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Legislative Council - Fifty-First Parliament, Second Session (51-2)
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WORKERS REHABILITATION AND COMPENSATION (SCHEME REVIEW) AMENDMENT BILL

Committee Stage

In committee (resumed on motion).

(Continued from page 3196.)

Clause 69.

The Hon. P. HOLLOWAY: I have some information for the committee. The Hon. Mark Parnell raised some issues yesterday and this morning, as did the Hon Ms Bressington. During the course of debate on this bill I indicated to certain members that I would obtain information and advise the committee accordingly. The Hon. Ann Bressington asked about legal costs incurred by WorkCover, and there was a specific focus on disputes around rehabilitation. I am advised that total legal costs for 2006-07 were of the order of $10.7 million, a reduction from the 2005-06 cost of around $14.4 million. I am further advised that in terms of dispute numbers rehabilitation-related disputes account for approximately 3 per cent of total disputes.

Secondly, on the issue of loss of earning capacity, the Hon. Mark Parnell asked when the use of the loss of earning capacity assessment ceased. I advised the committee that it was around 1996 or 1997, but I have been advised that it was in fact 1996. At the time, in consultation with the then minister (Hon. Graham Ingerson) WorkCover issued a policy directive to its agents that those provisions no longer be used, except for claims already paid by that method.

I am advised that self-insurers must notify WorkCover of an intention to make a LOEC assessment, and WorkCover has the power to direct them on how to do so and, consistent with the approach taken by WorkCover, self-insurers are not using the provisions. As to property damage costs, the Hon. Mark Parnell asked a question about claims for property damage. I am advised that the payments made in regard to claims for property damage under section 34 appear to be very small. In the limited time available, a report has been run against the specific section 34 cost code in the WorkCover database. In the financial year ending 30 June 2007, costs amounted to around $1,150; for financial year 2006 around $2,560; and, for year ending June 2005, about $4,000.

The Hon. Mr Parnell asked about the contribution self-insurers make to the funding allocated to SafeWork SA. I am advised that self-insurers contribute to the funding provided to SafeWork SA by WorkCover, given that this is considered to be an administrative cost under section 68(7)(a). The Hon. Mark Parnell inquired about redemption activity, and I advised that there had been a rise in redemption numbers in the June 2006 quarter. I undertook to advise the committee of redemption numbers for the past several financial years, and I seek leave to insert in Hansard a statistical table outlining those redemption numbers.

Leave granted.

WorkCover date: Redemption numbers by financial year to 30 June 2007

Financial Year Number of redemptions
1995-96 1,897
1996-97 2,224
1997-98 1,168
1998-99 1,277
1999-2000 923
2000-01 779
2001-02 830
2002-03 1,113
2003-04 505
2004-05 864
2005-06 1,436
2006-07 431


The Hon. P. HOLLOWAY: Members will see from the data that redemption numbers fluctuate over time and, as I advised the committee last night, there was an increase in activity in the financial year ending 30 June 2006.

Clause passed.

New clause 69A.

The Hon. M. PARNELL: I move:

Page 55, after line 3—Insert:

69A—Amendment of section 97B—Powers of Tribunal on application

Section 97B—after subsection (1) insert:

(1a) If—

(a) a worker applies to the tribunal for expedited determination of claim; and

(b) the medical evidence before the relevant compensating authority supports the claim; and

(c) the relevant compensating authority does not, within 5 business days after being served with notice of the application, seek additional medical evidence in relation to the matter; and

(d) the tribunal is satisfied that there appears to be no other reasonable grounds to dispute the worker's entitlement in relation to the claim,

the tribunal must decide the matter in favour of the worker.

This amendment tries to address the enormous difficulties faced by injured workers due to major delays by WorkCover and exempt employers in dealing with the valid issues that they raise. There are far too many stories of atrocious and unjustifiable delays by WorkCover—probably due to the very serious under-staffing of case managers—to ignore them. As I understand it, a major issue in terms of EML and delays is the extreme level of staff turnover in terms of case managers because, with such extremely high staff turnover, you cannot hang on to experienced staff who one would hope can deal with things quicker than the inexperienced staff.

As I understand it, in many cases—maybe even the majority—WorkCover will simply not accept the views of workers' doctors and will require reports from WorkCover-selected doctors before making a decision. While I think this is an unfortunate approach, provided WorkCover gets on with it and requests such things quickly, this can probably be tolerated. But what I do not think we should tolerate is the common situation where, even when the worker goes to the Workers Compensation Tribunal about the failure of WorkCover to take action, it still does nothing until a day or so leading up to the hearing. That is the common story told to me by advocates for injured workers.

The common scenario is that a claim is made but nothing is done. The worker finally goes to the tribunal to force some action and the matter is listed for a time about two weeks later and, a day or two before the hearing is listed, the worker's lawyer gets a call from WorkCover saying that it will now make a medical appointment to get a second opinion. I do not think that is good enough. WorkCover goes on and on about the need to deal with these matters quickly, but the fact is that it does not. If WorkCover says that it is taking swift action on these matters then it has nothing to fear from this amendment, which I commend to the committee.

The Hon. P. HOLLOWAY: The government opposes this amendment as it believes that the current Part 6B of the Workers Rehabilitation and Compensation Act is a sufficient avenue of redress to injured workers. There is no substantial evidence that existing powers to seek an expedited decision has failed injured workers. The current provisions are also a balance in that they offer the same avenue of redress to workers and employers. If the proposed subsection was supported, there is no clear reason why the same power could not be granted to employers.

Importantly, the government has taken steps to significantly reduce the focus on determining and disputing liability through the introduction of provisional liability. This will allow the payment on claims to commence within seven days without needing to await claim determination. This is a further indication that this amendment is unnecessary.

New clause negatived.

Clause 70.

The Hon. M. PARNELL: I move:

Page 55, after line 24—Insert:

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

(a) the United Trades and Labor Council; and

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

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

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

I made the point late last night—and I think I made it again first thing this morning—that, of all the issues of importance in this bill, this was one of the big ones. This is the issue of medical panels. There is no doubt that the very large number of amendments has filled the government with dread. I do propose to move these amendments, but I will test the will of the committee on a couple of occasions. There are dozens and dozens, but I will concertina them. I do want to put some things on the record and ask some questions, because this is a key part of the bill. It is the part of the bill on which the legal profession has been the most vocal—as have other advocates for injured workers—because they can see built in to this medical panel system a great deal of unfairness.

This is one of the worst clauses in the entire bill. This clause is insidious, because it denies workers a fair go and cuts their benefits by stealth. The medical panel provision is a recipe for bad decisions, it is a recipe for wrong decisions and it is a recipe for injustice. The clause creates a star chamber, where injured workers are paraded in front of three to five doctors with no right to have a support person with them, no right to representation and no record of what takes place.

Under the bill, panels of doctors will make binding, final and conclusive decisions not only on genuine medical matters but also on legal and factual matters for which they have no qualifications or expertise to decide. In practice, workers will have to meet a far higher standard of proof than is legally required, as doctors are trained to use and think in a medical standard of proof (which may be considered something more like a 99 per cent probability) as opposed to a civil legal standard (which is simply more likely than not).

In practice, workers will have little or no ability to challenge decisions that are wrong and unjust. Workers who are inarticulate or intimidated by formal examinations by a panel of up to five doctors are likely to be severely disadvantaged, as most likely they will not have anyone to speak on their behalf and they may not understand or even be able to articulate what is important. Some doctors have expectations about the levels of pain that workers should endure that are inappropriate, or an inadequate understanding of what is involved in manual work, and ill-informed and inappropriate views about those issues will lead to disastrous results for many workers.

Doctors are not trained or experienced in finding facts where there are disputes about facts. Doctors are not trained as decision makers or experienced in dealing with competing claims. There will be serious miscarriages of justice. There is no evidence that the Workers Compensation Tribunal is doing a bad job. We expect that for many injured workers their experience of medical panels will be very much like a star chamber.

The WorkCover proposal argued for medical panels on the basis that doctors, not judges, should make medical decisions and that medical panels would be quicker and more efficient. It is true that at present judges have to choose between competing medical opinions. However, in so doing, judges often have regard to the accuracy of the factual premises underlying doctors' opinions, a doctor's relative experience in the relevant area and a range of other factors.

Critically, decision-making on these issues by judges is completely transparent. The ludicrous definition of what is to be a medical question in the bill makes it clear that doctors will be deciding whether workers have the skills, qualifications and experience to operate highly specialised equipment, for example, in the mining industry. There is no good reason for defining questions, such as questions about what is suitable, as medical questions.

The efficiency claims by WorkCover are flawed or wrong for at least two reasons. First, to the extent that quicker outcomes are delivered, it will be very much a cheap and nasty system that puts more value on cheap and quick outcomes than correct and transparent outcomes. Secondly, to a very large extent, I understand that the existing level of disputation about medical issues is due to the decision by compensating authorities to seek opinions from doctors who are almost certain to generate disputes due to the predictable nature of the opinions they give.

The bill does not allow appeals from medical panels on the merits. Only appeals that show that the process was so badly flawed that the decision must be remade are allowed. Whilst it is not dealt with in the bill or in any of the published supporting material, it appears that the limited process appeal from decisions of medical panels will be to the Supreme Court using the ancient common law remedy of prerogative writs.

It almost goes without saying that Supreme Court litigation is expensive. It will deny workers access to justice and, in practical terms, will mean that medical panels can operate very much as a law unto themselves, with reviews of their decisions most likely occurring when employers or compensating authorities are dissatisfied, and that will, over time, develop a body of law that cracks down on decision-making against employers' interests but gives medical panels almost free rein to make decisions against workers' interests.

Under the system, it will be almost impossible for lay advocates, such as union workers and compensation officers, to represent injured workers in appeals against medical panel decisions.

There are no filing fees at present for any applications or appeals within the Workers Compensation Tribunal. The filing fee for the limited process appeal against a medical panel decision appears to be $1,075, which I expect will be a major barrier for injured workers seeking access to justice but not any substantial impediment to compensating authorities. It appears that, unlike the courts and the Industrial Relations Commission, whose rules may be disallowed by parliament, there is no parliamentary supervision of the way in which medical panels operate, which is governed by ministerial guidelines and directions from the convenor of medical panels.

The bill defines a medical question that may be compulsorily referred to a medical panel in an absurdly broad way which means that, inevitably, doctors will have to make decisions about facts where there are disputes about what happened, what a particular job involved, and so on. They will also have to make decisions about what the law is. They will have to engage in speculation about what may happen in the future. They will have to decide what reasonable obligations on workers are in rehabilitation plans.

Whilst there are many doctors to which the following comment does not apply, there are likely to be some doctors who have very little or no insight into the experience of injured workers. Some may say the same of judges. At least when a court makes a decision on these matters injured workers can have someone speak on their behalf and, if the court gets it wrong, the worker can appeal on the merits.

I understand that some employers and, certainly, some employer advocates are also very concerned about this proposal as they believe that it will result in very poor quality decision making. Unless the medical panel orders otherwise, any worker called before a medical panel must appear in private, without anyone else there to support or represent them. I am told that doctors preferred by compensating authorities are extremely resistant to having anyone attend with workers that they are to examine, and I would expect that practice to continue under the medical panel system.

Even if support people were allowed, without an advocate to make sure that the right questions are asked there can be no confidence in a fair outcome. As I understand it, there will be no record of any proceedings or examination, whether by video or transcript, available to the worker to allow them to establish that what they said was not properly taken account of. The decision making of medical panels will be placed under a cloak of secrecy, largely denying workers the ability to overturn wrong decisions. If the very limited procedural appeal right is used, no member of the medical panel or any consultant they choose to use can be compelled to give any evidence about how or why they came to their opinion.

So, under this bill, when a person is hit by a car and there is a dispute about the compensation they should receive because they were hurt as a result of reckless driving, it is okay to have doctors give evidence to a court to have the judge make the decision and to have the proper appeal rights but it is not okay if a person is hurt by a negligent employer. So, once again, this government has double standards, and those double standards mean making injured workers second-class citizens.

The government likes to say that it is tough on law and order. The fact is that it is much tougher on injured workers than it is on criminals. But where there is no question that a person has done the act of committing a crime but they say they are not mentally fit to stand trial, is it a medical panel that decides whether or not that is right? Of course not. It is a judge who makes those decisions. They hear evidence from medical experts and make decisions. If they get it wrong, there can be an appeal. The bill takes that away from injured workers. It forces a more arbitrary and unfair and less transparent system on injured workers than criminals have to deal with.

The bill sends a clear message that the government wants a tougher system to apply to injured workers than applies to criminals, and that is the type of double standard of this medical panel proposal. That is why the SDA, the ETU, the AMWU and the FSU were so critical of the panels. They said, in a submission that most members would have received, that this proposal should be scrapped. They raised all the issues that I have raised before in my summary.

The Law Society has also been very vocal in relation to panels. It said:

The proposed introduction of medical panels is a matter of considerable concern. The Law Society has taken a strong position opposing the introduction of panels. The principal reason for this is that the definition of 'medical question' is so broad. The fact that they are used elsewhere in Australia does not legitimise them if there are cogent reasons why they should not be adopted.

While the Law Society acknowledges that medical practitioners are best placed to determine medical matters—that is what they are trained for—we do not accept that medical practitioners are in a better position 'to determine the medical matters of a claim' than trained judicial officers. Two points can be made on this: first, we are dealing with a specialist jurisdiction containing judicial officers who have had many years experience in dealing with medico-legal claims and disputes. Their training and experience has been focused on analysing and resolving disputes. We are here assuming that the first instance hearings will take place before deputy presidents rather than arbitrators. The second point, which is perhaps more important, is definitional: what is meant by a medical question?

In fact, the Law Society's submission goes on to deal with the material that I spoke about before. I will not read all of the Law Society's lengthy submission, but it does go to show the breadth of opposition to these provisions. The Law Society's submission, as well as raising the question of medical issues and the appropriateness of medical panels to resolve them, also goes into some length about the absence of appeal rights. It states that the establishment of these medical panels amounts to a derogation of the powers of the tribunal. It also shows, in its view, a lack of confidence in the tribunal. It states:

This lack of confidence is not shared by lawyers who practise on both sides of the personal injury fence. Indeed, this conclusion appears to be reinforced through the removal of the first instance hearings from the deputy presidents to, in the main, non-legally qualified arbitrators.

I wanted to put the information on the record, but I have a couple for questions of the minister about medical panels. I understand that these panels are modelled on the Victorian provisions; however, I understand that those provisions have been amended and modified on a number of occasions largely because of the problems that have occurred with that system. Can the minister inform the committee whether the model used was, in fact, the latest model, or was it the original model?

The Hon. P. HOLLOWAY: My advice is that the board made a recommendation at the end of 2006 (in about November) and, further, Mr Clayton made a recommendation in his report. Clause 70, which relates to medical panels, has far more amendments, I think, than any other clause in this bill; I think there are 37, and then there are another 34 to part 6D. I will make some general comments in relation to this clause, and that might save me repeating myself later on.

Obviously, the Hon. Mark Parnell and some other members are opposed to the provisions. Many of the 40-odd amendments seek to either virtually negate the provisions in clause 70, or at least strongly, to varying degrees, qualify them. As I said, if I speak once perhaps it will save me repeating myself on the numerous amendments we have.

The introduction of medical panels in the South Australian scheme would enable disputes over medical matters to be decided by medical experts not by non-medically trained arbitrators or members of the judiciary as currently exists. They would also improve the quality and speed of decision-making, thus improving return to work and claims management outcomes. Medical panels are used by and are proven effective in other jurisdictions, and various interstate medical decision-making arrangements have been examined in the context of the potential for medical panels in South Australia. There is a belief that they will generate conditions under which these key improvement areas are more likely to be achieved, rather than having an immediate and tangible outcome in the short term; improve return-to-work and claims management outcomes, and improve the experience of injured workers and employers.

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

I also have some comments taken from the Clayton report. One recommendation was that medical panels be introduced embodying the combination of structures and approaches drawn from the Victorian and Queensland models in the manner outlined in the WorkCover Corporation proposals. Clayton also recommended that, in its consultation process, the review take soundings from representatives of the Australian Medical Association and prominent practitioners from a number of specialties on this issue.

The response was generally positive; namely, that there was, in fact, over most relevant specialties, such a critical mass of practitioners of the requisite calibre and stamp that would allow, with reasonable confidence, a move to establish medical panels in the South Australian system. Mr Clayton also stated in his report:

Critical to the successful operation of medical panels are issues of leadership and resourcing. It is widely recognised that one of the key features for the success of the Victorian medical panels and the high level of general support that it enjoys across the spectrum of workers compensation stakeholders is the quality leadership at the convenor and deputy convenor level and in key support roles, such as that of medical adviser. It cannot be emphasised strongly enough that if South Australia proceeds to introduce medical panels, the quality of the senior leadership, particularly the convenor and the choice of senior support staff, is absolutely critical.

The government supports that in line with those recommendations and comments. As I say, we oppose all the amendments which, in varying ways, seek to either totally negate the effect of clause 70 or else water it down in other ways. Hopefully, I will not have to repeat those comments when we discuss that large number of amendments.

The Hon. M. PARNELL: In relation to being able to fill positions on these medical panels, will the minister advise whether the government, WorkCover or Employers Mutual have had any communications with medical practitioners seeking indications of whether they would be interested in being appointed to these panels?

The Hon. P. HOLLOWAY: In Mr Clayton's report, he commented in his consultation process that the review take soundings from representatives of the AMA and prominent practitioners from a number of specialties. The response was generally positive; namely, that there was, in fact, over most relevant specialties such a critical mass of practitioners of the requisite calibre and stamp that would allow, with reasonable confidence, a move to establish medical panels in the South Australian system. Mr Clayton really did that work in his report.

The Hon. M. PARNELL: Will the minister provide information about the advice that I have received, that is, that Employers Mutual Ltd has had discussions with Sydney-based doctors about flying them in for week-long bookings to sit on these medical panels?

The Hon. P. HOLLOWAY: The medical panels will be appointed by the Governor, and that, of course, means cabinet; and they will be independent of both WorkCover and EML.

The Hon. R.D. LAWSON: At this stage, I might indicate that, whilst Liberal Party members will not be supporting the deletion of the medical panel system from the legislation, it ought be recorded that this is an issue upon which we have had some considerable reserve. But, as the minister has pointed out, Mr Clayton, in his report, recommended the introduction of medical panels, and the government has embraced that aspect of the recommendations as part—and a very important part—of its plan to rectify the woes of WorkCover. I think it is worth putting on the record some of Mr Clayton's comments in relation to medical panels. At page 134 of his report, Mr Clayton said:

A significant proportion of disputes in the South Australian Workers Compensation Scheme involve medical questions, and such disputes can often become protracted with significant delays. The absence of an avenue for a definitive ruling on medical matters compounds this situation of disputation and delay. The use of independent medical examinations in this existing scheme, while not generating significant costs in the overall scheme claims expenditure, does generate delay and disputes through the variation in medical opinions on the same injury or illness condition. This is particularly a concern in relation to independent medical examinations' opinions relating to the assessment of permanent disability.

Mr Clayton said, at page 136:

One of the features that is quite embedded in much personal injury litigation and disputation is that of the 'duelling docs'. This is the phenomenon of medical experts that present highly divergent views, on matters such as the work-related causation or symptomatology of a particular injury or condition, that are deliberately sourced by each side of a dispute from practitioners with known and predictable positions. The review supports the establishment of medical panels as a means of focusing decision-making on medical issues at a more evidence-based level and limiting the negative impact, in both social and economic terms, of a plethora of unproductive medical reports.

Any legal practitioner who has had any experience at all in personal injury and work injury litigation will know the truth of that observation—the fact that tribunals are presented with two medical opinions and a lawyer is asked to judge which of those medical opinions is the one which is most appropriate.

Anyone who has had any experience in this field will know the truth of Mr Clayton's observation that medical reports are sourced by the injured worker from particular medical practitioners who are sympathetic to workers and injured persons, and insurers source medical reports from medical practitioners who are known to be less sympathetic to the position of injured persons. That phenomenon has been around for a very long time and has often been commented on by judges at the highest possible level.

What this scheme seeks to do is have the medical questions resolved by the medicos rather than have medical opinions being judged by lawyers. I would have thought that in any sort of logical system that is fair enough. Obviously, one of the difficulties is the wisdom of the particular medical practitioner who is offering the position.

These medical panels that are to be established will work, or will not work, depending upon the quality of the persons who are appointed to them. The Hon. Mr Parnell presents the most pessimistic view: that they are not competent, that they represent merely a cheap and nasty solution, that doctors do not have the capacity to assess evidence and that they do not have the capacity, for example, to decide what is suitable work for a worker.

At the moment, they are the people who are making those recommendations. They put in their reports what they say is suitable and, ultimately, it is a lawyer—admittedly, an experienced lawyer, a good finder of fact—who makes the choice between those things. There is no doubt that in South Australia, according to the figures, we have a large number of disputed claims—for example, I think about two-thirds of the number of disputes that they have in New South Wales, which is a jurisdiction which has five times the number of claims. WorkCover, supported by Mr Clayton, says that these medical panels will reduce disputation. If disputation is reduced, it will certainly reduce costs. It will certainly mean that disputes are resolved more quickly. While we are not entirely happy with this solution, our position is that it ought to be given a trial. As Mr Clayton said at page 134, paragraph 4.13.2:

Medical panels, under a variety of nomenclature, exist in various forms in a number of Australian schemes. Thus there are Medical Assessment Tribunals in Queensland, Medical Panels in Victoria and Tasmania—

although it is said that in the latter case they are rarely used—

Medical Assessment Panels and Industrial Diseases Medical Panels in Western Australia and Approved Medical Specialists and Medical Appeal Panels in New South Wales.

Comment is made that the longest standing use of medical panels is in Queensland, extending back to 1955.

Material has already been placed on the record in relation to this debate in reference to Victoria. It is undoubtedly true that in Victoria the establishment of medical panels in the initial phase led to a large number of disputes in the courts as to their effect. It is interesting to see that the Law Society has opposed—and I suppose one should say not surprisingly—the introduction of medical panels. The Law Council of Australia was enlisted in this exercise and it has provided members with a submission dated 13 May this year. It is quite an extensive submission, I would think written by somebody with experience in Victoria.

The best case that the Law Council of Australia was able to present, which was a good example under the heading 'Real impact of workers', was where a woman was injured at work resulting in her having to have a hysterectomy. She has ongoing psychiatric problems—obviously, a very serious and sad case. The medical panel in Victoria was asked to determine the degree of impairment she suffered and the question was whether or not she had suffered a 'total or total loss of use of her sexual organs'. The medical panel reached the conclusion, which I would have thought was fairly common sense notwithstanding my limited anatomical knowledge, that she had not suffered a total loss of the use of her sexual organs. She had not suffered that. However, there was an appeal and the Supreme Court of Victoria found that, as a matter of law, she had.

The real question being asked of the medical panel was the medical question of whether she had suffered a real loss. Lawyers came to a different conclusion as a matter of law. That does not seem to me to be a case which illustrates the inappropriateness of the use of medical panels. Certainly they reached a different conclusion, but I would have thought that it was a reasonable medical conclusion to reach on a medical subject.

The government has also, it appears to me, accepted the submission of Business SA in relation to this matter when it asked, in a submission in January last year, for the use of medical panels in certain circumstances. It spoke of the fact that some 21 per cent of all disputes are section 41 disputes. Its submission states:

The dispute resolution process encourages the parties to engage in doctor-shopping for a favourable medical opinion. In almost all cases, medical experts commissioned by the worker and the compensating authority provide assessments on the extent of a worker's permanent residual disability that represents the high or the low end in quantitative terms respectively. The dispute resolution process is such that workers really have nothing to lose by disputing the compensating authority's assessment of residual disability in the hope of negotiating a higher assessment and consequently a higher payment.

The submission concludes: 'The process of obtaining a binding assessment could be reduced by the use of medical panels.' In short, we believe that a trial of the use of medical panels is appropriate. The situation of WorkCover is so dire (and has become so dire by reason of the inactivity of this government) that remarkable measures should be taken. This is one of the remarkable measures.

If it does not work and if the predictions of the Law Society and the Law Council and the unions in relation to this turn out to be correct, there will be an opportunity at some time in the future, I am sure, to overcome the problem either by alterations or reversing this decision.

Another ground of our scepticism in relation to medical panels is the difficulty of actually finding appropriately qualified medical practitioners who are prepared to undertake this task. We are glad to see that, in this bill, the government has adopted a Queensland method of selecting panels which involves the use of experts rather than simply having a minister make a selection. As I mentioned earlier, the critical element in this whole new scheme will be the quality of the people appointed to the panels.

I have one question for the minister in relation to this: does the government have any estimate of the time it will take to establish panels and when they will begin operation?

The Hon. P. HOLLOWAY: Based on discussions with other jurisdictions around the country, suggestions are that it will take about 12 months to establish these panels—that is, 12 months from the start of planning.

The Hon. SANDRA KANCK: My position on medical panels, I suppose, has been a little ambivalent. I think I mentioned in my second reading speech an example that I was given of a person going to 16 different doctors, so the issue of doctor-shopping would appear to be a problem, although I am not certain what percentage of workers take on that practice. What I am clear on is that the huge bulk of injured workers are genuine and, obviously, they are seeking the best outcome.

It is very clear that not all doctors want to be involved in WorkCover. Just today, I made a medical appointment with a specialist, and the first question I was asked was whether it related to a work-related injury; if so, this doctor did not take patients. That in itself makes tribunals a little more attractive.

In the end, the problem for me is the issue of very vulnerable people having to face up to a tribunal. When people have gone through what I can only describe as trauma in the WorkCover system, to front up on their own, when they are in a very vulnerable emotionally unstable position, is an incredible feat in some cases. The fact that they have to be on their own, with not even anyone to advocate for them to ensure that the right questions are asked and so on, as the Hon. Mark Parnell says, I think is a big detriment to the way the government has constructed this legislation.

I would have considered having an amendment drafted to address the issue of a person being able to have an advocate when appearing before the tribunal. However, as it has been made clear in the three days of committee stage debate, neither the government nor the opposition will entertain any amendments. That being the case, because of my concern about the fragility of injured workers and how they can be taken advantage of, intimidated and messed around, in the end I will come down against the concept.

Had the government and the opposition been willing to entertain some amendments, I would have moved one to bring this about. However, because of the regime we are operating under in this place right now, that will not be a possibility. So, my general principle now in relation to the medical panels is that I will be opposing them.

The Hon. D.G.E. HOOD: This is a vexed issue, and we have heard a lot of argument on both sides. At the end of the day, for Family First this issue comes down to the question: who is best to make the decision with respect to the wellbeing of an injured worker? It is widely known that we oppose the legislation because we believe that it infringes too many of an injured worker's rights. But, in relation to this amendment, I cannot get past the fact that doctors, not lawyers, are the best people to assess what is in the best interests of individuals.

Lawyers will dispute facts forever and, in my experience, doctors make good decisions every day. They assess people's condition and make a decision quite quickly on the appropriate treatment. I think that it is in the worker's best interests to trial the medical panels, at the very least, as a means of producing more speedy treatment and giving them access to the best possible advice with the minimum possible time required. So, on this occasion we will oppose the amendment.

Amendment negatived.

The Hon. M. PARNELL: We have heard a range of general comments and discussion on medical panels, and that is fine; it was very important to get all those views and put the basic information on the record. I move:

Page 59, line 12—After 'Medical Panel' insert:

unless the relevant compensating authority (on a reconsideration) under that Part, or the Tribunal, considers that the question relates to a matter that falls outside the range of matters that should be subject to determination under this Part

I will not speak in support of my amendment at any great length. The Hon. Robert Lawson talked about the well-known fact of there being insurance doctors and other doctors who can be predicted to go the other way. Of course, that results in more disputation rather than less. Any lawyer worth their salt will know that, if the usual suspects are trotted out, they can be challenged in court.

So, getting the choice of doctors right is actually a good method of reducing disputation. It still does not affect the fundamental flaw in the entire medical panel regime, but if we are to have such a regime we should at least make sure that we get the doctors right. This amendment introduces a bit of transparency into the process and includes a role for the major stakeholders so that they can have a say about their appointments.

In appointing people to these medical panels, it is critical that the government only appoint persons who have the confidence of workers and employers, and that is what this amendment is designed to ensure. The alternative could well be significant lobbying by WorkCover, or its claims agents, to ensure that only doctors supportive of its side will end up on these panels. I urge the committee to support the amendment.

The Hon. P. HOLLOWAY: The government opposes the amendment, as the proposed selection process for appointments to medical panels is already transparent and adequately representative of employee and employer interests. A selection committee will advise the minister on the most appropriate appointments to the medical panel. The selection committee will be made up of a representative of the independent body supporting the medical panel, the AMA and medical college representatives, and employer and employee representatives. I will not repeat all the other arguments that I made earlier.

Amendment negatived.

The Hon. J.A. DARLEY: I move:

Page 57—

Lines 30 to 37—Delete paragraph (b)

Lines 38 to 40—Delete paragraph (c)

Page 58—

Lines 3 to 5—Delete paragraph (e)

Lines 8 and 9—Delete paragraph (g)

Lines 13 and 14—Delete paragraph (i).

The purpose of amendment Nos 4 through to 10 is to delete certain questions referred to in the bill as medical questions that can be referred to a medical panel under division 2 of the bill. If a medical panel is to consider questions referred to it as proposed in the bill, they should be limited to questions that are purely medical in nature.

The questions identified in this clause involve medical issues and factual questions, or medical questions which involve medical issues, factual issues and legal issues. They cannot be considered purely medical questions and as such should not be referred to a medical panel for consideration.

As outlined by the Law Society, it is unfair to expect workers to accept a decision that has been made by a panel that has not had the relevant training and does not possess the relevant knowledge to make a fair and objective assessment or reach a fair decision: that is the role of judicial officers.

Medical practitioners cannot be considered better equipped to determine legal matters as compared to trained judicial officers with years of experience in a very specialised jurisdiction involving medico-legal claims and disputes. I would agree that such a concept implies a fundamental lack of confidence in the dispute resolution process, and I would urge all honourable members to support the amendments.

The Hon. P. HOLLOWAY: Collectively, the Hon. Mr Darley's amendments would effectively negate the whole purpose of the medical panel, so that is why we are opposing them.

The Hon. M. PARNELL: I certainly support the honourable member's amendments. My suggestion, by way of process, is that we can probably deal with all these things together. We have the Hon. John Darley's amendments Nos 4, 5, 6, 7, 8, 9 and 10; we have my amendments Nos 45, 46, 47, 48, 49, 50, 51 and 52 in Parnell 2; and, I think, amendments Nos 9 and 10 in Parnell 3 also relate to this topic.

The minister is correct: removing these paragraphs from the interpretation of 'medical question' does prevent the panel from dealing with the issues that the government would wish it to deal with. However, in terms of each of these paragraphs it is possible, and sometimes very easy, to determine that the questions are not only medical questions but are questions of fact—and, in some cases, questions of law.

I will not go through every single one of them but will use just one example. Mr Darley's amendment No. 4 proposes to remove paragraph (b), which provides:

a question whether a worker's disability—

(i) in the case of a disability that is not a secondary disability or a disease—arose out of or in the course of employment; or

(ii) in the case of a disability that is a secondary disability or a disease—arose out of employment or arose in the course of employment and the employment contributed to the disability; or

The point is that in deciding those questions there are very often disputed questions of fact. One such fact, for example, could be: what precisely did the worker do in their employment? The worker said that the injury happened at work but no-one saw it. Is the worker telling the truth? That is a question of fact to be determined. Doctors are not trained or experienced in resolving disputed questions of fact, and that is what this subclause requires them to do.

Another area of the definition that demonstrates that in reality medical panels will decide issues far beyond their expertise is the requirement that they decide what employment is suitable or not. That involves questions about the appropriateness of a worker's skills and experience to carry out a particular job—clearly not a medical question. However, under the government's proposal, in this clause it is.

So, both the Hon. John Darley's amendments and my amendments seek to strike out paragraphs (b), (c), (e), (g), (h) and, in fact, the bulk down to (r), from the list of matters to be regarded as medical questions, with only the few remaining that are clearly solely medical questions. I urge members to support all these amendments.

Amendments negatived.

The Hon. M. PARNELL: I move:

Page 58, lines 15 to 23—Delete paragraphs (j) and (k)

I do not propose to speak to the amendment further.

Amendment negatived.

The Hon. M. PARNELL: I move:

Page 58—

Lines 24 to 26—Delete paragraph (l)

Lines 27 to 29—Delete paragraph (m)

Amendments negatived.

The ACTING CHAIRMAN (Hon. J.S.L. Dawkins): With respect to amendments Nos 50 and 51 in the name of the Hon. Mr Parnell, the same amendments are on file from the Hon. Mr Darley. The Hon. Mr Parnell's were on file first, so I call on him to speak to them together.

The Hon. M. PARNELL: I move:

Page 58—

Lines 30 and 31—Delete paragraph (n)

Lines 37 to 39—Delete paragraph (q)

Amendments negatived.

The Hon. M. PARNELL: I move:

Page 58, line 40—Delete paragraph (r)

Amendment negatived.

The Hon. M. PARNELL: There is a series of amendments that relate to the same issue, that is, to change the medical panel system from a compulsory process to a voluntary one. In my view, if these medical panels are such a good thing it should be not be a problem that they be made voluntary. Rejecting this amendment would prove that the concerns of workers are legitimate; that they do have cause to fear these provisions. I move:

Page 59—

Line 2—Delete 'require a worker' and substitute 'with the agreement of the worker, refer a worker'.

Line 6—Delete 'to submit himself or herself'.

Amendments negatived.

The ACTING CHAIRMAN: I advise the committee that the Hon. Mr Parnell should speak to his amendment No. 55, Parnell 2 and then we can also hear from the Hon. Mr Darley about his amendment No. 11, Darley 1.

The Hon. M. PARNELL: I move:

Page 59, lines 10 to 12—Delete subsection (3).

I do not propose to speak further on it.

The ACTING CHAIRMAN: Does the Hon. Mr Darley wish to move his amendment and speak?

The Hon. J.A. DARLEY: I move:

Page 59, lines 10 to 12—Delete subsection (3) and substitute:

(3) The tribunal must invite submissions from any party to the relevant proceedings (or his or her representative) before imposing a requirement under subsection (2).

This amendment relates to the functions of medical panels in relation to tribunals. I question the need to re-establish medical panels, because I understand that they were previously a provision of the South Australian scheme and were abolished due to a lack of doctors available and the delays associated with convening them.

Having said that, if medical panels are to be introduced then their roles should be limited. Clause 98F of the bill provides that the function of a medical panel is to give an opinion on any medical question referred to it under the act and that the corporation or the tribunal may require a worker who claims compensation, or who is in receipt of weekly payments of compensation under the act, to submit himself or herself for examination by a medical panel, or to answer questions arranged by the medical panel in order to determine any specific medical question.

Subclause (3) provides that a medical question that constitutes or forms part of, or arises in connection with, a matter that is the subject of dispute under part 6A of the act must be referred to a medical panel. Part 6A of the act deals with dispute resolution. The effect of this clause is to require all questions which form part of, or arise in connection with, the matter that is the subject of a dispute to be considered by a medical panel.

This amendment is intended to do two things: the first is to provide the tribunal with the discretion to determine whether questions ought to be considered by medical panels. The second is to require the tribunal to invite submissions from any party to the relevant proceedings, or his or her representatives, before imposing a requirement under subsection (2). The parties would include both the worker and the employer.

This amendment forms part of a set of amendments which has been endorsed by the Australian Lawyers Alliance. It would afford the worker the opportunity to make submissions to the tribunal about the need for submitting himself or herself for examination by a medical panel and provide the tribunal with the discretion to allow or disallow such an examination, as the case may be. As will become apparent in the next two amendments, in instances where questions are referred to medical panels, the tribunal will not be bound by the findings of that panel. I strongly urge honourable members to support this amendment.

Amendments negatived.

The Hon. M. PARNELL: I move:

Page 59, after line 31—Insert:

(2a) Any question of law—

(a) that has been raised by a party; and

(b) that is in dispute; and

(c) that is relevant to the medical question.

must have been resolved by a determination of the tribunal as part of the proceedings between

the parties before the medical question may be referred to the medical panel.

The government has put forward its medical panel proposal on a misleading basis and it says that lawyers should not make decisions about medical matters. If that is the view of the government, then I would hope it would agree that doctors should not make decisions about legal issues, and that is what this amendment seeks to do: to ensure that legal issues are decided by judges, not doctors.

Amendment negatived.

The Hon. M. PARNELL: My amendment No. 58, Parnell 2 is consequential, so I will not proceed with it. I move:

Page 60, after line 18—Insert:

(8) The medical panel must cause a reasonable record of its proceedings to be made and kept in accordance with guidelines established by the minister after consultation with the Law Society of South Australia Inc.

This forms part of a set of amendments that relate to natural justice.

These amendments are about ensuring that injured workers get natural justice from medical panels, that they get an opportunity to comment on draft opinions, that the medical panel provides an explanation for the opinions it forms, and that there is a record of proceedings so that, if something inappropriate has happened, it is transparent. This amendment is part of a package along with amendment Nos 60, 61, 62, 65 and 66, but I move only amendment No. 59 for now.

The Hon. P. HOLLOWAY: The government opposes this amendment. Importantly, the act will stipulate that each medical panel to which a medical question is referred will be required to give a certificate as to its opinion. An opinion of the medical panel must include a statement setting out the reason, or reasons, for the opinion. This is a strong statement that the proceedings of the panel will be transparent. The panel will be fully supported by administrative and ancillary staff providing appropriate secretarial duties and record-keeping functions.

The Hon. D.G.E. HOOD: I rise briefly to indicate Family First's support for the amendment. We think that it will just further add to transparency which, in these circumstances, can only be a good thing.

Amendment negatived.

The Hon. M. PARNELL: I move:

Page 60, lines 28 to 33—Delete subsection (4) and substitute:

(4) The opinion of a medical panel on a medical question referred to the medical panel is evidence that will apply for the purposes of determining any relevant question or matter in the absence of evidence to the contrary (and that may apply despite other evidence if it outweighs that other evidence).

This amendment, along with amendment No. 64, is about ensuring that medical panel opinions are ultimately subject to the proper processes of the Workers Compensation Tribunal in terms of facts, law and, where there is countervailing evidence, medical opinion also. This is about making sure that injured workers have the same rights to due process as the rest of the community.

The other absolutely critical thing that this amendment does is to require medical panels to make decisions based on the ordinary civil standard of proof, and I think this is critical. I will say that these are the last two amendments on the question of medical panels. There are some other consequential amendments, and some in relation to the WorkCover ombudsman, but I am treating this as a test for the whole issue of medical panels, and I will be dividing on this amendment if I do not have the will of the committee.

The Hon. P. HOLLOWAY: The government opposes the amendment, as we consider it inappropriate to undermine the final and binding nature of the medical panel's decisions. The government's proposed legislation sets out that, once a medical panel issues its determination, the decision is final and binding and is only reviewable through judicial review on procedural fairness grounds. This amendment would ensure that the medical panels established under this act would be toothless and would add no value to the management of the scheme.

The committee divided on the amendment:

AYES (3)

Darley, J.A. Kanck, S.M. Parnell, M.(teller)

NOES (16)

Dawkins, J.S.L. Evans, A.L. Finnigan, B.V.
Gago, G.E. Gazzola, J.M. Holloway, P. (teller)
Hood, D.G.E. Hunter, I.K. Lawson, R.D.
Lensink, J.M.A. Ridgway, D.W. Schaefer, C.V.
Stephens, T.J. Wade, S.G. Wortley, R.P.
Zollo, C.

PAIR (2)

Bressington, A. Lucas, R.I.


Majority of 13 for the noes.

Amendment thus negatived.

The Hon. J.A. DARLEY: I move:

Page 60, after line 33—Insert:

(5) Subsection (4) does not prevent the tribunal making a finding of fact, including a finding of fact as to a medical question, on the basis of other evidence that it receives in proceedings before the tribunal.

This amendment is intended to ensure that, where questions are referred to a medical panel at the discretion of the tribunal, the findings of the panel are to be used as evidence for the purposes of determining the claim and will not prevent the tribunal from making a finding of fact, including a finding of fact as to a medical question on the basis of other evidence that it receives in the proceedings. I strongly urge honourable members to support this amendment.

The Hon. P. HOLLOWAY: The government opposes the amendment.

The Hon. M. PARNELL: I support the amendment.

The Hon. R.D. LAWSON: Given that the government does not envisage that the medical panel will be established until next year, will the minister indicate when the government proposes that this bill will come into operation? Is it envisaged that parts of it will come into operation immediately and other parts at some later time? If the act is brought into operation immediately but the medical panels are not appointed until a year later, what is going to happen about medical disputes arising for resolution after the act comes into operation but before the medical panels are appointed? In other words, will the tribunal continue to decide medical questions until such time as the medical panels are appointed?

The Hon. P. HOLLOWAY: We discussed this when we were discussing clause 2. I did indicate then that the implementation of this bill would be staggered. Obviously, in relation to medical panels, if it takes up to 12 months—as was the experience in other states—to establish them, then the tribunal would continue to perform the function until those parts of the bill that needed the medical panels were commenced.

Amendment negatived.

The Hon. M. PARNELL: I move:

Page 61, lines 24 to 28—Delete subsection (3)

This relates to the WorkCover ombudsman and is the other part of clause 70; the first part being the medical panels. My amendment seeks to ensure that the proposed WorkCover ombudsman is devoted full-time to this position. The government's bill proposes that that they can hold other positions. In other words, they can just be a part-timer. This role, if it is to have any meaning, needs to be a dedicated role, and so I would urge all members to support this amendment.

The Hon. P. HOLLOWAY: The government opposes this amendment as it unnecessarily restricts the field of choice for an appointment to the position of WorkCover ombudsman. Some applicants for the position of ombudsman may have other part-time roles, consultancies or board memberships, providing there is no conflict of interest. It will be up to the government to determine whether the other positions the applicant may have conflict with the ombudsman role. If the government does not believe that such conflicts exist then the talent pool of people who can take up the ombudsman's role will not be arbitrarily reduced.

Amendment negatived.

The Hon. M. PARNELL: I move:

Page 64, after line 28—Insert:

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

This amendment relates to a requirement for reporting return to work, and it requires that the WorkCover ombudsman must include in his or her report information about the extent to which disabled workers have been able to return to work during the course of the relevant financial year.

This is an important amendment because, when the government talks about return to work and return-to-work figures, it is usually only talking about discontinuance rates, and that is the rate at which payments to injured workers can be stopped, which is a very different thing from a return to work. I think that, if the government had any real interest in improving return to work, it should be measuring it properly. My understanding is that the government and WorkCover do not do that.

I am not aware of any system in place to record or keep track of what happens to injured workers, or even a sample of them, once WorkCover stops paying them. There is no information kept, either, about when their payments are stopped whether they return to work or go on to commonwealth sickness benefits.

So, the first step in trying to improve return to work is to understand what is happening at present, and that is what this amendment is directed to: reporting information about actual return-to-work outcomes, not just how quickly WorkCover can kick injured workers off the scheme.

The Hon. P. HOLLOWAY: This amendment requires the WorkCover ombudsman to include in the annual report information about return-to-work rates of the financial year, specifying whether they were on a permanent or temporary basis and whether in previous or new employment or work.

The government opposes this amendment as it is completely unrealistic to be able to provide that sort of detail around return-to-work rates. Additionally, reporting on statistics is not the role of the WorkCover ombudsman. The development of data about return-to-work rates is a complex exercise, and this is currently conducted independently and nationally through the comparative performance monitoring reports and Campbell's return-to-work survey, and I have quoted that during the debate on this bill. These projects have been operating for a number of years and have been developed with extensive technical input. It would be unrealistic to expect that the Ombudsman could undertake such a role.

Amendment negatived.

The Hon. M. PARNELL: I move:

Page 64, after line 28—Insert:

(6a) The Industrial Court may, by order, on the application of the WorkCover Ombudsman, enforce a direction or determination of the WorkCover Ombudsman under subsection (1).

This amendment is designed to give the Ombudsman a role in enforcing directions, and it requires that the Industrial Court may, by order, on the application of the WorkCover Ombudsman, enforce a direction or determination of the WorkCover Ombudsman under subsection (1). What that means is that we want to give the Ombudsman some real teeth to make sure that the directions given can be enforceable.

The Hon. P. HOLLOWAY: This amendment unnecessarily involves the Industrial Court in directions of the Ombudsman. The Ombudsman is already authorised to give directions to WorkCover or employers around the operational requirements of sections 58B and 58C. The Ombudsman also already has, under section 99D(1), functions to recommend, investigate and assist various WorkCover matters with the aim of improving the operation of the scheme. If a matter under investigation by the Ombudsman was subject to dispute, it would be the Workers Compensation Tribunal that would deal with it, not the Industrial Court.

Amendment negatived.

The Hon. SANDRA KANCK: So that the Hon. Ann Bressington's views are on the record, I move the amendment standing in her name:

Page 66, after line 8—Insert:

99HA—Abrogation of legal professional privilege

A person is not excused from providing information to the WorkCover Ombudsman in accordance with a requirement imposed under this part on the ground of legal professional privilege.

The explanation provided to me by the Hon. Ann Bressington's officers is that this amendment ensures that no officer of the WorkCover Corporation can claim legal professional privilege to get away with concealing information or evidence about the truth behind allegations and counter-allegations. This is especially important in cases where the lawfulness of corporate conduct and decision-making are under question.

The Hon. P. HOLLOWAY: The government opposes the amendment. The ombudsman will already have appropriate powers to obtain information under proposed section 99F.

Amendment negatived; clause passed.

Clause 71.

The Hon. M. PARNELL: I move:

Page 68, after line 12—Insert:

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

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

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

(i) any activity directed towards—

(A) preventing, controlling or distinguishing fires;

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

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

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

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

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

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

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

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

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

(4) In this section—

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

SACFS means the South Australian Country Fire Service;

SASES means the South Australian State Emergency Service;

SASES volunteer means—

(a) a member of SASES; or

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

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

volunteer fire-fighter means—

(a) a member of SACFS; or

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

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

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

This is one of two amendments about which I sent out a note to all members of the Legislative Council suggesting that they pay particular attention to it, not that they should not pay attention to the other amendments, but this one and another fall into a category of amendments that are so sensible, and to my mind so basic and important, that it should be very difficult for anyone to oppose them.

This amendment basically seeks to level the playing field in relation to volunteers who put themselves in harm's way on behalf of the community. The regulations under the Workers Rehabilitation and Compensation Act provide that volunteer firefighters are covered by WorkCover, as presumptive employees of the Crown. That is a good thing; we should protect these people who put their lives on the line for the community in case they do get hurt or even killed.

My amendment seeks to do two things: firstly, it enshrines the protection of volunteer firefighters into the legislation, rather than leaving it to regulations but, most importantly, it gives our fantastic volunteers in the State Emergency Service the same protection as volunteer firefighters. Everyone who puts their life on the line for the community deserves our support. They deserve protection if things go wrong. The volunteers in the SES deserve that protection. If the government or members vote against this amendment, what they are saying to every SES volunteer is 'We don't care if you are killed or injured volunteering for us. You don't deserve the same level of protection as the CFS volunteers.' I think, if we are to give proper thanks to the volunteers who put their life on the line, all members should be supporting this amendment.

I wrote to the minister in another place and asked him what consideration had been given to this since it was dealt with in the other place in April. Basically, I asked the minister what consideration he had given to that issue. I have a reply from the minister in which he thanked me for the letter and referred to the regulation I mentioned before which says that the CFS volunteers are a prescribed class of volunteers. But in relation to the SES workers, he said:

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

The minister then goes on to say:

I am advised that the State Emergency Service (SES) Volunteers could be prescribed under the same Regulation as the CFS volunteers and as I have already stated the Government may consider doing this in time. In the interim, it is important to note that I am further advised that the SES volunteers receive equivalent benefits to those received by CFS volunteers via an administrative arrangement with the South Australian Fire and Emergency Services Commission.

That letter was dated 2 June.

It seems to me that, in the absence of a cast-iron guarantee from the government that it will include SES volunteers in the same scheme under which the CFS volunteers are included, we need this amendment.

The Hon. CARMEL ZOLLO: As Minister for Volunteers I would like to take the opportunity to respond to this amendment. As the honourable member has said, the issue is not one that was raised in the Clayton review. Section 103A of the act allows for the prescription of specific classes of persons to be covered. The Crown is the presumptive employer of persons of a prescribed class who voluntarily perform work of a prescribed class that is of benefit to the state.

As we have already heard, the CFS is prescribed in regulations and not in the act itself. The SES is covered by an administrative arrangement so, currently, the only persons prescribed in regulations are the CFS volunteers. However, as we have already heard and I am placing on record, the SES volunteers are covered by an administrative arrangement, more for historical reasons than anything else.

So, under a ministerial agreement that dates back to 1988, SES volunteers suffering injury or illness whilst performing approved and endorsed SES activities are provided with benefits that are equivalent to those available to paid employees as prescribed under the act. The cover is also extended to the various volunteer marine rescue groups and squadrons.

It is the view of the government that it is not something that needs to be defined in the act, and it is better suited in the regulations, where it does currently sit. There is no real need to include the CFS and the SES in the substantive legislation. I would like to place on record that this government makes every effort to ensure the safety of our volunteers on duty. Our volunteers are invaluable to all of us.

Should any injury occur, however, our first priority is to assist the volunteer to achieve timely compensation, rehabilitation and a safe return to work. Our volunteers are able to go about their role protecting the community knowing that they are protected should they be injured. The arrangement also provides for compensation for self-employed or unemployed members in receipt of unemployment benefits. SES volunteers are covered for any injury incurred travelling to or from their home to an operational call-out.

Again, I place on record that, while SES volunteers are not a prescribed class of volunteers under the Workers Rehabilitation and Compensation Act, arrangements have been in place with the government since 1988 for benefits to be paid equivalent to those provided by that act, and these arrangements extend to the marine rescue volunteers as well.

It is the view of the government that the specifics of the prescribed class of volunteers are not something that need to be defined in the act, and they are better suited in the regulations where they currently sit. In relation to the SES, yes, the minister in the other place made a commitment to revisit this issue by regulation at a later time, and I certainly make that commitment as well.

I should also place on record that, since 2004, all new claims have been managed by the South Australian Fire and Emergency Services Commission (SAFECOM), which is a division of the justice portfolio. SAFECOM manages all claims for the CFS, MFS and SES and effectively treats the claims of SES volunteers in the same way as the others.

Any decision to deem classes of person or work as covered by the Workers Rehabilitation and Compensation Act is a serious one—and I think that is what was also written to the honourable member—and it is one that does deserve detailed and careful analysis. Again, I reiterate that, like the minister in the other place, I am happy to visit this at a later time, and I will give that undertaking.

The Hon. M. PARNELL: I thank the minister for her answer, but it is not the undertaking that I was seeking. We have had a long time to get this right, to get these volunteers incorporated into legislation at the same level or (by way of my amendments) an improved level. I do not think that our volunteers should be forced to rely on administrative arrangements.

They may have worked well up to now, but there is no guarantee that they will work into the future. This is a practical and a symbolic message that we are sending: that we are going to recognise in law the value of these volunteers. The CFS has it: the SES does not. Let us level the playing field.

The Hon. D.G.E. HOOD: Family First supports the amendment.

The committee divided on the amendment:

AYES (5)

Darley, J.A. Evans, A.L. Hood, D.G.E.
Kanck, S.M. Parnell, M. (teller)

NOES (14)

Dawkins, J.S.L. Finnigan, B.V. Gazzola, J.M.
Holloway, P. Hunter, I.K. Lawson, R.D.
Lensink, J.M.A. Lucas, R.I. Ridgway, D.W.
Schaefer, C.V. Stephens, T.J. Wade, S.G.
Wortley, R.P. Zollo, C. (teller)

PAIRS (2)

Bressington, A. Gago, G.E.


Majority of 9 for the noes.

Amendment thus negatived; clause passed.

Clause 72.

The Hon. M. PARNELL: My amendment is consequential; I will not be moving it.

The Hon. SANDRA KANCK: I indicate that the amendment in the name of the Hon. Ms Bressington is also consequential.

Clause passed.

Clause 73.

The Hon. M. PARNELL: I move:

Page 68—

After line 19—Insert:

(1) Section 106—after subsection (1) insert:

(1a) Without limiting subsection (1), if the only reason for a delay in the determination of a claim relates to the amount of compensation to be paid to a disabled worker, the Corporation should seek to make an interim payment or interim payments that reflect the extent to which the parties are not in dispute.

After line 22—Insert:

(4) For the purposes of this section, a reference to the final determination of a claim includes a reference to the completion of any proceedings under Part 6A.

The situation that these amendments are designed to address is where a claim is accepted but because, for example, WorkCover says the weekly compensation should be, say, $500 and the worker says it should be $600, the worker does not get paid at all until the dispute is resolved. I acknowledge that sometimes WorkCover does pay the lesser amount to start with, but not always. So, this amendment means that where there is a dispute WorkCover will at least pay that lesser amount to reflect the extent to which the parties agree.

The Hon. P. HOLLOWAY: The government opposes this amendment, as this provision seeks to circumvent the government's amendments to the Workers Rehabilitation and Compensation Act in relation to the cessation of payments to a claimant while a dispute is yet to be resolved.

Amendments negatived; clause passed.

New clause 73A.

The Hon. M. PARNELL: I move:

Page 68, after line 22—Insert:

73A—Insertion of section 106AA

After section 106 insert:

106AA—Interest

(1) If—

(a) an amount is payable under this Act by a compensating authority; and

(b) the amount is not paid within a time determined in accordance with the regulations; and

(c) no other provision is made under this Act for the payment of interest on the unpaid amount,

the amount payable will be increased by interest at the prescribed amount.

(2) In this section—

compensating authority means the Corporation or a self-insured employer.

I indicated before that there are two specific amendments that I circulated to honourable members that fall into the category of a no-brainer, if you like, and this is the second of those. This amendment will fix a problem with the legislation that has been recognised as a problem by the Supreme Court for many years. Except to a limited extent with respect to weekly payments, there is no clear due date for payments of workers compensation, and there is no provision for interest on late payments other than weekly payments. The Supreme Court dealt with this issue in its 1998 decision in Della Flora v Workers Rehabilitation and Compensation Corporation of South Australia. In that decision His Honour Chief Justice Doyle said:

It is a curious feature of the act that it makes no general provision about the time at which a worker becomes entitled to require payment of compensation payable to the worker under a determination made by the corporation in the worker's favour. Nor is there a general provision about the worker's rights in the event of a payment not being made when it should be made.

He goes on:

Overall, there is no provision in the act that clearly identifies the time at which an entitlement to receive weekly payments, payable under a determination by the corporation, becomes enforceable at the instance of a worker.

In conclusion, the Chief Justice says:

I would add that, in my respectful opinion, this aspect of the act requires reconsideration. I consider that there is much to be said for a legislative provision dealing specifically with the time within which payment of the various types of compensation must be made. Leaving this to the court, to be decided as a matter of implication, seems undesirable.

Justice Nyland in the same case said:

The lack of certainty as to the date on which payments of compensation should be made is, however, undesirable. I support the suggestion made by the Chief Justice that this aspect of the act be reconsidered.

This is a simple amendment. Injured workers and those who have to administer the act should have clear guidelines about when payments must be made. The Supreme Court says that they do not have the guidance that they need, and we should fix that. I think that a sensible amendment like this goes to the heart of what we are doing here in the upper house. We have clear direction from the Supreme Court that this simple amendment, which does not cost anything, would make the administration of the act easier for everyone. I urge all honourable members to support it.

The Hon. P. HOLLOWAY: The government opposes this amendment. The honourable member has drawn the attention of the committee to the Supreme Court decision in Della Flora. As I understand it, this case involved a party seeking a lump sum for non-economic loss and that party wanting payment made on that lump sum prior to the resolution of a dispute. The government is of the view that the existing provision is appropriate and it is with quite sound reasoning that a matter should be finalised before payment is made.

In relation to the payment of interest, the vast majority of payments made to injured workers are by way of weekly payments. The late payment of weekly payments due to a worker is capable of having an adverse impact on an injured worker. This is why it is necessary to have suitable arrangements in place for the payment of interest on arrears or weekly payments. Section 47 of the current act already suitably provides for this.

I am not aware of this issue being raised in the consultation that has been undertaken by the independent review of the WorkCover scheme. Similarly, I am not aware of this being a systemic issue within the scheme. If it is, it seems that this could be addressed operationally and through management of the contractual arrangements with the claims agent and self-insurers. Once in place the WorkCover ombudsman would be in a position to give a sense of the scale of complaints regarding these matters. If in that person's view the problem was widespread, they would make recommendations for operational change and perhaps a future legislative change once the scope of the alleged problems is better understood.

The committee divided on the new clause:

AYES (5)

Darley, J.A. Evans, A.L. Hood, D.G.E.
Kanck, S.M. Parnell, M. (teller)

NOES (14)

Dawkins, J.S.L. Finnigan, B.V. Gazzola, J.M.
Holloway, P. (teller) Hunter, I.K. Lawson, R.D.
Lensink, J.M.A. Lucas, R.I. Ridgway, D.W.
Schaefer, C.V. Stephens, T.J. Wade, S.G.
Wortley, R.P. Zollo, C.

PAIRS (2)

Bressington, A. Gago, G.E.


Majority of 9 for the noes.

New clause thus negatived.

Clause 74.

The Hon. J.A. DARLEY: I move:

Page 68, after line 26—Insert:

(1a) Section 107B—after subsection (3) insert:

(3a) If a worker has died as a result of a compensable disability, a reference in this section to a worker will be taken to include a reference to a person who has an entitlement to a payment under section 44 or 45A on account of the death of the worker.

This amendment simply relates to access to information from WorkCover by a relevant person following the death of a worker as a result of a compensable disability. The amendment arises as a result of a matter of which I became aware whereby a domestic partner of a worker who died at work tried to obtain a copy of WorkCover's file relating to the deceased in accordance with freedom of information legislation. I understand that she was refused access to her deceased partner's file pursuant to section 107B of the Workers Compensation and Rehabilitation Act, which concerns the right of access to files by a worker.

In this case, I am advised that WorkCover refused to release the information requested as the deceased had no will at the time of his death and the partner could not prove next of kin. This is despite the fact that she was the one who received compensation as next of kin under the act and, ultimately, signed the relevant claim forms with WorkCover. I am further advised that WorkCover actually instigated an investigation into the domestic partner because they alleged that she and the deceased were not together at the time of his death, despite their having been together for 10 years and having a son together from that relationship.

As mentioned, section 107B of the act relates to right of access to claims files. It provides that the corporation, or a delegate of the corporation, must, at the request of a worker, provide the worker, within 45 days after the date of the request, with copies of all documentary material in possession of the corporation or the delegate relevant to a claim made by the worker, and make available for inspection by the worker, or a representative of the worker, all non-documentary material in possession of the corporation or the delegate relevant to a claim made by the worker.

The section also provides for appropriate availability of non-documentary material for inspection. The only material that the corporation or delegate is not obliged to provide are materials that are relevant to the investigation of suspected dishonesty in relation to the claim or materials that are protected by legal professional privilege. The aim of the amendment is to ensure that information that can be requested by a worker can equally be requested by anyone with an entitlement pursuant to sections 44 or 45 of the act where the worker has died as a result of a compensable disability.

Sections 44 and 45 relate to compensation and review of weekly payments respectively, and anyone with an entitlement would include a spouse, a domestic partner, a dependent child or a dependent relative. It seems at odds that a request for information by, say, a spouse or partner pursuant to section 107B of the act would be fettered when that person is entitled to receive compensation or weekly payments as a result of the death of their partner. I ask members to support this amendment.

The Hon. P. HOLLOWAY: The government opposes this amendment, as section 107B was inserted into the Workers Rehabilitation and Compensation Act to provide injured workers with the ability to monitor their active case file and how their claim, rehabilitation and return-to-work management was progressing. If a worker unfortunately dies as a result of a work injury, their dependants are entitled to compensation, payable on death, in the form of weekly payments and a lump sum, increased by this very bill to the significant amount of $400,000.

The Hon. SANDRA KANCK: I am quite appalled to hear that explanation, and it is an illustration of the culture and attitude within WorkCover, where everyone is treated with suspicion. This seems to me to be a sensible amendment, and I indicate Democrat support for it.

Amendment negatived.

New clause 74A.

The Hon. M. PARNELL: I move:

Page 68, after line 28—Insert:

74A—Insertion of section 107C

After section 107B insert:

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

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

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

Under the legislation, injured workers can be compelled to attend medical examinations in certain circumstances, and that can be very distressing, particularly in situations that commonly arise where the doctor preferred by WorkCover has previously examined the worker and been rude, dismissive, made major factual errors in their report or has made the worker's injury worse—for example, by forcing a joint to move inappropriately in order to test its range of movement.

One thing that would certainly make the experience a little less distressing is if the worker had a right to a support person, but we do not have that arrangement. I say that injured workers have enough to deal with with their pain, dislocation and uncertainty about the future without being subjected to stressful situations or clear rights to a support person.

The Hon. P. HOLLOWAY: The government opposes this amendment as we consider it unnecessary. It is intended that the current practice surrounding independent medical examinations will continue in medical panel examinations. Injured workers will have the right to request that a relative, friend or representative attends with them for support. The amendment bill provides for the medical panels to authorise such an attendance, and it is not envisaged that workers would be prevented from bringing a companion to an examination. The legislation empowers the minister to establish guidelines for the operation of the medical panels, and I understand that this issue will be suitably addressed in those guidelines.

New clause negatived.

Clause 75 passed.

New clause 75A.

The Hon. M. PARNELL: I move:

Page 68, after line 33—Insert:

75A—Insertion of section 111A

After section 111 insert:

111A—Inspection of workplaces by officials of employee associations

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

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

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

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

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

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

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

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

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

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

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

(a) the notice must be in writing; and

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

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

Maximum penalty: $3,000

(7) In this section—

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

Currently, there is no right for officials of employee associations to enter worksites to inspect premises for unsafe acts. That is out of step with other states, which all have occupational health and safety rights of entry. Officials of employee associations are trained in occupational health and safety and are best placed to hear concerns from members and to raise such concerns with management.

The present system of government inspection goes only so far. I think that the extra level of scrutiny by officials of employee associations would ensure safer worksites. I believe that there is no evidence that these rights of entry have been abused by officials of employee associations interstate, so I urge support for this amendment.

The Hon. P. HOLLOWAY: The government opposes the amendment as the proposed new power of entry and inspection is excessive and unnecessary. A number of existing provisions grant extremely broad and potent powers of entry and inspection—for example, those in the Occupational Health, Safety and Welfare Act, in the Fair Work Act and, most importantly, in sections 110 and 111 of the Workers Rehabilitation and Compensation Act.

New clause negatived.

Clauses 76 to 78 passed.

New clause 78A.

The Hon. M. PARNELL: I move:

Page 70, after line 16–Insert:

78A—Amendment of section 115—No contribution from workers

Section 115(2)—delete subsection (2).

I think all honourable members would agree that workers should not be discriminated against for exercising their lawful rights to claim workers compensation for work injuries. This amendment and the next amendment, which I will move shortly, protects them against that.

The Hon. P. HOLLOWAY: The government opposes this amendment, as the proposed new section is unnecessary. Existing protections under both the Workers Rehabilitation and Compensation Act and the Equal Opportunity Act 1984 are sufficient. A number of the proposed offences would also already be offences under other acts; for example, deliberately injuring a worker in employment would be assault, and threatening and intimidating a worker would constitute workplace bullying or, at worst, a type of assault.

New clause negatived.

New Clause 78B.

The Hon. M. PARNELL: I move:

Page 70, after line 16—Insert:

78B—Insertion of section 115A

After section 115 insert:

115A—Discrimination against workers—employers

(1) An employer must not—

(a) injure a worker in employment; or

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

(c) discriminate against a worker in connection with employment, by reason of the fact that—

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

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

Maximum penalty: $2,000.

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

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

New clause negatived.

New clause 78A.

The Hon. SANDRA KANCK: On behalf of the Hon. Ann Bressington, I move:

Page 70, after line 16—Insert:

78A—Insertion of section 115A

After section 115 insert:

115A—Worker not required to disclose certain information

A person who has received compensation under this act in respect of a compensable disability is not required to disclose to a prospective employer (and may treat any relevant question as not requiring him or her to disclose to a prospective employer) information concerning the fact of—

(a) the occurrence of the disability; or

(b) the making of a claim under this act; or

(c) the payment of compensation,

unless the disclosure is reasonably required for, or in connection with, the rehabilitation of the person or an issue associated with occupational health, safety or welfare.

As most members would know and understand, injured workers have a lot of difficulty in applying for jobs, because prospective employers, once they find that the person is carrying an injury, will find lots of reasons not to employ them. What this amendment does is to give those injured workers the right not to disclose that they have a disability or that they have made a claim for workers compensation. It requires then that the employer would have to assess the worker's capacity for that job on the basis of skills competency and nothing else which may unduly disadvantage or discriminate against them.

The Hon. P. HOLLOWAY: The government opposes this amendment, as I am advised that this is the current state of the law in any event. An employer can only ask questions in an application for employment relevant to the job being applied for by a worker, including questions which are relevant to occupational health, safety and welfare, but not necessarily detailed questions about workers compensation claims. I am also advised that this matter may be one that needs to be dealt with in industrial relations law, not workers compensation.

New clause negatived.

Clause 79.

The Hon. M. PARNELL: I move:

Page 70, lines 19 to 23—Delete subsection(4) and substitute:

(4) Subsections (2) and (3)—

(a) do not apply to—

(i) any action taken by an employer with the consent of the corporation; or

(ii) any agreement or arrangement entered into by an employer with, or with the consent of, the corporation,

provided that a worker is not disadvantaged; and

(b) do not apply to any action, agreement or arrangement that advantages a worker.

This amendment protects workers from losing rights under the act simply because WorkCover believes they should. Unless members support the amendment, the bill will allow an absurd arrangement where injured workers' rights can be given away simply because WorkCover says they can be.

The Hon. P. HOLLOWAY: The government opposes the amendment. It believes the additional caveats proposed do not add significant value. The intent of the clause is to ensure that an offence is not technically created by an employer entering into an arrangement that is authorised by WorkCover. The amendment does not water down the provisions, and it remains an offence to enter into a contract to avoid the act in situations where it would either advantage or disadvantage injured workers. This will not change, and on this basis the amendment is unnecessary and is opposed.

Amendment negatived; clause passed.

Clause 80 passed.

New clauses 80A, 80B and 80C.

The Hon. SANDRA KANCK: On behalf of the Hon. Ann Bressington, I move :

New clauses, page 70, after line 26—

Insert:

80A—Insertion of section 121

After section 120A insert:

121—Dispute as to happening of event

(1) If, in any proceedings under this Act—

(a) the happening of an event of any description is in question; and

(b) in the course of a business, a system has been followed to make and keep a record of the happening of all events of that description,

oral or other evidence to establish that there is no record of the happening of the event in question is admissible to prove that the event did not happen.

(2) If evidence is, or is proposed to be, tendered under this section, the body before which the evidence is, or is to be, tendered may—

(a) require that the whole or a part of the record concerned be produced; and

(b) if the whole or a part of the record required to be produced is not produced—reject the evidence or, if it has been received, exclude it.

80B—Amendment of section 122—Offences

Section 122(4)—delete subsection (4)

80C—Insertion of section 122AA

After section 122 insert:

22AA—Special offences relating to officers of Corporation

(1) A prescribed person who—

(a) dishonestly obstructs or interferes with a disabled worker's right—

(i) to make a legitimate claim for compensation under this Act; or

(ii) to commence proceedings at common law on account of the worker's compensable disability; or

(b) deceives a disabled worker with a view to the worker withdrawing or discontinuing a claim or proceedings of a kind referred to in paragraph (a); or

(c) takes steps to improperly influence any process under this Act,

is guilty of an offence.

Maximum penalty: $50 000 or imprisonment for 1 year.

(2) A person who—

(a) aids, abets, counsels or procures the commission of an offence against subsection (1); or

(b) solicits or incites the commission of such an offence,

is guilty of an offence.

Maximum penalty: $10 000 or imprisonment for 1 year.

(3) If proceedings for an offence are commenced under this section the Director of Public Prosecutions must prepare a report on the matter and furnish the report to the Attorney-General and the Minister.

(4) In this section—

prescribed person means—

(a) a member of the staff of the Corporation; or

(b) a person acting on behalf of the Corporation.

The Hon. Ms Bressington's office has indicated to me that this is an amendment of great importance to her. I will have only a few comments to make about it, but I am sure it would have been longer had the Hon. Ms Bressington been here.

The reason this amendment is being moved is that it restores a crucial part of the commonwealth Evidence Act which was removed in the early 1990s. The Hon. Ms Bressington wants the amendment moved because it affirms the importance of producing primary, corroborative material to establish the merits of a case or the truthfulness and/or plausibility of an allegation. This is particularly important in cases where workplace records, or the existence of something similar, may come into dispute or question—such as minutes of meetings, reports, case notes, history files, and especially records of workplace disciplinary counselling or warning proceedings.

This section also aims to provide for a tangible means by which allegations of workplace violence or bullying can be corroborated where conflicting accounts amount to little more than cases of 'he said/she said', with few witnesses or few witnesses willing to come forward because of fear of reprisal.

The Hon. P. HOLLOWAY: The government opposes all three proposed new clauses. In terms of the first, regarding evidence disputes over occurrence of events, the current law and practice are quite sufficient in this area. Section 84 of the Workers Rehabilitation and Compensation Act is deliberately broad. Informality is a key hallmark of the current dispute resolution system, and it is crucial that the system remain simple and accessible to claimants and that the tribunal remain flexible in its powers.

Greater inflexibility will tie the hands of the tribunal, and this would only be counterproductive, disadvantaging workers as much as helping them. There are plenty of rules, practices, conventions and accepted ways of dealing with evidence in courts and tribunals. The tribunal presidents and officers would be well aware of these and would apply them judiciously according to the facts of each case. A blanket solution to the issue of oral evidence and its admissibility would be unwise.

In relation to the second proposed new clause, on offences, most of the offences in the Workers Rehabilitation and Compensation Act can, by nature, be committed only by the parties—mainly employers and workers. Therefore, it is nonsensical to make them offences that can be committed by WorkCover and staff. This amendment is partly consequential on proposed section 122AA, which creates a series of special offences by WorkCover staff. The government opposes this change; therefore, the deletion of subsection (4) of section 122 is not necessary.

With respect to the third proposed new clause, 'Special offences by WorkCover officers', the current law is quite sufficient in this area. There has not been any recent evidence to suggest that such offences are warranted. Other laws are quite capable of holding WorkCover or its officers liable for wrongdoings in the administration or enforcement of the Workers Rehabilitation and Compensation Act. WorkCover has a very sophisticated and robust internal audit capability and complaints management framework, including a team of dedicated staff members, to deal with complaints of wrongdoing by WorkCover or Employers Mutual. The creation of a WorkCover ombudsman proposed in the bill should further assist in holding WorkCover and Employers Mutual to account in its claim processes.

The Hon. SANDRA KANCK: In moving the amendment I spoke only to new clause 80A, and I should also include the comments that Ms Bressington's officers provided on 80B and 80C, which again target what I was talking about earlier today—the scheme critical list and its illegal and corrupt nature. The amendments also seek to ensure that unlawful corporate activity of the past is not legalised retrospectively, as would be the case in this bill. The amendment affirms the fact that the creation and application of the scheme critical list was not only corrupt by today's standard but also that its prejudicial intent was corrupt at the time it was first conceived and created.

New clauses negatived.

New clause 80A.

The Hon. M. PARNELL: I move:

New clause, page 70, after line 26—

Insert:

80A—Insertion of section 123

After section 122A insert:

123—Civil penalties

(1) An application may be made under this section to the Industrial Court to recover an amount as a civil penalty from a person who has acted in contravention of this Act.

(2) An application may not be made under this section in respect of a contravention of a provision of this Act that constitutes an offence—

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

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

(3) If, on application under this Act, the Industrial Court is satisfied on the balance of probabilities that a person has contravened the provision of the Act to which the application relates, the Industrial Court may order the person to pay an amount as a civil penalty.

(4) The maximum amount that may be awarded under this section is—

(a) in the case of an award against a natural person—$50 000;

(b) in the case of an award against a body corporate—$150 000.

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

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

(b) any detriment resulting from the contravention; and

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

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

(e) the deterrent effect that the amount to be paid may have on the person who has committed the contravention; and

(f) any other matter it considers relevant.

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

(7) Proceedings referred to in subsection (6) may only be resumed if the criminal proceedings do not result in a formal finding of guilt being made against the person.

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

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

(b) the conduct alleged to constitute the offence is substantially the same as the conduct that was alleged to constitute the contravention of this Act giving rise to the proceedings under this section.

(9) However, subsection (8) does not apply to criminal proceedings in respect of the making of a false or misleading statement.

(10) Proceedings may only be commenced under this section by—

(a) the Corporation; or

(b) a worker who has suffered a compensable disability; or

(c) an employee association where the relevant contravention had, or could potentially have, a detrimental affect on a member, or a person eligible to become a member, of the association.

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

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

(13) The Industrial Court may join the Corporation, or any worker or employee association, as a party to any proceedings under this section (as if the Corporation, the worker or the employee association were an applicant under this section).

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

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

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

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

(c) may be divided into 2 or more parts and paid under any combination of payments under paragraph (a) or (b) (or both),

as determined by the Industrial Court.

(16) In this section—

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

On a number of occasions in this debate I have referred to WorkCover's failure to ever enforce various aspects of the legislation when it is breached by employers. No information has been put in this debate that I was incorrect in saying that. This provision allows for the people most affected by these laws, that is, injured workers, either directly or through their unions, to enforce the law.

The Hon. P. HOLLOWAY: The government opposes this amendment because it does not believe that a detailed civil penalties framework is necessary or warranted under the Workers Rehabilitation and Compensation Act. This is a serious and comprehensive proposal. The government cannot support such a proposal without robust and detailed consideration, especially of the net benefits it would bring to the scheme and potential financial and administrative burdens. In any event, there are already comprehensive arrangements in the act that establish penalties for breaches of the act, and the flexibility of the levy system is used to impose sanctions on employers for breaches of their obligations.

New clause negatived.

Clause 81.

The Hon. SANDRA KANCK: On behalf of the Hon. Ann Bressington, I move:

Page 70, line 36—Delete 'authority' and substitute:

entity

This amendment is about making the code of claimants' rights apply not only to compliance by WorkCover Corporation with the rights of injured workers but also to bind any person or body that may trespass against these rights. I also indicate that there are similar amendments, Nos 24, 25, 26, 28 and 29, in this regard. If this one is defeated, obviously, I will not move those other amendments.

The Hon. P. HOLLOWAY: The government opposes the amendment as the purpose of a code of claimants' rights is to outline the way in which claimants can expect to be treated by compensating authorities and their agents. Registered employers have a very different role in the scheme. They are not compensating authorities and have no delegations to administer the Workers Rehabilitation and Compensation Act by, for instance, fielding and determining claims. The focus of the proposed code is on claims and claimants. By nature the claimant is complaining about something to do with the handling of his or her claim. In most important respects the claim is handled by a compensating authority.

Amendment negatived.

The Hon. M. PARNELL: I move:

Page 70, after line 38—Insert:

(ab) setting out requirements for a relevant authority to provide appropriate information to claimants or potential claimants, including information about—

(i) the extent to which the worker is entitled to the provision of rehabilitation and support, including through the provision of equipment, facilities or services at home; and

(ii) the extent to which the relevant authority may assist with the payment of accounts for medical services, including through the making of direct payments to service providers; and

(iii) the processes involved in claiming and receiving compensation for any permanent impairment; and

This amendment would require that the code of claimants' rights require that compensating authorities should provide claimants with basic information about their rights, and that just does not happen at present.

The Hon. P. HOLLOWAY: The government opposes the amendment.

Amendment negatived.

The Hon. SANDRA KANCK: On behalf of the Hon. Ann Bressington, I move:

Page 71, after line 24—Insert:

123C—Injured Workers Advisory Committee

(1) The Minister must establish a committee to be called the Injured Workers Advisory Committee.

(2) Subject to subsection (3), the committee consists of 9 members appointed by the Minister on the basis that they are considered by the Minister to be suitable representatives of workers who have suffered compensable disabilities.

(3) 1 member of the committee must be a person nominated by—

(a) the National Committee of Whistleblowers Australia Inc; or

(b) the National Committee of Transparency International.

(4) At least 1 member of the committee must be a woman and at least 1 must be a man.

(5) The members of the committee will hold office on terms and conditions determined by the Minister and, at the expiration of a term of office, are eligible for reappointment.

(6) The functions of the committee are—

(a) to provide advice to the Minister on matters relating to workers rehabilitation and compensation; and

(b) to make recommendations relating to—

(i) the matters to be addressed in the Code of Claimants' Rights; and

(ii) any proposals to vary the Code; and

(c) to carry out other functions assigned to the committee by the Minister.

(7) The Minister will appoint 1 of the members of the committee to be the presiding member of the committee.

(8) The procedures of the committee will be determined by the committee except that—

(a) a quorum of the committee is 5 members; and

(b) a decision supported by a majority of members present at a meeting of the committee is a decision of the committee.

(9) The committee must meet at least 6 times in any year.

(10) The committee may, with the approval of the Minister, establish subcommittees to assist the committee.

(11) A subcommittee may, but need not, consist of, or include, members of the committee

This sets up an injured workers advisory committee, the aim of which is to provide a means for injured workers to be genuinely represented within the WorkCover system. It is something that has been severely lacking and the primary reasons why the directions of the WorkCover Corporation have been hijacked by big business and corporate self-interest.

The Hon. P. HOLLOWAY: The government opposes the amendment.

Amendment negatived; clause passed.

Clauses 82 and 83 passed.

Schedule 1.

The Hon. M. PARNELL: I move:

Clause 4, page 74—

Lines 21 and 22—Delete '(in this clause referred to as the new provisions')

Lines 24 to 38—Delete subclauses (2) and (3)

Clause 5—Delete clause 5 and substitute:

5—Discontinuance of weekly payments

The amendments made to section 36 of the principal act by section 16(1), (2) and (3) of this act extend to weekly payments commenced before the relevant day, or commenced on or after the relevant day, in relation to compensable disabilities occurring before the relevant day but otherwise the amendments made by section 16 of this act only apply in relation to workers who suffer compensable disabilities on or after the relevant day.

The amendments relate to retrospectivity, and I think this parliament has been very wary of retrospective changes in the past, as it should be. My amendments Nos 79, 80 and 81 are about removing such retrospectivity. Workers who were injured many years ago having their income slashed, or stopped altogether because of laws that were not even dreamt of when they were injured, is just plain unfair. I think that all members who believe that it is unfair should support these amendments.

I also say that this was the last of my amendments upon which I had proposed to divide, but I will not divide on this. However, we may have a division on the third reading once we are beyond the committee stage.

The Hon. P. HOLLOWAY: The government opposes the series of amendments moved by the honourable member because they propose the removal of sections 35B and 35C from the bill. Sections 35B and 35C are essential components in the bill which establish the framework for weekly entitlements for long-term claimants. The new provisions are consistent with equivalent provisions interstate.

Current sections 35(1) and 35(2) assume that injured workers are entitled to weekly payments indefinitely, subject to WorkCover reviews of weekly payments that may find some work capacity. In reality, this onus is difficult to discharge. The Clayton report described the current laws as opaque and tortuous. New work capacity tests and the responsibility and balance transitional provisions are key elements in addressing the scheme's unfunded liability.

Amendments negatived.

The Hon. SANDRA KANCK: On behalf of the Hon. Ann Bressington, I move:

After clause 16—Insert:

17—Offence provisions

(1) The amendment effected by section 80B of this act operates prospectively and retrospectively.

(2) Section 122AA of the principal act, as enacted by section 80C of this act, operates prospectively and retrospectively.

This amendment again targets the scheme critical list, or whatever name it is known by now, and seeks to ensure that the criminal practices of the past are not retrospectively legalised by the government's current bill.

The CHAIRMAN: I think that this was lost in the main part of the bill.

The Hon. SANDRA KANCK: It was consequential, was it?

The CHAIRMAN: Yes.

Amendment negatived; schedule passed

New schedule 2.

The Hon. J.A. DARLEY: I move:

Page 77, after line 4—Insert:

Schedule 2—Review

1—Review

(1) The minister must, as soon as practicable after 31 December 2010, appoint an independent person to carry out a review concerning—

(a) the impact of this act on workers who have suffered compensable disabilities and been affected by the operation of this act; and

(b) the impact of this act on levies paid by employers under part 5 of the principal act; and

(c) the impact of this act on the sufficiency of the compensation fund to meet the liabilities of the WorkCover Corporation of South Australia under the principal act; and

(d) such other matters as the minister may determine.

(2) The person appointed by the minister under subclause (1) must present to the minister a report on the outcome of the review no later than 4 months following his or her appointment.

(3) The minister must, within 6 sitting days after receiving the report, have copies of the report laid before both houses of parliament.

(4) In this clause, terms used have meanings consistent with the meanings they have in the principal act.

(5) In this clause—

principal act means the Workers Rehabilitation and Compensation Act 1986.

This amendment essentially provides that, as soon as practicable after 31 December 2010, a review of the act must be carried out by an independent person appointed by the minister, and that a report on the outcome of the review must be laid before both houses of parliament within six sitting days after receiving the report. The person appointed by the minister to carry out the review under subclause (1) must provide the report to the minister no later than four months following his or her appointment.

The review will be undertaken in order to consider the impact of the act on workers who have suffered compensable disabilities and who have been affected by the operation of the act; the impact of the act on levies paid by employers under Part 5 of the act, which deals with registration and funding; the impact of the act on the sufficiency of the compensation fund to meet the liabilities of the WorkCover Corporation of South Australia under the principal act; and such other matters as the minister may determine.

Honourable members will recall that during my contribution to the second reading debate I suggested that a paradigm shift is required in the culture of the WorkCover Board and the WorkCover Corporation. I also mentioned that the opposition has maintained that it is committed to fixing the WorkCover scheme. This amendment would force whoever is in government—whether it be the present government or the opposition—to revisit the WorkCover issue by, or shortly after, 31 December 2010 and ensure that the act is achieving what was originally intended, and identify any areas of concern or failure in that respect. I strongly urge honourable members to support this amendment.

The Hon. P. HOLLOWAY: The government opposes this transitional provision. It goes without saying that the government will closely monitor the impact of the bill after it becomes law. It will draw on the expertise of WorkCover, and other related bodies, which will also closely monitor the impact of the bill. This is no special event. It is simply regular good practice that any organisation and government would do after carrying out an initiative involving major change.

There is no need to enshrine this process in legislation as this would simply impede the ability of the government to act flexibly in this regard. For example, it may want to conduct such a review at the end of 2009 or at the end of 2011, or it may simply decide that ongoing monitoring and reviewing is sufficient. The government is also concerned about the cost of conducting another major formal review so soon after the Clayton review. Arguably, such a review is not necessary. These transitional provisions are not common in other states and territories.

The Hon. R.D. LAWSON: I indicate that Liberal members will be supporting this sensible amendment. The minister said that a provision of this kind will impede the flexibility of the government of the day. Actually, it is designed to do that. Flexibility means the flexibility to duck and weave, and avoid conducting a review of this kind. We know from the history of WorkCover itself that there have been a number of promises. Bills have been introduced, and I illustrated that the other day when I mentioned the bill introduced by the government in 2003 and indicated that nothing was done about it. That was political flexibility that the government was seeking on that occasion. So, we will be supporting this sensible initiative of the Hon. Mr Darley.

The Hon. SANDRA KANCK: That was very pleasant news, Mr Chair. It looks as though, out of all of the amendments moved in this place, this will be the only successful one. It is a sensible move. It has to be done after December 2010, which means that it will be at least three years after the Clayton Walsh review. I can hardly see why having a review would impede whatever it is that the government wants to do. This is about accountability. There are enormous changes. This is a massive shake-up in workers compensation in this state, and it will have huge implications. I think a review is an extremely sensible measure.

The Hon. D.G.E. HOOD: Just to make it unanimous, Family First also supports this sensible amendment.

Members interjecting:

The Hon. D.G.E. HOOD: Well, almost unanimous.

The committee divided on the new schedule:

AYES (12)

Darley, J.A. (teller) Dawkins, J.S.L. Evans, A.L.
Hood, D.G.E. Kanck, S.M. Lawson, R.D.
Lensink, J.M.A. Parnell, M. Ridgway, D.W.
Schaefer, C.V. Stephens, T.J. Wade, S.G.

NOES (5)

Finnigan, B.V. Gago, G.E. Gazzola, J.M.
Holloway, P. (teller) Zollo, C.

PAIRS (4)

Bressington, A. Hunter, I.K.
Lucas, R.I. Wortley, R.P.


Majority of 7 for the ayes.

New schedule thus inserted.

Title passed.

Bill reported with an amendment.


[Sitting suspended from 18:05 to 19:30]


Third Reading

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (19:33): I move:

That this bill be now read a third time.

The Hon. M. PARNELL (19:33): I will make a brief contribution on the third reading. This is a sad day for South Australia. This is the day that the Labor government abandoned working South Australians. Have no doubt about it—this bill is an absolute abomination. This is the worst piece of legislation that I have seen in my time here and, according to the unions that I have consulted on this bill, it is the worst piece of industrial legislation ever introduced by a Labor government, probably in the history of South Australia.

The process was appalling from start to finish. It started with an unholy delay; the government delayed introducing the legislation because they did not want it to be confused with the Prime Minister's WorkChoices bill. They rushed it on, there was an appalling lack of consultation and, what is worse, a total abrogation of responsibility from the Liberal Party to do their job as an opposition to try to amend this law. The Liberals left it to the cross-bench members to try to fix up this mess.

Make no mistake about it: this legislation is a mess. We have passed an amendment to say that we will come and look at it again in a few years but I doubt that it will take that long. We will be back here during the term of this parliament to fix up mistakes that could easily have been fixed up in the committee stage of this bill.

However, what is most distressing for me is that in the background to this is real pain for injured workers. As the result of this government's bill and this parliament's actions, thousands of South Australian working families face major disruption to their livelihoods. Hundreds of South Australians (perhaps more) will lose their homes as a result of the cuts to their entitlements under this bill if they are unlucky enough to be injured at work. This is a horrible legacy for the government to be leaving this state.

I have tried over the past several days to represent the people that the old parties have abandoned. I make no apology for the fact that it did take us some time. At the end of the day this bill has been rushed through. When you look at how long it took, it was not a long time. In fact, it was not nearly as much time as it deserved.

But in the third reading, I want mainly to put on the record my thanks to the many people who have provided their advice, support and encouragement to me and the Greens in trying to fix this awful legislation. The first person I would like to thank is Janet Giles, the Secretary of SA Unions, who members would know has been—

The Hon. I.K. HUNTER: On a point of order, Mr President, I point out that the camera person in the gallery should be training his camera only on the member speaking.

The PRESIDENT: I remind the camera person that the he should have his camera trained only on the person who is on their feet.

The Hon. M. PARNELL: Janet Giles, the Secretary of SA Unions, has sat here in the gallery watching us do our work day after day after day. She is a busy person; she has other things to do. But it shows how serious the trade union movement sees this legislation; how serious it considers it that we are cutting the entitlements of vulnerable people.

I would also like to put on the record my thanks to the very many union leaders and activists who have helped with this campaign; in particular, Jan McMahon from the Public Service Association, and many others; Wayne Hanson; members from the CFMEU; and others who are too numerous to mention. I would also like to put on the record my thanks to Rosemary McKenzie-Ferguson from the Workers Injured Resource Connection; Andrea Maddeley from the group VOID; and other experts and other activists, such as Phil Moir.

I also acknowledge the expertise and work of Kevin Purse, whose work I have referred to extensively throughout this debate. But, most importantly, I want to thank the dozens and dozens of injured workers who contacted my office and provided me with the stories and the anecdotes that I used to illustrate how bad these new laws are. If it was not for those people, this law would just seem to be an economic measure about the unfunded liability. It is not: it is about real people who have been injured at work, and this parliament has done them a huge disservice by cutting their standard of living.

This is a disgraceful piece of legislation, but I am comfortable that I will sleep well. I will have no trouble looking union leaders in the eye. I will have no trouble looking injured workers in the eye, because I have stood up for their rights. I wish I could say that other members of this place, apart from my colleagues on the cross-benches, had done likewise. I will be opposing the third reading of this bill.

The Hon. SANDRA KANCK (19:39): I suppose that, if there was one word I would use to describe both the process and outcome of this bill, it would be 'disappointing', but it is typical of the Rann government to take legislation and to effectively ram it through. We have not had adequate discussion, and the rate at which we dealt with amendments this afternoon in order to get this through on the timetable the government wants was really quite disgraceful.

An honourable member interjecting:

The PRESIDENT: Order!

The Hon. SANDRA KANCK: So there is another 'd' word. I remind members that back in 1986 the Democrats held up the WorkCover legislation for many months, and the consequence of it was amendments to legislation that resulted in what was the best WorkCover legislation in Australia. It happened because there was adequate consultation. That has not happened in this particular case.

Members of the opposition reminded us that, when they were in government, their legislation was held up for 500 days, and the Labor Party in opposition thought that that was a very good thing but, now that it is in government, it thinks that ramming things through is the way to go. I am disappointed in the government at not being willing to accept a single amendment of the many that were moved. It has quite clearly an obsession with this issue of the tail of the scheme and it had a determination that there was only one way to deal with it and that was its way when, in fact, many other ways could have been considered.

I also express my disappointment in the opposition. I believe that we are here as legislators—that is what we are paid to do—to look at legislation and make it the best possible. The opposition has failed in that task. I understand what it has done strategically, and some members expressed that to me, and their view was that the government has made its own bed with this and it has to lie on it. I certainly have looked at this in terms of what might be best for injured workers in this state, and I have been prepared to consider amendments to make things better for them.

Ultimately, this bill, described as an act to amend the Workers Rehabilitation and Compensation Act 1986, is actually a bill to limit and restrict the rights of injured workers in this state. Another D-word: they are the ones who will be devastated by this. I indicate that I will be opposing this at the third reading.

The Hon. R.D. LAWSON (19:42): The principle which guides us as legislators from the Liberal Party is that we will always endeavour to improve any bill, irrespective of whether we propose to vote in favour of or against the bill ultimately. This bill presents a peculiar challenge. The bill represents a non-negotiable government package, passed through another place very quickly to solve a problem. Admittedly, it is a problem of this government's making, but it is a very serious problem for everybody in this state, not only for injured workers but also it is a serious problem for employers, exempt employers, the government itself as the ultimate guarantor of the scheme, the citizens of the state generally, and for our economy.

I emphasise that this bill is a package of measures. The government claims that it is a balanced package which provides some benefits and some detriment to all sectors. In some, admittedly only a few, injured workers will have entitlements to increase compensation; in others, access to compensation will be circumscribed. WorkCover and exempt employers will lose the significant right to redemptions that they previously enjoyed and, of course, injured workers will lose the opportunity which they presently have to receive exemption.

The government claims that it has struck the right balance; that is a matter of debate and clearly a matter of judgment. On the other hand the unions, including the PSA, say that the balance is not correct. Employer groups who presented material to the opposition have said at best that this bill represents a score of only 6.5 out of 10. The unions want us to defeat the bill and the government is insisting that we pass it without amendment. For us the question was: should we seek to cherry pick and pluck out of the bill those things which might be of advantage to some and not pick out other things which might be seen to be a detriment?

We certainly had misgivings all along about the abolition of redemptions, for example, and the introduction of medical panels. But in the end we have agreed to the government's package. It is the package on which they will be judged. We are delighted, ultimately, that there will be a review in three years, and I commend the Hon. John Darley for introducing an amendment which will ensure that there is a review. At that time this government will be judged; at that stage, we will see whether—

Members interjecting:

The Hon. R.D. LAWSON: Well, at that stage, of course, there will be a Liberal government and it will be able to introduce measures to remedy the defects. With those remarks, I indicate that we will support the third reading and the passage of the bill.

The Hon. D.G.E. HOOD (19:45): I rise very briefly to indicate what I have said in my second reading speech and throughout the committee stage: that Family First will oppose the third reading and, indeed, opposes the bill. We have serious misgivings about much of this bill which we have discussed throughout the committee stage, but I think the fundamental issue for us is quite simply that the real problem with the WorkCover system is not the injured workers: it is that it has been poorly managed.

The WorkCover Corporation has done an appalling job of managing a very serious situation and yet, really, this bill misses any direct significant implications and any really negative consequences for WorkCover when one considers the way that they have managed the process, and that is the real shortcoming of this bill in our view. For that reason, and for many others that I have outlined throughout the very long discussion that we have had over the last couple of weeks, we certainly oppose the third reading.

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (19:46): In closing this third reading debate, I will be very brief. Obviously, for members of the Labor Party, dealing with changes to workers compensation is always a difficult issue. It brings no particular joy that we have to deal with these issues. However, the fact is that it is obviously in the interests of injured workers that any workers compensation scheme be financially sustainable.

The fact is, whether we like it or not, our workers rehabilitation and compensation scheme is the most expensive scheme in the country, but it is also demonstrably—and by a big margin—the least effective at getting workers back to work. The principal driving force behind the government's changes (based of course on the review of Mr Clayton) is to get workers back to work.

So we can hear all the bleeding heart stories from the Hons Mr Parnell and Ms Kanck, but, whether he likes it or not, the fact is that Mr Parnell wants a scheme to continue that is notoriously and demonstrably ineffective at getting workers back to work. If he has his way, his system will keep workers, who in other jurisdictions would be back at work, in the scheme, which is failing those workers, and that is statistically and demonstrably correct.

It is all very well for people like the Hon. Mr Parnell to lecture members here. We have a difficult choice to make. The fact is that this government is faced with difficult choices. We have to make those choices, and it gives us no joy to do that, but if as a result of the changes made to the scheme, we can improve our return to work record and if, as a result of that, we can make our scheme more effective, it will also in the process actually create more jobs within the state because we cannot afford to have our costs out of kilter with those in other states because if we do, it will reflect on employment.

Of course, the Hon. Mark Parnell can just take a very myopic, narrow, tunnel-vision approach, but when you are in government you have to look at the overall scope of issues facing government. We have to ensure that our system works such that it is in the best interest of the community at large, which means that we have to ensure that workers get back to work.

I have met workers in the past who have come through the workers compensation scheme. A lot of it is not a pretty sight. The Hon. Mr Parnell and others have told us how bad the system is in relation to what it does to these workers. Well, why then does he want to keep it that way? I think that is the question that needs to be asked.

Time will tell whether or not these changes work, but at least I will sleep easy knowing that we have tried to improve a system that gets workers back to work and not leave them as they are at the moment, where we have the most ineffective scheme in this country at getting workers back to work. As for the Hon. Ms Kanck, I just want to say what a total phoney she is. The honourable member headed off overseas for a trip, missed the 13 hours of debate on the second reading and then deigns to lecture us in the third reading: 'We haven't had enough time to consider the bill.' What a phoney you are, Ms Kanck—what a total, utter, unadulterated phoney you are.

The Hon. Sandra Kanck: We are going to personalise it now, are we?

The Hon. P. HOLLOWAY: No; I am just pointing out to the Hon. Ms Kanck that she tries to lecture us about not having enough time. Well, why was she not here to endure 13 hours of debate? There was plenty of time then. She chose not to be here. She chose to be somewhere else, so do not lecture us. As I said, the passage of this bill has obviously been a difficult decision for members of the Australian Labor Party, but it is one which we had to take in the best long-term interests of the workers of this state to ensure that they have a viable, long-term workers compensation scheme.

I can assure the public of South Australia that we will continue to monitor the scheme to ensure that it does provide the benefits to injured workers which they thoroughly deserve.

The council divided on the third reading:

AYES (14)

Dawkins, J.S.L. Finnigan, B.V. Gago, G.E.
Gazzola, J.M. Holloway, P. (teller) Hunter, I.K.
Lawson, R.D. Lucas, R.I. Ridgway, D.W.
Schaefer, C.V. Stephens, T.J. Wade, S.G.
Wortley, R.P. Zollo, C.

NOES (4)

Darley, J.A. Hood, D.G.E. Kanck, S.M.
Parnell, M. (teller)

PAIRS (2)

Lensink, J.M.A. Bressington, A.


Majority of 10 for the ayes.

Third reading thus carried.

Bill passed.

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