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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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MOTOR VEHICLE ACCIDENTS (LIFETIME SUPPORT SCHEME) BILL

Second Reading

Adjourned debate on the question:

That this bill be now read a second time.

which the Hon. A.M. Bressington has moved to leave out all words after 'That' and insert 'the bill be withdrawn and referred to the Legislative Review Committee for its report and recommendations.'

(Continued from 14 May 2013.)

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (10:12): I rise to close the debate and make some closing remarks. I would like to thank honourable members for their contributions on this important bill that provides for two very important reforms: first, changes to tort law regarding awards of damage under the compulsory third-party insurance scheme (which will enable more affordable premiums for South Australian motorists); and, secondly, the introduction of a no-fault lifetime support scheme for people who are catastrophically injured in major vehicle accidents.

As a former minister for disabilities, I am very pleased to hear the indications from both Family First and the Greens which mean that people who are catastrophically injured in motor vehicle accidents, and their families, will benefit from comprehensive lifetime treatment care and support. This will provide certainty of care for those who have previously had coverage under the fault-based scheme and, for the first time, provide assistance to those who currently have a no-fault based claim under the CTP scheme.

This is also a reform that tackles cost of living pressures for all South Australians who register motor vehicles. I note that SACOSS, in its most recent cost of living report, said that, on average, insurance accounts for 6.6 per cent of expenditure in South Australian households. This is more than domestic fuel and power, which is 3.3 per cent.

This bill seeks to reduce that cost by addressing minor injury damage awards. These changes will see a reduction in the CTP premium on class 1 car registrations of over $100 this coming financial year and an ongoing benefit of over $40 per annum in real terms after the lifetime support scheme starts on 1 July 2014. This bill has the rare benefit of delivering both a major social reform as well as providing some cost relief to the wider community.

The government has consulted widely on these changes. The bill reflects changes that were made to the government's original proposals after consultations with the legal profession. Following those changes, the representatives of the legal profession have given a commitment they will not oppose the bill or seek any further amendments. The Hon. Ms Franks asked whether that would preclude the legal profession from supporting or opposing further amendments to the bill. In response, I can indicate that the government has provided the Hon. Ms Franks' amendments to the legal profession and the government will be supporting those amendments.

The Hon. Robert Brokenshire asked what the funding structures will be, if any, for linking the lifetime support scheme with the NDIS in the future. The lifetime support scheme established in this bill is complementary to but separate from the NDIS. The lifetime support scheme is a state-based legislation that will assist people injured in motor vehicle accidents and will be funded by a levy on motor vehicle registrations.

The NDIS is established under commonwealth legislation and will assist disabled people and is co-funded by contributions by the state and commonwealth governments and now also, latterly, a levy. The Hon. Robert Brokenshire also requested that the actuarial figures in relation to the lifetime support scheme be tabled. The advice provided to the government has previously been supplied to the Economic and Finance Committee, I am advised, and I now table a copy of the advice today.

PricewaterhouseCoopers has estimated the funding requirements for the LSS drawing on their considerable experience as actuaries to the New South Wales scheme. They have estimated that about 37 people will become eligible for the lifetime support scheme each year and that there will be around a further eight interim participants each year. The scheme costs assume that the care and support needs of those 37 participants will be met for life. I note that the estimated number of people entering the scheme each year is significantly more than suggested by the Hon. Ms Bressington in her contributions.

The Hon. Mr Rob Lucas sought clarification about the arrangements in the future for persons who are catastrophically injured in non motor vehicle accidents, such as falling off a horse or a skateboard. This issue is dealt with in a heads of agreement on the National Disability Insurance Scheme that was recently signed by the Premier and the Prime Minister. The heads of agreement, which is publicly available, notes that the state and federal governments are continuing negotiations regarding how care and support schemes can be established for those people who suffer catastrophic injuries as a result of medical or general accidents.

The Hon. Rob Lucas also asked about the governance of the lifetime support authority and its relationship to the Motor Accident Commission and what similar arrangements exist interstate. In most other states, I am advised, compensation for injuries arising from a motor accident operates through a single scheme that is either a fault-based or a no-fault scheme. The reforms contained in this bill create a hybrid system, with no fault treatment, care and support for those with catastrophic injuries and children, and everything else is fault-based. The only other Australian jurisdiction which has this type of hybrid system, I am advised, is New South Wales.

Recently New South Wales created a single governance structure for the New South Wales WorkCover Authority, Motor Accident Authority, Lifetime Care and Support Authority and Sporting Injuries Fund. Each of these authorities remains separate, but they are managed by a single board, chief executive and government agency that reports to one minister.

However the New South Wales system is quite different from South Australia's in a crucial respect. The New South Wales CTP scheme is underwritten by private insurers who defend and manage the claims. The New South Wales Motor Accident Authority is the regulator of the CTP scheme, not an insurer.

This government intends to ensure that administrative costs associated with the new lifetime support scheme are minimised. The lifetime support authority will have functions that are much more akin to health and disability support agencies than to the Motor Accident Commission, which is an insurer and defends claims through negotiation and sometimes court proceedings. The most important contracts and services provided by the lifetime support authority will be similar to those provided by disability agencies, not by the Motor Accident Commission.

Discussions will be held with other government entities that hold contracts for services, such as attendant care, so that the lifetime support authority can benefit from economies of scale through joint purchasing and resource sharing with such agencies.

During the development of the bill, the Motor Accident Commission and its officers were consulted on a regular basis and their recommendations taken into account. At one stage the Motor Accident Commission expressed concerns that the lowering of the threshold for access to damages for future loss of earning capacity in line with the agreement with the legal professional associations could undermine the reductions in CTP premiums.

The government sought expert actuarial advice regarding this threshold change from the Motor Accident Commission's scheme actuary. The premium reductions that have been announced reflect this expert advice. These findings have also been peer-reviewed and confirmed as reasonable by PricewaterhouseCoopers.

The Hon. Kelly Vincent asks why the latest version of the ISV table is not being used, while the Hon. Ann Bressington read into Hansard a letter from one lawyer stating that the ISV table will be far more draconian than that which exists in Queensland. I will explain briefly to the council what has been done in this matter. The latest version of the Queensland injury scale value has been used as a starting point for the South Australian injury scale value. The Queensland table was published on the Motor Accident Commission's website last November as a consultation draft, I am advised. The Queensland table applies to personal injuries claims generally, not just claims arising from motor vehicle accidents.

Some changes have been made following consultations with the medical and legal professions to adapt it for use in this state for motor vehicle accidents and to align it with the revised thresholds proposed in the bill. On 8 April, a draft of the ISV table was sent to the representatives of the three legal professional associations for consultation. The government has since been discussing the detail of the content of the table with them, and a number of changes have been made to address concerns they have raised. I am advised that a copy of the latest draft was sent to members yesterday, and I am advised also that it is not more draconian than the Queensland version, as was suggested.

The Hon. Kelly Vincent asked why the government wishes to change the current system for assessing damages. The current CTP scheme is expensive, and the rising costs of the scheme have resulted in premiums growing well in excess of inflation. Relative to average weekly earnings, it is the most expensive CTP scheme in Australia. For a two-car family in the metropolitan area, the CTP insurance costs are over $1,000 per annum, I am advised. If the government only introduced the lifetime support scheme and made no other changes to the CTP scheme, it would become even more expensive. The class 1 premium would have to rise by $60 per vehicle, which would be a significant impost on many families, particularly those with more than one vehicle. Premiums would also keep rising in excess of inflation every year.

The Hon. Ann Bressington has stated that 75 per cent of claimants will no longer be eligible for compensation and that between 4,000 and 6,000 people will have no ability to access adequate medical treatment or rehabilitation. This is simply not true. It is important to be clear about what the changes to the law regarding the damages will mean. No-one will lose a right they now have for compensation for the costs of their medical treatment and other special damages. People who have a common law claim because they can prove that someone else was at fault will still be able to obtain the same compensation for their medical treatment and care costs. The thresholds in the bill will not apply to these.

In fact, for some people the bill provides greater entitlements to compensation for these costs because the catastrophically injured and children will no longer need to prove someone else was at fault. They will also still be able to obtain compensation for their past loss of income, although there will be a discount. Subject to their injuries being assessed as being above the relevant thresholds, they will still be entitled to damages for pain and suffering and for the future loss of earning capacity, gratuitous services and loss of consortium. I emphasise that, given the concerns raised by the Hon. Ms Kelly Vincent, the compensation people receive for their medical treatment and care costs will not be based on the ISV table but will be awarded in the same way they are now.

The Hon. Ms Bressington made a number of remarks about legal costs and legal representation. This bill will not prevent anyone from hiring a lawyer. The clauses about costs are different from those that were in the public consultation draft of the bill. That is because the government accepted a suggestion from the legal professional bodies that the costs provisions in the bill should align with the changes that have been made to the jurisdiction of the Magistrates Court.

Those changes, which were brought about by the Statutes Amendment (Courts Efficiency Reforms) Act 2012, mean that the Magistrates Court does not normally make orders for costs for money claims for less than $25,000. When the bill came before this parliament, the government had proposed that this amount would be $12,000, but the opposition moved an amendment that was accepted by this council to raise it to $25,000. Despite these restrictions, the bill gives the court a discretion to award costs in small motor vehicle injury claims in exceptional cases.

Further, there is an exception in relation to the third-party costs of obtaining the court's approval to a compromise of a claim by a child or other person under legal disability. A letter was read into Hansard from a law firm practising in this area. That letter used derogatory language regarding people who support these changes. Members should be aware that in 2011-12 around $49 million was paid out of the CTP scheme in legal costs—$49 million. This is a substantial amount of money. If it can be reduced, it will make the CTP scheme more affordable.

The Hon. Ms Bressington commented on the proposed medical accreditation scheme which the government intends to establish in the CTP scheme. She drew analogies in her contribution with the WorkCover system and suggested that only doctors who have a history of writing favourable reports for the insurers will be recruited into this new system. I am advised these arguments are not correct.

The proposed new system is very different from the medical panels which operate in the WorkCover system. The medical reports to be provided through this system are a step in the process of determining entitlements to damages. Unlike WorkCover medical panels, there is no requirement for anyone to treat the reports of accredited medical specialists as final and conclusive.

The system is designed to give the courts access to expert medical opinions that are independent of either the plaintiff or the defendant but, ultimately, the opinions expressed in the medical reports will still be weighed by the court and the parties. The medical practitioner writing the report has a duty to the courts—not to the plaintiff, or to the defendant. The minister will enter into a contract—

The Hon. A. Bressington: Obviously the legal profession missed all this.

The PRESIDENT: The Hon. Ms Bressington has been heard in silence and the minister will be heard in silence.

The Hon. I.K. HUNTER: The minister will enter into a contract with an independent body that will accredit medical practitioners who are willing to participate in the system. This body will also refer claimants to medical practitioners using a cab rank rule.

This bill will deliver a very different system to the workers compensation system. For the vast majority of those injured in motor vehicle accidents, a CTP system will continue to provide lump sum compensation based on the legal principles of negligence. There will still be access to legal representation to negotiate with the claims manager and access to the courts where a settlement is not reached.

For a small number of people who are in the unfortunate situation of suffering a life-changing, catastrophic injury in motor vehicle accidents, the system will be quite different. It will be far better than the existing system. It will provide certainty of care and support for life for those who need it—all of those who need it, not just some. Unlike WorkCover, this scheme will not provide income support. The scheme will provide care to people who clearly need that care for life and has been costed on that basis.

The Hon. Ms Bressington also referred to suggestions that the reforms were motivated by the government wanting to access funds held within the Motor Accident Commission—that is clearly not true. The Motor Accident Commission does not currently pay dividends to the government and the government is not seeking any returns to the budget as a result of the reforms contained in this bill. In response to concerns expressed by the legal profession regarding this issue, the government has provided written advice from Brett & Watson Pty Ltd (the actuaries for the CTP scheme) confirming that the expected CTP premium for a class 1 registration of $408 reflects the full amount of the expected savings arising from the proposed reforms.

The Hon. Mr John Darley has said that the success of the scheme will rely heavily on the quality and expertise of the management implementing it. The government agrees. We will be looking closely at how the New South Wales scheme works. The lifetime support scheme is based on the New South Wales system, not a Victorian system, as suggested by the Hon. Ms Bressington.

We have provided honourable members with a copy of the New South Wales Lifetime Care and Support Scheme Guidelines, which provide guidance as to the eligibility criteria and benefits that will be available under the lifetime support scheme. The LSS rules will be similar to the New South Wales guidelines, but, in developing the rules, we will seek to consult with local medical and disability experts. We have invited a number of experts to be on the advisory group for this purpose, including, I am advised:

Dr Ruth Marshall, Medical Director, Orthopaedic, Amputee and Spinal Injury Service at the Hampstead Rehabilitation Centre;

Associate Professor Bill Griggs, Director of the Royal Adelaide Hospital Trauma Service;

Dr Miranda Jelbart, Medical Director of the SA Brain Injury Rehabilitation Service at the Hampstead Rehabilitation Centre;

Associate Professor Ray Russo, Director of the Paediatric Rehabilitation Department at the Women's and Children's Health Network;

Dr Anthony Sparnon, head of the Burns Unit at the Women's and Children's Hospital;

Associate Professor Robyn Young from the School of Psychology at Flinders University;

Ms Mariann McNamara, the Executive Officer of the Brain Injury Network of South Australia (known as BINSA);

Ms Sharron Neeson, the Manager of Support Services at PARAQUAD SA;

Mr John Brayley, the Public Advocate;

Mr Alan Lindsay, a barrister, I understand; and

disability experts from our own Department for Communities and Social Inclusion

In addition, the legal professional associations have also been asked to nominate a representative to this group. We believe that this is a good starting point for building the new lifetime support scheme system.

The Hon. Mr Lucas has tabled two amendments relating to the start date of sections of this legislation. The first amendment is to bring the lifetime support scheme into operation by 1 October 2013 rather than the foreshadowed date of 1 July 2014. The government opposes this amendment. We do not believe that the LSS Rules which establish eligibility and entitlements, the staffing and the systems (including the IT systems) can be established with that amount of lead time. Furthermore, the Department of Planning, Transport and Infrastructure will not be able to implement the necessary changes to create a levy on all motor vehicle registrations in that time frame. CTP premiums are adjusted annually on 1 July each year. They should not be changed in a shorter time cycle than this, otherwise there will be significant inequity between motorists depending on when their vehicle registrations fall due.

The second amendment of the Hon. Mr Lucas seeks to commence the lifetime support scheme and the reforms to entitlements under the CTP scheme on the same date. The government also opposes this amendment. The government believes that the commencement date for the lifetime support scheme needs to be 1 July 2014 in order to allow time to establish the scheme and put in place the levy which funds the scheme. There is no reason at all to delay the introduction of the reforms to the CTP scheme. They can and should be implemented immediately. Those reforms are designed to address the high cost of the scheme and deliver improved affordability for South Australian motorists.

In moving this amendment, the opposition is seeking to stop this parliament from delivering a significant cost of living benefit to the South Australian community. The government believes that this is a cynical move and will strongly oppose it. For these reasons the government believes that the timetable which has been foreshadowed for these reforms is the most appropriate. The lifetime support scheme should come into effect as at 1 July 2014. In the interim, all South Australian vehicle owners should receive the benefit of the cheaper premiums which will be the product of the tort law reforms.

As I mentioned previously, the Hon. Ms Franks has filed amendments to the bill. They reflect some submissions made by the South Australian Council of Social Service, as I understand it. The government has given careful consideration to these and following discussions with the Greens has indicated the government will support those amendments. One of these amendments will give the courts discretion to award damages for loss or impairment of future earning capacity where the injured person has an ISV rating of seven or less but the consequences of the injury to the person's future earning capacity is exceptional and application of the threshold would be harsh and unjust.

The government agrees that limited discretion in exceptional cases is an appropriate mechanism to deal with the rare instances where an otherwise relatively minor injury impacts significantly on earning capacity because of the peculiar requirements of that occupation. The Hon. Ms Franks' amendments would also include in the bill rules for applying the ISV table in cases of multiple injuries. The government had, like Queensland, intended to deal with this in the regulations. However, the government will agree to them being in the act.

The Hon. John Darley is moving two amendments. One is intended to give the courts a discretion towards damages for non-economic loss (i.e. pain and suffering) to people whose injuries are assessed at 10 or less on the ISV scale. The second is to give the courts a discretion to award damages for impairment of future earning capacity to people whose injuries are assessed at seven or less on the ISV scale. The government will be opposing both these amendments.

The first of the Hon. John Darley's amendments would allow the court to exercise its discretion in favour of awarding damages for non-economic loss when the person's ISV is assessed at being below the threshold of 10 if the injury is severe. This and the second amendment are very difficult to interpret and are very likely to result in several cases going on appeal to the Supreme Court to obtain court rulings on their meaning. The drafting of these amendments does not fit in well with the draft ISV table, and they are likely to produce confusion in their application.

Furthermore, it is arguable that the amendment to the non-economic loss provision would allow the court to order any amount it considered appropriate once it had found that the plaintiff's injury is severe as defined in the amendment i.e., without regard to the additional scale in the bill that specifies the amount to be awarded for each point on the ISV scale up to a limit of $300,000 (indexed).

The second amendment, like the first Franks amendment, is to amend the clause about damages for impairment of future earning capacity. It would give the court a discretion to award damages of future earning capacity if an injury is 'severe'. The amendment is also very difficult to interpret. The definition of 'severe' appears to be influenced by a definition in the Victorian Transport Accident Act of 'serious'. However, that definition is used for a different purpose, I am advised: applying to a court for leave to issue proceedings for damages in an otherwise no-fault compensation system. Further, it is used in the context of injuries that result in at least 30 per cent whole person impairment.

The Motor Accident Commission CTP scheme actuary advises that the amendments would create a risk for the CTP scheme resulting in higher premiums and that the interpretation and therefore the impact of such narrative conditions may well vary over time. As such, the government intends to oppose the Hon. Mr John Darley's amendments.

The Hon. Ann Bressington has moved an amendment to withdraw the bill and send it to the Legislative Review Committee. I remind honourable members that this bill has been the subject of a green paper and a white paper process; that the reforms have strong support from numerous groups, including the RAA; that the government has consulted and listened to many groups, including making significant changes in consultation with legal professional associations; and that the reforms have been costed and peer reviewed by respected actuaries.

The people of South Australia are concerned about cost of living pressures, and SACOSS reported in its most recent cost of living report that insurance costs have been rising well above the average inflation rate. This is particularly true for CTP insurance, which every motorist must have and cannot reduce without the assistance of this parliament.

The government strongly opposes this or any other move (such as the amendment proposed by the opposition) which is designed to deny or delay the relief to households on CTP insurance premiums that this bill in its current form will deliver. I commend the bill to the council.

Amendment negatived; bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.I. LUCAS: The minister has just responded to a number of issues raised during the second reading stage of the debate. There are a couple of issues that I want to pursue with the minister as a result of his response. In particular, I seek further clarification of the position put to the government by the Motor Accident Commission on the final state of the bill after the deal the government did with the legal professional associations. I have heard what the minister has said but it does not actually answer the question I put during the second reading stage of the debate.

Has the Motor Accident Commission continued to express concerns to the government about the deal that the government did with the legal professional associations? Can I just at this stage note briefly that it is entirely within the prerogative of the government to make whatever decisions it wishes to. I certainly do not challenge that position, but I think it is important for this chamber, given the resident expertise within government generally on this issue rests with the Motor Accident Commission, to know what the final position of the Motor Accident Commission is in relation to the bill that is currently being put to the chamber.

The Hon. I.K. HUNTER: My advice is that the Motor Accident Commission has been given advice from their own actuaries, which the government has obtained, which indicates that the changes proposed should not adversely impact on premiums. As far as I am aware, the Motor Accident Commission is not objecting any further.

The Hon. R.I. LUCAS: That is essentially what the minister said in reply to the second reading, so I just want to clarify that the minister is indicating to this chamber that the Motor Accident Commission has withdrawn the concerns it has expressed about the deal and is now supporting the current legislation before the house.

The Hon. I.K. HUNTER: My advice is that MAC has not used the terminology as the Hon.  Mr Lucas has put it.

The Hon. R.I. Lucas: Has or hasn't?

The Hon. I.K. HUNTER: Hasn't used your terminology, but following the advice presented to it it is no longer objecting.

The Hon. R.I. LUCAS: Let me put on the record that my understanding is that the Motor Accident Commission has expressed significant concerns to the government about the nature of the deal that they did with the legal professional associations. My understanding is that officers of the Motor Accident Commission have met with the government advisers in relation to the deal. As I said in the second reading, the Motor Accident Commission was the original, so I am advised, catalyst or initiator of the package that we have before us. It certainly supported the original bill. The significant concerns it has expressed to the government, I am told, have been in relation to the deal that the government negotiated with the legal professional associations.

That is the advice that I have been provided with by the government. The government has partially conceded that in its reply at the second reading, when it said in its response that at one stage the Motor Accident Commission expressed concerns that the lowering of the threshold for access to damages for future loss of earning capacity in line with the agreement of the legal, professional associations could undermine the reductions in CTP premiums. My understanding was that the Motor Accident Commission did more than that, but that certainly was part of its concerns in relation to the deal that had been negotiated.

I am advised that certainly key people within the Motor Accident Commission were not privy to the negotiations conducted with the legal professional associations, and that is why they expressed significant concerns about the deal. I have invited the minister (and the minister can obviously act only on the advice he is given—I accept that), and the word 'advisedly' he is using means he is not in a position to say that the Motor Accident Commission now supports the legislation that is before the house. He quite pointedly uses the words 'is no longer objecting' to the bill proceeding or the bill as it is.

As I said, my understanding, which is not allayed by the words the minister has been provided with to respond, is that the resident experts within government collectively (and that is the Motor Accident Commission) do have significant concerns with the bill as it is before us at the moment. A number of members have raised the issue about the fact of the difficulties the government has got into with the WorkCover scheme in terms of its financial viability, and they have raised concerns in relation to whether or not the financial viability of this scheme will be as rosy as the government is indicating it to be. A number of us have expressed reservations and concerns about that but, as we have indicated, we are not in a position to second-guess from the opposition benches the actuarial advice that has been provided to the government.

I do not intend to delay the proceedings on this particular issue at this stage, other than to say 'mark our words', I guess, that a number of members have expressed concern about the financial viability of the scheme and whether or not the claims about premium reductions and costs will be as the government has claimed, particularly in this period leading up to the March 2014 state election. It certainly will not surprise me (or, I suspect, a number of others) if, post the 2014 election, whoever is in government, after a number of years we find that the financial situation is significantly different from what is being outlined here today.

I think that is supported by the very significant concerns I understand the resident experts within the Motor Accident Commission are expressing about the nature of the deal the government has done with the legal professional associations on this particular issue. I put those views on the record. I think it is clear from the minister's advice, which indicates that he is not in a position to indicate that the Motor Accident Commission supports this piece of legislation. He cannot use those words, yet they are the resident experts in government in relation to this issue.

The Hon. I.K. HUNTER: I will comment on the events as the Hon. Mr Lucas portrays them: I do not know whether or not they are accurate, but the Hon. Mr Lucas is concentrating on half of my explanation, that being that the Motor Accident Commission no longer objects. The other half, the first half, is that that follows from the provision of data and information provided to them by their own actuaries. They now have this position.

Clause passed.

Clause 2.

The Hon. R.I. LUCAS: I move:

Page 5—

Line 6—Delete 'This' and substitute:

Subject to subsection (2), this

After line 6—Insert:

(2) Sections 5 and 6, and Parts 2, 4 and 6 of Schedule 2, must be brought into operation on the same day.

These two amendments are part of a package. This was an issue of much discussion during the second reading debate, and essentially it relates to the start-up of the scheme. As I outlined in the second reading on behalf of the member for Davenport and the Liberal Party, our position essentially is that we can see the political logic of what the government is seeking to do but we cannot see the reality of what the government is seeking to do in relation to the differential timing of the start-up of elements of the package before us.

Essentially what the government is seeking to do, in the period leading up to the state election, is to implement changes which it claims will lead to a short-term reduction in the cost of CTP and then, of course, the bulk of that is whipped away immediately after the state election. Surprise, surprise—for the period leading up to the state election the government says, 'Okay, we'll give you a financial benefit from this particular reform', and then, of course, after the election the bulk of that particular benefit will disappear as the second element of the scheme starts. The blatant cynicism of that arrangement I think is apparent to everyone who has had a look at the scheme.

As the member for Davenport, and others, put eloquently, essentially what the government is saying is that it is prepared to delay the start of the scheme until 1 July so that 10 or 15 or 20 catastrophically injured persons in South Australia—whatever that number happens be—will not get the advantages of this particular scheme because they have structured the start-up dates in this particular way.

That small number of people—and this scheme was always intended to cover a small number of people, and we accept that—between when the scheme could have started up in this financial year and 1 July next year, who might have attracted this particular benefit, will be left to, in essence, suffer as a result of the political machinations of the government's pre-election manoeuvring.

The opposition's position, as the member for Davenport has put it, is that if you can get something as complicated as an ICAC up and going in six months, with all the complications of an ICAC, then surely to goodness you can get the arrangements that relate to this particular scheme up and going in that period or better. I understand, although it has not been said to me, that the government is running around saying, 'Well, that's impossible,' and giving all sorts of reasons. If the government wants to achieve something it will achieve it.

You can get this sort of advice from public servants and bureaucrats who support whatever argument you wish to put. I accept the argument that there are complications and there will be a time period that is required. However, the government could say to all those involved, 'Look, six months to get an ICAC up; six months to get this particular scheme up—that's it; let's devote the resources to get this particular scheme up and going in six months.' I do not accept, having been in government, that you cannot and you could not get this scheme up and going so that that small number of people between, say, January 2014 and July, who are going to miss out as a result of the government's arrangement, might be included in an early start-up to this particular scheme.

Why this government, supposedly a government that represents Labor values, as it claims, would seek to deny a small number of people who might benefit from this between, say, January and July of next year for purely political purposes, I cannot accept and I just do not understand. I think it is for those sorts of reasons, sadly, that the people of South Australia have lost faith in this government. They see a government more interested in political machinations and political manoeuvring rather than genuinely delivering on reforms when they know that they could deliver on those particular reforms within a reasonable time frame.

I have withdrawn the original amendment as canvassed by the member for Davenport because of his discussions with other non-government members in this chamber to look and see whether there is an alternative amendment which may well meet a compromised position, and that is what this particular amendment is seeking to do. It is basically saying, 'Look, rather than doing what the government is doing, which is splitting the start-up dates, why not drive this reform to have both elements started as soon as possible and at the same time?' As I said, and say again, for the life of me, if you can start an ICAC in six months why can you not do this in six months, so that by the end of November, the six-month period, or seven months, which is the end of December, you could say, 'We are going to start all elements of this particular scheme by 1 January 2014.' I just cannot understand why a government would not be prepared, in essence, to do that.

That is what this amendment is seeking to do. It is ultimately leaving the decision in the hands of the government in terms of the timing. Our original position was to try to lock them into a particular date—whether it be in October, November or December, whatever it might be—but, essentially, we are saying, 'We still think you can do it by November or December but, if it has to be January or February, but earlier than July, then why not put the package together and get everything going so that the benefits to the small number of catastrophically injured can start ASAP, rather than waiting until 1 July because that suits the government's political convenience?'

So, that is the proposition that the member for Davenport and the Liberal Party wish to put to this chamber. With this first amendment, which is a package of two, clearly, this first vote I will accept as a test vote for both. We seek the chamber's endorsement of this new amendment.

The Hon. R.L. BROKENSHIRE: You have two amendments for clause 2, page 5: are you moving both?

The Hon. R.I. LUCAS: I am happy to move both amendment No. 1 and amendment No. 2. They relate to exactly the same discussion.

The Hon. R.L. BROKENSHIRE: Family First has deliberated on this for a couple of weeks now and there is no doubt that this is a cynical exercise. The fact of the matter is, as I said to the government yesterday, the government could have simply chosen to reduce registration fees per se by $104 or $105. They can do that without anything having to come through this house. The intent of the bill is to assist people who are tragically and permanently injured in horrendous situations with lifetime support, and we have always said that we support the principle of the lifetime support scheme. We have further deliberated on it in the last 24 hours and, notwithstanding what the Hon. Rob Lucas said, which I personally agree with, it is a cynical, political, base, pointscoring exercise.

Having had further discussions, as I said, with the government yesterday, it is not prepared, from advice given to us, to assure us that it can get this scheme through any sooner than as far out as 1 July 2014. I suggested to the government that when other difficult schemes like the emergency services levy were brought into place, which I had the privilege of being minister for, that was very complicated too. In fact, I would suggest that it was as complicated as the procedures that have to be put in place for this scheme but, through pushing them, including setting up enormous databases, they were able to come in at a reasonable timeframe on that scheme, and I believe the government is probably not pushing and challenging and testing the department and those officials responsible enough to bring the scheme in earlier.

Having said all that, just so that the council knows, the one concern with this that we have had is that, if we are to support this amendment, then the reality is that a lot of families are going to miss out on a one-off reduction, and I want to reinforce that it is only a one-off. It is not permanent; people might think they are getting a permanent reduction, but they are not. There will be $60 coming back into the scheme the following year.

Notwithstanding that, from all the people we are working with across the state, they are hurting very badly at the moment. We are the highest taxed and charged state in Australia and we finally made a decision that we could not accept the fact that those people—based on an average of two vehicles per family—would miss out on a saving of $200 to $208 or $210 or thereabouts in that first year.

For that reason, whilst we are reluctant to accept that the government is working hard enough to bring this in simultaneously—which is what should have happened, because the intent is lifetime support, not a one-off rebate—we believe those families are hurting so much that they need that reduction now, and I think they will actually still consider the state of South Australia on the second Saturday of March next year and vote accordingly. In the meantime we have decided that we will support the government to ensure that these people do get the one-off rebate on their registration next financial year.

The Hon. I.K. HUNTER: The government also opposes this amendment. As I said in the contribution I just made, the government believes that the commencement date for the lifetime support scheme needs to be 1 July 2014 to give us time to establish the scheme and put in place the levy that funds the scheme. There is no reason to delay the introduction of reforms to the CTP scheme: they can and should be implemented immediately. Those reforms are designed to address the high cost of the scheme and deliver improved affordability for South Australian motorists.

In its most recent cost of living report, SACOSS identified that on average insurance was 6.6 per cent of expenditure for all South Australian households, and this bill seeks to reduce that cost. In moving this amendment, the opposition is seeking to stop this parliament from delivering a significant cost of living benefit to the South Australian community. The government believes that this is the cynical move that the Hon. Mr Lucas was speaking about, and we strongly oppose it.

The Hon. T.A. FRANKS: I rise to indicate that the Greens will be opposing this amendment. We do think there may be some truth to the accusations of it being a cynical, political manoeuvre. We also think the same thing of this amendment put by the Liberal Party, and we think that we will take the advice of the public servants about the implementation of this new act and act accordingly by not buying into the politics.

The Hon. K.L. VINCENT: I just quickly indicate that I will be supporting this amendment. It could be seen as a cynical move, but I think I have made it pretty clear in my second reading speech that, in fact, I see this entire bill as a very cynical move. It is in fact aiming to fix a system that is fundamentally not broken and strip people of very important fundamental rights because of that. For that reason, I will support this amendment.

The Hon. A. BRESSINGTON: I indicate that I will also be supporting the amendment for the same reasons that the Hon. Kelly Vincent mentioned. I would also just point out that whether or not this is a political manoeuvre is irrelevant. I have canvassed many people in the community about this so-called $100 saving on their registration, and the fact of the matter is, they would much prefer to be guaranteed protection and cover if they, or one of their family members, were unfortunate enough to have a motor vehicle accident.

Regardless of what the Hon. Ian Hunter said in his summing-up speech, the figures that I quoted in my second reading speech came from the legal profession. Some 4,000 to 6,000 people will be detrimentally affected by this bill and by the way the assessments are going to be done, so you can spin it whichever way you like. As the Hon. Kelly Vincent said, this is a cynical move; it is unnecessary, the system is not broken. Why are we fixing it?

An honourable member interjecting:

The Hon. A. BRESSINGTON: Well—supposedly claiming to fix it. I will be supporting this amendment and I do believe, as the Hon. Robert Brokenshire said, this bill was about providing care to catastrophically injured people and we are delaying that by almost 12 months while the government can get the kudos for cutting a lousy $100 off people's registration.

An honourable member interjecting:

The Hon. A. BRESSINGTON: As a one-off, yes.

The Hon. J.A. DARLEY: I will be supporting this amendment. During my discussions with the government they suggested that it was going to take 40 or 50 weeks to implement this system. I have had experience in major computing systems in the government that are more complicated than this, and I do not see any reason why they could not get their act into gear and bring it in on 1 January.

The Hon. R.I. LUCAS: Just to briefly conclude my comments on the amendment, I thank other members for their contributions. It is a difficult issue and I accept that, but I support what the Hon. Mr Darley has just said from his position as a former senior officer within the Public Service and, as I put earlier, my position as a minister in a former government. It is just incomprehensible that you can accept the argument that it is going to take a year to put something in on this basis when much more complicated things are put in place in much shorter periods, as much as six months.

To that end, just to follow up the point, the position that we are putting in this amendment is not that the one-off $100 benefit that the government is talking about would be removed, because, clearly, if you can get the scheme in and operating within six months then there would be a pro rata impact in terms of that $100, so there could still be a saving that could be offered on a one-off basis during that particular financial year, depending on when you start the scheme and what the calculations are. It is impossible for us from opposition to say what they would be, but it certainly is not as black and white as: if you support this particular amendment you are supporting taking away the $100 that is being talked about. Part of that would certainly disappear but certainly not all of it. I have nothing further to add to those comments.

The committee divided on the amendments:

AYES (9)
Bressington, A. Darley, J.A. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. (teller) Ridgway, D.W.
Stephens, T.J. Vincent, K.L. Wade, S.G.
NOES (10)
Brokenshire, R.L. Finnigan, B.V. Franks, T.A.
Gago, G.E. Hood, D.G.E. Hunter, I.K.
Kandelaars, G.A. Maher, K.J. Parnell, M.
Wortley, R.P.
PAIRS (2)
Dawkins, J.S.L. Zollo, C.

Majority of 1 for the noes.

Amendments thus negatived; clause passed.

Clauses 3 to 24 passed.

Clause 25.

The Hon. I.K. HUNTER: I move:

Page 14, line 20—Delete 'LSS Rules' and substitute 'Authority'

I understand that this amendment is technical in nature. It is an amendment to clause 25(6)(b) of the bill, and I understand that it is to improve the efficiency of the operation of the bill.

The Hon. R.I. LUCAS: The member for Davenport advises that he accepts the government's argument that it is a technical amendment. We support the amendment.

Amendment carried; clause as amended passed.

Clauses 26 to 32 passed.

Clause 33.

The Hon. I.K. HUNTER: I move:

Page 18, after line 29—Insert:

(ab) a determination of the Authority that results in the suspension of the participation of a person in the Scheme; or

This is an amendment to the lifetime support scheme part of the bill. It was suggested by the opposition during debate in committee in the other place that a decision of the lifetime support authority to suspend a participant should be subject to review and a right of appeal. This suggestion will be taken up by this amendment. It will be done by expanding the definition of 'relevant determination'. This will give a participant in the lifetime support scheme who has been suspended from participation a right to a review of the suspension determination and then a right to appeal to the District Court.

The Hon. R.I. LUCAS: As the minister has indicated, this is an issue raised by the member for Davenport. As I indicated in the second reading, I again congratulate the member for Davenport on his handling of the bill on behalf of the Liberal Party. There are a number of issues that he raised during the House of Assembly debate which the government, to give it credit, has acknowledged were deficiencies in the original draft legislation and, with the agreement of the member for Davenport, the government is moving these amendments.

I congratulate the member for Davenport on this issue and a number of others. I think it also highlights the importance of having two chambers of parliament because, clearly, it has given the government the opportunity to reflect on the bill in its passage between the House of Assembly and the Legislative Council, to consider the position that has been raised by the member for Davenport and to see its worth and the need for an appropriate amendment. The government, as I said, to its credit, has acknowledged that now and moved this particular amendment. For those reasons, the Liberal Party will support the government's amendment.

Amendment carried; clause as amended passed.

Clauses 34 to 54 passed.

Clause 55.

The Hon. I.K. HUNTER: I move:

Page 30—

Line 31—Delete 'the WorkCover Corporation' and substitute 'a prescribed authority'

Line 35—Delete 'the WorkCover Corporation' and substitute 'the prescribed authority'

Page 31—

Line 3—Delete 'the WorkCover Corporation' and substitute 'the prescribed authority'

Lines 4 and 5—Delete 'the WorkCover Corporation' and substitute 'the prescribed authority'

Line 10—Delete 'The WorkCover Corporation' and substitute 'A prescribed authority'

Line 11—Delete '112(2)' and substitute '112'

After line 15—Insert:

prescribed authority means—

(a) in relation to a person who suffered a compensable injury as a worker of a self-insured employer under the Workers Rehabilitation and Compensation Act 1986—that self-insured employer; and

(b) in any other case—the WorkCover Corporation;

Amendments Nos 3 to 9 are all related. Amendments Nos 3, 4, 5, 6, 7 and 9 are to give effect to a suggestion made by the opposition during debate in committee in the other place. They are to allow self-insured employers to enter into agreements with the lifetime support authority for the provision of services to catastrophically injured workers. This is in addition to WorkCover Corporation.

Amendment No. 8, I am advised, is a technical amendment for clarification to avoid any arguments about which is the relevant provision of section 112 of the Workers Rehabilitation and Compensation Act 1986 in the context of 'catastrophically injured workers'.

The Hon. R.I. LUCAS: Again, as the minister has acknowledged, all these amendments are a result of suggestions made by the member for Davenport in another place to correct inadequacies or deficiencies in the government's original legislation. To the government's credit, it has acknowledged those deficiencies and is now moving these amendments. For those reasons, the Liberal Party will support the government's amendments.

Amendments carried; clause as amended passed.

Remaining clauses (56 and 57) passed.

Schedule 1.

The Hon. I.K. HUNTER: I move:

Clause 6—

Page 34, line 33—After 'possession' insert ', custody or control'

Page 35—

Line 5—After 'possession' insert ', custody or control'

After line 11—Insert:

(4a) A person must not, without reasonable excuse, fail to comply with a requirement under subsection (4).

Maximum penalty: $5,000.

Amendment No. 10 will amend clause 6(1)(b) of the schedule which provides for powers and procedures on referral of a dispute to an expert review committee. The amendment is a technical one to ensure that an expert review panel's power to ask a relevant person to supply copies of documents cannot be interpreted narrowly.

Amendment No. 11 is to insert after 'possession' a similar phrase, namely, 'custody or control'. This will amend clause 6(3) of the schedule. This is also a technical amendment. Like amendment No. 9, it will ensure that this provision that obliges a person referring a dispute to an expert review panel to submit copies of all documents relating to the referred question cannot be interpreted narrowly.

Amendment No. 12 at schedule 1, clause 6, page 35, is to insert subclause (4a). With the consent of an injured person, an expert review panel can request a treating health professional to meet with a panel and answer questions and supply relevant documents. This amendment is to ensure the cooperation of treating health professionals and to make it consistent with the review of disputes by a review officer under clause 34 of the bill.

The Hon. R.I. LUCAS: The member for Davenport has indicated that the Liberal Party is prepared to support these particular amendments. The Liberal Party supports the proposition that the amendments are largely technical in nature for the reasons as outlined by the minister. We accept the government's contention that, on reflection, the bill could be improved in this particular way. For those reasons, we are prepared to support the amendments.

Amendments carried; schedule as amended passed.

Schedule 2.

The Hon. I.K. HUNTER: I move:

Page 36, lines 23 to 27—Leave out all words in these lines after '0 to 100'

I am advised that this amendment is a technical one. It will not in any way change policy. The words that appear in the parentheses were copied from the existing section 52 of the Civil Liability Act and they are necessary for the existing provisions that require the court to assign a numerical value on a scale from zero to 60, reflecting six degradations of seriousness of the injury.

They were in the consultation drafts of the bill that were published with the white paper and no-one critiqued them then. However, it has been realised that these words are not really appropriate for the way the injury scale value table will be structured, with a range of values for different types of injuries, and might cause confusion with the system used for the current 60-point scale, which will continue to be used for non motor vehicle injury claims. The amendment will make the intended operation of clause 52 clearer.

The Hon. R.I. LUCAS: The member for Davenport advises that the Liberal Party accepts that this is a technical amendment and the Liberal Party is prepared to support it.

Amendment carried.

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

Clause 3, page 37, after line 16—Insert:

(4a) However, a court may award damages for non-economic loss in a case that would otherwise be excluded by the operation of subsection (4) if satisfied that the personal injury is a severe injury.

(4b) For the purposes of subsection (4a), an injury is a severe injury if the consequence of the injury with respect to non-economic loss is fairly described as being—

(a) more than significant or marked, and at least very considerable; and

(b) more than serious to the extent of being severe,

when judged by comparison with other cases involving the same injury.

The amendment relates to damages for non-economic loss; in other words, pain and suffering. Members will note that section 52(4), inserted by clause 3 of the bill, provides that:

A person who suffers personal injury arising from an MVA motor accident may only be awarded damages for non-economic loss if the injury scale value that applies under subsection (3)(a) in relation to the injury exceeds 10.

The injury severity value is a mechanism by which damages are effectively dumbed down and the impact of an injury on a person is given far less weight than what a court could otherwise award, taking into account all of the circumstances of the case. The scale attempts to categorise injuries into levels of severity from which you then obtain a narrow band of compensation, particularly in respect of injuries that are not very severe.

It is still unclear as to how multiple injuries will be affected under the new scheme. It is still unclear whether the example of the hairdresser who breaks an arm and cannot return to hairdressing or the winemaker or chef who loses their sense of taste and smell are covered under the scheme. The proposed amendment provides the court with the discretion to award damages for non-economic loss in a case that would otherwise be excluded by the operation of subsection (4) if satisfied that the person's injury is a severe injury.

An injury is a severe injury if the consequence of the injury with respect to non-economic loss is fairly described as being more than significant or marked and at least very considerable and more than serious to the extent of being severe when judged by comparison with other cases involving the same injury. Both the first and second amendments are modelled on the Victorian narrative test. That test was introduced into Victorian legislation after it was deemed that it was too harsh and limiting in effect. It is intended to ameliorate losses in situations where a person does not meet the injury scale value, which in this case is 10, but nevertheless suffers serious injury.

The government has indicated that it will be opposing this amendment and the second amendment that I intend to move. The reasons for this are outlined in a letter provided to my office by the minister yesterday evening at 7.48pm. They include that the amendment is inconsistent with the government's policy of preventing the award of damages for pain and suffering for minor injuries, that it would be difficult to interpret and would be very likely to result in several cases going on appeal to the Supreme Court to obtain rulings on their meaning, that arguably the amendment will allow the court to award any amount it considered appropriate once it had found that the plaintiff's injury is severe as defined in the amendment thus potentially threatening the viability of the scheme.

The government has also expressed concern about situations where a court exercises its discretion to award damages for injuries that would otherwise fall below the scale that are in excess of what another person would get in accordance with the scale itself. Further, the minister advises that in Victoria the experience has been that the narrative test has moved from being under 30 per cent of successful common law claim applications in 1996 when it was introduced to over 80 per cent of claims and that this has been associated with a significant increase in severe injury claims.

In addition, the Motor Accident Commission scheme actuary has advice that gives the different applications. There is no relevant experience from which the potential impact of the amendments on the recommended premium may be assessed. Therefore, the actuary would need to include an as yet unqualified contingency margin and this would mean that CTP premiums would be more expensive in 2013-14 than anticipated.

The same arguments have also been raised in relation to the second proposed amendment which deals with awards of damages for economic loss. I have to say that I am not the least bit surprised by the minister's response to the amendments. They do, after all, try to address some of the vast inequities that the government is proposing in its bill. It should come as no surprise that the Victorian experience has been that the narrative test has resulted in a significant increase in injury claims.

As mentioned earlier, the reason for the introduction of the test in the first place was to deal with the harshness of the Victorian scheme. That same harshness would apply equally in this jurisdiction without a similar amendment. It is absolutely crucial to consider situations which will undoubtedly arise due to the harshness of these reforms. The amendment would allow the courts the discretion to award non-economic loss in situations that simply do not fit within the restrictive confines of the ISV chart.

Whilst I accept that the legislation in South Australia is markedly different from that in Victoria, it is appropriate to have provisions in the bill which will enable the court to undo the injustices which will ultimately arise from not awarding damages for non-economic loss in situations where justice will cry out for a remedy. Every other bill we introduce into this place seems to adopt this approach. It gives the court the ultimate discretion to deal with exceptional cases.

The lack of appreciation for these sorts of cases is understandable when you consider the minister with carriage of the bill suggests that going to court for a non-economic loss is a bonus. It is not a bonus; it is an entitlement, an entitlement which the government has deemed fit to remove for a huge number of injured persons. What the minister is essentially suggesting is that damages for emotional, mental and physical distress are not something an injured person deserves by virtue of their injuries; it is a windfall.

I remind the minister that our courts do not award damages for pain and suffering lightly. They do so by comparing the severity of the loss sustained with the most and the least severe loss which anyone could suffer. Nor do injured persons generally seek handouts for their injuries. They seek what they are legally and rightfully entitled to.

This amendment and indeed the subsequent amendment are necessary and vital in ensuring that our system is fair and just to the extent that it can be, given the draconian reform that the government is imposing on the very people that it calls its constituents. This is not about the legal fraternity and money hungry lawyers: it is about those people who through injury or disability are often unable to fend for themselves. It is about protecting the rights and entitlements of people to recover damages commensurate with the level of injury they have sustained.

That being said, in the event that this amendment is not supported, I will be moving an alternative amendment, which is yet to be filed, based on the Hon. Tammy Franks' approach with respect to economic loss. Whilst this is by no means my preferred position, we are basically at the point where some exception to the general rule, no matter how watered down it is, is better than what the government is proposing.

The alternative amendment would give the court the discretion to make awards or damages for non-economic loss in cases where the consequences of the injury sustained are exceptional when compared to other cases involving the same injury. The only proviso would be that an assessment of damages for non-economic loss must be based on an injury scale value that should rarely be higher than the injury. The reason for this relates to the government's concerns over situations where a court exercises its discretion to award damages for injuries that would otherwise fall below the scale that are in excess of what another person would get in accordance with the scale itself.

As I mentioned, the best outcome would be to support the first proposed amendment. However, if that is not achievable, I would ask honourable members to support the alternative position. Mr Chairman, I seek your advice on the fact that my alternative amendment has yet to be filed. We have been working with the government overnight and this morning, negotiating the second amendment. Could this clause be recommitted at a later stage?

The CHAIR: The Hon. Mr Darley, I have been advised that, if it is acceptable, we use this one as a test. Your alternative is pretty close to being filed as we speak. Are you happy to proceed with this at this stage? Should it fail, then you can move the one that is coming hot off the presses. Is that all right?

The Hon. J.A. DARLEY: Yes.

The Hon. I.K. HUNTER: In moving the amendment, the honourable member will be, I think on your guidance, moving this first amendment [Darley-1] 1, as a test amendment. Is it his intention that, if that fails, he will not be moving [Darley-1] 2?

The Hon. J.A. DARLEY: I was going to move amendment No. 2, but I can understand the situation that it will not be supported by the government.

The CHAIR: Minister, are you making a contribution to [Darley-1] 1?

The Hon. I.K. HUNTER: The Hon. Mr Darley has indicated that he has two amendments: the first is being treated as a test amendment; should it fail he will not proceed with the second amendment, I understand. However, should it fail, he has another amendment that has just been filed. The government opposes the [Darley-1] 1 amendment, which he has outlined admirably for us, on several grounds, but let me recap.

Our legal advice is that the amendment is very difficult to interpret and will lead to significant litigation, the outcome of which is very uncertain. Depending on its proper interpretation, it could result in people with injuries that fall below the threshold of 10 on the ISV being awarded more damages for non-economic loss than are people above the threshold. This would be patently unfair. The drafting is not consistent, I am advised, with the ISV table and will lead to confusion. The ISV table sets bands of ISVs for each type of injury based on minor, moderate or serious. This amendment would require the courts to superimpose a decision about whether an injury is more than serious to the extent of being severe.

It is very difficult to see how the courts will be able to interpret this in the context of a scheme that is quite different from the Victorian scheme, which appears to have influenced the idea. The Victorian scheme is primarily a no-fault scheme. It allows for common law damages only in the case of quite serious injuries based on whole person impairments and not an injury scale value system taken from Queensland, for example.

The amendment does not require any reference to the points scale that other amendments to this bill require. Therefore, it may be interpreted as allowing the court to reward any amount it considered appropriate without regard to the additional scale in the bill. This could possibly mean that people with minor injuries receive more than those with more serious injury. The approach is inconsistent with the government's policy of preventing the award of damages for pain and suffering for minor injuries.

Whilst the wording is similar to that used in the Victorian narrative test, its role here would be in a very different context and for a different purpose. In Victoria, an injured person cannot apply for common law damages unless they have an injury of over 30 per cent whole person impairment or a severe injury under this narrative test. A 30 per cent whole person impairment is between three and four times more severe an injury than the thresholds to which the Hon. Mr Darley's amendments would apply under this scheme, I am advised.

I am also advised that in Victoria the experience has been that the narratives test has moved from being under 30 per cent of successful common law claim applications in 1996, when it was introduced, to around 75 per cent of claims currently, and this has been associated with a significant increase in severe injury claims. For all these reasons, the government will oppose the amendment.

The Hon. J.A. DARLEY: I just want to clarify the point that I do intend to move the alternative amendment, but it has not been filed yet, and I understand the government will support it.

The CHAIR: It has just been distributed, thank you.

The Hon. R.I. LUCAS: This is an extraordinarily complicated stage of the debate. My first question is really to the minister: the Hon. Mr Darley has indicated that he and his officers are in negotiation with the government and its officers in relation to what I will refer to as Darley 3. I suppose, although it is not Darley 3 but rather an amendment to be moved by the Hon. John Darley MLC [2], which has just been filed, and the timing of the preparation is 11.22am by parliamentary counsel. Can the minister indicate, from the government's viewpoint, whether it is correct that the government and its officers are in negotiation in relation to what I have referred to as Darley 3 on this particular issue?

The Hon. I.K. HUNTER: I am advised that the minister in the other place and the government have been in consultation with the Hon. Mr Darley on the preparation of his Darley 3, to use the Hon. Mr Lucas' terminology—and I think that makes clear to us what we are working on. Our original opposition to Darley Nos 1 and 2 is that they were so drafted as to be unclear legally and actuarially uncertain in terms of their impacts. However, the new draft version in Darley 3 is, I understand, very similar to the drafting used in the Hon. Ms Tammy Franks' amendment which we are yet to deal with.

We have fewer concerns about the Darley 3 amendment now. It is, we believe, actuarially certain and legally a lot clearer. With some small concerns, which I think can be accommodated if we look at the Hon. Ms Franks' amendment No. 5 which calls for a review, this may be an appropriate time to review the Hon. Mr Darley's amendment No. 3. With those brief comments, my advice is that the government will be supporting Mr Darley on No. 3.

The CHAIR: Before I call the Hon. Mr Lucas, we keep referring to 'Darley 3'.

The Hon. R.I. LUCAS: That is just my shorthand, Mr Chairman. That is the amendment to be moved by the Hon. John Darley MLC [2] which has 11.22am on the bottom of the sheet, but it is actually the third amendment in a sequence of three.

The CHAIR: We will keep referring to 'Darley 3' but the Hon. Mr Darley has only moved—

The Hon. R.I. LUCAS: He has only moved [Darley-1] 1.

The CHAIR: That's right.

The Hon. R.I. LUCAS: That is all we are discussing at this stage but my colleague the Hon. Mr Wade may well be able to weigh in too, in a more legalistic sense, with some of the legal aspects of these different provisions. However, we are dealing with [Darley-1] 1 at this stage.

If I understand the government's potential position—and I accept that the minister has not locked in a final position—is that we have three Darley amendments and is it fair to say that in the package we also have a Greens amendment? My understanding originally was that the government was opposing Darley's amendments Nos 1 and 2 and was supporting the Greens' amendment. However, if the government is potentially supporting Darley 3, where does that leave the Greens' amendment?

I am assuming the government cannot support both the Greens' amendment and the Darley amendment. They would seem to fill the same space and address the same issue. As I said, I have been led to believe that the government's position, up until this debate, was to oppose [Darley-1] 1 and 2—and the minister has confirmed that—but that the government was going to support the Greens' amendment. Now the minister has just said that it is potentially going to be the case that the government will support Darley 3. Does that mean that the government will still be supporting the Greens' amendment and Darley 3, or does it change the government's position on the Greens' amendment?

The Hon. I.K. HUNTER: To assist the committee, can I just advise that my understanding is that we will be supporting the Hon. Tammy Franks' amendments. They are, of course, related; they address the same issue but they address, I am advised, different heads of damage. The Hon. Ms Franks' amendments go to future loss of earning capacity; the Hon. Mr Darley's amendment goes to non-economic loss. Whilst they do address the same issue they are different heads of damage that are being addressed.

The Hon. R.I. LUCAS: So you potentially might support both?

The Hon. I.K. HUNTER: Potentially. When they are moved we may support both.

The Hon. J.A. DARLEY: The minister has clarified the position. They are two separate issues. My amendment is concerned with non-economic loss whereas the Hon. Tammy Franks' is economic loss.

The Hon. R.I. LUCAS: This adds an additional complication in terms of the process and how we proceed through the committee stages. The Hon. Mr Darley indicated, when he said he was in negotiation with the government over what we are referring to as Darley 3, that he would be seeking approval to recommit the clause for consideration of it, and that has now been circulated. From the Liberal Party's viewpoint, we are not party to the discussions or the debate and we would need some time to have a discussion with the member for Davenport and go through a process in terms of our own party. I indicate to the Hon. Mr Darley that we would certainly, at the appropriate stage, support a recommittal to allow consideration of Darley 3. We would trenchantly oppose a forced debate on Darley 3 now because we have not even seen it and we are not aware of the debate and the discussion on Darley 3.

At the appropriate stage, if the Hon. Mr Darley is proceeding with Darley 3, we will certainly support either a recommittal or a reporting of progress, or both, to allow the member for Davenport on our behalf to at least consider what this particular amendment is about so that we can come to a judgement as to what our position will be.

We do not think that that need delay further consideration of this issue and the other issues during the process that we are going through at the moment because, as members will know, a recommittal will allow us to proceed through the committee stages of the debate and then recommit the schedule or the clause that is required. We can do that at some later stage either today or tomorrow, depending on the consultation the member for Davenport will need to undertake with all of the interested parties in relation to the amendment.

As I said, that is an additional complication that we were not aware of, and I outline what our position will be in terms of allowing us to at least reflect on the particular debate. The position that I am authorised to put on behalf of the party in relation to what we were aware of is that, having looked at the range of issues, we intended to support the Greens' amendment, on the undertaking that we had been given, that the government, having taken advice from its experts, was going to support the Greens' amendment.

Similarly, my instructions from the member for Davenport, on behalf of the party, were that we had been advised that the government was not supporting [Darley-1] 1 and [Darley-1] 2, based on the expert advice that we have received, as I outlined before, because, obviously, from opposition, we are not in a position to second-guess the expert advice. We were going to accept the government's position in relation to [Darley-1] 1 and [Darley-1] 2.

Without locking in a position, if the government is going to—potentially; it has not finalised its position—support Darley 3, or some version of Darley 3, then, obviously, we would give that sympathetic consideration, given our general position on this range of amendments, as I have outlined, and that is that with a number of them, essentially, we have accepted the expert advice provided to the government and to the parliament from its advisers on these issues and the potential impact on the scheme. For those reasons, our position is to oppose the one amendment that we are discussing which is [Darley-1] 1.

The Hon. J.A. DARLEY: I respect the opposition's point of view on this in view of the late filing of the amendment, but I would be prepared to recommit this clause as long as it was today.

The CHAIR: We have only dealt with your first amendment, and it would be the recommittal of the whole schedule, so I need advice as well.

The Hon. I.K. HUNTER: The government's position is that we should vote on [Darley-1] 1 and see where that takes us. If it fails, then [Darley-1] 2 will be withdrawn and then we should deal with Darley 3 and come to a position then.

The Hon. S.G. WADE: I would urge the committee to pause and reflect here. The government has engaged both the Hon. Tammy Franks and the Hon. Mr Darley on a range of options which we have made clear the opposition is open to. As the Hon. Rob Lucas has indicated, we are supportive of the Franks amendment. Clearly, therefore, as he said, we are sympathetic to consideration of the Darley amendment.

Yesterday, the opposition was vigorously defending the right of the Hon. Kelly Vincent to have a briefing and supported the pausing of the consideration of this bill to allow that to happen. The government has had all the benefit with the Hon. Mr Darley and the Hon. Tammy Franks to consider these issues at length and then suggests that an amendment that was filed at 11:22, and made available in this committee about 11:30, should suddenly be considered when it is dealing with significantly different issues—non-economic loss versus future loss of earnings.

Let us remind this committee that this opposition puts itself forward as an alternative government: we have to live with the legislation that this house passes in the next term. The Hon. Mr Darley's position was that he was seeking a recommittal. I believe a recommittal should be done in an orderly way.

I do not believe that the opposition is in any way being unreasonable by asking for at least some hours to consider this matter. If the Hon. Iain Evans has other duties in the house, it may not be possible today, but I would ask this house to show respect to all the participants. We have shown our bona fides by showing our support for the Franks amendment. We have shown our bona fides by saying we are sympathetic to the Darley amendment. Give us a chance to give them due consideration.

The Hon. T.A. FRANKS: For the record, the Greens will be opposing the amendment we are debating, [Darley-1] 1. We understand and sympathise with the intent of the mover, and we also welcome the fact that, in terms of his recognition of the non-economic losses, he is prepared to, if you like, crack the nut in a different way by moving another amendment—the amendment he has just now filed. It is not a new issue. It is simply a new amendment with different wording to, as I say, crack that same nut. It is no new platform to the debate, and we certainly indicate that will be supporting not Darley 3, because there is no such amendment, but [Darley-2] 1.

The Hon. A. Bressington: He hasn't moved it yet.

The Hon. T.A. FRANKS: I know he hasn't moved it yet, but we have all been talking about that particular amendment, so I am just indicating that it is not a new issue. We will not be supporting the amendment before us that has been moved, which is [Darley-1] 1, but we will be, as the Greens, supporting the future amendment, which does approach the exact same issue but with a different wording, and we commend him for being prepared to work with the government on that.

The CHAIR: Therefore, only one amendment has been moved.

The Hon. K.L. VINCENT: Just to flag my thoughts at the current time, my original position as Dignity for Disability rep was to oppose the Hon. Mr Darley's amendments. Like the Hon. Ms Franks, I am certainly onside with what they were seeking to achieve, but my original advice was that, as they were originally drafted, they would have been legally difficult to interpret. Now having a newly-amended amendment before us, that situation may well change, but originally my position was to oppose the Hon. Mr Darley's amendments. Again, I appreciate what they are trying to do. My advice was that both the government and SACOSS supported the Hon. Ms Franks' amendment, so that is what I originally intended to do.

The Hon. T.A. Franks: It sits alongside mine; it doesn't replace mine.

The Hon. K.L. VINCENT: Yes, I'm getting to that. Being now in a position where I may be able to support both Mr Darley's and Ms Franks' amendments, I am very willing to do that.

The Hon. R.L. BROKENSHIRE: Just to help clarify the position, Family First had decided some time ago to support the Hon. Tammy Franks' amendment. We actually are sympathetic to and will support the foreshadowed amendment from the Hon. John Darley. I did have discussions with the minister initially on this matter but, given the fact that there has been a problem in drafting, I think it is fair that the opposition is given a short period of time to consult with their shadow minister but with the understanding that we do need to get this bill debated and finished today.

The Hon. I.K. HUNTER: I have listened intently to the debate about the foreshadowed amendment. If the opposition was ready to give a commitment to this chamber that we will complete this debate today, the government is happy to pass this bill now and recommit to allow the Hon. Mr Darley to put his amendment at a later stage in this day's sitting.

The Hon. R.I. LUCAS: You cannot pass this bill today and then recommit.

The Hon. I.K. HUNTER: Well, get to the stage where we recommit.

The Hon. R.I. Lucas interjecting:

The Hon. I.K. HUNTER: Yes; so we can pass all schedules and clauses.

The Hon. T.A. Franks interjecting:

The Hon. I.K. HUNTER: That's right. If the opposition is willing to commit that we will address the Hon. Mr Darley's amendment No. 3 by recommitting the bill today, we are prepared to allow them to have that time to consult.

The Hon. R.I. LUCAS: That is very magnanimous of the minister. Ultimately, it is not his decision—he, of course, can express a view—it is a decision for the majority of members in this chamber. I remind members that this bill on the government's schedule is, I think, priority one, which they wish to have concluded by tomorrow. This is the government's own priority listing that it wants this bill, together with a number of others, to be concluded by tomorrow.

I am not in a position to be able to give a commitment on behalf of someone I have not even spoken to in relation to being able to recommit it today. If that is possible, the opposition has demonstrated on this issue that it has been supportive of its passage through the parliament, particularly in relation to the debate in this chamber.

I will not enter into some of the shenanigans that have been going on in relation to requests for pairs and other issues—that will be for another day and another time—and the ramifications of that will be felt by a number of members in this chamber further down the track.

The Hon. G.E. Gago interjecting:

The Hon. R.I. LUCAS: I am hearing squalling and squeaking coming from the minister over there, and I am just waiting for her to stop. Is she finished, Mr Chairman?

The CHAIR: You need to finish, Hon. Mr Lucas.

The Hon. R.I. LUCAS: Well, I couldn't hear myself from the squalling and squeaking from the minister over there, Mr Chairman.

The CHAIR: I could hear you quite clearly. Get on with it.

The Hon. R.I. LUCAS: The opposition has demonstrated its willingness to comply with the government's request in relation to the passage of this bill this week. The minister says that if I can get up now and indicate that this will be considered today, and we can conclude our negotiations and discussions with the member for Davenport and whomever he needs to consult with today.

I have not even had a discussion with the member for Davenport. I am just not in a position to give a guarantee on his behalf. He is handling the bill; he has been involved in all the negotiations. The parliament is sitting in the House of Assembly today. He may well be able to do that and come to a quick recommendation in the absence of a party meeting, but he might not.

We accept that the government's request is to conclude this debate by tomorrow. Certainly from our viewpoint, we would be prepared to stick with that request and commitment and, if we have not arrived at a position tomorrow, we would obviously have to vote against the amendment on the basis that we have not had the opportunity to be able to consult.

From my viewpoint, all I can indicate is the opposition's bona fides in relation to this; that is, the government's request was to have this bill debated by the end of this week, which does include tomorrow. If it is possible to form a view on Darley 3 (as we are referring to it) by tonight and the member for Davenport can do that, certainly I have no objection to that position, but it just might not be possible for the member for Davenport to have the negotiations and discussions with the government advisers and the lawyers and anyone else he needs to consult in relation to what is known as Darley 3.

I repeat that our position will be that we will support, at an appropriate time, a recommittal of this clause. It is then the prerogative of the government to indicate it will do so on motion and, when it seeks to bring it back on, we will either oppose that—for today, that is—or support it, depending on where we arrive at with the member for Davenport. If we were to oppose it being brought back on tonight, it would only be on the basis that we would accept that we are prepared to do it tomorrow, which would then give the member for Davenport some time to form a position on Darley 3.

I just want to say that this is an extraordinarily complicated bill and this particular provision is one of the more complicated provisions. Secondly, the ramifications of what we do may well be felt for years or decades hence in terms of the drafting of this amendment, the legal interpretation of the amendment and court decisions that might eventuate. To jam it through (potentially) today, before everyone has had the opportunity to at least hurriedly consult within a 24-hour time frame and to pass the legislation tomorrow, as was requested by the minister and the government, is foolhardiness in the extreme.

We have had nothing from the government and the minister at the start of the week in terms of priorities saying that this has to be done by Wednesday lunchtime or Wednesday evening. The request was for the Legislative Council debate to be concluded by Thursday. So, we, at the appropriate time, will put a very strong position to other non-government members. As the Hon. Mr Wade has indicated, on a number of occasions we have supported the position of non-government members who have not been ready to proceed either at a particular stage or with a particular debate.

Non-government members have enjoyed the support of Liberal members in terms of agreeing to reasonable and appropriate either delays or deferral of consideration, and all we would be asking for from the non-government members in relation to this is to maintain the quid pro quo to give the member for Davenport and the Liberal Party a reasonable opportunity to consult on what is a complicated amendment—not only complicated but also, potentially, with long-term implications for the financial viability of the scheme.

I cannot give a commitment in the terms that the minister demands at this particular stage but I have outlined what I feel I can do, which goes very substantially towards the position that the minister is talking about without giving that absolute commitment.

The Hon. I.K. HUNTER: Let me assist the house, perhaps. Putting aside the veiled threats the Hon. Mr Lucas has made to the crossbenchers in terms of their support into the future—

Members interjecting:

The Hon. I.K. HUNTER: They weren't particularly veiled—let me say this, to assist him. The early ask was that he have some hours to go off and consult and now it is turning into 24 hours. I propose that we proceed with the bill with the amendments that have been lodged and deal with those today. I will then move to recommit this bill later today and test the support of this house if we have the ability to do that later on.

Amendment negatived.

The Hon. T.A. FRANKS: I move:

Clause 4, page 37, after line 37—Insert:

(2a) However, a court may award damages in a case that would otherwise be excluded by operation of subsection (2) if satisfied—

(a) that the consequences of the personal injury with respect to loss or impairment of future earning capacity are exceptional; and

(b) that the application of the threshold set by that subsection would, in the circumstances of the particular case, be harsh and unjust.

This amendment covers cases giving the courts discretion where the cases are deemed to be exceptional—that is the wording we have used here in the amendment itself—and goes to addressing future earning capacity. I did cover this amendment in my second reading speech and we have briefed members, as have SACOSS, where these amendments were first suggested.

I credit the work of Hannah Corbett and Greg Ogle at SACOSS for putting in the effort and providing us with direction. We have worked with SACOSS, with the government and with parliamentary counsel to arrive at this particular wording. It ensures that, in those exceptional circumstances which for one particular person may not damage their future earnings but for the example of a chef who loses their taste, for the example of a hairdresser who loses ability in a hand or for the example of somebody who is already blind in one eye who loses sight in the other, those people are served by the system we are going to be introducing. With that, I commend this amendment to the committee.

The Hon. I.K. HUNTER: I rise to support the amendment in the name of the Hon. Tammy Franks. Can I just say briefly, given the earlier comments by the Hon. Mr Lucas about concerns raised by the Motor Accident Commission, I note that those concerns related to the threshold under this section of the bill. I reiterate for the record that the government made a decision to lower the threshold for damages under this clause based on expert actuarial advice. The Motor Accident Commission's concerns were heard by the government, but in the end we made a call based on the expert actuarial advice of MAC's own actuary.

The Hon. R.I. LUCAS: Can the minister outline what the actuarial advice indicated in relation to the implications of this particular provision?

The Hon. I.K. HUNTER: My advice is that the actuarial advice is that the figures the government quoted will be consistent with the new threshold.

The Hon. R.I. LUCAS: Having been privy to actuarial advice in relation to these particular schemes before, I am specifically asking whether the actuaries, in looking at this provision, did provide cost estimates to the government of the impact of the amendment on the scheme. To explain that, on previous occasions when actuaries have looked at changes to the CTP scheme, they have provided advice to both the Motor Accident Commission and to the government to say, 'Okay, if you amend this provision, our estimate of the cost impact on the scheme is $1 million to $2 million,' and they have given some ballpark range of what the impact will be, and the government may still say that that is consistent with the premium reductions the government was talking about.

But certainly actuaries in the past in relation to CTP scheme amendment bills have provided specific advice in relation to the potential impact on the financial viability of the scheme. The minister has given the final conclusion, and that is, 'Okay, you can still go ahead and give your premium reduction,' but what I am specifically asking is: what was the nature of the actuarial advice in relation to the potential range of dollar impact on the scheme of this particular amendment?

The Hon. I.K. HUNTER: I am advised that the original changes were in the threshold from 15 points to seven points. On that basis, the actuary advised us that the savings on 15 points would be $110. Subsequent to negotiations with various people, which we have talked about in previous parts of the debate, those savings have come down to $104 based on the actuarial advice.

The Hon. R.I. LUCAS: I understand that particular aspect of the actuarial advice but what I am specifically asking is: has the actuary provided advice to the government in terms of the dollar impact—not the premium impact but the dollar impact—in terms of the scheme? That is, the estimated cost of that in terms of payouts will be $2 million or $5 million on an average year. The minister then goes to the end line of that which is that, therefore, the premium impact will be $104 instead of $110. My specific question is whether the actuaries have provided to the government and to MAC an indication that the impact on the scheme will be $5 million or $10 million as opposed to the premium impact issues which are already on the public record and the minister has just repeated.

The Hon. I.K. HUNTER: My advice is that the actuary provided that information to us in terms of dollars per vehicle.

The Hon. R.I. Lucas: Are you going to provide that?

The Hon. I.K. HUNTER: My advice is that is the answer I have previously given about the premium.

The Hon. R.I. LUCAS: To be clear, the minister is indicating that the actuaries have not provided any advice in terms of the overall dollar impact on the scheme. I understand that is the import of what the minister has just said. If that is wrong, he can correct that in a moment. I ask the minister whether the government is prepared to provide a copy of the actuarial advice to the opposition.

The Hon. I.K. HUNTER: The Hon. Mr Lucas has implied, I think, that the actuary has not provided the information Mr Lucas seeks in total numbers. In fact the actuary has, but he has provided it in a different format. I am also advised that that information Mr Lucas has asked for has been provided already to the Economic and Finance Committee of the parliament.

The Hon. R.I. LUCAS: So if that is the case, is the minister prepared to have a copy made available to me? I am not a member of the Economic and Finance Committee of the parliament. I take it the minister is quite happy, given this is going to be recommitted some time either later today or tomorrow, to get me a copy of that during the luncheon break; I would appreciate that. Is the minister prepared to undertake to make that available?

The Hon. I.K. HUNTER: My advice is that that will not be a problem.

The Hon. R.I. LUCAS: Just to clarify, are we still on Franks?

The CHAIR: Yes.

The Hon. R.I. LUCAS: Can I indicate that the instructions I have from the member for Davenport, as I think I indicated in the earlier debate on [Darley-1] 1, is that the Liberal Party will support the amendment being moved by the Hon. Tammy Franks, essentially on the understanding that the government's advice has led it to support the Hon. Tammy Franks' amendment and that the potential impact on the scheme is not as significant perhaps as some might have suspected.

Can I just offer a personal note? That is the Liberal Party's position; we are supporting the amendment. Whilst I am not a lawyer, this is an issue that I have some significant personal concern about in terms of where ultimately it might lead. I have seen so many assurances in relation to these types of issues in terms of how the courts will interpret various provisions in the legislation, and then ultimately the lawyers and then the courts do interpret them in a significantly different way.

This whole area that we have entered into I think has that potential concern, that is, we are being advised by lawyers and actuaries—and I accept that that is the best that we can do in terms of providing advice on the scheme—that it is going to be interpreted in a certain way. My experience in the past leads me to be a bit sceptical as to whether in the end the assurances that we are being given will be proved to be correct.

It may well be some years down the track that a future government will be left to inherit what might be a complicated mess on the basis that we thought it was going to operate this way, but ultimately the courts have determined to interpret in a different way, with potential financial implications to the financial viability of the scheme, and therefore with potential implications in terms of the premiums that might need to be charged to drivers.

As I said, the Liberal Party's policy position is, for the reasons that the member for Davenport has indicated to me, that we will support the amendment being moved by the Hon. Tammy Franks.

Amendment carried.

The Hon. I.K. HUNTER: I move:

Clause 4, page 38—After 'is based' insert:

(but nothing in this subsection gives rise to an entitlement to damages beyond damages awarded for loss or impairment of earning capacity)

I am advised that this is a technical amendment; it does not change policy. The new section 56A of the Civil Liability Act is about economic loss arising from injuries resulting from motor vehicle injuries. Subsections (4) to (7) are about the effect of loss or impairment of earning capacity on superannuation. Subsection (5) is intended to ensure that self-employed and employed people are treated equally with regard to losses and superannuation that are consequent upon their loss or impairment of earning capacity.

The Motor Accident Commission was concerned that subsection (5), as drafted, might be interpreted as giving self-employed people a right to damages that does not already exist. The amendment is to ensure that this does not happen.

The Hon. R.I. LUCAS: The member for Davenport has advised me that the Liberal Party's position is that we accept the government's arguments for support of amendment No. 14 and we will be supporting it.

Amendment carried.

The Hon. I.K. HUNTER: I move:

Clause 8—

Page 41, after line 34—Insert:

(aa) authorise an insurer or the nominal defendant under Part 4 of the Motor Vehicles Act 1959 to require a claimant to submit to an assessment or examination of a prescribed kind; and

Page 42, line 3—Delete 'the' and substitute 'an'

Amendment No. 16 is consequential on amendment No. 15, and No. 15 is an amendment to schedule 2, clause 8, page 41. These amendments are related. The bill provides for the establishment of a system for accrediting health professionals and referring claimants to them with a view to improving the objectivity and quality of reports, and limiting the number and cost of reports, which at present can be excessive.

However, it will take time to accredit health professionals in all disciplines, and it might turn out that it is not practical to maintain the accreditation and referral system for professionals of some disciplines whose reports are needed very infrequently. This amendment is to ensure that a regulation can be made to deal with circumstances where examination and report is needed but there is no suitable health professional who has been accredited to do this.

The Hon. R.I. LUCAS: The member for Davenport advises that, for the reasons the minister has just outlined, the Liberal Party is prepared to support these two amendments.

Amendments carried.

The Hon. T.A. FRANKS: I move:

Clause 8, page 42, after line 41—Insert:

(3a) The rules that are to apply for the purpose of assessing injury scale values ('ISVs') for multiple injuries must include 1 or more provisions that adopt the following principles:

(a) a court must consider the range of ISVs for the dominant injury of the multiple injuries;

(b) in order to reflect the level of adverse impact of multiple injuries on an injured person, a court may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than the ISV that the court would assess for the dominant injury only;

(c) if a court considers that the level of impact of multiple injuries on an injured person is so severe that the maximum ISV for the dominant injury is inadequate to reflect the level of impact, the court may make an assessment of the ISV for the multiple injuries that is higher than the maximum ISV for the dominant injury, subject to the following qualifications:

(i) the ISV for multiple injuries cannot exceed 100;

(ii) the ISV for multiple injuries should rarely be more than 25% higher than the maximum ISV for the dominant injury.

(3b) In connection with the operation of subsection (3a), a dominant injury, in relation to multiple injuries, is—

(a) subject to paragraph (b)—the injury of the multiple injuries having the highest range; or

(b) if the highest range for 2 or more of the injuries of the multiple injuries is the same—the injury of those injuries selected as the dominant injury by a court assessing an ISV.

(3c) Subsections (3a) and (3b) do not limit any other principle or provision that may apply under the regulations in relation to the assessment and determination of an ISV for a particular injury.

This amendment was a suggestion from the South Australian Council of Social Service and simply provides greater certainty by inserting within the schedule the ISV table The reason for doing that is to provide that clarity and to ensure that when we debate this bill we know what we are signing up for, to use the colloquial language. With that, I commend it to the committee.

The Hon. I.K. HUNTER: The government will be supporting the amendment.

The Hon. R.I. LUCAS: I am advised that the Liberal Party will support the amendment as well.

Amendment carried.

The Hon. T.A. FRANKS: I move:

Clause 8, page 43, after line 38—Insert:

(6a) A regulation under subsection (1)(d) may only be made on the recommendation of the designated Minister.

(6b) Before the designated Minister makes a recommendation under subsection (6a), the designated Minister must consult with—

(a) the Attorney-General; and

(b) The South Australian Branch of the Australian Medical Association Incorporated; and

(c) The Law Society of South Australia.

(6c) If an association referred to in subsection (6b) objects to any matter contained in a regulation under subsection (6a), the designated Minister must, at the request of that association, prepare a report that—

(a) provides information about the consultation that has been undertaken; and

(b) sets out the objection that has been made (including the reasons put forward by the association for its objection).

(6d) The Minister must cause a copy of a report under subsection (6c) to be laid before both Houses of Parliament as soon as is reasonably practicable after the request is made.

(6e) In addition, a regulation that would have the effect of changing the injury scale value applying with respect to a particular injury so that a person who suffers that injury (and no other injury) would, on account of that change, no longer have a right to damages for non-economic loss under section 52(3) and (4) cannot come into operation until the time for disallowance of the regulation has passed.

This amendment seeks to ensure that this scheme is reviewed with a view not just to the financial impacts of its implementation but to the social impacts of its implementation. Sorry, I am speaking to the wrong one. I will just check which one it is.

The Hon. I.K. HUNTER: If I can assist the committee, I believe this amendment is about the changing of the ISV table, and on that basis I can indicate that the government will be supporting the amendment. It is also a regulation under subsection (1)(d), I understand.

The Hon. T.A. FRANKS: This does indeed, as the Hon. Rob Lucas made note, go to the consultation processes in regard to the ISV table. I certainly strongly advocate consultation and reviews, which is why our further amendment will seek to review this, and it ensures that the most appropriate people are in fact part of this process.

The Hon. I.K. HUNTER: I understand that it is about the table that we mentioned: (6a) a regulation under subsection (1)(d). Subsection (1)(d) is to prescribe rules that are applied with respect to the determination of injury scale value under this act and it cannot be done without the consultation of the bodies prescribed and, on that basis, we support it.

The Hon. R.I. LUCAS: I am not an expert in this, but my understanding is that this amendment dealt with another important issue—that there could not be any change to any regulation which changed the ISV values operating before the time for disallowance of the regulation had expired. I thought this amendment was not just simply about consultation but it is actually quite an important issue in relation to the powers in terms of disallowance and when something can operate from. That issue does not appear to have been canvassed either by the mover or the minister, so can I just clarify whether our understanding of the amendment is in fact correct?

The Hon. T.A. FRANKS: Given the extensive consultation we had prior to this amendment being moved in this place, the Greens certainly concur with the interpretation of the Hon. Rob Lucas and commend him for having done his research and the Liberal Party room for having considered this matter so fully. We are certainly not putting this issue up today on the floor of the house and expecting members to understand that. A lot of work has gone into this particular aspect and, again, I commend SACOSS for much of that and also members of the legal fraternity. The Hon. Rob Lucas is, indeed, correct.

The Hon. I.K. HUNTER: Regarding the issue that the Hon. Mr Lucas raises, I understand that it will pertain to future changes and not to the first ISV table.

The Hon. R.I. LUCAS: I am assuming that the minister is comfortable and is accepting that particular aspect of the amendment as well?

The Hon. I.K. HUNTER: The government does accept it.

Amendment carried.

The Hon. I.K. HUNTER: I move:

Clause 14, page 46, after line 9—Insert:

(3a) An insurer or the nominal defendant must, within 21 days of receiving any record or other information under subsection (2)(d), send a copy of the report or information to the claimant (or a legal practitioner engaged by the claimant).

This will amend the clause for a new section 126A(2)(d) of the Motor Vehicles Act. New section 126A provides for the procedures for making a claim against the CTP scheme. Subsection (2)(d) would require the claimant to authorise the insurer in a form prescribed by regulation to have access to records and other sources of information relevant to the claim. The amendment is to require the insurer or nominal defendant to send copies of material obtained under the authority to the claimant or the claimant's lawyer within 21 days.

For some claimants it will be beneficial to have the insurer obtain information. Often the insurer will have systems and contacts that will make it quicker and more efficient for the insurer to obtain the information than the claimant. It will relieve the claimant of having to go to the trouble of obtaining it or paying their lawyers to get it for them, and it is fair and reasonable that claimants be given promptly the information they have authorised the insurer to obtain.

The Hon. R.I. LUCAS: My advice is that this particular amendment had been requested by the legal fraternity for the reasons that have been outlined by the minister on behalf of the government, and the Liberal Party will support the amendment.

Amendment carried.

The CHAIR: It has just been brought to my attention, and I apologise for this, that there is a Bressington amendment No. 1.

The Hon. A. BRESSINGTON: I move:

Page 44, after line 25—Insert:

8A—Insertion of section 4A

After section 4 insert:

4A—Commission to behave as model litigant

(1) The Commission must behave as a model litigant in the conduct of litigation.

(2) Any model litigant guidelines applicable to the Crown Solicitor apply also to the Commission.

This is a simple amendment which requires the Motor Accident Commission to conduct all matters fairly and honestly by requiring MAC to adhere to the model litigant code. This amendment creates a requirement that MAC will act fairly and consistently and handle matters promptly. They will be required to pay legitimate claims without litigation, to act consistently in the handling of like claims, whilst keeping the costs of litigation to a minimum. Accordingly, under this code, MAC cannot require the other party to prove a matter which MAC knows to be true. The code also requires MAC to be courteous and professional when dealing with witnesses, parties, and their representatives.

This amendment is about protecting the injured person, especially in light of the significant power imbalance which exists between the injured person and the large, legally-astute insurance corporation. There has been some suggestion that this amendment is unnecessary. However, I have taken advice from those within the industry and I am assured that it is absolutely necessary.

The Hon. I.K. HUNTER: I am advised that as a statutory authority, MAC should, in any event, be acting as a model litigant, but we have no concerns with it being put into the act and we support the amendment.

The Hon. R.I. LUCAS: Can the minister outline the nature of the legal expertise that the Motor Accident Commission utilises? Does it utilise private sector legal firms or does it use the crown in terms of prosecuting its cases?

The Hon. I.K. HUNTER: My advice is, in terms of litigation and defending of claims and such, MAC uses private firms, but there are occasions when it requires statutory interpretation from the Crown and it will seek that interpretation from that source.

The Hon. R.I. LUCAS: My learned colleague the Hon. Mr Wade tells me that the Crown officers are evidently covered under similar provisions anyway, but my question relates to the private legal firms that are utilised by the Motor Accident Commission. Can the minister indicate how these particular model litigant provisions would apply to private legal firms acting on behalf of the Motor Accident Commission?

The Hon. I.K. HUNTER: My advice is that private legal firms acting for MAC act on instructions from MAC, who will give them directions.

The Hon. S.G. WADE: I would ask the minister to reflect on that response because MAC, presumably, is not lawyers. MAC is financial people; they are administrative people. They know how to run a CTP scheme, but how would they know the intricacies of the concept of the model litigant as it applies to the Crown? I would have thought it would have been more reassuring to tell us that somebody was telling these private lawyers what the Crown expected, not what their financial managers expected.

The Hon. I.K. HUNTER: My legal advice, in this case—well, my advice—is that the litigant is a party to the proceedings and MAC stands in the shoes of the natural person. I am sure that will make sense to the Hon. Mr Wade. MAC should be telling its lawyers to behave as model litigants and the Hon. Ms Bressington's amendment will ensure that that happens.

The Hon. R.I. LUCAS: On the basis of the government's support for the model litigant amendment from the Hon. Ms Bressington, our position is that the party room has not formally considered this particular amendment but, in general principle, we are sympathetic to the notion, obviously, of the commission behaving in an appropriate fashion. Our position is that, if the government's advice is that that is to be accepted, then we will support the amendment on that basis as well.

I might just say, in response to the comments from the Hon. Mr Wade, that the MAC is comprised essentially of financial and other people, other than legal people. I might say, in more recent times, it has increasingly been comprised of former ministerial advisers from ministerial offices, but that is a debate for another day as well.

The Hon. S.G. WADE: I thank the minister for his responses. I should not indicate my scepticism. The fact that members of the legal community have felt it necessary to approach the Hon. Ann Bressington and suggest this amendment suggests that they, at least, think that the MAC could do a better job at explaining to their legal representatives what is expected of a model litigant. I dare to share the hope of the minister that this amendment might lead to better instructions to lawyers, so that they can be better aware of their obligations.

Amendment carried.

The Hon. I.K. HUNTER: I move:

Clause 17, page 47, after line 35—Insert:

(6) If a person suffered the bodily injury as a result of or partly as a result of the fault of another person (the wrongdoer), the insurer is entitled to recover from the wrongdoer as a debt due to the insurer such proportion of the present value of the insurer's treatment, care and support liabilities in respect of the person's bodily injury as corresponds to the wrongdoer's share in the responsibility for the injury.

(7) The present value of the insurer's treatment, care and support liabilities in respect of a bodily injury is the sum of the following amounts—

(a) amounts already paid by the insurer under this section in respect of the treatment, care and support needs associated with the bodily injury; and

(b) the present value of the amounts that the insurer estimates will be payable by the insurer in the future under this section in respect of the treatment, care and support needs associated with the bodily injury.

This is to amend the clause that provides for new section 127B of the Motor Vehicles Act. New section 127B will provide for a no-fault compensation scheme for the treatment, care and support of children who are injured in motor vehicle accidents when they are under the age of 16.

The insurer or nominal defendant will have a statutory liability to meet those costs regardless of fault, like the lifetime support authority. This is similar to a provision in the lifetime support scheme part of the bill. It will enable the insurer or nominal defendant to seek contribution from a person whose negligence, or other tortious act or omission, caused or contributed to the accident.

The Hon. R.I. LUCAS: The member for Davenport advises that, for the reasons the minister has outlined, the Liberal Party will support amendment No. 18 from the government.

Amendment carried.

The Hon. I.K. HUNTER: With the concurrence of the committee, I move amendments Nos 19, 20 and 21; they are related:

Clause 17, page 48—

Line 20—Delete 'insurer' and substitute 'defendant'

Line 22—Delete 'insurer' and substitute 'defendant'

Line 28—Delete 'insurer' and substitute 'defendant'

Amendment Nos 19, 20 and 21 are to amend subsection (2) of new section 127C of the Motor Vehicles Act. That subsection is about party-party costs in claims where the total amount recovered does not exceed $25,000. The amendments are all the same, and they are purely technical, I am advised. They will substitute the word 'defendant' for the word 'insurer' in each of the subsections.

The Hon. R.I. LUCAS: The Liberal Party supports these amendments, which we agree with the government are technical amendments.

Amendments carried.

The Hon. T.A. FRANKS: I move:

Clause 20, page 50, after line 26—Insert:

(5) To avoid doubt, section 76(6e) of the principal Act (as enacted by this Act) does not apply in relation to a regulation that prescribes the injury scale values that are to apply on the commencement of section 52(3) of the principal Act (as enacted by this Act).

This amendment seeks to clarify that the provisions we have now accepted with regard to consultation and the processes around the ISV table do not apply to the inaugural table but to future incarnations.

The Hon. I.K. HUNTER: The government will be supporting the amendment.

The Hon. R.I. LUCAS: The member for Davenport has advised me that the Liberal Party will support this amendment as well.

Amendment carried.

The Hon. I.K. HUNTER: I move:

Clause 21, page 50, after line 32—Insert:

(2a) An amendment made by this Act to section 127 of the principal Act does not apply in relation to any claim in relation to bodily injury that results from an accident occurring before the commencement of the amendment (and so a paragraph or subsection to be deleted by such an amendment will continue to operate in relation to such a claim including a claim made after the commencement of the amendment).

This is a transitional provision to make it clear that the changes to be made to section 127 of the Motor Vehicles Act will not affect claims for accidents that occurred before the date of the commencement of the operation of the section. The current provisions of section 127 will continue to apply to those accidents.

The common law is, I am advised, that, in the absence of express provisions in an act, amendments that affect only procedural matters apply to things that occurred before the amendment comes into force, whereas amendments that affect substantive rights and obligations apply only to things that occur after the amendment comes into force.

It is not always clear whether an amendment is merely procedural or affects substantive rights and obligations. There have been many court cases, I am advised, some going to the High Court, about whether an amendment is procedural or substantive. This amendment will avoid any argument about it, one hopes.

The Hon. R.I. LUCAS: The member for Davenport has advised that the Liberal Party, for the reasons the minister has outlined, will support the minister's amendment No. 22.

Amendment carried.

The Hon. T.A. FRANKS: I move:

Page 51, after line 28—Insert:

Part 7—Review

23—Review

(1) The designated Committee must review the operation of this Act (including the amendments made by this Act to other Acts) as soon as practicable after the expiry of 3 years from its commencement.

(2) The review must include an assessment of—

(a) the extent to which this Act has provided an effective and fair scheme to assist people who have been catastrophically injured in motor vehicle accidents; and

(b) whether it would be appropriate to extend the Scheme established by this Act to people who have been catastrophically injured due to other causes, and the issues associated with implementing such a reform; and

(c) the operation of the provisions for the assessment and awarding of damages under section 52 of the Civil Liability Act 1936 with respect to MVA motor accidents (as defined under that Act) enacted by this Act, with particular reference to—

(i) whether the exclusion of a right of recovery for non-economic loss if the injury scale value that applies in a particular case does not exceed 10 has resulted in cases of substantial hardship; and

(ii) whether the rules and principles applying to an injured person who has suffered multiple injuries have—

(A) provided reasonable compensation within the scheme established under that section; or

(B) caused a change in the manner in which such persons claim compensation that has or could lead to an increase in premiums payable under Part 4 of the Motor Vehicles Act 1959; and

(d) the operation of the other amendments to the Civil Liability Act 1936 enacted by this Act, with particular reference to the introduction and effect of thresholds under various heads of damages; and

(e) the effect that the amendments to the Motor Vehicles Act 1959 enacted by this Act have had on the handling and settlement of claims under Part 4 of that Act,

and may include any other matter that the designated Committee considers to be relevant to a review of this Act.

(3) In this clause—designated Committee means—

(a) unless paragraph (b) applies—the Social Development Committee of Parliament; or

(b) if both Houses of Parliament have, before the third anniversary of the commencement of this Act, by resolution, designated another Committee of Parliament to conduct the review envisaged by this clause—that Committee.

This amendment seeks to ensure that we review the operation of this act, not simply for the financial impact it has but for the social implications. It ensures that we are looking not only at the bean-counting side of things but also at how this will operate in the real world. After consultation with the member for Davenport and members of the crossbench and the government, it seeks to ensure that that review in the first place may be done by the Social Development Committee of this parliament. However, it provides for alternative arrangements should that not be possible under their workload at that stage.

I understand it has been widely consulted on with all members and certainly hope that members will look favourably on ensuring that the impact of this scheme is accounted for, as I say, not only financially but also socially.

The Hon. I.K. HUNTER: The government indicates it will be supporting the amendment.

The Hon. R.I. LUCAS: The Liberal Party will support this amendment, for the reasons briefly outlined by the Hon. Ms Franks.

Amendment carried; schedule as amended passed.

Title passed.

Bill reported with amendment.

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