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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-09-08 Daily Xml
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Bills

Return to Work (Impairment Assessment Guidelines) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 25 August 2021.)

The Hon. K.J. MAHER (Leader of the Opposition) (16:52): I rise today to speak on this bill and thank the Hon. Irene Pnevmatikos for bringing this bill before this chamber. Earlier this year, many members of the community were disturbed at the proposal of the government, the member for Norwood, Steven Marshall, and the Treasurer in this place, the Hon. Rob Lucas, to drastically change the Impairment Assessment Guidelines that affect some of the most vulnerable injured workers in South Australia.

The consultation process was so badly done that even the minister's own expert advisory group demanded more time to respond to the proposals. What the Treasurer and the Premier set out to do was that flawed that even their own advisory group insisted it be changed. The Law Society, lawyers and doctors have all raised very significant concerns. Those representing workers in the union movement have raised very significant concerns. Most importantly, the proposals from the Premier and the Treasurer struck fear into the hearts of injured workers, who were guilty of nothing more than being in the wrong place at the wrong time when they were injured and having the wrong government in at the time.

After a major backlash, the consultation period was reluctantly extended by the Treasurer. At that time the Hon. Irene Pnevmatikos and Labor drafted and gave notice of the bill we are voting on today that has been introduced into both chambers. The bill simply allows for the parliament to disallow changes to the guidelines rather than the current arrangements where the Treasurer can make changes with the stroke of a pen.

Extraordinarily, on the day before this bill was first spoken on in this place, the Treasurer decided to have the new guidelines come into force. The Treasurer knew full well that the parliament was seeking to limit that power, yet the Treasurer chose to have the guidelines come in the very day before this bill was due to be spoken on for the first time. It is a disgrace to use parliament in this way to avoid scrutiny and avoid members having a say.

The changes to the guidelines affect those who could be assessed with a 5 per cent whole body person impairment, a WPI threshold for workers to receive a lump sum compensation for many genuine injuries. It will make it impossible for many workers to receive lump sum compensation for common and debilitating injuries, including injuries to the knee, arms, hips, ankles and wrists.

Another group of workers could be drastically affected: those classed as seriously injured at the 30 per cent threshold. This may exclude many who would currently be classed as seriously injured. Without this classification, an injured worker may not get the ongoing help with medical treatment or ongoing costs and income support. Further changes also remove the ability for some injured workers to choose who assesses their injury by limiting their time to do so.

Many injured workers will have a limited choice of specialists, who may live interstate, no longer practice clinically, or have no experience in assessing WPI assessments. These changes risk triggering major bottlenecks for qualified and suitable assessors. It may also diminish the worker's confidence in lodging a claim through an unfamiliar and potentially incompatible practitioner.

Many unions, many medical practitioners, many with great experience in practice in this area, and lawyers have expressed significant concerns about the impacts of these changes, but many of these key groups were not even consulted. If there is nothing to hide in these changes, as the Treasurer initially pretended, the government needs to explain why these stakeholder groups were not even initially informed.

This is not an academic or theoretical exercise. Labor is acting on genuine concerns that have been genuinely expressed. You need look no further than a recent South Australian Employment Tribunal judgement highlighting how volatile this area of law can be, both for injured workers and medical practitioners. Recently, SA Health was found to have been pressuring doctors to change their opinion on an injured nurse's WPI assessment. The state's central health agency was pressuring health professionals to change professional health advice. Tribunal Deputy President Judge Tony Rossi, who made the order, commented, 'This case is yet another illustration of how the integrity of the process may be compromised by permitting subsequent communications with assessors once a report has been provided.'

After 18 months of listening to this government tell us daily about the importance of following expert health advice, we now find that parts of the government actively seek to undermine and try to change expert health advice. This shows that even medical assessments are open to manipulation by large organisations. It is shameful conduct and compensation was awarded in that case in the order of hundreds of thousands of dollars: a large compensation settlement, but nothing for the mental anguish that that injured worker and many injured workers suffer when government agencies or large companies act beyond their power or unethically to deny them basic protections.

As the Hon. Irene Pnevmatikos has outlined, this bill will ensure that changes to the guidelines cannot be made now or in the future without parliament having a say. We have heard on this matter a number of times the Hon. Rob Lucas, the Treasurer, on behalf of Premier Steven Marshall and his government, say, 'We are only doing what the law allowed at the time.' It does not make it right.

We have seen that recently with the shop trading hours debate. The Treasurer is not acting within the spirit of the law and is constantly issuing exemptions. Just because you can do it, does not mean you should do it. The Treasurer should not have made the guidelines he made. We think it is only right that parliament have a say when you have a Treasurer who will use ideology in the way that the Treasurer chooses to do, to be able to deny the Treasurer his ideological wishes that hurt injured workers.

The Hon. T.A. FRANKS (16:59): I rise to speak in firm support of this bill before us today. I have previously raised in this chamber how disgusting it was that the government were seeking to sneak through these quite significant changes to the Impairment Assessment Guidelines. These are guidelines that are used under the act to assess compensation entitlements for injured workers. I would like to reiterate that it is already extremely difficult and often traumatic for injured workers to pursue, let alone receive, fair compensation under our current system as it stands.

I think every member in this place has received the deeply concerned emails from a whole range of workers, lawyers and advocates, outlining just how flawed these changes are to the Impairment Assessment Guidelines and the many ways in which they will let down workers. It is appalling that such changes were even considered let alone allowed to happen under our legislation. The Return to Work Act is supposed to determine the rights of workers to fair compensation and help ensure that they have access to that compensation, yet what we are seeing with these new changes to the Impairment Assessment Guidelines in particular are of course, yet again, workers' rights being stripped away.

Let me be clear: as far as the Greens are concerned, the Return to Work Act has never been fit for purpose. From the beginning, we raised concerns that workers would be forced to fight a difficult and traumatic fight to have the seriousness of their workplace injuries recognised let alone fairly compensated. It is heartbreaking to see that of course our concerns have come to pass and that so many workers have been unable to access fair and adequate compensation and support for those workplace injuries that they have incurred.

But these latest changes to the Impairment Assessment Guidelines are beyond the pale. They will make it even harder for workers to be able to prove a level of impairment high enough to qualify for compensation, and they demonstrate just how badly this act and our workers compensation system needs to be reformed. These sneaky changes offer no benefit to the community and they only add insult to a worker's injury. It is cold comfort that the Treasurer has come to this place in recent weeks, having been caught out with his sneaky behaviour, to say that apparently it is not going to be as bad as they had originally, possibly hoped.

I am glad we have this bill before us today so that we do not see that situation repeated. It will ensure that at least there is the opportunity for proper parliamentary scrutiny for any future changes to the Impairment Assessment Guidelines. What the Greens also welcome as part of this bill is it includes a retrospectivity clause that would reverse any drastic and terrible changes gazetted by this government or any government for that matter. Changes that hurt people have no place in our compensation scheme for injured workers and I will be glad to be rid of these new punitive guidelines.

The Hon. C. BONAROS (17:02): I rise on behalf of SA-Best to speak on the Return to Work (Impairment Assessment Guidelines) Amendment Bill 2021, and indeed in support of that bill. As we have heard, the bill seeks to undo the recent changes to the Impairment Assessment Guidelines that were gazetted on 24 August and are currently in force. Put simply, those guidelines are used by accredited doctors to determine the nature and extent of a worker's injury for the purpose of compensation.

I have met with and spoken to countless doctors, lawyers and experts in the field who have expressed concerns that many injured workers will ultimately be worse off as a result of these changes, concerns that are consistent with the comments we have heard from other honourable members today. As I said, these are the experts in this field. They are at the coalface and have seen firsthand the full impacts of injuries suffered by people in the workplace, and so SA-Best gives their concerns great weight.

I understand some of the changes proposed by ReturnToWorkSA were abandoned. I may be corrected on that, but limits on which medical professionals would be able to undertake the assessments and whole person impairment were omitted from the final draft. However, significant changes, problematic changes, did and indeed have slipped through. They affect any worker who seeks to claim a lump sum compensation due to a work injury that occurred from 24 August this year.

They specifically relate to impairments to the lower extremity, upper extremity, spine, digestive system and skin, including scarring. As it stands, the responsible minister may alter the guidelines from time to time, as he in this instance has, thereby avoiding parliamentary scrutiny. I think that is one of the interesting subjects that is yet to be fully played out in this area. We do not know whether there are going to be any challenges, but I know certainly one of the legal challenges that was mounted, while I was consulting on this bill and while I was contacted by legal experts, was whether this gazettal was indeed beyond the scope of what was envisaged and allowed under the enabling legislation and regulations.

I think that is a very real concern that we all need to pay particular attention to, because I do not think when these changes went through initially it was foreseen that these sorts of changes would be implemented by the stroke of a pen, basically. I think that is something that, if it is indeed challenged, is yet to be played out, and something that we will have to wait and see what happens in relation to that.

As we know, the bill, as other members have highlighted, seeks to amend section 22 of the Return to Work Act to ensure the guidelines receive proper parliamentary scrutiny as subordinate legislation. As a member of the Legislative Review Committee, I can tell you that one of our key concerns—at least one of my key concerns—when an instrument is on our radar is whether proper consultation has occurred and whether enough time has been given for consideration. Whether or not proper consultation has occurred is usually up in the air, because we are not privy to those consultation processes, because it has become ordinary practice for this government to claim that those practices are subject to cabinet in confidence and therefore not provide all the material that they ought to to the only scrutiny committee that exists in this place.

These changes that we are talking about and which this bill addresses were done and dusted in less than three months—changes that have huge impacts on injured workers done and dusted in three months. As the Law Society pointed out in its submission on 25 June, consultation appears to have missed key stakeholder groups in this instance, stakeholders like the unions, Business SA and other industry groups. I stand to be corrected on that, but that is certainly my understanding. They are stakeholders who almost certainly would have had some strong empathetic input into the changes that were being proposed. As the Law Society submission highlighted, 'The process by which RTWSA has presented proposed changes without forewarning and with a four-week turnaround to the society and others has been made exceedingly difficult.'

I understand that the Treasurer may have extended the consultation process that was initially proposed, but notwithstanding that the outcome has been precisely what those experts have feared the most for their clients and for their patients. It identified a number of factors that made the process even more difficult, including the absence of a discussion paper identifying problems with the current guidelines, ReturnToWorkSA not being prepared to identify medical practitioners—it says provide medical advice on the changes—and significant textual changes with no reference to why they were actually being proposed.

Given the size and complexity of the document—I think it is currently 164 pages—tracking and interpreting changes appears to have been an almost impossible task in such a short time frame even for the experts who are, as I said, at the coalface of these changes. It is clear, to me at least and to SA-Best, that that process needs to start again. I commend my parliamentary colleague the Hon. Irene Pnevmatikos for bringing this to the attention of the parliament and for all the work that she has done behind the scenes with these stakeholder groups in order to address this issue. Further consultation is certainly required.

I am one of those who questions the government's ability to do what it has done and what the outcome of that would be if it were challenged in our courts. I am certainly keen to hear from the Treasurer and from this government about any evidence they have as to why these changes were proposed in the first place, other than of course for the obvious reasons, which do absolutely nothing to help injured workers. With those words, I indicate the support of SA-Best for this bill.

The Hon. R.I. LUCAS (Treasurer) (17:10): The government obviously opposes the legislation that is before the parliament today. I seek to place on the public record and reject some of the claims that have been made during the parliamentary debate on this particular issue and also some of the public commentary in relation to this particular issue.

The first point I make, and I have made it before, is it is true to say that the Greens opposed the legislation, and I think one or two of the crossbenchers did at the time, but it was actually a creation of the former Labor government, which the then Liberal opposition supported in a bipartisan fashion. The provisions we are debating today are creations of the former Labor government, wholeheartedly endorsed by all members of the caucus and supported by then ministers, some who are now senior shadow ministers within the current Labor opposition.

The fact that the former government decided that the minister responsible for the act should have the power to enact these Impairment Assessment Guidelines by themselves—himself or herself—as opposed to putting it before the parliament was a deliberate decision of the former Labor government. We supported it, but it was a deliberate decision of the former Labor government, endorsed by the caucus. No-one spoke up against it in this chamber or indeed in another chamber.

The suggestion that in some way I, as the minister who is now responsible for it, in doing exactly the same thing as former minister John Rau did when he brought down the first Impairment Assessment Guidelines under the legislation in 2015, am in some way adopting some clandestine, secretive process, which no-one ever contemplated, is so fanciful. I think even the Labor members accept the fact that it is fanciful, but they are now trying to play to a different audience and saying, 'This is not a problem of our creation. It's this terrible Liberal minister who is doing exactly the same thing as the Labor minister did.' But there was no criticism of the Labor minister John Rau when he brought down the Impairment Assessment Guidelines, so that is the first point to make.

Some members have highlighted, in their view, some of the problems with the current system. The Leader of the Opposition highlighted a particular case that was recently before the employment tribunal, as I understand it. These were all occasions or occurrences occurring under the guidelines that the former Labor government brought down or the former Labor minister brought down. Whatever problems that lawyers or doctors or other worker advocates might see in relation to the current operations of the guidelines, they are as a result of decisions of the former Labor government, former Labor ministers, in relation to those guidelines.

ReturnToWorkSA, it is correct to say, after limited internal consultation, came to me as the responsible minister and said, 'Hey, we propose these particular changes. There are requirements in terms of consultation under the act that the Labor government stipulated. There is a set number of groups that have to be consulted.' Their recommendation was that the former Labor government's limited groups to be consulted should be extended much more broadly, and I accepted that particular advice. That is, there should be a much broader group of people who should be consulted in relation to it.

In addition to consulting with the 13 medical associations, we invited more than 120 individual accredited impairment assessors, the Law Society and the Self Insurers of South Australia to provide submissions. The act did not require consultation with the Law Society or the Self Insurers or, indeed, all of the individual impairment assessors in relation to the proposed changes.

In relation to the issue that I think the Hon. Ms Bonaros and someone else raised about SA Unions, the ministerial advisory committee comprises nine persons, three of whom are nominated by employee associations, three nominated by medical associations, and three nominated by employer associations. The employee associations are actually nominated by SA Unions and the SA Unions, as is their right, nominated I think two of their three representatives on the ministerial advisory committee who were lawyers with considerable experience in the field of workers compensation. The unions believed that they would best represent their views on the ministerial advisory committee.

There is a clear two-third majority on that particular committee comprising, broadly, groups that were opposing significant elements of the legislation; that is, the medical fraternity and the employee associations, with significant representation within that of the legal fraternity as well. It was quite clear that I was going to get free and frank advice from both the medical groups because I was also consulting with 13 separate medical associations and 120 individual accredited impairment assessors, but also SA Unions were going to be able to put their views freely and frankly through the ministerial advisory committee as well.

When we went out for the original consultation, the very early feedback was that the period that ReturnToWorkSA had anticipated was far too short. I quickly agreed with that and extended the consultation period by a further two months before a final decision was taken. The total consultation period that I was engaged in was three months. As I said, prior to that, ReturnToWorkSA internally had obviously done some internal consultation and discussion in terms of formulating the proposed changes that they had wished.

In relation to another process issue, which the Hon. Ms Bonaros has raised—and this is an issue she has raised with me and with the government on a range of other issues, not just this one—I have, right from the word go, indicated that I will release all of the submissions in their entirety, subject to the agreement of the individual people or groups that make the submissions. ReturnToWorkSA, I am advised, is trying to get the approval of all of those groups or individuals who have made submissions and, as soon as that has occurred, the submissions will be released publicly in relation to the nature of the advice that those individuals or groups gave.

If a small number of groups are for whatever reason not responding, then what I might do is just release the ones that have already agreed and continue to work on the ones who have not responded to the request as to whether or not they are prepared to have their submission released publicly as well. I do not think there can be any genuine or fair criticism of the government in relation to not being prepared to release the submissions that we have received in relation to, generally, what might have been criticisms of the proposals.

To be fair, there are a small number of submissions that actually support major elements and it may well be that some people who are supporting the changes may or may not wish to have their position exposed publicly in relation to their particular view. I do not know whether that is the case or not, but one should not assume that 100 per cent of the submissions were opposing what the government was doing; the majority were, but there were a small number of submissions that supported, in part at least, significant elements of what the government was doing. That may not be apparent to some of their work colleagues that that might have been the view that they had expressed.

I have also indicated my preparedness to release the submission of the ministerial advisory committee, which I have broadly summarised anyway, and that is that they continue to express concern about significant elements of the government's proposals and were seeking even further delays in terms of further consultation.

The other aspect of the criticism, which was encapsulated, I think, in the Hon. Ms Pnevmatikos' original contribution, is that in some way the proposals that went out were not a genuine attempt at consultation, that I had already, as Treasurer—contrary to the act—made my mind up and these were the proposals that were going to be implemented, and we were just going through a facade of consultation.

I think the reality, even for those who oppose the guidelines still, is that I have listened to the significant concerns. I have not agreed with all of them, but I have certainly met with every individual or group that sought a meeting with me in relation to the issue, so the consultation was much broader than just the ones that have been publicly listed. Individual lawyers either telephoned me or met with me, a number of groups of lawyers came and met with me, some individual medical assessors met with me or spoke to me by way of telephone, so there was a range of further discussions that I had reflecting a range of different views.

As I said, as a result of that, very significant changes have been made to the original draft of the assessment guidelines. More than 30 of the over 70 proposed substantive changes were ultimately amended as a result of the submissions made during that three-month consultation period. Certainly far from the fact that this was just a fait accompli and the government was just implementing holus-bolus whatever ReturnToWorkSA had originally recommended, that has not been the case, it was never going to be the case and I was prepared to take my own counsel advice and ultimately determine, after consultation, what should be outlined in the new Impairment Assessment Guidelines.

In particular, some of the major ones are: there was significant criticism in relation to the one-tenth deduction issue, so I determined not to pursue changes that had been proposed by ReturnToWorkSA which for asymptomatic and pre-existing impairments would have resulted in a compulsory one-tenth deduction from a worker's WPI rating. That was one of the most common criticisms that was made of the proposed assessments. Having listened to the consultation, I decided not to proceed with it.

The second most common criticism—in my judgement, that is—I heard or read was another proposed change which would have meant only surgeons could act as an assessor following surgeries rather than other specialists such as occupational physicians. I also rejected that particular proposed change from ReturnToWorkSA. In terms of a range of other issues, some of which have been canvassed by members, some of the more significant changes on protections I have written into the Impairment Assessment Guidelines which were not there originally. There are many but I will just list six in particular. These have been introduced into the guidelines as a result of the consultation.

There will be a new guideline which ensures that ReturnToWorkSA cannot direct a worker to choose a particular assessor to conduct the assessment unless the worker is unable or unwilling to do so. There were claims being made during the consultation process that ReturnToWorkSA would be able to direct a worker, and the guidelines now make it explicit that they cannot direct a worker in those circumstances which I have just outlined.

The second protection is to ensure that ReturnToWorkSA cannot direct an assessor to alter their clinical opinion when reviewing the assessor's report for compliance with the guidelines. This comes to the sort of case that the honourable Leader of the Opposition raised—and it was common criticism—that there was a view that ReturnToWorkSA was directing assessors to alter their clinical opinions.

I have now specifically written a protection into the guidelines that says that ReturnToWorkSA cannot direct an assessor to alter their clinical opinions. That is a very significant protection as a result of consultation I undertook with a wide range of individuals. The third protection is to ensure that workers and their representatives are promptly provided with copies of correspondence between ReturnToWorkSA and the assessor when reviewing the assessor's report for compliance with the guidelines. The fourth one, which is sort of related in some aspects, is ensuring that ReturnToWorkSA commenced arrangements for the payment of an assessor's report fee as soon as the assessor's initial report is received.

I received criticisms from a number of lawyers and others in relation to protection 4, that ReturnToWorkSA deliberately or otherwise was withholding payments of the initial fee for the assessor's report in some way, in essence, to direct or enforce a change in the assessor's report, and that is by withholding payment. I have now written in a specific protection that did not exist before under the guidelines that the former Labor government introduced. None of these protections existed in the existing guidelines. They have now been written in there to make sure that those payments need to be made.

The other related one was that there was a view that accessing copies of correspondence between ReturnToWorkSA and the assessor were not being provided. I have again written in there a further protection in relation to those processes to ensure greater access to any correspondence between ReturnToWorkSA and the assessor.

The fifth protection I have written in is ensuring that a worker's appointment with an assessor is not delayed due to long waiting lists, and the sixth one is making clear that ReturnToWorkSA cannot delay the booking of a worker's appointment with an assessor, unless agreed with the worker within the six-week time frame requirement. In the latter days for consultation a claim was being made to me that the reason for the extensive delays in some workers being able to be assessed by impairment assessors was because ReturnToWorkSA was deliberately asking for appointments to be delayed.

I was not provided with any specific evidence of that, but nevertheless they were the claims being made by advocates that in some way ReturnToWorkSA was manufacturing these false lengthy delays in assessments being conducted, that it was ReturnToWorkSA's doing because they were directing them to occur. I certainly do not believe that to be the case; I have not been provided with any evidence that that is the case. Nevertheless, given that these claims were being made by advocates, we will rule a line in the sand and make it quite clear that ReturnToWorkSA cannot delay the booking in the terms I have just outlined in that area.

All those protections are now written into the guidelines, none of which existed under the Labor government's guidelines. Those protections did not exist. The criticisms that have been made of ReturnToWorkSA—that is, that they were directing assessors' opinions, that they were withholding fee payments, that they were making those other directions—were all occurring under the Impairment Assessment Guidelines of the former Labor government. They had nothing to do with the parliament, nothing to do with the new Liberal government. They were Impairment Assessment Guidelines brought in by a former Labor minister responsible for the operation of the scheme.

So all the criticisms we are hearing from advocates, unions, lawyers and doctors in relation to what is going on are all permissible under the current guidelines or act, which the former Labor government introduced. What we were confronted with in relation to the current assessment guidelines was again lack of clarity, and a lot of that will now be cleared up by these new assessment guidelines.

Also, up until 25 May—so for 11 months of the last financial year—there were 1,939 WPI assessments completed, yet only 12 assessors out of the total (only 9 per cent of all our 129 accredited processors) completed 56 per cent of the assessments. So 12 assessors are doing 56 per cent of the assessments, and 40 per cent of the assessors did not get to perform a single assessment during that financial year. So 40 per cent of them did not get an assessment at all and 12 of them got 56 per cent per cent of all of the assessments. As a consequence, we were seeing delays of up to about 12 weeks for assessments to be done, because these 12 assessors had full books. They could not fit them all in.

There is no doubting there has been forum shopping in relation to the operations of the impairment assessment process. When you have 12 out of 129 assessors doing the overwhelming majority of the work and we had delays of up to 12 weeks in assessments being done, it is not indicative of a productive system, and it is certainly not fair to the individual workers in terms of trying to get an early assessment and an early resolution of their WPI in relation to access seeing whatever their entitlements might be under the Return to Work scheme.

So I certainly reject absolutely any criticism that the government has not engaged in a thorough consultation process—the government being myself. As a result of that process, very significant changes have been introduced. As a result of that consultation, very significant protections have been written into the guidelines which did not exist under the former Labor government, and, as a result of that, we have, I believe, a much more transparent, much more accountable set of assessment guidelines.

The final point I would make in relation to this—and I understand from the statements made in the house that this bill is at least likely to pass this particular house—is that with great respect I do not believe members understand what the legislation actually does and, if it was to be passed in both houses of parliament, the significant problems it would create for workers and for their advocates.

What the legislation actually does, not what people think it does, is that if at the next election, in March next year, there is a change of government and if the new Labor minister seeks to introduce new Impairment Assessment Guidelines—and let us assume, if the criticism is that three months' consultation is not long enough, that there is a six-month or nine-month consultation period for any new Impairment Assessment Guidelines—then sometime late next year the new Impairment Assessment Guidelines from a Labor minister would be brought down.

They would then go through the regulatory process and the potential disallowance process that is envisaged. If that was then validly passed—that is, not disallowed by either house of parliament—what this legislation actually does is that it retrospectively operates those new guidelines from the date of assent to this particular bill. So let us just say if this bill was to pass in October of this year, and in December of next year there are new guidelines, what it basically says is that these new guidelines would retrospectively operate from October of 2021.

The reality is that for the next 12 months—let us say from 21 October through to 22 December—ReturnToWorkSA will continue to have to operate under the current guidelines. They will be making decisions in relation to worker entitlements under the existing guidelines. If the situation arrives 15 months later that retrospectively those guidelines are not valid—that they are retrospectively changed—the situation is then left for individual workers and for ReturnToWorkSA as to what on earth happens to all the decisions for the thousands of workers who have been processed through this system under the current guidelines from September of this year to November of next year.

The Hon. Irene Pnevmatikos I assume is saying, well, too bad, ReturnToWorkSA would have to, in essence, go back and rework all of the settlements and the entitlements and payouts under the new guidelines because it would be made retrospective. So you would have workers who have settled and received—or had rejected—a range of arrangements under the existing guidelines but the Hon. Irene Pnevmatikos would be saying in 15 months' time that all of that has to now be undone and reworked.

Now how that operates for any—clearly, there are significant issues for workers, their advocates and the businesses but there are very significant issues then for the financial solvency of ReturnToWorkSA. They would have been, in essence, setting premiums on the basis of guidelines for 12 months or 15 months or an 18-month period only to find, potentially, that with the stroke of a pen the Impairment Assessment Guidelines are retrospectively changed. They would have been writing insurance on the basis of premium levels which are potentially drastically changed.

Good luck to those members who are supporting the bill. I can only hope that it does not pass the House of Assembly and, if it does pass the House of Assembly, we can only hope there is not a change of government where this sort of horrendous set of circumstances for the financial solvency, potentially, of the corporation but also the individual entitlements of individual workers may or may not be impacted. Well, it will be impacted, depending on the extent of any changes to the Impairment Assessment Guidelines. With all of that, the government is strongly opposed to the legislation for the reasons that we have outlined and will remain so.

The Hon. I. PNEVMATIKOS (17:37): I would like to thank the Hon. Connie Bonaros, the Hon. Tammy Franks, the Hon. Kyam Maher and the Treasurer, the Hon. Rob Lucas, for their contributions to this bill. Many times I have heard the Treasurer say that he is not a lawyer and I understand why.

It is important that we look at why the opposition has brought this bill to the parliament. As I said in my second reading speech, I was approached by lawyers, workers, unions and impairment assessment physicians when changes were initially proposed and when they heard about them. Although each group came to the table with different concerns to do with their own discipline, the message from each group was clear. These changes deliberately make it hard for workers to receive compensation from injuries that happen at work.

There was hope that the Treasurer and Return To Work Corporation would heed the calls of the groups consulted. Unfortunately, most of the changes proposed in the consultation proposals remain in the impairment guidelines as gazetted. I thank the honourable members for their contributions to the second reading and note the support of the crossbench on this bill.

I note a number of the reasons raised by different speakers which reinforce the concerns that have been repeated in this chamber time and time again: the lack of proper consultation—in fact the quality of the consultation in the first instance—the need for parliament to have input and a say in changes that are so drastic; that the changes are beyond the pale, adding insult to injury; that injured workers will be worse off; and that changes may well be beyond the scope of the legislation and subject to potential challenge.

I mentioned some of these in my second reading speech, as have some of the other members, but I want to again highlight specific concerns stakeholders raised with me about the now gazetted changes, which show the full impact of these changes. Under the Return to Work Act, in section 22(8)(b), unrelated injuries or causes are to be disregarded in making an assessment. Yet, in the new Impairment Assessment Guidelines deduction with no limits is allowed for asymptomatic and unrelated injuries. Section 1.27 of the new guidelines states:

Regardless of whether the unrelated injury or condition was asymptomatic, where there is objective evidence for an assessment of an unrelated injury/condition it must be assessed and deducted.

This runs completely contrary to the act. It also runs contrary to the case law, including the Full Court's ruling in Onody v Return to Work Corporation. Section 22(10) of the act stipulates that only one assessment may be made in respect of the degree of permanent impairment of a worker from one or more injuries that arise from the same trauma.

We note that there have been reports to the Treasurer, Return to Work Corporation and within the media where Return to Work Corporation or other self-insured employers have weaselled their way around this provision by requiring the impairment assessor to amend their report. In practice, Return to Work have created a fiction in relation to review and compliance as a means of exercising control in the assessment process. This practice has now been enshrined in the Impairment Assessment Guidelines.

This has been an issue of extensive litigation within the Employment Tribunal. The Employment Tribunal has ruled on numerous occasions that the act does not provide for a compliance-type process as contended by the corporation, nor does it permit unilateral communication after an assessment. What the Return to Work Corporation is now doing with these guidelines is seeking to enshrine a practice that is contrary to the law and the act. We see how far this can go just looking at the recent case in the matter of Graham v Southern Adelaide Local Health Network. It was reported on InDaily a few days ago. Deputy President Judge Rossi ruled that:

It was inappropriate to assert that the assessor was required to change his report in order for it to be compliant, and by reference to powers conferred to [the Southern Adelaide Local Health Network].

Further, he explains:

The case is yet another illustration of how the integrity of the…process may be compromised by permitting subsequent communications with assessors once a report has been provided.

Stakeholders also raised concerns over how impairment assessors would be selected. In his statement to the house the Treasurer said that he saw 'it was sensible to amend the guidelines to ensure that injured workers would not need to wait any longer than six weeks for an appointment with an assessor'. The amendment to the guidelines at 17.3(4) reads 'if an appropriately accredited assessor has [availability] they must be selected over an alternative assessor with a waiting time in excess of 6 weeks'.

These additional provisions in the new guidelines in essence take away choices for workers. It is so obvious that the Return to Work Corporation do not like the legislation and do not like how it is being interpreted by the courts. So they have set about changing the guidelines, making new law without debate and parliamentary scrutiny. If this law has deficits then change the law, but do it through proper processes; this is the role of parliament. These changes still target workers no matter what their level of disability may be.

In my second reading explanation I referred to three cases. I want to revisit them to demonstrate what these changes to the guidelines mean to workers. A 30-year-old tradesperson working full time falls from a ladder fracturing a knee resulting in joint trauma and restriction in movement with risk of degeneration problems in the future. His work capacity is permanently affected there is no doubt. On the original guidelines this worker would receive a lump sum compensation of around $40,000. On the new guidelines the worker will not qualify for impairment assessment and will get nothing.

A 25-year-old full-time aged-care worker has a serious back injury requiring surgery, which only partially helps, and the worker is left with debilitating nerve pain down the leg. On the original guidelines, the worker would receive a lump sum compensation equivalent to $160,000. On the new guidelines, the worker would receive only about $70,000 for a lifetime of disability and significantly reduced earning capacity.

A 45-year-old full-time nurse injures her neck badly, requiring fusion surgery, which does not fix the injury. She cannot work, needs a lot of follow-up medical treatment and has crippling pain down her arm. On the original guidelines, she would be classified as seriously injured and covered for her wages to retirement age and medical expenses for the rest of her life. With the new guidelines, this worker would receive a lump sum equal to about four or five years of wages and then be booted off the system after years, even though she can never work in her profession again.

These are typical cases of workplace injury that lawyers and doctors see every single day. These changes will hurt workers. They will hurt families and they will push more people into poverty. I am not exactly sure what the Treasurer means when he says these changes are to make a fairer scheme. Does he mean a fairer scheme for his business mates and the Return to Work scheme, because they certainly do not seem fair to injured workers? It is for these reasons that this bill has been introduced.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

There being a disturbance in the gallery:

The PRESIDENT: I remind members in the gallery that photographs are not permitted unless permission has been sought and, if it has been sought, only of people on their feet.

Third Reading

The Hon. I. PNEVMATIKOS (17:48): I move:

That this bill be now read a third time.

The council divided on the third reading:

Ayes 11

Noes 8

Majority 3

AYES
Bonaros, C. Bourke, E.S. Franks, T.A.
Hanson, J.E. Hunter, I.K. Maher, K.J.
Ngo, T.T. Pangallo, F. Pnevmatikos, I. (teller)
Simms, R.A. Wortley, R.P.
NOES
Centofanti, N.J. Darley, J.A. Girolamo, H.M.
Hood, D.G.E. Lee, J.S. Lucas, R.I. (teller)
Stephens, T.J. Wade, S.G.
PAIRS
Scriven, C.M. Lensink, J.M.A.

Third reading thus carried; bill passed.

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