the extent to which the act should apply to people who are catastrophically injured through their own fault.

Where the government landed, after a series of consultations, was that, for the purposes of a person's care, the care should be done on a no-fault basis but that other heads of damages—economic loss and pain and suffering—should remain on a fault basis. So, to someone who was catastrophically injured through their own fault, the act will apply and they will be able to access the care under the scheme but they will not be able to sue, obviously, on a fault basis, for pain and suffering or economic loss.

The reason for that is because essentially those people who are catastrophically injured through their own fault still have to be picked up. We do not, as a state, allow those people to die in the gutter. They are provided for under our public health scheme and under our public disability scheme. One way or the other, the South Australian taxpayer is paying for the care of these people. It seemed a reasonable thing to do, for the purposes of their care, to provide for them under this scheme.

Clause passed.

Clause 6.

The Hon. I.F. EVANS: Clause 6 deals with the issue that the member for Heysen raised in the sense that it deals with the buy-in provisions of the act which we touched on in the previous answers. I am interested as to why there needs to be a definitional difference between someone accepted on a permanent basis and someone accepted on a temporary basis, and why they are simply not accepted as a participant in the scheme.

It seems to me that you are going to have people who are, for whatever reason, accepted as a lifetime participant who may well recover—and some of these will be 15-year-olds who live for 60 years—through medical advances and technology changes to a point where they may be able to exit the scheme.

I cannot work out what the benefit is to the law to say that you are in the scheme as a participant but you are only a temporary participant, because I think their benefits are exactly the same. The way I read it there is no difference in their benefits. I just cannot work out why we have set up a permanent and temporary system and not simply say, 'You are a participant.'

The Hon. J.J. SNELLING: Depending on the nature of the injury, some people who come onto the scheme will be temporary and some will be permanent. I am advised that there are some injuries, particularly brain injuries which, over a number of years, people can recover from. Other injuries, for example, spinal injuries, generally are of a permanent nature, and people do not recover, so that is why there is the provision for both permanent and temporary participants. Perhaps the member for Davenport might elaborate on his question if I have missed anything.

The Hon. I.F. EVANS: I understand that but, given that they get exactly the same benefit, why not just have one classification? What does it matter if someone is accepted into the scheme and they might recover in four, six or eight years? I do not understand why we are having two classifications. Surely if someone applies to the scheme and becomes a participant, at some point they can voluntarily exit the scheme.

The Hon. J.J. SNELLING: Are you asking why we need it to be temporary, or why we need it to be permanent?

The Hon. I.F. EVANS: I am asking why you need two classifications. Surely participants in the scheme will get exactly the same benefit, and they are entitled to exactly the same level of care and support and assistance, I do not understand the benefits to the scheme to have a definition, and I do not know why some bureaucrat is going to have to go through the process of saying, 'Is this person going to be temporary or is this person going to be permanent?' Frankly, who cares? If they qualify because of their injury, they are simply a participant in the scheme, and if they recover two, three, four, five years down the track that is fantastic.

Why have a cost burden in the scheme for someone to make a judgement about whether they are going to be a temporary participant or a permanent participant? Surely the judgement should be, 'Are you entitled to be a participant?' 'Yes.' 'Right, you are in,' and you get the care and, if you recover down the track and can leave, that is great. We are building a decision into the system that is going to cost money to the system, and I cannot understand what the benefit is to the taxpayer of having money spent on making a decision on whether someone is temporary or permanent. I think it should just be, 'You're a participant or you're not.'

The Hon. J.J. SNELLING: The reason is because once someone is accepted as a lifetime participant, they are a participant for life. You need provision for some people to be able to be temporary participants because they are going to recover, or may recover from their injuries to some extent, and may no longer need to be participants.

The Hon. I.F. EVANS: So, let me understand this, and I will leave it at this point, I think I have made my point—and I am not going to move an amendment—but I think I have made my point. So, the lifetime participant recovers after 20 years and that person is entitled to stay in the scheme for the next 20 years because they were classified 20 years ago as a lifetime participant?

The Hon. J.J. SNELLING: Yes.

The Hon. I.F. EVANS: Really? Surely the system does not do that. Surely the system says that you are assessed from time to time and, if it comes to the point where you have recovered and you do not need this level of assistance as provided by the act and you can leave, then surely you leave. But what we are saying here, is that—and this is the way I interpret the minister's answer—once you are nominated as the lifetime participant, even if you recover, you are still a lifetime participant.

My point is that I do not think that that is the best administration of the scheme. I have made the point. I think if you just have a participant, and if the person recovers, they leave the scheme. Why make a decision initially about whether they need to be a permanent or temporary participant? The decision should be that they have met the threshold—it was a motor vehicle accident, it was in South Australia, they are catastrophically injured, so they are in the scheme, and when they recover they recover.

Surely, it is not going to be the case that I have a catastrophic accident at age 15 in a car and I am assessed as being a lifetime participant. Twenty years later there is some gene technology that repairs my spinal cord and, even though I have the capacity to leave the scheme, because I was lucky enough to be defined as a lifetime participant I can then stay on the scheme for the next 30 years until I pass. Surely, the scheme does not work that way. Surely, at some point there is an assessment of your recovery, and they may say, 'Well, in actual fact you can leave.'

The Hon. J.J. SNELLING: The first point to make is in the example you raised. If a 15 year old is catastrophically injured and 15 or 20 years later there is a miracle cure, they may still be a lifetime participant on the scheme but their needs are going to be assessed as, essentially, zero. They might notionally be a participant, but the cost of their care is going to be zero. It is not an economic maintenance scheme. We do not pay them an income over that period. If they have no other source of income, they still depend upon the disability pension; this only covers the cost of their care. If they are fully recovered from their injuries, their care costs are going to be zero.

The other point is assessing the liabilities of the scheme. If you have a large pool of people who are all lifetime participants, you will have the liability going off forever; whereas, by having temporary participants, it does help contain the liabilities of the scheme.

The Hon. I.F. EVANS: When I am assessed as a temporary participant, am I told the time frame for which I am going to be a participant so that I can plan my life? If I have an accident and I apply to the scheme and they say, 'Yep, you are a temporary participant,' am I then given a letter that says, 'You are a participant for six years, three months and two days,' or how do I plan my life?

The Hon. J.J. SNELLING: Yes, there will be time frames.

The Hon. I.F. EVANS: Obviously, whether you are a permanent participant or a temporary participant is appealable. Can you contest it? If they say I am temporary and I should be permanent, can I contest it?

The Hon. J.J. SNELLING: My advice is, yes, you would be able to appeal it.

The Hon. I.F. EVANS: I have two more questions, and I will ask them both at the same time so that the member for Heysen can get to her questions. This is about a pre-commencement injury applying to become a participant. Does the injury have to have occurred in South Australia for a pre-commencement injury?

The Hon. J.J. SNELLING: It depends if you are buying into the scheme or not.

The Hon. I.F. EVANS: Yes, and if you are a visitor to the state—for instance, a Queenslander—and you have the accident in South Australia and then go back to Queensland to live because you were only here for a week's holiday, I am assuming that because the accident occurred in South Australia you are entitled to lifetime care under the South Australian scheme even though you live in Queensland.

The other issue I ask is, if you do buy into the scheme and you pay a fee—you might want to give us some guidance or examples from New South Wales of some of the buy-in fees, but I am assuming they would be some millions. If you die within a set period, is there a refund? For instance, I buy in for $2 million and I unfortunately pass away six months later. Is there any refund to my estate or is that just luck of the draw?

The Hon. J.J. SNELLING: With regard to buying into the scheme for people living interstate, given that on that basis it would be user pays, we would not see any reasons to restrict someone who had had a catastrophic injury interstate who had received some sort of lump sum pay out and then wanted to come and buy their way into the scheme. Obviously, it would be done on the basis that they were paying for it themselves. So, this is pre-commencement we are talking about—people buying into the scheme.

The Hon. I.F. EVANS: If there is a pre-commencement accident in Queensland five years ago, and that person moves to South Australia, they will be able to buy into the scheme?

The Hon. J.J. SNELLING: Yes; I would envisage that the authority would be very generous with regard to people who want to buy into the scheme. Given that it is not costing the scheme any money, they are buying into the scheme—there is no state subsidy, they are entirely paying for it themselves—I would envisage the authority being reasonably generous as to who they accepted. The second issue was about people having (I presume you mean, post commencement) people from interstate who had a motor vehicle accident in South Australia and were catastrophically injured. I would envisage that it would be done on the same basis, the same arrangements we currently have for our compulsory third party, under the current arrangements. I will check and get back to you.

The Hon. I.F. EVANS: This is on your first answer, minister. With all due respect to your advisers, I do not think your answer can be right. This bill restricts the injury to be a motor vehicle injury in South Australia, and then people can buy in. They can surely buy in only if the injury occurred in South Australia, because otherwise what we are saying is that any immigrant to the state, who might have had an accident in Italy, or England or Ireland, can then buy into the system.

The minister argues, based on his advice, that that does not matter to the scheme because it is going to be fully costed. The authority is going to say up front, 'Give us $2 million,' or 'Give us $3 million,' or what ever the figure is going to be. If that is the approach, why not open the scheme to any catastrophic injury on the basis they can buy in? Why not allow someone who has broken their neck riding a horse or diving off a jetty? It is about as relevant as a motor vehicle accident in Italy. And if it is going to be cost neutral to the scheme, which is the argument, why can't they buy in?

The Hon. J.J. SNELLING: The member for Davenport appears to be correct and I am incorrect. Section 16 needs to be read in conjunction with the section about eligibility, which is clause 24. We expect it would apply only to pre-commencement motor vehicle accidents in South Australia.

The Hon. I.F. EVANS: I was not going to ask this many questions on this clause but, given that we are where we are, is it possible in the bill for the administrators of the scheme, with the participant's approval, to transfer them to a like scheme interstate? For instance, if someone who was visiting South Australia from New South Wales was injured and went into the scheme, could they apply to be transferred to the New South Wales scheme; if so, does the authority have the power to do that? I do not see it anywhere in the bill.

The Hon. J.J. SNELLING: Are you talking about transferring out from South Australia?

The Hon. I.F. EVANS: Both, because there may be a South Australian injured in New South Wales who wants to transfer back. All I am asking is whether there is going to be an administrative arrangement set up so that the schemes can swap with the participant's permission.

The Hon. J.J. SNELLING: My advice is that there is nothing in the act that would prevent our scheme and the New South Wales scheme entering into a reciprocal arrangement to exchange. Obviously, the associated liabilities with the individual would have to go over to the other scheme as well.

The Hon. I.F. EVANS: Can I respectfully suggest that the minister consider putting a positive power in the bill that requires the participant's consent because currently there is nothing in the act that prevents it, but there is nothing in the act requiring the participant's permission to do that. I think it should be a positive power spelt out in the bill at some point. The other question I do not have an answer on is this: if you pay in and then die in a short period, is there a refund, or is that just bad luck?

The Hon. J.J. SNELLING: The answer to the first question is: I am happy to have a look at that between the houses. The answer to your second question is: yes, it would be bad luck; there is no provision for a refund in those circumstances.

The Hon. I.F. EVANS: Assuming that you buy in as a temporary participant, the fee that would be charged is for the period for which they have written to you saying that you are a temporary participant—the six years, two months and one day?

The Hon. J.J. SNELLING: You cannot buy in as a temporary; you can only buy in as a lifetime participant under this clause, I am advised, that is, 'may be accepted in the Scheme as a lifetime participant in the Scheme'.

The Hon. I.F. EVANS: Obviously, the question is: why is it that those who are catastrophically injured on a temporary basis cannot buy in? If I have an accident on the way home tonight and I am catastrophically injured, and the medical advice to me is, 'In five or 10 years' time there's a chance your brain injury will be such that you will be recovered,' why is it that I cannot buy into the scheme?

The Hon. J.J. SNELLING: I would only envisage people buying in if they had lifetime needs. I do not envisage people would buy in if the nature of their injuries and their associated payout (compensation) that they had received was for injuries that were temporary. You are talking about people who have been catastrophically injured and received a payment from the courts on the basis of that injury being forever and the damages being commensurate with an injury which is going to stay with that person for life.

We would envisage that it would be only in those circumstances that someone would want to buy their way into the scheme. For someone who is receiving compensation for an injury from which they expect to recover, I cannot see why they would want to buy into the scheme, because their payout would pay for their temporary costs.

The Hon. I.F. EVANS: No, I am sorry, minister: this scheme is covering those people who have swerved to miss a kangaroo and are not covered by the current scheme. If Mrs Smith drives home tonight, swerves to miss a kangaroo and no other vehicle is involved in the accident, she is not covered by the current scheme.

The Hon. J.J. SNELLING: Unless she raises the money herself.

The Hon. I.F. EVANS: Yes, but it is not up to the parliament to say to Mrs Smith we do not think she has the capacity to raise the money. The reality is there are lots of communities out there that, given the opportunity, would fundraise to help Mrs Smith buy into the scheme. As I said in my second reading speech, my family has been involved in exactly this process with my sister's partner's son who, through a motor vehicle accident, uninsured, received no payout—not a cent—and we have been raising hundreds of thousands of dollars to put into a trust to provide him care. Communities have done that. The chairman himself emceed a football club function on behalf of a young lad from the South-East who was in exactly this situation.

If, going forward, people can become injured to such an extent that they are only going to be a temporary participant in the scheme, surely, someone today, before this scheme commences, can be injured to the point where they will be a temporarily catastrophically injured person. Therefore, my view, and I ask you to consider it between the houses, is that they should be entitled to apply the same as any other injured person and it is up to the authority to decide what fee they are going to charge them.

Otherwise, you are going to have a very small group, I accept—we do not know how many there are out there: there could be two and there could be none—that is going to have a pre-commitment injury that would entitle them to be a temporary participant in the scheme and we will not allow them to apply. I think that is madness. They should be able to apply and the authority should be able to see a fee. If they recover, great.

The Hon. J.J. SNELLING: The primary purpose of the scheme is for the care of people catastrophically injured, with injuries from which they do not recover. Sure, there is provision for people to be assessed as temporary, but its primary purpose is for the lifetime care needs of people permanently injured.

We do not envisage that there would be circumstances where someone who had an injury which was foreseen as being temporary would want to buy their way into the scheme. That would not be the best way of providing for the needs of that person. The scheme is about providing for a person's lifetime care, not for people with injuries that are recoverable. Nonetheless, I am more than happy to have a look at this issue and look at the matters raised by the member for Davenport between the houses.

Mrs REDMOND: On the issue of persons wanting to buy in for pre-existing injuries and payouts that they have already received, I want to clarify that my understanding of what is intended is correct. That is, a person has their payment, and that payment at the moment includes the various heads of pain and suffering, the cost of care and economic loss and all those things. What they will be buying into is just for their care and treatment and support needs, and the rest of that will not be counted.

When that is paid in, it is paid into a pool rather than being their own money which is then managed by the scheme. There is just a pool so, in a way, it is a bet or an insurance policy. They are putting in money, the authority makes some assessment before they are accepted as to how long they are going to live and what they think their cost of care is going to be, and they say, 'We will let you into this scheme if you pay us this amount.'

In fact, it would seem to me that it is very unlikely that people who already have money are going to pay into that scheme because you have already indicated that they could die six months later in which case their estate loses all of that money and has no control over that. What I am interested in is in subsection (2)(a) to do with what you are able to purchase once you are accepted into the scheme. What you get is merely the guarantee that you will get whatever the authority assesses are your needs.

So, you might have particular wishes as to your treatment and care but you lose the control over what that might be in terms of what is spent on it because the authority will decide for you what treatment and care needs they will recognise, and that is all they will get paid out. Am I correct in my understanding of all of those aspects of clause 6?

The Hon. J.J. SNELLING: Yes, the member for Heysen is correct. We envisage, though, using a self-managed funds arrangement that we are rolling out into our state disability services that gives more autonomy to the person in terms of the providers they use. We will provide some autonomy to the person in terms of the choice of the services but in terms of the level of the services, they will have to be determined by the authority. The member for Heysen, broadly speaking, is correct.

Mrs REDMOND: Using the figure that the member for Davenport has been using of $2 million, if someone has paid in their $2 million and they are expecting to get their care, treatment and support from the scheme for the rest of their life and they want to have the new super-duper wheelchair that costs a lot more than perhaps what had been planned by the authority, are you saying that the person will have the discretion to say, 'Yes, I want that,' notwithstanding it might deplete what the authority thinks is necessary for the rest of that person's life if it is, for instance, a young person?

The Hon. J.J. SNELLING: The way it works is—and we are rolling this out in terms of our state disability system as well—that you cannot just go out to choose and buy whatever you want. If you want the super-duper wheelchair, you can get it. The way it works is that essentially you get a budget and you then get to choose the services that best suit your needs within certain constraints that are set out.

Mrs REDMOND: I am still then a bit puzzled about the concept of how it is all paid into a pooled amount. I can understand if it were a payment of a fixed amount by someone buying into the scheme that the authority has determined and that payment is then kept separate and managed virtually on their behalf with some discretion, and all of the interplay that currently goes on, for instance, with Public Trustee and people like that in management of people's funds who have had catastrophic injuries already. I used to deal with a lot of them. But I do not understand it when it is paid into a pool because the pool is just the pool, so how do you then have self-management within the scheme?

The Hon. J.J. SNELLING: Exactly the same way we are proposing to do for our state disability services. You are absolutely correct that you do not have an account with a certain amount of money in it, which you then get to spend however you choose. What you do have is some management over the services that you access. That is what we envisage. That is not what is provided for in the proposed act; this is just how we envisage it being run. It is a model of disability services which works very successfully elsewhere, and I envisage that that would be the way it would run.

However, you are absolutely right: you do not have an account with the amount of money you put in because, of course, the amount of money you put in is the net present value of the expenses of your lifetime care. That is the basis of it. So you do not have an account that you run down as such; it is paid into the pool, and the services that are provided to you are paid out of that pool of money.

Mrs REDMOND: One last question, and again it is just to clarify my understanding. In effect what you are doing is, if you chose to buy into the scheme, if you have already got your money and you choose to buy in, effectively you are placing a bet, because the only benefit for you in buying in to the scheme is, in fact, if you live longer than whatever the actuarial assessment has been. With the money that has been attributed for the judgement you have got, and the assessment that is made by the authority to determine the amount, if you live longer then you come out ahead; but, as the member for Davenport pointed out, if you happen to die six months later then your estate is much, much worse off.

The Hon. J.J. SNELLING: You characterise it as a bet, I would characterise it as insurance. It is exactly the same way you or I might purchase an insurance policy that we never claim on; we will have handed over tens or hundreds of thousands of dollars to our insurer without ever having made any claim on that.

The fact is (if my memory serves me correctly) that the information from the Motor Accident Commission is that, of the people who have been paid out lump sums under compulsory third party schemes, 90 per cent of them have expended that lump sum within five years. So the lump sum scheme generally does not work very well, and after five years people are thrown onto our state disability schemes or the charity of friends to continue to provide for them. This provides an option for people who do receive a lump sum pay-out prior to the commencement of the act to provide for themselves for the rest of their lives.

Clause passed.

Clause 7 passed.

Clause 8.

The Hon. I.F. EVANS: This clause deals with the capacity of the minister to direct the authority. Can the minister direct the authority in relation to the acceptance or rejection of an application to be a participant in the scheme? How is the minister's discretion limited?

The Hon. J.J. SNELLING: My advice is that this clause is common to many statutory authorities and the legislation that underpins them. No, it does not enable a minister to issue a direction for a particular case; it simply allows a minister to issue directions with regard to general policies.

Mrs REDMOND: Just following on from that, can the minister explain the case where the former attorney-general and, indeed, the former premier, insisted that the Director of Public Prosecutions, who had a much lesser discretion than the one promulgated in this bill, was able to direct in a specific case—and it went either to the Full Court of the Supreme Court or the High Court—and determine that, yes, the government could direct in a particular case that the DPP had to appeal.

The Hon. J.J. SNELLING: The provisions in the DPP Act are much more specific pertaining to the DPP than this. These are general rules. There is a specific provision in the DPP Act which enables the Attorney-General in certain circumstances to provide directions to the DPP. However, in regard to this, this provision as it is drafted has been interpreted as meaning general directions, not the ability of the minister to give a direction to the authority to make a certain decision in a specific case.

Clause passed.

Clause 9 passed.

Clause 10.

The Hon. I.F. EVANS: Why is there such a broad discretion to have the board made up of between three and 10 members? It just seems an extraordinarily wide spectrum. Surely, we could have five or seven or a number in the act; why between three and 10?

The Hon. J.J. SNELLING: It just copies the provisions of the Motor Accident Commission board, the legislation that governs the Motor Accident Commission board. I would envisage that in the early stages of this authority we would probably start with a very small board but that over time, as the funds grew and the complexity grew and more people came on to the scheme, you may want to provide the ability for the minister to expand it.

Mrs REDMOND: First of all, can I place on the record my congratulations to the government on this clause. We have reached the 21st century at last. This is the first board I have seen appointed in legislation brought in by this government that does not have the provision that says 'at least one member shall be a male and at least one member shall be a female'. At last, after all the years of making the Isobel speech in this parliament about the fact that we—

The Hon. J.J. Snelling: You know that now I am going to have to amend it, now that you have pointed it out.

Mrs REDMOND: Don't you dare, minister! We have at last reached the 21st century, we have true equality and the best people for the job will no doubt be appointed. Minister, I know that you are a man of many opinions, and my question relates to subsection (2), which requires that you appoint persons who have such qualifications or experience as are, in the minister's opinion, necessary to enable the board to carry out its functions effectively. Has the minister yet thought about, and can he give us any indication of, the range of qualifications and experience that he considers might be necessary for the board to carry out its functions?

The Hon. J.J. SNELLING: I would expect that you would need someone on there with some sort of familiarity with care needs of people with disabilities so, someone from the disability sector. I would expect that we would want someone with some experience as a director of a company. We may well want someone with some actuarial or accounting background as well. They are the sort of qualifications I would have in mind.

Mrs REDMOND: And not legal?

The Hon. J.J. SNELLING: Indeed, you may well want someone with a legal background as well. If the member for Heysen is looking for a retirement plan, I am more than happy to give her very favourable consideration.

The Hon. I.F. Evans interjecting:

Mrs REDMOND: I hate to tell the minister but I am planning to stay but, as the member for Davenport says, the member for Elder, who is busily working at a legal practice as we speak, no doubt could do it.

Clause passed.


[Sitting extended beyond 18:00 on motion of Hon. J.J. Snelling]


Clauses 11 to 13 passed.

Clause 14.

The Hon. I.F. EVANS: I am just wondering why three members of a board of 10 would be considered a quorum—clause 14(1) says that three members will be a quorum—even if you have 10 members on the board. I have never been involved in a committee where 50 per cent plus one is not a quorum.

The Hon. J.J. SNELLING: Executive council.

The Hon. I.F. EVANS: That is a sub-committee of cabinet.

The Hon. J.J. SNELLING: No, it is not. The parliament quorum is less than half.

The Hon. I.F. EVANS: Well, I have never been involved in a committee outside the parliament where it is not 50 per cent plus one and, given that clause 14(3) says that motions will be passed, or decisions can be made by the majority of those members who cast a vote, that means that, if you have three members on the board and two do not cast a vote for some reason, one person can pass any decision.

Given that you are dealing with a levy that is going to raise hundreds of millions of dollars each year, I cannot see why the quorum would not be 50 per cent plus one of the board membership. The majority might need some work as well but, certainly, the quorum, I think, is an issue. I am wondering why you have decided to have three as a quorum and not 50 per cent plus one?

The Hon. J.J. SNELLING: These are the provisions in the Motor Accident Commission Act and we have followed those provisions.

Clause passed.

Clause 15 passed.

Clause 16.

Mrs REDMOND: I am curious about clause 16, which sets out the following functions of the authority, and subsection (e) is 'to keep the LSS rules under review', but there is no mention anywhere of who draws up the rules in the first place. I am curious about why. I would have assumed that the authority would draw up the rules and that therefore it would say something like 'to draw up the LSS rules and keep them under review'.

The Hon. J.J. SNELLING: Clause 56 sets out that the rules are made by the Governor upon the recommendation of the authority.

Clause passed.

Clauses 17 to 22 passed.

Clause 23.

Mrs REDMOND: My question is on clause 23(2), which is:

The code must also include...a process for receiving and managing any complaints that may be made to the Authority about how the Authority has exercised a function or power under this Act...

I take it that that is really only about behaviour of the authority or the people who are employed by the authority rather than about any decisions of the authority pertaining to a participant. I am pretty sure that was the question I wanted to ask there.

The Hon. J.J. SNELLING: Yes, that is the intention.

Clause passed.

Clause 24.

Mrs REDMOND: Again on subclause (2) of clause 24—and it is not only referred to here, but participation in the scheme may be as a lifetime participant or as an interim participant. I could not find any reference anywhere to, if you have an interim participation—and I gather from the responses you have given to the member for Davenport already that you get an interim participation for, say, three years. That is often a time that would be allowed for injuries to stabilise and all that sort of stuff.

So, you get your interim participation for three years, but there does not seem to be any provision to say that at the expiry of that three years, if the injury is satisfied, or if for whatever reason the authority is satisfied that it needs to continue as an interim participation, there can be a renewal of that interim participation. It seems to be either that you are an interim and then you are out or that you are a lifetime. I want to clarify whether my understanding of what I have read there is correct.

The Hon. J.J. SNELLING: I imagine the rules would set out that in circumstances—so, if you are an interim participant for say three years, at the end of that three years the person could then be assessed and determined to be a lifetime participant, or alternatively their interim participation could be extended for a period of time. We would anticipate that that would be provided for under the rules.

Mrs REDMOND: It is partly covered there, but partly covered in clause 26, so perhaps I will ask at that point because I do not think it is satisfactory, the way that it is drawn, as that is not evidently part of what the rules could contemplate, but I am happy for us to go on from clause 24.

The Hon. I.F. EVANS: Clause 24(3) confuses me because it says that a person is not eligible to be a participant in relation to an injury if the person has been awarded damages, etc. That is someone who is already injured, so it is a pre-occurring injury and they already have the money. I cannot work out why, just because they have already the money, if they decide that their lifestyle would be improved by buying into the scheme and the authority decides that the figure is X and they are happy to pay X, we are stopping them coming into the scheme. I cannot work out why we are stopping them.

The Hon. J.J. SNELLING: Subclause (4) states that subsection (3) does not apply to a person who has been accepted into the scheme under section 6.

The Hon. I.F. EVANS: So what is the purpose of clause 3? Clause 3 says you cannot be in the scheme unless you are accepted. Well, that is the same with anyone. I just cannot work out what the purpose of clause 3 is.

The Hon. J.J. SNELLING: The way a person comes into the scheme is either by application or by the application of the Motor Accident Commission. Action has to be taken for someone to fall under the lifetime care scheme. If that does not happen and a person pursues damages under their normal common law rights and receives a payout or compensation for their lifetime care costs, they cannot come under the scheme. Essentially, this provision is to stop people double-dipping.

The Hon. I.F. EVANS: So the only people who can buy into the scheme, as people who have suffered a pre-scheme injury, are those who have not received a payout?

The Hon. J.J. Snelling interjecting:

The Hon. I.F. EVANS: No, if they have received a payout pre-commencement. If I got a payout a year ago I cannot buy into the scheme.

The Hon. J.J. SNELLING: You can only buy into the scheme if you have a motor vehicle injury pre-commencement. This is to cover people post commencement who, because an application has not been made either by the person themselves or by MAC for them to be covered under the lifetime care, they have pursued common law damages and received a payout. This is basically to stop people double dipping, to get benefits twice.

The Hon. I.F. EVANS: I just want to check something in relation to clause 24(5)(a)—an 'injury suffered by a participant in a road race'. If I go to Clipsal, for instance, or the rally in the Hills (the Targa rally) and I am a spectator, am I a participant? I just want to get it clear. I am assuming it is only those people who are in the car that are participants, even if I pay for entry. What happens if I am a steward at the event guiding traffic? Am I a participant in the road race?

The Hon. J.J. SNELLING: The Motor Vehicles Act describes 'participants' as being only those people who are actually in the vehicle.

Mrs REDMOND: That was the question that I was going to ask. Before I go further, Mr Chairman, with your indulgence I will apologise to the member for Elder for suggesting that he was not here and that he was at work. Obviously today is not one of the days he is being paid to work at a law firm in the city and he is indeed in the parliament; so I place on the record my apology to him for having incorrectly asserted that today was one of the days he is working in the law firm that he works at three days a week.

Under clause 24 a 'participant' does include everyone who is in the vehicle. So the result would be that if you are standing at the edge of Magill Road and the WRX has come down, and they are doing dreadful things that we all know they should not be doing, and they are catastrophically injured, they get the benefit of the scheme; but if you happen to be the innocent person standing on the footpath you are not going to get the benefit of the scheme even if you are there keeping time for their race?

The Hon. J.J. SNELLING: We do not want drivers injured in the Clipsal to come under the scheme; that is not what the scheme is about. The road race provisions are to exclude people—people who are participating in illegal road races are not in road races for the purpose of this provision, and they come under the coverage of the act. Road races under the Motor Vehicles Act are designated road races, like the Clipsal, like the rally, like Adelaide International Raceway, like Virginia Speedway.

Mrs REDMOND: If you are in the car you are covered, and if you pay to go and watch it you are not?

The Hon. J.J. SNELLING: No, you are not covered. If you are a participant in a road race you are not covered. If you are a driver in the Clipsal and you are permanently injured you are not covered under this scheme; it is not the purpose of the scheme.

Clause passed.

Clause 25.

The Hon. I.F. EVANS: I just seek clarification as to what the difference is between clause 25(1)(b)(ii), which provides that an insurer can apply under a policy of insurance, and clause 6(3), which is about buying in and where it says that an insurer cannot apply. I am just a bit confused as to what the difference is.

The Hon. J.J. Snelling interjecting:

The Hon. I.F. EVANS: Clause 25(1)(b)(ii) and 6(3). Clause 6(3) provides that:

An application made for a person to become a participant in the scheme in respect of a pre-commencement injury cannot be made by an insurer.

Clause 25(1)(b)(ii) provides that an insurer can apply. I just seek an explanation as to the difference.

The Hon. J.J. SNELLING: The earlier clause 6 is to prevent an insurer forcing a person to buy into the scheme. That is what the provision is for, to prevent that from happening. An insurer cannot force a person to buy into the scheme. Clause 25 is post commencement and it is to enable applications to be made into the scheme. It governs who can make an application into the scheme, and that can be either the person themselves or the person with authority to act on their behalf, an insurer or the nominal defendant. So they are the three bodies that can make an application to be in the scheme.

The Hon. I.F. EVANS: Clause 25(6)(b) sets out a provision that allows the authority, through the LSS rules, to demand certain reports and medical information from applicants. If they are accepted into the scheme, do they get their costs reimbursed or are all costs in regard to the application not reimbursable?

The Hon. J.J. SNELLING: We do not expect that the insurer would be reimbursed. The insurer in this case will always be MAC. As long as we have our current rules governing compulsory third-party insurance, MAC is the insurer. We would not envisage that MAC would be reimbursed. If MAC was making an application for someone to go into the catastrophic scheme, MAC would pick up the costs of the reports, and so on. But the main thing is those costs would not be borne by the individual.

The Hon. I.F. EVANS: Does that not assume that the person is injured in a car that is registered, to be covered by MAC? If an individual is driving an unregistered vehicle and therefore not covered by MAC, does it not mean that the individual has to apply, and will the individual get reimbursed his or her medical costs?

The Hon. J.J. SNELLING: Even in cases where there is an unregistered vehicle, at the moment MAC does cover those people. There is a provision through MAC being the Nominal Defendant for MAC to cover people injured in unregistered vehicles.

The Hon. I.F. EVANS: So I am clear, under this new scheme it does not matter how you become catastrophically injured. The costs of the medical reports required by the authority for me to apply to go into the scheme are going to be met by MAC under any circumstance—except for those who have applications for pre-commitment injuries, but from when the scheme is established onwards?

The Hon. J.J. SNELLING: Where it is the case that it is the individual who is making the application, the authority would pay: where it is MAC, or the Nominal Defendant, MAC would pay.

The Hon. I.F. EVANS: Now I am totally confused. Under what circumstances would an individual apply where they would not be covered by MAC or the Nominal Defendant?

The Hon. J.J. SNELLING: Where there is no third party involved.

Clause passed.

Clause 26.

Mrs REDMOND: This is the clause that deals with the provision of lifetime participant or interim participant, and I would suggest that a proper reading of these eleven subclauses in fact suggests the opposite of what the minister said in response to the earlier questions from the member for Davenport where it was suggested that the interim period would be a determined period. My suggestion is that this clause only makes sense if read on the basis that you are simply accepted on an interim basis—no predetermined period, so no need to renew the interim acceptance, or anything like that: you are simply accepted on an interim basis, not for a period.

If you read the clause that way it makes sense but, if you read the clause as saying (although it does not say it) that the interim period will be for a defined period set for each case when they are applying, I suggest that the clause then creates difficulties of not addressing the issue of what if they still have not stabilised at the end of the interim period, and so on. So I would invite the minister to reconsider the earlier answer about the time period.

The Hon. J.J. SNELLING: My advice is that it comes down to what the rules provide for with regard to interim participation. The rules may say that a decision about lifetime participation shall be made after three years participation in the scheme, but they could then say that after three years there could be a provision for them to be extended for a further two years or, indeed, the rules could say that a decision will be made once the injuries have stabilised. So, really, there is scope provided for under this clause to give a fair bit of flexibility with regard to how the rules are governed.

Mrs REDMOND: Again, minister, I respectfully suggest that that is not the way this is drafted. If you look, for instance, at subclause (4):

A person accepted as an interim participant must be accepted as a lifetime participant if the Authority becomes satisfied during the person's interim participation in the Scheme that the person is eligible for lifetime participation...

As I said, this clause only makes sense if read as 'interim' being an undefined but not permanent period.

The Hon. J.J. SNELLING: No; all this provision provides for is an earlier decision to be made. So, if someone is made an interim participant for a certain period of time (three years) and in that period of time the authority is satisfied that the person is eligible for lifetime participation in the scheme then they will be accepted as a lifetime participant. There is nothing there that precludes a period of time being established for a person's temporary participation.

The Hon. I.F. EVANS: Clause 26(6) states that:

...a decision as to whether an interim participant should be accepted as a lifetime participant should be made at an appropriate time after the person's injury has stabilised, as determined in accordance with the LSS Rules.

So, subclause (6) depends on the injury becoming stabilised. Is the question about whether my injury is stabilised appealable? In other words, the authority says to me, 'I think your condition is stabilised. We are now going to make you make a decision', and I say, 'My medical advice is that I don't think it is stabilised.' Can I appeal that somewhere?

The Hon. J.J. SNELLING: You certainly can appeal to a ruling that you be excluded from the scheme, and you may very well do that on the basis of whether or not your injury has stabilised. The answer is yes, but the appeal would be not on the basis of whether it stabilised; the appeal would be having been excluded from the scheme.

The Hon. I.F. EVANS: Yes, but they are two different questions, though, aren't they? One question is whether my medical condition has stabilised and the other question is should I be accepted into the scheme as a permanent member? Those two questions are two different legal and two different medical questions. You have given me an answer that the second question is appealable. What I am asking you is: is the first question appealable? If the authorities say that they think the injury has stabilised, now is the time to consider the question about your permanent entry into the scheme. Can I contest the question about my injury being stabilised before I go through all the costs and bother of having to make the application about whether I should be a lifetime participant?

The Hon. J.J. SNELLING: No, you couldn't appeal a decision of whether or not your injuries had stabilised but, until a decision had been taken to exclude you from the scheme, you would still be receiving care and support under the scheme.

The Hon. I.F. EVANS: But only for the period to which the rules allow it. If I am an interim participant for three years and at the end of three years my condition has not stabilised, my temporary participation ceases because the rules say at the end of three years I am out.

The Hon. J.J. SNELLING: You are on the scheme. You are assessed as to whether or not your injuries have stabilised. If a decision is taken that your injuries have not stabilised, you are going to remain on the scheme. If your injuries have not stabilised, you are going to remain on the scheme. Having got on the scheme, whether it be on a permanent or temporary basis, an assessment having been made that your injuries have not stabilised, you are going to remain on that scheme. You are not going to be excluded, so there would be no reason why you would appeal because what are you appealing against? You are on the scheme. There would be no reason why you would want to appeal.

The Hon. I.F. EVANS: Subclause (7) says that the rules may provide that a person will cease to be an interim participant if he or she has not been accepted as a lifetime participant within the period prescribed by the rules. So, the rules are going to say that, if you are an interim participant and you have not become a lifetime participant by X, whatever that is—we do not know; we have not seen the rules—the rules have the capacity to put a time limit on it.

Let's say that it is six years. At the six-year mark, my time is up as an interim participant, but my injury has not stabilised, in my opinion. What happens to me? Under subclause (8), it allows me to go onto the scheme as a lifetime participant, but it does not allow me to leave the scheme and come back in as another interim participant. I am questioning: who decides that my medical condition has stabilised—in whose view is that, and it is under the LSS rules—and then is that appealable?

The Hon. J.J. SNELLING: At the end of the interim period, your injuries are going to be assessed, whether or not they have stabilised, and then one of three decisions is going to be made. If your injuries have indeed stabilised, a decision will be made whether to put you onto lifetime care or, alternatively, exclude you from the scheme; one of those two things. If you are excluded, you can appeal. If your injuries have not stabilised, your temporary participation on the scheme is going to be extended; you are going to continue receiving care.

The Hon. I.F. EVANS: Which subclause allows it to be extended?

The Hon. J.J. SNELLING: The rules will allow it to be extended.

Mrs REDMOND: I wonder whether the minister can explain the purpose of extending the limitation for three years, under subclause (11) of clause 26.

The Hon. J.J. SNELLING: Under the statute of limitations, you have only three years. If a person is excluded from the scheme, what this enables you to do is to then go back and litigate your common law rights for damages and for care, and that may well be more than three years after the injury. So, we need to provide for an extension of the statute of limitations to enable those people to pursue common law actions in those circumstances.

Clause passed.

Clause 27.

The Hon. I.F. EVANS: I just want to get on the record 27(1)—'The Authority is to pay for all the necessary and reasonable expenses'. Necessary and reasonable are in the authority's view and I just want to make sure that there is a capacity to appeal what is necessary and what is reasonable.

The Hon. J.J. SNELLING: It would be provided in clause 38 of the bill.

Mrs REDMOND: I too wanted to ask a question or two about this provision in subsection (1) and indeed (2). Both times there is a reference to 'necessary and reasonable expenses'. Now, there are many circumstances where an expense might be necessary, but there can also be circumstances where an expense might be reasonable but not necessary, and it seems to me that there is a great risk that the authority could preclude people from receiving what might be reasonable expenses because they are not deemed to be both necessary and reasonable, and I wonder whether any thought was given to make it necessary or reasonable.

The Hon. J.J. SNELLING: The expenses have got to be necessary. The authority does not just pay for anything purely on the basis that the expense is reasonable. It has got to be necessary for the appropriate care of that person. The authority's job is not to pay for frivolities. It is there to provide for what is necessary for the care of that person.

Mrs REDMOND: That is the point. I am not suggesting the authority should be paying for frivolities. Frivolities are not reasonable. There are many things, however, which are reasonable whilst not being necessary. To go back to my example of the super-duper wheelchair, it may be a perfectly reasonable thing because the person wants to participate in wheelchair sports or whatever it might be, but it is not necessary.

I have a great concern about the ability of the authority to restrict people from receiving reimbursement of moneys which would be absolutely reasonable in the eyes of anyone in the community but, unless they are necessary and reasonable—and necessary of course is not defined anywhere but can be very limiting—I think there is a great risk that this could be used adversely against participants in the scheme.

The Hon. J.J. SNELLING: This is a provision that applies in New South Wales. Our advice from New South Wales is that this provision is not used in an overly restrictive way. I do not agree with the member for Heysen. I think necessary and reasonable is quite a reasonable provision to ensure that the expenses that are incurred by the authority are the things that are necessary for the care of that person.

Mrs REDMOND: With respect then, Minister, why not just put 'necessary'? We will move on, perhaps. Obviously the minister has not had the experiences I have had in WorkCover claims, for instance. Does the minister contemplate that these necessary and reasonable expenses, particularly under subclause (2), will require prior approval before being incurred, before they will be deemed appropriate, given the terms say, 'the assessed treatment, care and support needs'? Is it going to be necessary for someone who is on the scheme to get prior approval to say, 'Yes, this is necessary and reasonable. Yes, we will pay these,' before they incur the costs or is it going to be a post-incurring of the cost issue?

The Hon. J.J. SNELLING: It would be a plan for the care of that person, and that plan would set out the necessary and reasonable care items or services that that person requires.

Clause passed.

Clause 28.

The Hon. I.F. EVANS: This is the clause that deals with services provided on a gratuitous basis, so by members of the family or volunteers. Can the minister walk me through how he envisages this clause working?

The Hon. J.J. SNELLING: Subclause (1) basically sets out circumstances where the authority is not required to pay for certain services. They are services that are provided on a gratuitous basis and, in paragraph (1)(b), in the case of a child, the treatment, care or support of that child that would ordinarily fall within the costs of raising a child (which I know, in my case, can be very expensive).

Paragraph (1)(c) provides another example: care, support or services required to be provided by an approved provider but that is provided by a person who is not, at the time of provision, an approved provider. Paragraph (1)(d) provides for any treatment, care, support or services that is provided in contravention of the rules. Those are the circumstances where there is no obligation on the authority to pay.

Subclause (2) provides, notwithstanding what is contained in subclause (1), that the authority, under the rules (which are in subclause (3)), may elect to make provision in those circumstances. Subclause (4) is a qualification on paragraph (1)(c) for a medical practitioner or another person provided for under the rules. Subclause (5), again, just deals with that, and subclause (6) provides:

The Authority is not required to pay for any treatment, care, support or services provided to a person while the person's participation in the Scheme is suspended.

Subclause (7) just provides for a definition of the 'ordinary costs of raising a child'. In terms of clause 28, it provides for circumstances where the authority is not required to pay but nonetheless provides, under the rules, for provision to be made for the authority to have exceptions to that.

The Hon. I.F. EVANS: If I understand it correctly then, if I am a neighbour of someone who is a participant in the scheme and I want to offer a gratuitous service to them by going in and providing cleaning or whatever, I make application to the authority and say, 'I am happy to provide this service; what are you going to pay me?', and then they will decide whether or not they want to make a payment.

The Hon. J.J. SNELLING: My wife cleaning the house, generally speaking she is not going to be paid for that by the authority.

The Hon. I.F. EVANS: No, the extra cost, if there is a service. Sorry, cleaning might have been a bad example. If there is an extra service that is required because of the injury, then if I was going to provide that on a volunteer basis, or a discount basis, I would have to go to the authority to seek approval to receive any payment and they could advise me what it may or may not be.

The Hon. J.J. SNELLING: Generally speaking, if I am catastrophically injured and my wife is participating in my care, she is not going to receive payment for it. There may be circumstances where under the rules the authority decides to do that, but generally speaking no, under those circumstances she is not going to be paid.

The Hon. I.F. EVANS: If my wife provides a certain level of care today when I am able bodied, and tonight I have an accident and become participant in the scheme and my wife has to provide a higher level of service to meet my medical and living needs, where does it say in here that she cannot apply to the authority and seek payment for that extra care—not the level of care she is providing me before the accident, but the extra care over and above that?

The Hon. J.J. SNELLING: Generally speaking, it is not envisaged that in those circumstances your wife is going to be paid for the extra help she has to give you because you are catastrophically injured. Bear in mind that there will also be paid carers coming in and assisting you. The reason for the ability to make an exception to that is there may be circumstances where you live in a remote area and the normal paid services to assist you are not able to be accessed. The authority may well then decide that in those circumstances, because what your wife is doing is over and above what would normally be expected, she may well be paid. But generally speaking, in relation to a catastrophic injury what this clause does is provide that the authority has no obligation to pay for those gratuitous services that you would expect from a family member.

Mrs REDMOND: Minister, a particular case that I dealt with many years ago springs to mind, where a 31-year-old man became a high quad, so almost tetraplegic. He had been married three weeks. He needed care that had to be assessed on the basis of 26 hours a day for the rest of his life, because he was a large man and it took two people, even with a lifter, to get him out of bed in the morning and get him back into bed at night. It was one of the biggest personal injury claims the state had seen.

What you are saying is that that wife—who as it happens I think is still with that particular man; she said she married him for better or for worse and she certainly got the raw end of the deal—gets nothing, but if she were to choose to do nothing for him, under the scheme, as a catastrophically injured participant, had he been in a motor vehicle accident (that did not happen to this particular person), the authority would pay out at full rate for carers for 26 hours a day for the rest of his life, but will not give any recompense to a wife who looks after him. He needed care literally every five minutes, because he had no capacity to do anything for himself.

The Hon. J.J. SNELLING: Generally speaking, the authority in that circumstance would pay for the 24-hour care of that person. That is generally what is going to happen. What this section provides for is that the wife cannot demand that she be paid for the services she is providing. There may be circumstances where the authority may decide, for whatever reason, to pay the wife but, as a general rule, no, those services for the lifetime care and support of that injured person are going to be provided by the authority using paid employees or presumably paid contractors.

Mrs REDMOND: Related to that issue, and perhaps I will get you to ask your advisers: there is a concept in damages known as Beck v Farrelly damages which was specifically about this issue of gratuitous services. Does the effect of this section have any effect on the provision of Beck v Farrelly damages? I understand that we are dealing with the treatment and care, but there is a separate ability to go and pursue economic loss claims and all that sort of aspect under the Motor Vehicles Act. Are Beck v Farrelly damages going to be available at all in light of this section?

The Hon. J.J. SNELLING: It is not in this section: it is section 58. It is in schedule 2. In the cases of people who are catastrophically injured and are accepted under the scheme, yes, you are correct: those damages are excluded. If you are accepted under the scheme and you have lifetime care, you are not able to pursue damages under that head of damages; that is correct.

The Hon. I.F. EVANS: Under 28(6) it talks about a person's participation in the scheme being suspended. Under what circumstances can a person be suspended? Is it appealable? Which clause in the bill gives the authority the power to suspend?

The Hon. J.J. SNELLING: There are two provisions for suspension; one is clause 32, which provides for the requirements under the rules. For example, persons may be suspended if they fail to comply with the requirement in connection with an assessment of the treatment, care and support needs of the person. Subclause 32(e) provides for suspension in certain circumstances. There is also another clause 58 which provides for someone overseas.

Progress reported; committee to sit again.


At 19:00 the house adjourned until Thursday 21 March 2013 at 10:30.


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