HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2013-03-21 Daily Xml
Contents
Pdf Xml

MOTOR VEHICLE ACCIDENTS (LIFETIME SUPPORT SCHEME) BILL

Committee Stage

In committee.

(Continued from 20 March 2013.)

Clause 28 passed.

Clause 29.

Mrs REDMOND: I wanted to clarify the provisions here on a couple of bases. The clause gives the authority the right to approve specified persons to provide the treatment, care, support or services that are identified under the rules as what is to be provided to make these people approved providers. I am curious as to whether that is going to mean that every GP who is involved in treating a person who is a participant under the scheme has to become an approved provider. Or is it the intention that the scheme will simply authorise a nominated panel of doctors and say, for instance, as some health insurance companies do, 'You can go to these people; we have our agreements in place with these people and you can get your treatment from those people, but you cannot go to your own doctor for your treatment.'?

The Hon. J.J. SNELLING: If you look at clause 28, the obligation with respect to approved providers does not apply to medical practitioners, or by a person acting in circumstances allowed under the LSS rules.

Mrs REDMOND: Can the minister explain who are the approved providers that are contemplated by clause 29?

The Hon. J.J. SNELLING: They are care providers, and we envisage that the authority would have a panel of approved providers; it may be builders, for example, for modifications to the house. So, there would be a panel of providers who would be approved by the authority, and you would select your builder or your carer from that panel.

Mrs REDMOND: Would that panel of approved providers include, for instance, rehabilitation providers?

The Hon. J.J. SNELLING: Yes, I imagine it would.

The Hon. I.F. EVANS: To clarify that, I assume that family members who are providing gratuitous services, whether they get paid or not, will not have to qualify as an approved provider.

The Hon. J.J. SNELLING: If they were being paid they would have to be approved to be paid, but of course if they are not being paid they would not. If you remember the earlier debate that we had, we talked about what happens to people. If your wife is looking after you, can she be paid? Yes, in certain circumstances. Where it is provided for under the rules, the authority can grant an exception and provide payment to a family member. So, they are being approved for the purpose of being paid, but if they are just providing gratuitous services then, no, they do not require approval.

The Hon. I.F. EVANS: If I am the husband of a wife who is catastrophically injured and she is a participant in the scheme, and I want to provide a gratuitous service to her but I get over the limit and I apply to the agency to get some rate of pay for my service, rather than pay full tote odds a service provider to come in—I am just concerned that these people are going to have to go through a police check to become a caregiver to their own family. What is the purpose of being approved?

I know what the bureaucrats are going to do with this: they are going to say, 'Well, we don't want to approve someone who has a dodgy history,' so the first thing the LSS rules will say is—rule (f) will be that you can be an approved carer as long as you have a police clearance. I suspect what is going to happen is that the family member giving care will end up having to go through a police clearance to get paid to look after their own family member. Please tell me that is not going to happen.

The Hon. J.J. SNELLING: They are getting paid under a different category. They are not required to be an approved provider, no. If an exception was made for a family member to be paid for providing services, no, they would not have to go through the process of becoming an approved provider.

The Hon. I.F. EVANS: So, clause 29 that talks about approving providers to provide treatment, care, support or services to a participant does not include family members providing care to their own family members, whether or not they are getting paid by the authority? So, they will be non-approved carers?

The Hon. J.J. SNELLING: Yes, but just to make it absolutely clear, you can only get paid, if you are a family member, if the authority basically grants you an exemption. Generally speaking, family members will not be paid for services provided to participants on the scheme.

The Hon. I.F. EVANS: But a family member providing services, if they are not paid, does not need approval by the authority?

The Hon. J.J. SNELLING: Of course not.

Mrs REDMOND: Can I go back to the minister's original answer to my first question. I want to clarify what the relationship is between clauses 28, which was what he referred to in his response, and clause 29. If you go back to clause 28(1), 'The authority is not required to make a payment in relation to'—and the first one is the gratuitous services, the second one is the ordinary costs of raising a child and the third one is:

(c) any treatment...that is required to be provided by an approved provider but is provided by a person who is not, at the time of provision, an approved provider;

If we then go down to subsection (4) it says that that section does not apply to services provided by a medical practitioner. The minister is saying, I understand, that the combined effect of that and clause 29 is that the costs of going to your own doctor—if it is part of the treatment that for whatever reason you have been assessed as needing to go to your doctor for—will clearly be covered without that doctor having to be an approved provider. You will still have the flexibility to go to your own doctor.

The Hon. J.J. SNELLING: Yes, that is correct.

Mrs REDMOND: I have one other question on subclause (4) of clause 29, on the maximum penalty:

(4) An approved provider must not, without reasonable excuse, contravene or fail to comply with a condition or limitation of the approval.

Maximum penalty: $10,000.

There are several other things later on—for instance, in resolution of disputes—where the maximum penalty for a breach is $5,000. I am curious as to why there is such a high maximum penalty. I recognise it is a maximum, but why is there such a high maximum penalty for something which would seem to me to be more easily addressed for the most part by simply not paying them for whatever work they have done? If it is a builder, for instance, it is in excess of the authority. Why is such a high penalty contemplated by that particular provision?

The Hon. J.J. SNELLING: My advice is that it is just where we think the appropriate benchmark sits. It is still a summary offence heard in the Magistrates Court. It is consistent with the penalties for other similar cases.

Clause passed.

Clause 30.

The Hon. I.F. EVANS: Clause 30(4) states:

...a decision by an assessor acting under this section will be taken to be a decision of the Authority.

I want to make sure I understand what that is saying. The way I interpret that, it means that, whatever the appointed assessor says, the authority must accept and cannot appeal it.

The Hon. J.J. Snelling interjecting:

The Hon. I.F. EVANS: Clause 30(4), right at the bottom of the page, provides:

The Authority may appoint or engage health professionals and other suitably qualified persons to act as assessors...

Then it goes on to say:

...a decision by an assessor acting under this section will be taken to be a decision of the Authority.

The way I interpret that is that the authority will appoint a medical expert as an assessor to go out and assess someone and, no matter what that assessor says, the authority must accept it—they cannot contest it.

The Hon. J.J. SNELLING: Yes, the member for Davenport is right. It also means that the decision is reviewable as if it was a decision of the authority.

The Hon. I.F. EVANS: Yes, but it is only reviewable by the potential participant or the participant, because the assessor becomes the authority. So, if the authority is unhappy with the assessment, they cannot review it.

The Hon. J.J. SNELLING: They cannot build their own decision.

The Hon. I.F. EVANS: No, that is right. The minister said they cannot build their own decision, but they appoint the medical people. So, they can select the right medical people that they need for their own panels. They will have a panel of experts in particular fields and they will be the assessors. I just want to make sure that I am right: that the authority cannot challenge the assessors.

The Hon. J.J. SNELLING: No, that is right, because they would be challenging their own decision.

Mrs REDMOND: Subsection (3) of clause 30 provides:

The Authority is to certify in writing as to its assessment of the treatment, care and support needs of the participant, including its reasons for any finding...and is to give a copy of the certificate to the participant.

In fact, as I read the section, it would be quite possible that the authority, in making that decision, has read reports, for instance. I wonder whether copies of those reports have to be supplied. It would seem to me on the face of the way the clause is drafted that there is no requirement on the authority to make available a copy of the reports upon which their decisions may be based. They can simply make their decision and state their reasons in their decision-making process, but they are not bound to supply to the participant—who may end up being aggrieved by the decision—a copy of the report upon which they have relied.

The Hon. J.J. SNELLING: The member for Heysen is correct: there is not a strict obligation under the act for the authority to provide reports but it is something we would expect the authority to do. Upon review, the reviewing panel would be able to call for the original medical reports and, if for some reason they were finding that the authority was not providing reports to the applicants for participation in the scheme, there would be a power under the regulation to force them to do so. I would be very surprised if that was necessary.

Mrs REDMOND: Strictly speaking, the way this section and the next two clauses are structured, it is possible for a person with no particular qualifications to be appointed and delegated the authority by the authority to make a sole-person assessment and to not provide a copy of any medical report that they may have obtained. They may, indeed, make their assessment without even obtaining medical reports. They could simply not like the person. They may make an assessment and issue their statement of reasons. The decision of that sole person, who is not even a member of the authority but rather a delegate of the authority, binds the authority and then the person has to go through an appeal process.

The Hon. J.J. SNELLING: Firstly, under subclause (4), the authority may appoint or engage health professionals or other suitably qualified persons. So it has to be a health professional or otherwise a suitably qualified person. The authority could not just appoint anyone to act as an assessor. Secondly, under subclause (3), the assessor needs to provide its reasons for any finding on which the assessment is based. That is a suitable sort of brake upon an individual acting as an assessor in a malevolent way.

Clause passed.

Clause 31.

Mrs REDMOND: I am just curious about the compliance requirement of clause 31. The provision states that the participant in the scheme must comply with any reasonable request, but then there is no consequential statement as to what a failure to comply does. I assume it would result in the suspension from a scheme or some such thing.

The Hon. J.J. SNELLING: Yes, that is right, and under the clause 32 Requirements Under LSS Rules, there is the ability of the authority to suspend.

The Hon. I.F. EVANS: The costs associated with any requirement under 31 are covered by the scheme?

The Hon. J.J. SNELLING: Yes.

Clause passed.

Clause 32 passed.

Clause 33.

Mrs REDMOND: I had a question in relation to the definition of threshold determination. The clause reads:

Threshold determination means a determination by the Authority as to any of the following:

(a) whether a person is eligible to be a participant in the Scheme under section 24(1)(a).

Going back to section 24, it seemed to me that section 24(1)(a) does not, of itself, actually determine at all whether someone is eligible to be a participant in the scheme. It is only the first of several. I note that there are other clauses dealing with it later on but it still seems to me to be a nonsense to have as the definition 'whether a person is eligible to be a participant...under 24(1)(a)' which is simply that a person is eligible in the scheme if (a) the person suffers a bodily injury. It seems to me that that is an inadequate provision for the definition of 'threshold determination'. Notwithstanding I have read the other (b), (c) and (d) provisions of that subclause, the reference to 24(1)(a) of itself does not seem to make any sense.

The Hon. J.J. SNELLING: Threshold determination—the other provisions in that clause the member for Heysen refers to from clause 24 are actually covered by the subsequent clauses there. So, 24(1)(a) covers part (a), (b) covers part (b) and then (c) and (d) are covered in clause (c).

Mrs REDMOND: I did understand what (b), (c) and (d) covered when I asked the question but, nevertheless, we will move on. I just think it is untidy drafting. The more important question in relation to clause 33(2):

The following are interested parties...in relation to a threshold determination—

The only options appear to be the person to whom the application under the act relates, or an insurer or the nominal defendant. My question is: what if the person to whom the application relates, because they have a catastrophic injury, is not capable? There are other provisions in other parts of the bill that say 'the interested person or a person on their behalf', and yet for some reason this particular provision only allows the person themselves to be the applicant.

The Hon. J.J. SNELLING: Because there is a further clause, clause 54, which does provide for any provision in the act. It says:

any authorisational step that may be given or taken under this Act by a participant in the Scheme may be given or taken by a person with lawful authority to act on the behalf of the participant.

So, that covers that.

Mrs REDMOND: Well, I appreciate that, but then why do the words 'or another person on that person's behalf' appear in other areas of this general section?

The Hon. J.J. SNELLING: It's just the way it has been drafted. It is not necessary.

Mrs REDMOND: So, consistency isn't necessary under this new domain of drafting?

The Hon. J.J. SNELLING: Well, it's quite clear that the member for Heysen, having lost the debate in her party room on support of the opposition for this bill, is now seeking to relitigate this matter by trying to delay the committee stage of the bill by raising pointless and ridiculous objections to certain drafting problems she has.

Mrs REDMOND: Point of order: I resent the implications and indeed the statements where he is imputing improper motive to me. I have done nothing to stop, prevent or delay this bill. I am merely trying to clarify the effects of the various sections of what will be one of the most important bills to come before this house, as the minister himself said yesterday. I would like him to withdraw and apologise.

The CHAIR: Is the minister prepared to withdraw?

The Hon. J.J. SNELLING: No, I am not. I stand by my remarks. It's quite clear that the member for Heysen is clearly trying to delay the passage of this bill by raising frivolous objections to certain clauses.

The Hon. I.F. EVANS: The minister should reconsider his remarks. Given that the government brought on a debate about wind farms and delayed the debate of this bill, not the opposition—and you lost an hour there. The opposition were quite happy to sit past 7pm last night, but the government didn't want to suspend standing orders. It couldn't be bothered. So, I think it is a bit rich of the minister to falsely misrepresent the member for Heysen's view in the party room, which the minister is guessing, and then say that it is the opposition that has delayed the bill.

It is the opposition, having been forced to debate it this week with no information—or not all the information requested by the government—given to us so that we could properly form a position in the party room. It is the government that has brought the bill on this week and then delayed it twice.

The CHAIR: I think we should try to move on.

Clause passed.

Clause 34.

Mrs REDMOND: I will put it on the record that I did nothing in our party room to indicate any opposition to this bill, and the minister is entirely wrong in his comments, which are incredibly offensive, when all I have done is come into the committee stage to try to clarify what is an important bill that will no doubt affect people. Having practised law for as long as I did, I know that people are dramatically affected by the effects of this sort of legislation that is passed by this parliament, and the government needs to tread very carefully. All I am trying to do is make sure the government does tread carefully in addressing these issues.

On clause 34, I want to confirm that the system that is being set up here is for, potentially, someone who is indeed an employee of the authority (and, therefore, I would have thought, has a conflict of interest) to become the sole arbiter of a dispute should a person who is aggrieved by a dispute wish to take issue with it and that that person has powers to make a decision with no further reference.

The Hon. J.J. SNELLING: All this is is a common provision for an internal review where there is a dispute about a determination. If the applicant is still not satisfied with the outcome of the internal review, there is a further provision for them to appeal the matter to the District Court.

Mrs REDMOND: Can I then confirm that under subclause (10)(b) the person, although they can get their costs of travel and accommodation to attend such an internal review, will not be able to be represented and expect to have their costs of representation at such a review covered by the authority.

The Hon. J.J. SNELLING: You can be represented, but the authority is not going to pick up the costs of the representation.

Mrs REDMOND: Does the minister have any recollection (I do not suppose he would because he was still in nappies at the time) that, when the Workers Rehabilitation and Compensation Act was first introduced, a similar provision to this was included, where review officers were, potentially—and, indeed, were—members of the staff of the WorkCover Corporation, and those review officers themselves mounted a campaign to have themselves removed from the employment? Does the minister understand the nature of the conflict of interest that arises when a review officer is internal to the decision-maker whose decision is being contested?

The Hon. J.J. SNELLING: This is not an unusual provision. Many authorities, including within government, where there is a dispute, the first port of call is for some internal review mechanism. If everything had to be immediately reviewed by an outside authority at the first step, there would be a process involved in what might simply be a fairly straightforward error which could be quickly rectified through an internal review. Indeed, I would have thought that it would be in the authority's interest to ensure that there was objectivity in the course of these reviews, because they do not want things having to go off to the District Court, where they would lose.

Mrs REDMOND: Is there any impediment in the legislation and, in particular, in this clause, to the authority being represented and having its costs of representation met during such a review process?

The Hon. J.J. SNELLING: The authority's costs, naturally, are going to be picked up by the authority. I do not know who the member for Heysen thinks would pick up those costs.

Mrs REDMOND: The point I am trying to get at, minister, is the fact that would create a somewhat unlevel playing field. When you have a participant who is, by definition, going to be someone with significant problems already and who, if they wish to be represented, can be represented but they have to pay for it themselves and you have a great big corporation that can be represented and, with the big pockets of that big corporation to pay for it, who do you think is going to win that argument?

The Hon. J.J. SNELLING: We are talking about internal review as the first of call in the event of a dispute. If the participant is still not satisfied with the outcome of the review, there is a provision for them to appeal the matter to the District Court. If they subsequently win, I would imagine that normally the District Court would make an award of costs against the authority, and the authority would end up picking up the costs, under that award, of the successful applicant.

The Hon. I.F. EVANS: But it would be only the costs for the appeal to the court and not the costs involved in the initial review?

The Hon. J.J. SNELLING: Yes, that is correct. But we do not imagine that when, as the first point of call, a person asks for an internal review to be done on a decision, it would normally be something for which they would require to be represented, certainly not by a professional lawyer.

Clause passed.

Clause 35 passed.

Clause 36.

Mrs REDMOND: I want to clarify the way in which the expert review panels will work. I see that the definition in schedule 1 of the bill, which appears to relate to basically people who have qualifications as health practitioners, in effect. Again, the decision can be made in relation to a dispute about eligibility on the basis of only an expert panel, which appears to be only by medical experts, rather than disputes about eligibility which, in my submission, would often be more of a legal nature in terms of determining whether someone is eligible rather than simply assessing their medical situation. I want to clarify whether my understanding is correct that the expert panels are always going to be of medical practitioners.

The Hon. J.J. SNELLING: It is the preceding section that dealt with legal questions. These provisions under 36(1) are essentially medical questions, and we see them as being reviewed by people with medical qualifications.

Mrs REDMOND: The dispute for instance under (1)(a) of this clause is about whether an injury results from a motor vehicle accident or is attributable to some other condition and the question of whether it is a motor vehicle accident, that part of it could clearly be a legal question rather than simply a medical question.

The Hon. J.J. SNELLING: No, it is a medical question, because it is asking a determination of whether the injury is a result of the motor vehicle accident or some pre-existing condition. That is a medical question; it is not a legal question. It is not an argument over whether or not the accident happened; it is a question over the nature of the injuries and whether they resulted from the accident.

The Hon. I.F. EVANS: I might be a bit confused about this. Clause 33, which sets out the threshold determination questions, includes under 33(1)(a) a threshold determination of whether you are eligible to be a participant. If you are not happy with that determination, you go to clause 34 and there is a process for resolving that dispute. Then you turn over the page and there is another clause about disputes about eligibility, where there is another system of dispute.

What is the difference between the eligibility under clause 33 and the eligibility under clause 36, and why do we need two different dispute mechanisms? If the threshold determination is that you are eligible to be under the scheme and there is already a dispute process in place, why do you then have another clause that deals with disputes about eligibility and another dispute process in place? Surely there is only one type of eligibility—you are either in or out.

The Hon. J.J. SNELLING: One dispute mechanism is to resolve non-medical issues and the other is about medical issues. The clause we are dealing with, clause 36, is a dispute mechanism to resolve disputes over medical questions. Clause 33 is referring to non-medical.

The Hon. I.F. EVANS: So clause 33 deals with a number of things. It deals with whether the incident results in a bodily injury, which I think is a medical issue. First of all, was it a bodily injury? Yes. And then: was it caused by or arose out of the use of a motor vehicle? That is part (b) of 33(1). Part (a) says are you eligible? To be eligible, it needs to be a catastrophic injury, that is brain damage, severe brain damage, severe spinal cord, multiple amputations or severe burns. They are all medical questions. Once you are accepted as a participant, then I am not sure what the function is of the second, because you are in. You have been accepted as a participant under Clause 33.

While you are getting advice, minister, I will keep explaining it. Clause 36(a) says, 'If there is a dispute about whether an injury results from a motor vehicle accident'. That is exactly what 33(1)(b) says: 'whether an incident that results in bodily injury is an incident that was caused by or arose out of the use of a motor vehicle'. You have to establish that first before you get into the scheme, so how can you possibly have a dispute about it once you are in?

The Hon. J.J. SNELLING: There are two different types of disputes, as I was saying: one is about medical and one is about non-medical. Clause 33 deals with non-medical disputes which, essentially, are of a legal nature. With the example that the member for Davenport gives—an incident resulting in a bodily injury that was caused by or arose out of the use of a motor vehicle—an example of such a dispute might be someone who was working on a car, and the car subsequently rolled on them, and so their injury arose from a motor vehicle, but there may be circumstances where such a catastrophic injury would not be covered by the scheme.

It is essentially legal questions of that nature over which clause 33 provides for a dispute resolution. Clause 36 deals with medical questions, and hence there is a medical panel to deal with those disputes. The examples I offered to the member for Heysen were: did the injury arise from the motor vehicle accident, or was the injury a pre-existing condition, which is probably one of the most common sources of disputes in these sorts of schemes.

The Hon. I.F. EVANS: Clause 33(1)(a) talks about whether a person is eligible in the scheme as per clause 24(1)(a), and clause 24(1) states that a person is eligible to be a participant in the scheme if the person suffers a bodily injury (a medical question), if the injury was caused by or arose out of the use of a motor vehicle (could be disputed), or if the relevant motor vehicle accident occurred in South Australia. It then goes on to state:

(e) the injury suffered by the person [which is a medical question] satisfies the criteria specified by the LSS rules for eligibility for the Scheme...

The dispute mechanism under clause 33 covers whether your medical condition is eligible under the rules set out in the LSS rules for eligibility. The dispute about the medical question is already dealt with by clause 33(1)(a) which refers to the whole of clause 24.

The Hon. J.J. SNELLING: Clause 33 deals with subclauses (a) to (d), and clause 36 deals with subclause (e).

Mrs REDMOND: I just want to clarify the way in which clause 36 can operate according to my reading of it; that is, you can have a person who is a participant in the scheme and by definition has therefore some significant impairment. They may not have access to money to pay a lawyer, and they can be called before an expert panel of people who at least are qualified as doctors and, indeed, it could just be one doctor under the provisions of the expert panel in schedule 1. That doctor can make the assessment without that person having either access to representation or the ability to pay for representation. The only course of action open to them is to then take their chances on an appeal to the District Court if they are not satisfied with the determination of that potentially single doctor.

The Hon. J.J. SNELLING: Essentially you are correct, but we do not anticipate that legal representation would be of much help on what is a medical matter.

Clause passed.

Clause 37.

Mrs REDMOND: My question on clause 37 relates to subsection (2). I wonder why the words 'an appeal under this section may only be instituted by or on behalf of the person to whom the determination relates'—or is that just another part of the consistent drafting of this?

The Hon. J.J. SNELLING: We could probably take the words 'on behalf of' out if that would help the member for Heysen.

Clause passed.

Clause 38.

The Hon. I.F. EVANS: With the judicial review, how is that set up and who sets the rules for it? For instance, would it be possible for the authority to put terms of reference on the judicial review that favours the authority? How are the rules for judicial review set?

The Hon. J.J. SNELLING: No. Judicial review is an inherent jurisdiction of the Supreme Court and it is governed by the common law and the rules of the Supreme Court. I just wanted to sound erudite on Hansard.

Mrs REDMOND: I want to clarify the effect of clause 38 subclause (7). Running through it quickly, subclause (1) allows a participant in the scheme to apply to have an assessment of the authority about their treatment, support and care needs, and there are rules about how they can format that. It is to be made within 28 days after they are given notice of the assessment. On a review, the expert panel can either confirm or vary it, but subclause (7) goes on to say:

A decision or assessment of an expert review panel under this section is final and binding for the purposes of this Act and any proceedings under this Act.

Does that then preclude the participant taking some sort of appeal to the District Court, or some other place, in relation to a determination? If they are not satisfied with the original determination about their treatment, care and support needs, the expert panel, which is medical people, makes the determination—and it could be just one doctor who makes that determination under the rules set out in the schedule for expert panels. That one doctor's decision is final and binding and there is nowhere for the participant to go if they are aggrieved with that doctor's decision.

The Hon. J.J. SNELLING: The member for Heysen is essentially correct. A person cannot go to the District Court for a review of the merits of the decision—that is correct.

Mrs REDMOND: So, what then is the purpose of the provision in the earlier clause 36 that we were talking about where you have set up these review panels? There is a provision then in clause 37 for appeals to the District Court in relation to that medical decision. Why then, with the review of assessments, is there no capacity to review that? What is the rationale?

The Hon. J.J. SNELLING: You can go to the District Court and appeal your eligibility for the scheme but, having been accepted into the scheme, you cannot appeal to the District Court on what your assessed needs are.

Mrs REDMOND: So, theoretically, you could be accepted into the scheme with a catastrophic injury, and a single doctor can make a determination that your needs are well below what any reasonable person might determine, and you have got nowhere to go.

The Hon. J.J. SNELLING: If that was to happen, then you could go to the Supreme Court on the question of a reasonable person, on the basis that it was so unreasonable, and that would be on the grounds of process.

Clause passed.

Clause 39.

The Hon. I.F. EVANS: I just want to understand how this clause works. This is a clause that allows bulk billing agreements with the authority for public hospitals, private hospitals and the like. Am I right in saying that the Minister for Health will negotiate rates to be charged to the authority for services on behalf of the health department and will reach a written agreement with the authority about the level of charges that the authority will pay for services to those participants? Is that how it works for the public system?

The Hon. J.J. SNELLING: It would be by mutual agreement, obviously. The authority would have to agree to the charges we are attempting to impose.

The Hon. I.F. EVANS: Okay. So, can the Minister for Health charge a rate that allows the health department to make a profit if the authority agrees to accept that rate?

The Hon. J.J. SNELLING: I have never known the health department to make a profit but, in theory, yes, there could be an attempt by the department to, sort of, price gouge, but I think it pretty unlikely. In any case, the authority would have to agree. The authority has its own independent board and I cannot see the authority agreeing. In any case, the health budget is $5.5 billion. The amount of money that potentially could be made out of charges to the authority is absolutely tiny. It would be done, I would expect, purely on a cost recovery basis.

We have similar agreements with private health cover as well where the private health insurers issue what they are prepared to be billed by the Department for Health. I can assure the member for Davenport that the upper hand is generally with the private health insurers, not with the Department for Health.


[Sitting extended beyond 17:00 on motion of Hon. J.J. Snelling]


The Hon. I.F. EVANS: If the authority and the Minister for Health—or any of the other entities with which the authority has the power to make agreements regarding costs—cannot agree, is there an appeal mechanism or an independent arbiter to set the price?

The Hon. J.J. Snelling interjecting:

The Hon. I.F. EVANS: What happens if you have a block of people who say, 'We are just not going to accept this bargain basement price' and the whole profession, as a protest, steps out—

The Hon. J.J. Snelling interjecting:

The Hon. I.F. EVANS: Well, I am just saying that this can happen. It happens. People do withdraw their labour. Look at the salaried medical officers who have, on occasion, had very difficult negotiations with the government. Given that it is such a specialist field, you could get a narrow field of specialists to say, 'Here's our chance to hold the fund to ransom.' If this fund is rock-solid guaranteed by the motorist, this fund can never go broke because the motorist is going to get levied forever, so it is no skin off the specialists' nose to hold out for a better price. All I am saying is: where is the independent arbiter that will set the price if there is a dispute about the price-setting mechanism?

The Hon. J.J. SNELLING: If you look at the next clause, clause 40, the minister has the power to set prices at the rate determined by the minister or by order published in the Gazette. That is covered under clause 40. But what I think the member for Davenport is getting at is individual doctors en masse withdrawing their labour. Firstly, there are consultants who are employed by public hospitals. They would not expect to receive a fee directly from the authority. Their fee would go to the hospital and the doctors would just receive their normal—

The Hon. I.F. Evans interjecting:

The Hon. J.J. SNELLING: Well, obviously, if there were no private providers, then the public health system would be the default for the authority to go to. However, I do not see it really working that way. I think it is more likely that, in the event that public hospitals were not able to provide the consultants provided by the authority, private providers would be there ready to step into the breach.

Clause passed.

Clause 40.

Mrs REDMOND: Again, I want to clarify what the import of this clause is. The section applies to payment for the treatment of participants in the scheme at public hospitals and for conveying participants by ambulance and then for payment for any medical or dental or rehabilitation services provided to participants in the scheme where they are not already under a bulk-billing agreement.

I am curious. First of all, rehabilitation services as well as dental treatment get special mention in this clause but not under the bulk-billing arrangements clause which preceded it. Rehabilitation was the goose that laid the golden egg under the WorkCover scheme, and that is a large part of where the money has gone under WorkCover. Indeed, if the minister wants to clarify that, he might talk to one of his fellow members on that side who has a very close association with someone who has made quite a lot of money out of the rehabilitation provisions under the WorkCover scheme.

The Hon. J.J. Snelling: So nasty, Isobel, so personal.

Mrs REDMOND: There is good reason for that. The rehabilitation services and other things which are not covered, I take it that whatever the current rate is being charged by these rehabilitation providers under subsection (2)—and as I said, it was the goose that laid the golden egg; it is where a lot of the money has gone from WorkCover—whatever the current going rate is for rehabilitation providers is going to be the amount that the authority is going to pay out under clause 41.

The Hon. J.J. SNELLING: Under subclause (2)(c), it states that the rate referred to does not apply:

...at the rate reasonably appropriate to the treatment or service having regard to the customary charge made in the community for the treatment or service.

That is the default.

Mrs REDMOND: Under subclause (3), I note there is no provision for the time in which the authority is to make payments. Given the health department's recent record that was adverted to in question time today, is the authority going to be bound by any government rulings as to the timeliness of payments of monies due to persons who are making claims against the authority under the act?

The Hon. J.J. SNELLING: It is done by Treasurer's Instructions. I think under Treasurer's Instructions, there is a period set out and, if my memory serves me correctly, it is 30 days.

Clause passed.

Clause 41.

Mrs REDMOND: I have a couple of questions here. In relation to subclause (1), could the minister explain what is meant by the provision at the end, after (a), (b), (c), (d) and (e):

but does not apply to any such treatment or service that is provided at a public hospital...for which any payment is required to be made to the hospital and not to the treatment or service provider.

Could the minister explain what is the intention of that particular provision?

The Hon. J.J. SNELLING: The Minister for Health sets the fees for public hospitals. The minister who has responsibility for the act, the ministerial responsibility for the authority, sets the other fees.

Mrs REDMOND: The provision of subclause (3) of clause 41 states:

The Minister may, by notice published in the Gazette...fix the maximum amount for which the Authority is liable in respect of any claim for fees to which this section applies.

Can the minister confirm that what is being talked about there is an individual claim for fees and not an intention for an amount to be set. For instance, to say you can have $2,000 worth of rehabilitation, or you can have X amount worth of treatment in a particular way, is meant to refer to simply an individual claim for a service which has been, or will be provided.

The Hon. J.J. SNELLING: The member for Heysen is correct.

Clause 41 carried.

Clause 42.

The Hon. I.F. EVANS: I just want to check—I am not sure whether this is the appropriate clause, but it is to do with the funds so, if it is not this clause, it will be one of 43 or 44. Is it possible for the Treasurer or the responsible minister to instruct the authority to take money out of the funds and into Treasury? So, for instance, if for some reason the fund ended up with a surplus, is it possible for the Treasurer, other than from recovery of loan funds, to take money out?

The Hon. J.J. SNELLING: My advice is no, the fund can only be applied towards those purposes which are spelled out in the act.

Mrs REDMOND: Under subclause (2), the fund consists of various things, and the first three are fairly obvious: the levies, the income and accretions, and money advanced by the Treasury. I assume that subclause (d) would refer to, for instance, moneys received by way of people buying in under the earlier provisions of I think clause 6, but I do not understand what the separate provision in (e) is for, and what other act might come into play from where other moneys might be available to be paid into the fund.

The Hon. J.J. SNELLING: The provision we are yet to come to, whereby WorkCover may decide to hand over the care of its catastrophically injured participants on the WorkCover scheme to the authority for the purposes of their management, is coming later. So, this is to provide for that.

Mrs REDMOND: But I thought that this scheme was going to be restricted to motor vehicle accidents and, for the most part, motor vehicle accidents, except if they are actually in the course of employment, are not going to be covered.

The Hon. J.J. SNELLING: No, there is a further provision in the bill under clause 55. There is a provision there for WorkCover to basically pay for catastrophically injured workers to be participants in the scheme.

Mrs REDMOND: I'm sorry I didn't have the time to read it before, but could the minister explain what the duty is that is imposed under part 3 division 11 of the Stamp Duties Act?

The Hon. J.J. SNELLING: This is a stamp duty that we are applying to the levy, and it is in schedule 2 of the bill.

Mrs REDMOND: Finally, on this clause, and hopefully it is self-evident, under subclause (4):

The Authority may invest money that is not immediately required for the purposes of the Fund as the Authority thinks fit.

I take it that the authority is at all times bound by Treasurer's instructions generally, and they can't just go next door to the Casino.

The Hon. J.J. SNELLING: Yes, that's correct.

Clause passed.

Clause 43.

Mrs REDMOND: I wanted to raise a question about this provision generally. The authority determines, before the beginning of each relevant period, the amount that the authority considers needs to be contributed to the fund. Then it goes on to say in subsection (1):

(a) to fund the present and likely future liabilities of the Authority under Part 4 [but only] in respect of persons who become participants in the Scheme in respect of motor vehicle injuries suffered during that period.

I take it that, regardless of what the financial status of the fund might be (and one might suppose that given what has happened with WorkCover it could be in dire straits), at any given time when it is making its decision as to how much the appropriate amount to be put into the fund will be, the only relevant consideration will be how much is going to be required for their assessment of the future treatment, as well as current treatment, of people who have had motor vehicle injuries suffered during that particular year.

The Hon. J.J. SNELLING: Subclause (1)(d) provides for the funding of any other liabilities arising from earlier claims.

Mrs REDMOND: In other words, if the fund does get into the sort of situation that the current WorkCover scheme is in, its solution can be, 'We need more money so we are going to impose a massive levy on all the people in this state who register any vehicle, because we have mismanaged the fund'?

The Hon. J.J. SNELLING: The answer is: yes, of course. If the authority was to get into some sort of financial trouble and find itself with an unfunded liability, of course it would be open to increase the levy in order to fund the cost of any unfunded liability. Naturally, you would not prevent the authority from doing that. There are some restrictions, obviously, on what the authority can do, and they are covered in subclause (4), which says:

The Minister must, on receipt of a report under subsection (3) and after taking into account such matters...as the Minister thinks fit, after consultation with the Treasurer, determine an amount that should be paid to the Authority for contribution to the Fund for the relevant period.

So, there is some ministerial exercise of authority over the ability of the authority to do this.

Mrs REDMOND: I take it that the effect and import of such subclauses (4) and (5) combined is that, when the minister makes such a decision, the minister is not bound by what the authority has suggested and, indeed, the only recourse for the authority, then, is to say, 'It's in our annual report that the minister didn't accept our advice.'

The Hon. J.J. SNELLING: Yes, and, ultimately, the minister would be accountable for that.

The Hon. I.F. EVANS: What time of year will the levy amount be set?

The Hon. J.J. SNELLING: It will be set from 1 July, like our current CTP premiums. The determination would be made a month or so before that.

The Hon. I.F. EVANS: As I understand the way this fund is going to work, the scheme is going to calculate for the levy period, which is 12 months. The authority will calculate, based on actuarial advice, the injuries that have occurred in that 12 months and the whole-of-life costs of those injuries, and then the levy will collect enough money to fund the whole-of-life costs for the injuries occurring in that 12-month period, the prescribed period?

The Hon. J.J. SNELLING: Yes, that is correct.

The Hon. I.F. EVANS: If the authority gets it wrong and, five or 10 years down the track, you are outside that prescribed period for those injuries, what clause allows the authority to then go back in and recalculate the whole-of-life costs for those injuries that are then outside the prescribed period? The prescribed period every year is simply the 12 months.

The Hon. J.J. SNELLING: If you go back to subclause (1)(d), the provision there enables the authority to provide for any past liability that would otherwise be unfunded.

The Hon. I.F. EVANS: How is a future cost a past liability?

The Hon. J.J. SNELLING: All unfunded liabilities are future costs; that is the nature of an unfunded liability. The unfunded liability of WorkCover is the net present value of WorkCover's future liabilities over a period of time.

Mrs REDMOND: I want to clarify the meaning and intention of subclause (7). 'Relevant period' is defined above that subclause as a financial year or such other period as the minister might decide, but subclause (7) provides:

(7) relevant periods can be determined so as to overlap but there must be no gap between successive relevant periods and each relevant period must be no longer than 12 months.

I am at a loss to understand that, if a relevant period can be no longer than 12 months, how you are going to get an overlap at any time. I am curious as to what is the purpose of the provision and whether it has any bearing on the subsequent clause about the levy and the payment of levies. What I want to explore, obviously, is whether it is possible for there to be a situation where you end up paying a levy for a period of 12 months, and then you can have another period that overlaps that and you are paying for another period of 12 months, but you have an overlap. So, effectively, for at least part of it, you are paying for more than one levy.

The Hon. J.J. SNELLING: Working backwards for the member for Heysen, and this is about the setting of the levy, a person is going to pay the levy for a period of time, and that is all they are going to pay for that period of time. So, you get your car registration and you pay it; that covers you for the 12 months or the three months you have paid it for. This is only about the setting of the rate.

This clause has been taken from the New South Wales legislation. There may be something extraordinary happen where the authority may need to change the levy after a period of less than 12 months, or indeed the initial period. If it was not to be brought in on 1 July and we wanted to do on a financial year basis, you might need a period there of three months to bring it up to 1 July. That is why the option is there for setting the levy for less than 12 months, but generally we would expected it to be 12 months.

Why there is the potential there for overlap, I am not sure. I do not know why that is provided for in the New South Wales legislation. I cannot imagine why you would have any period of time where there are effectively two different levy rates. So, it would always be successive.

Mrs REDMOND: I understand that, if you did not start it for three months after the commencement of the financial year, your first year is going to be a nine-month year instead and you will go to 30 June on a regular basis. I understand that. From the first part of the minister's answer, is it the case that if there was some problem with the fund and it was in significant financial strife, it could actually change its set rate part-way through the year and say, 'Okay; if you have renewed insurance for the year you will have it at the rate we declared back from July to December, but we are now going to change the rate and we are going to declare a different rate from now until the end of the year.'?

The Hon. J.J. SNELLING: If you have paid for your 12 months, you have it for 12 months. The authority cannot go back and say, 'You did not pay enough and we are clawing it back.'

Mrs REDMOND: That was not the intention, but if you have only paid for six months.

The Hon. J.J. SNELLING: That is right. It could not happen. You pay for the period of time and you are covered for that period of time. If there was a circumstance in which a new rate was set, it would be only applicable to people taking out their car rego from that period of time.

Mrs REDMOND: So if you are part of the poorer part of the community, for instance, who it is only paying your rego on a three monthly basis, you could be caught by that provision?

The Hon. J.J. SNELLING: Caught, perhaps, but I think it would be particularly unusual for that to happen. The way these funds work and the way a MAC fund is done, there is considerable buffer provided for any unforeseen events, including movements in the markets, and so it would be very unusual. I do not think it would ever have happened in MAC's history—or indeed WorkCover's history—that they have had to go and change the rate of the levy in a period of less than 12 months.

The Hon. I.F. EVANS: Just on the levy, and maybe this is the clause to do it, the government has put certain figures in its second reading speech about the number of people covered, but of course no clause refers to that because the scheme is not up and running yet. I am just trying to work out the $105 levy that under the government's model comes into place on 1 July 2014. That is based on how many participants being in the scheme?

The Hon. J.J. SNELLING: Thirty-seven.

The Hon. I.F. EVANS: So in the first year of operation the budget is for 37. When the second reading speech refers to 41 and refers to a figure of 40 per cent not being covered by Motor Accident Commission insurance, in other words, being outside of the scheme totally, is the 40 per cent 40 per cent of 41, or is it 40 per cent of a higher figure that brings the figure back to 41, meaning 41 are outside the scheme? If there are 41 people catastrophically injured—

The Hon. J.J. SNELLING: There are 41 people; 40 per cent. Just to clarify, the 41 was based on earlier modelling by the Productivity Commission. Our advice is now 37, so 37 is the updated figure. We would expect that 40 per cent of that 37 would otherwise not be covered under the old scheme. Forty per cent would not have a fault-based claim to pursue.

The Hon. I.F. EVANS: Okay. My understanding of the second reading or the answers given in response to my questions—that were sent to me the night before we began this debate—was that there were 20 people outside of motor vehicle accidents and outside of work accidents and outside of medical accidents. I think I called them the divers and the horse riders; there were 20 people outside of those schemes who ended up catastrophically injured and who are not being covered by this scheme.

Am I right in saying that the 37 people to be covered by this scheme are costing a levy of $105, and would I be right in saying that the extra cost to cover the 20 other people would be around $57? In other words, you divide the $105 by 37, get a per person figure, times that by 20 and that it is your extra cost. For an extra $60 a car we could cover everyone in the state—am I right in saying that?

The Hon. J.J. SNELLING: I am not sure it would be as simple as that—I could go back and have a look—but there is a point of principle here that the purpose of taking out motor vehicle compulsory third party insurance or, indeed, the payment of this levy, is to cover yourself or anyone else who may be injured in an accident involving your motor vehicle. If the member for Davenport wanted to pursue this and, indeed, in the future the government does decide to proceed with the national injury insurance scheme, that would have to be done by a broader levy applicable to the broader population.

It would not be equitable to fund a broader scheme from, essentially, a tax just on people who register motor vehicles. That would not be an equitable way to go. You would be taxing a relatively small base for the benefit of a very large number of people. If you wanted to pursue that, and I think there is some merit in pursuing a no-fault based scheme to cover anyone catastrophically injured, but it would have to be funded from a levy across a broader population. You would not be able to just do it on motor vehicles.

The Hon. I.F. EVANS: That may well be true, minister, but let me establish something. You said, 'if the government was committed', and my understanding is that the government has agreed and is in negotiations with the federal government about a national injury insurance scheme, which is to cover everyone, and this is the first step. My understanding of the briefing given to me was that it is the intention of the federal government and all state governments to introduce a scheme to cover what I would call the 20—that classification—but there is no agreement yet as to how that is going to be collected or paid for.

One thing that has been agreed, the whole cost of that is going to be borne by the state and not the federal government. So, the state government is in negotiations about how it might work, but my understanding is that there has already been an agreement that that scheme will be paid for wholly by the state government.

The Hon. J.J. SNELLING: It is the federal government's intention but no formal agreement has been entered into.

The Hon. I.F. EVANS: So, with the 37 people who cost $105 a car, and there are roughly 1.3 million vehicles so, therefore, the total cost of the first scheme is going to be around $135 million to $140 million, which is 105 times 1.3 million in round figures. Would it not be a reasonable estimate of the cost to divide 136 by 37 then times it by 20 to get the cost (including the cost to the state)—whether through this levy, or some other mechanism—of the coverage for that extra 20 people?

The Hon. J.J. SNELLING: I do not think you could have any confidence in a quick back of the envelope calculation for this. I should also point out that there are also medical catastrophic injuries, of which there is approximately six a year, some of whom have the ability to sue for medical negligence, and some of whom do not, so the figure is slightly higher than 20. The other thing is that it depends on the nature of the injuries. The injuries may vary depending on the nature, so there is any number of different permutations and combinations which would vary that.

I go back to my original point. If the member for Davenport is advocating that, for relatively little extra money we could broaden the coverage of this scheme—and I think this is what he is getting at—I would not agree with that because I do not think it would be an appropriate way to raise such a levy because the levy is only paid for by the people who register motor vehicles. The sort of thing which the member for Davenport is talking about is a much broader scheme which would be able to be accessed by far more people.

The Hon. I.F. EVANS: Okay, so with the six people in the answer given to me earlier who became catastrophically injured through medical reasons, and you argue that some of those cannot sue—well, who can't they sue? One would assume that medical reasons would include an operation or a medical procedure.

The Hon. J.J. SNELLING: There may not be any negligence.

The Hon. I.F. EVANS: Can the minister between the houses give me the number of people the government believes fall into a category of not being able to sue out of those six? I am trying to calculate what is the extra cost for the broader coverage of the scheme, and there must be a figure somewhere within the government's calculations. The other question I have on the levy is—

The Hon. J.J. SNELLING: I will just answer that question first. Of the six, PricewaterhouseCoopers estimated that the split is three and three: three would have a claim and three would not.

The Hon. I.F. EVANS: Out of the four answers I got—the motor vehicles, work, medical and others—would I be right in saying that there would be 23 that are not covered by insurance, workers comp or this scheme?

The Hon. J.J. SNELLING: No, there would be 19: four of the 20 under the general category have an action that they can pursue and, likewise with medical, three of the six have an action they can pursue. A no-fault based scheme would pick up all these people, not just those who otherwise would not have an ability to pursue a claim. So, the scheme, because it is a no-fault based scheme, would pick up all those people.

The Hon. I.F. EVANS: What is the total number of those people?

The Hon. J.J. SNELLING: Twenty-six.

The Hon. I.F. EVANS: If the government wanted to design an add-on to this scheme that covered people who did not have an action, it would be 19; would that be right?

The Hon. J.J. SNELLING: Sorry, could you say that again.

The Hon. I.F. EVANS: If you wanted to bolt onto this scheme, just for people who otherwise do not have an action, that would be 19. Is that the advice from the government?

The Hon. J.J. SNELLING: That is the advice from PWC dating back from 2005.

The Hon. I.F. EVANS: In the calculation of the $105 levy, what was the level of sufficiency of the fund that PWC used? The Motor Accident Commission has an 85 per cent sufficiency, WorkCover has 80 per cent, and WorkCover has a 65 per cent or 60 per cent sufficiency rate, and does the level of sufficiency rate impact on the levy?

The Hon. J.J. SNELLING: Under the act, the minister with responsibility for the authority may apply a sufficiency requirement. As to the $105, and the sufficiency requirement that has been presumed in the calculation, we will need to get back to you.

The Hon. I.F. EVANS: What is the impact of the sufficiency rate on the levy, if any?

The Hon. J.J. SNELLING: It will have an impact; I am not sure what the proportions are.

Clause passed.

Clause 44 passed.

Clause 45.

The Hon. I.F. EVANS: Can you just explain to me if there is any difference between what is proposed for the recovery of payments in respect of vehicles under this provision and what currently exists within the Motor Accident Commission Act?

The Hon. J.J. SNELLING: In practical terms, I am advised it should operate in the same way.

Mrs REDMOND: I just want to clarify and put on the record how that is going to operate. Under subclause (1), the authority can recover in respect of the liability incurred for an accident where the vehicle that caused the accident essentially was not registered in South Australia. The person they can sue, under subclause (5), is either the owner and the driver—

The Hon. J.J. SNELLING: Or the driver.

Mrs REDMOND: No, under subclause (5) it is 'the owner and the driver jointly or either of them severally.' There is a provision under subclause (6) that they can go against the owner only if they can show that the driver was driving without the owner's authority. But, for instance, if it is the case that someone in New South Wales lends their car to their child, who drives to South Australia, perfectly legitimately, and that car is then involved in a motor vehicle accident here causing catastrophic injury to someone who is on the scheme then, as I understand it, this clause enables the authority to sue the owner of the vehicle, having given authority to their child to drive the vehicle, and the only protection they have—as is the protection that drivers here have—is the fact that they are, indeed, insured and that their equivalent of MAC would cover them. Am I correct in my reading of that?

The Hon. J.J. SNELLING: Yes, you are correct. They are indemnified by the New South Wales insurance scheme in those circumstances.

The Hon. I.F. EVANS: Under this clause, there can be recovery against the owner in relation to the vehicle not being insured, which is attached to its registration, obviously. I see no provision in here that provides an excuse for the driver who might have genuinely believed his vehicle was insured. For instance, now we do not have discs, so the driver might have gone onto the website of the government and checked that the vehicle was insured, and it says it is, only to discover after the accident that there had been a clerical error and it was not insured. There does not seem to be a protection for me in there. There does not seem to be a protection in there anywhere for a owner who genuinely believed that his vehicle was insured and registered.

The Hon. J.J. SNELLING: If they were sued, and the person offered as a defence that they had reasonable grounds to believe that they were insured and they were not—

The Hon. I.F. EVANS: It does not provide it as a defence in the clause.

The Hon. J.J. SNELLING: It does not need to provide a defence because, if you were pursued by the authority because your vehicle was uninsured and you had reasonable grounds for believing it was, then you would offer that up to the court as your defence.

The Hon. I.F. EVANS: Yes, but they offer that defence for the driver in this clause; they do not offer it for the owner. I can understand why they offer it for the driver because the driver might have said to the owner, 'Is it insured?' So, I can understand why they offer it for the driver, but I see no reason why that defence should not be spelt out in the provision for the owner. I will ask the minister to consider that between the houses.

The Hon. J.J. SNELLING: I am happy to have a look at it between the houses.

Clause passed.

Clauses 46 to 51 passed.

Clause 52.

Mrs REDMOND: I want to explore the intention of this part. It basically says that if a person is a participant in the scheme, they have to give at least 28 days' notice before leaving Australia. I do not understand whether the 28 days' notice is crucial. I understand from subsection (2) that it can be lessened. Is it the intention that there will be an automatic suspension of entitlements under the scheme if someone leaves the country for more than 28 days? I raise this question because of a case I dealt with some years ago, where a particular person who had suffered what would clearly be a catastrophic injury under the current legislation went overseas for an operation hoping it was going to lead to spinal improvement.

It seems to me that there is a possibility, at least in the future, that we could find that there is some available technology or treatment overseas that someone may wish to avail themselves of. If a person leaves Australia, particularly looking to go overseas to seek treatment that could potentially cure a significant part of their catastrophic injury, is it the intention that their entitlements under the scheme will be suspended whilst they are out of the country?

The Hon. J.J. SNELLING: It is 28 days' notice which is required if someone goes overseas. There are two reasons for that. One would be just to provide the authority the ability and the time in order to make arrangements for that person's care while they are overseas. But there may be circumstances where a person, if they were to move overseas forever or for an extended period, may well be suspended from the scheme. This is simply because of the expense that may be involved in providing for a person's care if they have decided to live overseas on a long-term basis.

Mrs REDMOND: Is that the intention of the legislation? In a situation, for instance, where someone could have a catastrophic injury but might have immediate family members overseas and therefore their living arrangements may be not only more comfortable for them but cheaper for the authority, is there an intention to withhold the benefits of the scheme, particularly in light of the very next clause which talks about the extraterritorial operation of the act?

The Hon. J.J. SNELLING: No, it is not the intention, but it is a discretion that the authority would have. If I am catastrophically injured and decide I want to see out my days in Tuscany, the authority may decide that that is not an expense it is willing to incur. The discretion is up to the authority but, as the member for Heysen points out, if it is more cost-effective for me to go and live overseas, then the authority would have the discretion to continue payments for my care. What this really just provides for is that adequate notice is given to the authority so that it can make the necessary arrangements.

Clause passed.

Clauses 53 and 54 passed.

Clause 55.

The Hon. I.F. EVANS: For the sake of getting it on the record, how does this impact on those injured through self-insured people that are not under the WorkCover system itself but are injured through being an employee of an employer who is exempt from WorkCover through being self-insured?

The Hon. J.J. SNELLING: Yes, it would be possible but it would require the agreement of the self-insurer to enable it to happen because the application is made by WorkCover. So a self-insurer who had a liability for someone with a catastrophic incident would have to make the application basically through WorkCover and presumably the payment would be to WorkCover and WorkCover would then make payment to the authority.

Clause passed.

Clause 56.

The Hon. I.F. EVANS: I note the rules (which are a disallowable instrument) are ultimately recommended to the Governor directly from the authority and not through cabinet. The way I read it, it says:

The Governor may, on the recommendation of the Authority, make rules.

The Hon. J.J. SNELLING: Under the Acts Interpretation Act, the Governor here means the Governor in Executive Council, so the regulations have to go through cabinet, to go through executive council, to go to the Governor. The authority cannot just write a letter to the Governor, no.

Clause passed.

Clause 57 passed.

Schedule 1.

Mrs REDMOND: The establishment of the expert review panels, which is dealt with in provision 2 of the schedule has the ability to have a list of experts appointed by the minister, effectively. Subclause (4)(d) of section 2 within the schedule reads:

The office of a person appointed under subclause (2)—

that is, one of the people on the expert panel of medical practitioners—

becomes vacant if the person resigns...is removed from office—

and so on; and the fourth one there reads:

(d) in the case of a person who has been a health professional—ceases to be registered under the Health Practitioner Regulation National Law;

I am not familiar with the Health Practitioner Regulation National Law, but it would seem to me that there would be many retired, particularly recently retired medical practitioners, who would probably be ideal participants in medical expert panels. They would sometimes have 40 or more years' experience in their dedicated field. They choose not to keep up their insurance and remain registered because it is a very expensive thing for medical practitioners to do now. My question is: does that provision prevent those people from being capable of being on a medical review panel?

The Hon. J.J. SNELLING: There are two answers to your question. I need to check, but I think that under the national law there is a form of limited registration where the insurance requirements are not as stringent as for a normal practising doctor, a medical practitioner. Secondly, there is provision earlier in the act for regulations to be made for a person who is brought within the ambit of this by the regulations. There is a provision there for the regulations to be expanded, so a retired doctor, as described by the member for Heysen, could be included.

Mrs REDMOND: I just hope it means that they do not have to have any insurance for it, given the other provisions about their protection. I have noted already in my earlier comments the fact that the panel could indeed consist of just one person. Under clause 6 of schedule 1, which is the powers and procedures on referral, 'powers' seemed to be an odd title to give it, inasmuch as clause 6(1) states that 'an expert panel may ask a relevant person', but there seems to be no capacity to compel or, for instance, to subpoena or do something equivalent to a subpoena.

I just wanted to confirm that my understanding is correct, that for an expert medical panel, whilst it could request people to attend and ask all sorts of questions and there is provision for it to be in private and so on, there is no compellability about any request they make for the purpose of their determination.

The Hon. J.J. SNELLING: No, there is no ability to compel.

Mrs REDMOND: My last question on schedule 1 relates to the support staff and facilities. There is a general provision under subclause (8) that states that the minister has to ensure that there are such administrative and ancillary staff as are necessary for the proper functioning of the expert review panels. Can the minister give the committee any indication as to the overall costs of the administration of the scheme?

I intended to ask this question earlier on the levy provisions, and part of the levy, of course, is to provide for the administration of the scheme. What are the overall costs of the administration of the scheme anticipated to be (and it may be a percentage rather than an absolute amount) and what are the likely costs of the facilities for the medical review panels?

The Hon. J.J. SNELLING: Based upon the New South Wales experience, we would expect that of the $105 levy about $7.50 would be towards the administration of the scheme, and that would include the cost of the review panels.

Schedule passed.

Schedule 2.

The Hon. I.F. EVANS: Schedule 2 sets out this new 100-point system just for motor vehicle injuries as under the Civil Liability Act. The new bill sets out a 100-point provision for injuries under the Civil Liability Act just for motor vehicles, so it creates a special class of points system for the motor vehicles. Why does the government believe that an injury that occur under the Motor Vehicle Act—if it was exactly the same injury that occurred under any other provision outside the bill—should be treated differently on an injury scale?

The Hon. J.J. SNELLING: Simply because other injuries are compensable under the common law and these are injuries that are compensable under a compulsory insurance scheme.

The Hon. I.F. EVANS: But the point I am getting at is not how they are treated. If I had exactly the same injury in a motor vehicle and the same injury outside of a motor vehicle, why should the courts have to look at a point system that allocates me a different point score for the scheme outside of the motor vehicle injury as distinct from inside the motor vehicle injury? Is it not the case that this new 100 points system is simply nothing more than a way of trying to reduce the cost of the scheme?

The Hon. J.J. SNELLING: Yes, it is a way of trying to reduce the cost of the scheme, without doubt, and to ensure consistency across similar injuries and similar accidents. That is the purpose of it.

The Hon. I.F. EVANS: But only consistently in similar motor vehicle accidents?

The Hon. J.J. SNELLING: Indeed.

The Hon. I.F. EVANS: Has the minister or the agency done the costing of what the levy would be if the parliament decided to reinstate the 60-point provision into this bill? If we maintain the 60-point provision, what would be the cost impact on the scheme?

The Hon. J.J. SNELLING: It would be significant, because there is not only the shift from 60 points to zero to 100, there is also a difference in the way the bands work and what is compensable under the different bands. It is all one whole package. I would not be able to give you a figure for the change from zero to 60 to zero to 100.

There is also the way it works, with the fact that the zero to 100 has the AMA guidelines as its underpinnings, what is compensable within different bands, the whole gamut. Without doubt, if you did not have the zero to 100 and if you tried to introduce this scheme just with the existing zero to 60 points scheme and none of the other attendant tort law parts of these reforms, the cost of compulsory third party would be significantly more expensive rather than less expensive.

Progress reported; committee to sit again.


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


PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT