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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-11-14 Daily Xml
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WORKERS REHABILITATION AND COMPENSATION (PROTECTION FOR FIREFIGHTERS) AMENDMENT BILL

Introduction and First Reading

The Hon. T.A. FRANKS (15:59): Obtained leave and introduced a bill for an act to amend the Workers Rehabilitation and Compensation Act 1986. Read a first time.

Second Reading

The Hon. T.A. FRANKS (16:00): I move:

That this bill be now read a second time.

Obviously, at this particular time the events that occurred at Tulka in this past week are quite present in our mind. Of course, when we think about victims of fire our thoughts usually turn to those who tragically lose their life as a consequence of smoke inhalation or heat exposure. What we often do not think about are the firefighters themselves, who may be affected by cancer decades after these events by being exposed to the toxic carcinogens released through fire.

We often do not think, and do not acknowledge, that firefighters have a higher rate of cancer than the general population and that this can, in fact, be attributed to the exposure of firefighters to carcinogens found in both structural and environmental fires, according to the current scientific body of knowledge. My bill seeks to ensure that, as a state, we have better WorkCover protection for both career and volunteer firefighters.

The bill has as its genesis the successful passing of the forerunner of this state-based bill, the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill in 2011, which was introduced by the Greens Adam Bandt, the member for Melbourne. I commend Mr Bandt for his work there, and note that he worked cross-party and in negotiation with various stakeholders, including the UFA and various others both across the parliament and engaged in firefighting and volunteering, as well as with the scientific body of evidence and firefighters across the world to ensure that groundbreaking piece of legislation was passed in our federal parliament on 24 November last year.

I note that that bill was not successful in addressing the issue of including volunteer firefighters, although it was the stated intention of the mover that this happen. Certainly, a review of the legislation is to be conducted and concluded by 31 December 2013, and it has been flagged that that may be an appropriate opportunity to do that. It is a small number of firefighters in that particular case, federally, who will have the benefits of that bill, but the work and the body of knowledge that was accrued by the senate committee, the Senate Education, Employment and Workplace Relations Committee's inquiry into that bill will have a positive effect for states and territories around Australia as they pursue this issue.

Certainly the Greens will be pursuing the issue, not only for paid firefighters but also for volunteer firefighters. That senate inquiry recommended that Australian firefighters should have the same coverage as firefighters in other jurisdictions. It recognised that the science has advanced, and that a particular list of cancers could, in fact, be proven to be linked to the act of firefighting. I note that lung cancer has not yet been accepted in this debate, and apparently the definition of 'non-smoker' needs more work in this jurisdiction.

It may surprise members that lung cancer is not in this bill and is not in the federal bill; however, it is certainly on the agenda for further work. As I said, the definitions around 'non-smoker' need some work to progress that particular issue. To get back to the bill at hand, South Australia is quite different to the federal parliament and the ACT, where that Greens bill is now in place. From the outset it is important to observe that the Workers Rehabilitation and Compensation Act already applies to CFS volunteers, as they were prescribed under regulation 17 as volunteers for the purposes of section 103A of the act. There is, in fact, no need for this bill here to specifically or directly cover volunteer firefighters because, as was indicated to me by parliamentary counsel in the original drafting notes to this bill, which were undertaken in April this year, a 'worker' is already defined to mean:

(b) a person who is a worker by virtue of section 103A.

This section, as I was advised by parliamentary counsel, provides that:

(1) The Crown is the presumptive employer of persons of a prescribed class who voluntarily perform work of a prescribed class...

Regulation 17 prescribes volunteer firefighters as a prescribed class of person and prescribes, among other things, 'preventing, controlling or extinguishing a fire' as a prescribed class of work. I refer members to section 103A of the act—Volunteers:

(1) For the purposes of section 103A of the Act—

(a) volunteer fire-fighters are prescribed as a class of persons under that section; and

(b) the following activities are prescribed as a class of work in relation to volunteer fire-fighters:

(i) any activity directed towards—

(A) preventing, controlling or extinguishing a fire; or

(B) dealing with any other emergency that requires SACFS to act to protect life, property or the environment;

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

(iii) attending an SACFS meeting, competition, training exercise or other organised activity;

(iv) any other activity carried out in relation to the functions of SACFS under the Fire and Emergency Services Act 2005...

(2) In this regulation...

volunteer fire-fighter means—

(a) a member of SACFS within the meaning of the Fire and Emergency Services Act 2005; 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 person who is apparently in command pursuant to Part 4 of the Fire and Emergency Services Act 2005, at the scene of a fire or other emergency, assists in fire-fighting or dealing with the emergency,

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

Sorry to labour that point, for those members who do pay attention, but we are here moving this bill today because the government did not. In fact, while the volunteer firefighter aspect of this Greens bill has been the point of difference between the Greens' position and the government's announcement on 5 November in the public debate on this bill so far, it is not actually the coverage of volunteer firefighters that is the new issue before this parliament.

What is new, and what this bill will do to amend the act, is the schedule of cancers that the bill adds a presumption—or, to put it another way, a reversal of the onus of proof—for a firefighter who contracts one of the stated cancers on the schedule. That person must have also been a firefighter for at least the period of time attached to the schedule to be inserted into the act.

That a firefighter's work has caused the firefighter's cancer will apply for those diagnosed after the date the bill is introduced to both CFS volunteers and paid firefighters, and it will be provided that they have worked for the required amount of time as a firefighter or volunteer firefighter. I note that many MFS firefighters also volunteer, both after they finish their service as a paid firefighter or, in fact, at the same time.

It is set out in the schedule, and these required periods of time are typically 10 or 15 years; they start at 5 years, and are as long as 25 years. If this bill is passed into law, the result will be that a career or volunteer firefighter will not have to prove the causative connection between their work as a firefighter and their cancer.

Should they have primary site brain cancer, the qualifying period of service will be five years. Should it be primary site bladder cancer, it will be 15 years; primary site kidney cancer will be 15 years; primary non-Hodgkin's lymphoma will be 15 years; primary leukaemia will be five years; primary site breast cancer will be 10 years; primary site testicular cancer will be 10 years; multiple myeloma will be 15 years; primary site prostate cancer will be 15 years; primary site ureter cancer will be 15 years; primary site colorectal cancer will be 15 years; and primary site oesophageal cancer will be 25 years.

Now I will move on to the other part of the debate: the science behind this bill. The science connecting these cancers to the act of firefighting has significantly progressed over past decades. We have a very large body of knowledge that links the cancers identified in the schedule with the act of firefighting. Indeed, it is the science underpinning this legislation that is pivotal to its justification. As minister Ian Hunter noted before, it should be the science that this debate hinges on and not the politics.

I acknowledge at this point and refer members to the aforementioned Senate Education, Employment and Workplace Relations Legislation Committee review into this bill. It is 60 pages long. I will touch on some of the evidence and studies cited in that particular review and note that, in summary, the committee was confident that 'a link between firefighting and an increased incidence of certain cancers had been demonstrated beyond doubt'.

The international studies investigated by the committee noted that the science has become progressively more sophisticated, and policy makers are now able to access several large-scale studies which conclusively show that there is a link between firefighting and cancer. In fact, I understand it has been stated that firefighting is the most studied occupation in the world when it comes to cancer, and there are literally dozens of major studies spanning over 20 years that have made a definitive connection between firefighting and elevated cancer risks.

One of these studies was commissioned by the Canadian province of Manitoba in 2002. It looked at evidence gathered from 1994 to 2002 and it was led by Tee L. Guidotti. The study analysed research conducted worldwide and looked at firefighters and five specific types of cancer, being brain, bladder, kidney, non-Hodgkin's lymphoma and leukaemia. Processing an enormous volume of information, the researchers concluded that a firm link existed between firefighting and these primary-site cancers. In his report to the Workers Compensation Board of Manitoba, Guidotti stated:

The evidence available since 1994 suggests it is reasonable given the available scientific evidence to adopt a policy of presumption for brain cancer, bladder cancer, kidney cancer, non-Hodgkin's lymphoma...and leukaemia...for claims associated with occupation as a firefighter.

These conclusions were used to inform Manitoba's presumptive legislation, the first of its kind in the world, and subsequent presumptive legislation in other jurisdictions in both Canada and the US. Other studies have confirmed a link between more than just brain cancer, bladder cancer, kidney cancer, non-Hodgkin's lymphoma and leukaemia and firefighting. Following that research, Manitoba expanded its list of recognised occupational cancers more recently from five to 14—more than we have before us today.

Following this research, there was also a study of professional firefighters in New Zealand. I use the word 'professional' acknowledging that all firefighters engaged in South Australia are in fact professional. It followed a cluster of testicular cancers that was detected in Wellington in the 1980s. It looked at those particular cancers in a cohort of firefighters and compared them to the incidence in the general population, using data obtained from the New Zealand Health Information Service. As a result of this study by Bates, the following was quoted in the Senate committee:

[It] put the scientific world on its heels. They found that the level of testicular cancer for New Zealand firefighters—I believe they looked at 4800 New Zealand firefighters within about three decades—was upwards of five times that of the general population.

Mr Alex Forrest, the President of the United Fire Fighters of Winnipeg and Canadian Trustee of the International Association of Fire Fighters, presented to the Senate committee in Australia. He said:

When this study came out I read it and said: 'Five times the level—it just cannot be true.' Almost immediately different epidemiologists around the world took on the challenge of discrediting this study out of New Zealand. A gentleman by the name of Jockel out of Germany looked at all firefighters in Germany. What he found surprised him. His study almost exactly replicated the results—the rate of testicular cancer in New Zealand was the same as the rate in Germany. That just shows you the global aspect of this.

There was another large meta study confirming these results in 2006, where researchers, led by Grace LeMasters, looked at 110,000 firefighters and replicated the rate of testicular cancer. So, you have three studies: one from New Zealand, one from Germany and one from the United States, all showing the same rates of cancer for firefighters.

The committee heard that most overseas jurisdictions with similar legislation currently in place have moved substantially beyond the five cancers originally covered in Manitoba's initial legislation in 2002 and reflected here today in the proposed bill. With the large volume of scientific research, every province in Canada is moving towards covering 14 cancers, although we only have 12 before us today.

In summary, that cross-party Senate committee was incredibly confident that there was compelling evidence for the federal bill, which is why the Greens have taken up the charge at a state and territory level and we will be initiating similar work in each state and territory where we have members in the parliament. In doing so in South Australia, we undertook to work with the government and in doing that I wrote to ministers Snelling, Rankine and Wortley on 21 April of this year. I alerted each minister to the passage of the federal Greens' Safety, Rehabilitation and Compensation Amendment (Fair Protection for Firefighters) Bill. I also sent them the Senate committee report, a copy of the bill and the explanatory memorandum.

I was heartened to receive a response from minister Snelling. Certainly, as we worked not only with the government but also met with the CFS and the UFU in South Australia, we received not only a positive response from minister Snelling at this time but were informed by his staff member on 24 May that the Treasurer had in fact asked the Workers Rehabilitation and Compensation Advisory Committee to investigate and report on schedule 2 of the Workers Rehabilitation and Compensation Act 1986, including consideration of the recent changes to the federal legislation covering firefighters. We pursued a possible briefing with Peter Marshall of the federal UFU, but in May we were asked (in correspondence from the UFU) to hold off on that briefing until:

...the national executive of the UFU will be meeting on 29 June 2012 and presumptive legislation in South Australia will be discussed.

That was in June 2012. Certainly, the Greens continued to attempt to work with the UFU in South Australia, but we did find the process difficult. In this whole time, one thing that did comfort us was, having drafted the bill in April and having met with Wendy Shirley of the CFS Volunteers Association and understanding the nature of the work of the CFS in South Australia, that volunteers would be a part of any final bill.

Imagine our surprise when we heard, on 5 November, the Treasurer Jack Snelling and the Premier Jay Weatherill announce that South Australia was to be the first state to support firefighters with cancer. Premier Weatherill, at the Metropolitan Fire Service's 150th birthday, used that opportunity to issue a press release and, quite rightly, he indicated that South Australia should be the first state to give additional protection to firefighters exposed to a higher cancer risk as a result of their work. He went on to acknowledge that it was time for the government to protect those firefighters who protect us. However, the government's announcement only applied to the MFS and not to Country Fire Service volunteers. I believe this was a slap in the face to the volunteers who serve us, and I understand that there are—

There being a disturbance in the President's gallery:

The Hon. T.A. FRANKS: Thank you—13,500.

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): Order! The gallery must be silent. The member will continue.

The Hon. T.A. FRANKS: Thank you for your guidance, Mr Acting President. It also flew in the face of the current status quo under this act in terms of the treatment of volunteer firefighters. So it begs the question whether or not the government is intending to move away from what I believe is a proud tradition we have here of recognising firefighters as workers as prescribed by regulations under the act, or whether it simply squibbed it in its haste to deliver some good news that particular week. There may have been political scandal, there may have been the need for the government to make a good news story, however, by leaving out volunteers, it has certainly not delivered for all firefighters in this state. In fact, what the government has done is raise the anger of not only volunteer firefighters but, of course, the communities they serve.

The CFS volunteers in our state are currently considered to be workers. The government will need to renege on this current status quo should it want to fulfil its stated intention as outlined in a press release commemorating the 150th anniversary of the MFS if this coverage that it intends to introduce is to be afforded only to paid firefighters. If the reason is that it will be a cost-saving measure, then the government should just come clean and say that that is what it is. However, using the reason, as was done in question time today, that it is the science that justifies why it is only a paid firefighter and not a volunteer firefighter is an untenable argument.

The types of fires that cause these cancers are fought by CFS volunteers often standing alongside MFS volunteers, or sometimes alone. The MFS and the CFS fought the Wingfield industrial dump fire just in these past few weeks side-by-side. In Tulka they have fought house and car fires as well as bushfires. Salisbury and Tea Tree Gully might seem like the country to some members, but I can assure you that they are deep in the heart of the Adelaide suburban culture.

The government has taken a Greens idea and has run with it, except it has dropped the ball on volunteers. I hope it quickly sees the error of its ways. I have certainly had a lot of support from the cross benchers in this place, and I certainly thank those who attended the media conference held yesterday to announce this bill. Members of the opposition have also been very strongly supportive. That is because they recognise the real role of the CFS here. They did not assume that they simply only fight bushfires or grass fires. They do not assume that they are not professional and they do not assume that they do not actually provide an enormous benefit economically, culturally and socially to our state. As the CEO of volunteering SA and NT said yesterday at a press conference, and I quote her:

The logic that only paid firefighters should be covered will only prevail when fires can distinguish between paid firefighters and volunteer firefighters.

Perhaps more unkindly one might say that it would be if they could distinguish between union members and volunteer firefighters, but I am pretty sure that the carcinogens cannot do that. I hope that the government will see sense on this issue. I believe that it has been a misstep that can be very quickly corrected.

I would like to thank those who have contributed to this bill, in particular: Wendy Shirley, the former executive director of the Country Fire Service Volunteers Association; the new executive director, Sonia St Alban; the CFS Volunteers Association President, Roger Flavell; vice presidents Jeff Clark and Andy Wood; the federal secretary of the United Firefighters Union, Peter Marshall; Joe Szakacs, the industrial officer of the United Firefighters Union of South Australia; Greg Northcott, the secretary of the United Firefighters Union of South Australia; and Evelyn O'Loughlin, the CEO of Volunteers SA & NT.

In conclusion, I note the remarkable service that career and volunteer firefighters provide to all of us in the community; their work is indeed truly remarkable. In some cases, they risk their own life in the pursuit of saving the life of others. Their courage and bravery in defending property and person cannot be underestimated, and their dedication can never be questioned. They should be afforded the same coverage whether or not they undertake that noble task for money or as a volunteer. I commend the bill to the council.

Debate adjourned on motion of Hon. G.A. Kandelaars.

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