HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2022-07-05 Daily Xml
Contents
Xml

Bills

Return to Work (Scheme Sustainability) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 June 2022.)

The Hon. H.M. GIROLAMO (15:42): I think we can all agree that the process for this bill has been nothing short of shambolic, as our leader has said. I keep imagining that if we were still in government and we mismanaged a bill in the same way the Labor Party has, there would be uproar. It is a disgrace how poorly managed this process has been. I only hope that more respect is given to the parliament by the Labor Party when managing future bills. The people of South Australia and all key stakeholders—

The Hon. R.P. WORTLEY: Point of order: I cannot even hear this contribution with everyone talking. I think the Hon. Ms Girolamo deserves a bit more respect than what is happening.

The PRESIDENT: Your point of order is noted, the Hon. Mr Wortley. Thanks for bringing it to my attention. The Hon. Ms Girolamo, please continue.

The Hon. H.M. GIROLAMO: As I am sure everyone in this chamber is aware, the original amendment bill was introduced into this house on 2 June 2022, which was the same day that Labor released its first budget and the same day that the ReturnToWork board announced an increase to the average premium rate for 2022-23. It was utterly inappropriate to introduce a significant bill in this fashion, trying to sneak past the media during their lockdown and drown out this story with other major budget headlines.

Then it got worse: on the day we were told this bill must pass parliament, the government went ahead and withdrew it from the chamber at the very last minute. I have several things to put on the record in regard to this. The next day, the bill was introduced in its updated form into the other place by the Minister for Police, Emergency Services and Correctional Services. I am still not entirely sure how this aligns to his portfolio, but that is another story.

The opposition received a copy of this updated bill at 10am and the final version at 1.30pm, just prior to question time. In the lead-up to this, the government provided a total of three dot points on a page and all but asked the opposition to trust them on the amendments. It is important to highlight that the bill before us in the chamber today is vastly different to what we saw a few weeks ago. It is not a few changes to the original plan or minor updates following feedback from stakeholders.

On this topic of feedback from stakeholders, interestingly, last year the Hon. Kyam Maher, Attorney-General and Leader of the Government in this place, made comments about potential changes to the Return to Work scheme's Impairment Assessment Guidelines that were proposed by former Treasurer, the Hon. Rob Lucas. The Attorney-General said in this place on 8 September 2021, and I quote:

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…

Since the government's amendment bill was introduced on 2 June 2022, I and other members in this parliament have received correspondence from the Law Society, Lawyers for Workers SA and lawyers who act on behalf of injured workers, raising their concerns. We have also heard through media streams that the union groups are in dismay by the decision by the government and have openly stated that they had not been consulted by Labor prior to hearing about the introduction of the bill. The Attorney also said on 8 September 2021, and I quote:

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.

My question to the Attorney is: does he have anything to hide? Why has this process been utterly shambolic? Why was consultation not performed from the beginning? Attorney, if you could go back in time, would this bill have been handled differently? I think we all know the answer to that question.

Since 15 June 2022, we the opposition, being myself, the leader and the shadow treasurer in the other place, have done what the government should have done before introducing either of these bills. We have consulted, consulted and consulted. We have met directly with Business SA, the Housing Industry Association, Australian Hotels Association and the Ai Group. We have also spoken to numerous businesses and workers along the way. I am very confident to say that I believe that this work should have been done by the government before drafting a bill.

Now to where we find ourselves today: as I said earlier, a completely different bill is before us in the chamber today. The original bill was no more than two pages long. This one is 13 pages, with over 30 amendments lodged. It proposes considerable changes to the operation of the Return to Work scheme and the existing act. Whilst we hope these changes prevent hikes in premiums for businesses, we also hope that changes to the whole person impairment threshold from 30 per cent to 35 per cent will not create issues for workers.

We do not want to see workers worse off. This is also now up to the government to manage these changes going forward. I call on the government to guarantee that no worker will be worse off and no business will be worse off by this revised bill. It is imperative that the new government take responsibility for this important legislation. This is Labor's bill and their proposal—a second attempt, claiming to benefit all. Only time will tell.

The question remains: why was there such a rush for this bill to be moved through without consultation or even time for the opposition and crossbench to understand the context first? We, the opposition, asked for actual actuarial advice and an independent peer review to be provided and tabled to the chamber before the decision on the bill before us could be made today. This important audit information should have been requested by the government, not the opposition. Whilst the actuarial advice has been provided, it also highlights the possibility that premiums may still move.

We understand this is not an exact science. It will be the responsibility of the government to monitor and manage Return to Work so that premiums remain low and do not escalate. PwC has performed the independent review of the data and emphasises the uncertainty associated with the eventual claims outcomes and the potential impacts on the break-even premiums. I call on the Attorney to table this actuarial advice to the chamber.

On finishing, it is important that we remember that this bill was drafted by the government for the government. They are now responsible for how the amendments are delivered and how the scheme is run going forward. Key business groups are supportive of the bill. After consultation, we will support the bill, as we always strive to support the business community, which continues to face challenging times, including significant rising costs of doing business.

But let's be clear: it is up to the government to guarantee that average premium rates for 2023-24 do not exceed 1.9 per cent. This is what the business community has been told by the government and it is now up to the government to deliver. We are proud of how we have handled this bill by engaging with the business community and understanding the feedback from key stakeholders. We have always looked, and continue to look, at this matter from the best interests of the business community. Now it is up to the government to deliver.

The Hon. T.A. FRANKS (15:50): I rise on behalf of the Greens to speak to this bill. The weeks since this bill was first introduced have been a whirlwind. We have finally seen the government consult and listen to injured workers, to unions, to business and to lawyers. This flurry of activity is the work that should have been done before any legislation reached parliament, but I suppose it is better late than never.

I want to be clear, however: this is not how we should be legislating. This process has been completely backwards right from the start, with the surprise introduction of the first bill. I want to thank everyone who approached me and my office with their feedback and concerns regarding this—and that—legislation. It is through your work and your advocacy that we have landed at least somewhere better than that original bill that was proposed.

The Greens appreciate that—although not in the original drafting of this bill—the government will explicitly enshrine the Summerfield principles in this legislation, as flagged in their amendments. I do note here that there are concerns that Summerfield could still be unpicked and that in briefings the government has committed to the Greens to coming back and making further legislative changes to fix this, should that occur. This is encouraging, but I will be asking the government to make that commitment on the record during this debate in the council so that we can have greater certainty.

We really must examine why a court decision that essentially upholds what is already permissible under the act is being treated as something that undermines the existing Return to Work scheme. The idea that because of this decision the scheme is no longer viable and that premiums must rise to unheard of heights is a joke. It ignores the history of the Return to Work Act itself. It ignores years' worth of court decisions upholding workers' rights to have their injuries combined for assessment and it ignores the ReturnToWork board and corporation's fundamental mismanagement of the scheme over the past few years.

The Summerfield decision, and the Preedy decision before it, is not new. The act as written is not new. At the end of the day, the reason we are here is that this government is being effectively held hostage by its own board. Instead of having a thorough, well thought out and consultative review of the act and the scheme, we have whatever this has been over the past few weeks.

We have to ask: why has the board failed to account for the impact of the scheme with regard to the Preedy and Summerfield court decisions, particularly once it became quite apparent that the ReturnToWork corporation's loss in these cases was inevitable? Why did they continue to waste money that could have gone to injured workers on fighting these fruitless cases? Why have they utterly failed to account for the proper implementation of what the act and the scheme envisioned in the first place when it came to the combination of injuries and assessments? These questions remain unanswered and largely, it seems, uninvestigated. During multiple briefings we have asked for copies of board minutes and correspondence covering the period of these court decisions. We are yet to receive those documents.

Further, it is quite well known that the ReturnToWork corporation has regularly failed to act not only on court decisions such as Preedy and Summerfield, it has also routinely failed to comply with the rulings of the South Australian Employment Tribunal. This has been commonplace to the extent that the tribunal have been deeply scathing of the corporation in its rulings. Even back in 2020, the tribunal was warning that unless the ReturnToWork corporation actually started complying with rulings and fixed its 'unsatisfactory conduct', South Australian businesses could face increased premiums as costs rise.

In Return to Work Corporation of South Australia v Leighton, the tribunal dismissed the corporation's appeal with scathing comments about ReturnToWork's conduct. The tribunal noted, in its decision:

A failure to comply with orders made by the Tribunal increases cost to the parties, the costs paid by employers by way of premiums in the scheme, the cost to the community more generally associated with those impacts and unnecessary costs thrown away through the wasted resources of the Tribunal. The conduct of other matters, including matters where the parties have dutifully complied with orders made, are unnecessarily delayed. There are a number of reasons as to why an occasional lapse in compliance with orders, rules and practice directions of the Tribunal may occur. However, there can be no justification for the persistent failure to comply in this matter with the associated failure to communicate with the Tribunal.

In most instances, parties are represented by members of the legal profession. That has been so in this matter. There is a professional duty to comply with orders of the Tribunal and to keep the Tribunal properly informed of important developments in the preceding. In this case the deficiencies are also associated with the corporation which is a regular party to proceedings in this jurisdiction and that is an additional concern.

The deficiencies in this matter are not isolated. Indeed, they may have become too commonplace in this jurisdiction. Perhaps the Tribunal has been too tolerant in the past in relation to the failure to comply with its orders in a timely matter. Parties should not expect such an approach to be ongoing.

Sure enough, in the years since we have not seen the conduct of the corporation improve. They have continued to fail to account for certain decisions, and we are now faced with the threat of an increase in premiums above 2 per cent unless (we are told) parliament acts, and that action (the government has been told by the corporation) should mean less access to fair compensation for injured workers because, apparently, and according to ReturnToWorkSA, too many workers accessing the compensation—that on paper, in the act, is rightfully owed them—threatens the scheme.

The scheme is broken. It needs a proper and open review. Undercutting injured workers cannot be the answer. Injured workers should not have to suffer in poverty to cover ReturnToWorkSA's negligence. The ReturnToWork board and corporation have kept premiums artificially low by essentially breaking, or at least not implementing, the law as intended and as supported by multiple court decisions.

It is clear more than ever that the ReturnToWork board and corporation have fundamentally mismanaged the scheme, and injured workers continue to pay the price for their incompetence. If a workers compensation scheme is deemed to be unstable when it actually has to provide compensation to workers, it is not a scheme worth having and perhaps we should start from scratch. Most importantly, a government elected off the back of a labour movement should not be making injured workers bear the cost of the mistakes of an unelected board.

It has been abundantly clear, from every conversation we have had along the way in consulting and considering this and the previous bill, that something is wrong. This board has been unaccountable and lacking in transparency and has wilfully ignored and failed to account for their court losses over a series of years. Businesses have received artificially low insurance premiums while injured workers have missed out on fair compensation as a result. This cannot be how a workers compensation scheme operates, and the Greens will be having more to say about the ReturnToWork board itself, and what we can and must do to fix that, later this week.

The unionists, the workers, the doorknockers and campaigners who got this government into power probably still have blisters on their feet to show for that hard work, yet is this legislation really how the Malinauskas government thanks them for their efforts? Does the Malinauskas Labor government represent the labour movement, thanking them for their support through those years in opposition and thanking them for their hard work to get a Labor government back at both a state and federal level by immediately discarding them after those elections, by ignoring their concerns, their voices and their feedback?

Is this the future Labor said it was standing for throughout its campaign? I hope not. A future where injured workers are discarded for the whims of an unelected board, a future where the labour movement is tossed aside to placate businesses and corporations ahead of considering other options, is a bleak future. I am quite confident that that is not the future South Australians voted for.

Having said all that, the Greens do recognise that this bill is an improvement on the original version put forward and that the government has gone further to address concerns and fix problems with its suite of amendments. But what continues to be our key concern is the fact that, despite the positive steps forward, taken with enshrining the Summerfield principles and providing better access to redemptions, this bill still raises the whole person impairment threshold to be considered a seriously injured worker up to 35 per cent for physical injuries.

It is the opinion of the Greens that the 30 per cent threshold for both physical and psychiatric injuries was already too high, which we flagged during the original debate back in 2014. Even then, this means that pretty much only those with near catastrophic injuries would meet that test. I cannot imagine a 35 per cent threshold being any better for workers, even when the government argues that workers will be able to combine their injuries now, which would make the threshold more attainable for some. Arguably they already could—that is the point really—and they have already struggled to meet the 30 per cent threshold for fair compensation.

We are not unique in our concerns around the already high and about-to-be-higher threshold. Back in 2017, the Parliamentary Committee on Occupational Safety, Rehabilitation and Compensation conducted an inquiry into the Return to Work Act and scheme. That committee's report notes the problems and inconsistencies with this threshold, stating:

The committee notes the whole-person impairment assessment is not necessarily indicative of an individual's ability to work. The Australian Education Union and others argued by solely using this threshold it will result in workers who are unable to work but still have their payments ceased at 104 weeks as they do not meet the criteria for ongoing support.

Further, witnesses providing evidence to that committee described the threshold as an 'actuarily devised contrivance'. I cannot see how this debate and this bill do anything other than prove that true. These numbers, these arbitrary thresholds, do nothing to aid injured workers and are designed purely for the financial benefit of the scheme and the corporation.

While we were glad to see the withdrawal of the original bill, and we voted for that to be discharged, it must be said that the current bill as it stands, unamended, has some quite serious and concerning deficiencies that would leave workers worse off. For one, the bill as introduced does not actually enshrine the Summerfield principle, which was one of the main reasons we were told the legislation would be brought forward. This is proposed to be addressed in government amendments to the bill. I do commend the work of the Hon. Connie Bonaros on this matter in particular, but it is rather a large oversight to have missed in the original version of this bill.

Further, unamended the bill would deny lump sum economic loss payments for a number of workers who sustain later work injuries after a first work injury. The proposed amendments to section 56(6) mean that any worker who suffers a further injury unrelated to their first injury will no longer receive any lump sum if their subsequent injuries are determined as less serious than their first injury, regardless of how that injury impacts their ability to work. This is deeply concerning and has been raised as an issue with us by several stakeholders, though we are pleased that the government has now filed amendments that will remove those changes.

That being said, it is concerning that this change was entertained in the first place. Perhaps this could have been avoided had the bill been properly consulted upon from the outset and not put together in such a rush. I could go on, but I want to get on with the debate today. There are multiple sections of this bill that have needed serious work over the past few weeks and, while that work has now largely been done and is reflected in the amendments that have been filed, it is concerning to think that the government has not thought to do this work in the first place, and that it has fallen on unions, businesses, lawyers and workers to identify some of the serious deficiencies and omissions in the original government bill.

The Greens do appreciate the constructive nature with which the government has handled our concerns and the concerns raised, and their willingness to make these amendments, but we, like many others, have been frustrated that the consultation process essentially has happened backwards, and that is what we are left with: trying to find small fixes for suboptimal legislation.

With that in mind, the Greens are of the view that many amendments need to get through this committee stage and be made to make this legislation more tolerable, because unamended the bill is a disaster, and we flag now that any future reviews of the Return to Work scheme and legislation, which the government has committed to do, need to be far more thorough, timely and well consulted. We cannot and we will not accept further attacks on injured workers.

I note, and I am sure others will as well, we will have many questions during the committee stage and look forward to the minister's prompt and detailed responses, placing those matters on record. It is vital that we have complete information when voting on this bill, and the Greens will be watching and participating in that debate on the proposed amendments closely. I flag that that debate will shape our vote at the third reading.

I also note correspondence that I received yesterday from Dale Beasley, who is the Secretary of SA Unions. He wrote to me following an executive meeting of SA Unions:

Dear Tammy,

It is the strongly held view of SA Unions that the precedent set by the outcome of the Summerfield case represents the true and proper application of the law. Those principles are foundational and protecting the combining principles of Summerfield has been a central concern of the union movement as we have engaged with the government over their Return to Work Amendment Bills.

The bill proposed by the government does not have our universal support, there are many things which we advocated for and some of those things were not achieved. However, the current package of amendments do contain protections of the Summerfield principles and many other measures which we support and, importantly, the government have also committed to reviews of the system to consider its management and effectiveness, and how both could be improved in an ongoing manner.

Faced with the alternatives; the original Bill that proposed to undo the Summerfield decision, or continued litigation of combination injuries, it is difficult to see how passing the government's current Bill with the amendments currently proposed that add protections for injured workers, could be criticised.

As far as unions are concerned, the work to improve the right of injured workers does not stop here. The Return to Work system is still one stacked against injured workers and our united union movement is committed to continue campaigning for improvements to ensure workers received the highest possible levels of support. We will continue pursuing necessary improvements to the system, be they legislative, organisational, or cultural and hope that we will continue to be able to rely on your support.

Kind regards,

Dale Beasley

Secretary of SA Unions

I share that with the council because I received that after 4pm yesterday, so I know not all members of the council may have been privy to that particular correspondence. With that, we do intend to support the second reading and participate in the committee stage and reserve our right at the third reading.

The Hon. C. BONAROS (16:07): I rise to speak on behalf of SA-Best on the Return to Work (Scheme Sustainability) Amendment Bill 2022. Many members of the community, myself and my parliamentary colleague the Hon. Frank Pangallo included, have been deeply disturbed at the government's proposed drastic changes to legislation, affecting, and I quote:

...some of the most vulnerable injured workers in South Australia…

The Law Society…and doctors have all raised very significant concerns. Those representing workers in the union movement have raised very significant concerns. Most importantly, the proposals…[have] 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…

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…the government needs to explain why these stakeholder groups were not even initially informed.

This is not an academic or theoretical exercise…[We are] acting on genuine concerns that have been genuinely expressed.

If you think you have heard those quotes before, you are right and must have been paying attention during last year's debate on the Impairment Assessment Guidelines bill, introduced and passed in this place following the former Treasurer's underhanded amendment of the guidelines. Those familiar words are extracts from the Hon. Kyam Maher's second reading contribution to that bill; he was shadow attorney at the time and industrial relations officer. His words are just as applicable today as they were last year when they were echoed in this place, but how the tables have turned.

What we are being asked by this new, and increasingly arrogant, according to some, government has been to blindly rush through amendments, and amendments to those amendments, and new bills to extremely complex legislation while all the external experts and stakeholders who operate and function in this area of the law every single day of the week are pleading for caution and further engagement.

Since the act commenced on 1 July 2015, workers comp laws in South Australia have been in a state of flux. There is absolutely no other way to describe it. This has resulted in a long-term state of uncertainty for any worker trying to access coverage of the act. One of the objects of the act is to reduce disputation and adversarial contests to the greatest possible extent, yet this has been severely compromised, and in many cases defeated by uncertainty.

In comparison to the compulsory third-party motor vehicle accident scheme, which I understand has seen only one judgement delivered by the District Court since 2013, there has been no end to litigation under the 2014 Return To Work Act, changes which I might add were implemented in this jurisdiction under the former Labor government by the architect of the scheme, the former Attorney-General and industrial relations minister John Rau. There have been literally hundreds, if not thousands, of decisions from the South Australian Employment Tribunal, as well as many from the Supreme Court.

Cynical people will say it is because workers are greedy and push the envelope or because their lawyers are greedy and push the envelope. I wholeheartedly disagree with both of those assessments. A consistent experience people have had since the act came into force has been the stubborn approach of the ReturnToWork corporation in how it has managed the scheme. This stubborn approach predated the 2014 act.

The way the scheme was managed by the former WorkCover Corporation under the Workers Rehabilitation and Compensation Act 1986 was just as stubborn. A refusal to resolve claims by way of agreement, usually under redemption agreement, was said to be a policy implemented by the corporation. It meant workers who were keen to resolve entitlements and move away from the scheme were refused, and hence they stayed on the books. These workers built up over time and became the unfunded liability that was the justification at the time by the government of the day—the Labor government of the day—and the former industrial relations minister of the day, John Rau, to axe the 1986 act and establish the 2014 act.

If the former industrial relations minister and Attorney-General thought that this was a good legacy to leave for our state then he was absolutely mistaken. If this sounds familiar, it should, because it is exactly what the public is now being told. During the transitional period between 1986 and the 2014 act, the corporation saw fit to offer redemptions. There was no change in the terms of the legislation, which meant redemptions were now, as a matter of policy, appropriate. The corporation just allowed it.

In contrast, most self-insured employers, including government departments, were able to competently manage the 1986 scheme as they did, not issue blanket refusals to resolve long-term claims, and generally approach the administration of their matters as commercially minded insurers should to avoid long-term liability wherever possible through appropriate mechanisms under the legislative scheme. Most self-insurers did not bat an eyelid when the first bill was introduced in this place, the Summerfield bill, because they know how to effectively manage their operations, and do so from a commercially minded perspective.

But when that 2014 act commenced there was great uncertainty. Legal challenges began quickly because there were poorly drafted transitional provisions meaning very deserving workers, through no fault of their own, missed out on weekly payments entirely. They included a worker who despite a serious back injury sustained in the workplace continued to work and was not in receipt of payments on 30 June 2015, and missed out on payments as a result, despite needing surgery for an undoubted compensable injury.

The workers who missed out due to the transitional provisions were, generally speaking, people who had properly engaged and returned to work before 1 July 2015. This was a perverse outcome, which tended to punish people who achieved one of the objects of the 2014 act. This unfair outcome has become a recurring theme under the 2014 act, the Labor government's 2014 act, the former industrial relations minister and Attorney-General, John Rau's, 2014 legacy to this place, as it had a tendency to punish people who return to work, struggle and attempt to prevail upon the scheme to compensate them.

Even seriously injured workers who had managed to return to work were precluded from payments because of the terms of the transitional provisions. The point in raising the current problematic transitional provisions is to highlight the very problematic transitional provisions in the current bill that we are now deliberating on. They will have consequences leading to long-term pain, both physical and financial, for many workers.

The point is also to illustrate that workers have not been trying to fleece the scheme, nor have their legal representatives been trying to fleece the scheme. The unrelenting legal challenges since 1 July 2015 have been about basic entitlements to things like the two years of income support and preapproval for surgery.

The Supreme Court has ruled on many aspects of that 2014 legislation, and by and large those rulings have not favoured workers' interests. They include the construction of the provisions used to calculate average weekly earnings that informs the quantum of income support payments, the limitation of the application of the preapproval of medical expense provisions, pre-existing and unrelated physical and psychiatric impairments, and supplementary income support payments after surgery.

It could be reasonably said that the only significant outcome to litigation workers have been able to achieve is a combination of impairments. In a scheme where the degree of impairment which results from a compensable injury is entirely determinative of future rights and entitlements, it cannot be underestimated how important the outcome of the combination litigation has been to workers' rights in South Australia.

The court's decision in Summerfield—and I think by now we all know about the Summerfield judgement and precedent—did not arise suddenly or without warning to the board of the corporation, as has been alluded to by the Hon. Tammy Franks. Combination has been a hot topic since late 2014, when it was known that the 2014 act was going to require many workers in receipt of payments under the 1986 act to join more than one impairment together to be able to survive the seriously injured test.

The legal challenges began with cases decided under the 1986 act. The first case the Full Court considered, the test for combination under section 43(6) of the 1986 act, was Marrone [2013] SASCFC 67. In 2013, the only relevance of the provision was to quantify how much compensation a worker would receive by way of a lump sum for non-economic loss. The outcome did not determine entitlement periods or long-term rights.

The limited role of section 43(6) was referred to by the Chief Justice in his reasons for decision, and the Full Court reconsidered section 43(6) in the Mitchell case of 2019. Importantly, Mitchell concerned combination for a worker who was trying to establish his rights as a seriously injured worker transitioning from the old act to the new act.

The SAET ruled at first instance and on appeal to the full bench that impairments resulting from the reasonable medical and surgical treatment the worker had undergone in respect of his compensable back injury were from the same trauma. Hence, the worker's many impairments were combined. The Full Court rejected this and affirmed the reasoning of Marrone.

In the background, another dispute was proceeding between a worker named Preedy and the corporation under the 2014 act. Mr Preedy suffered an injury to his right shoulder in compensable circumstances and sought treatment with a physiotherapist. During the course of physio treatment, he suffered an injury to his neck, requiring serious surgery in the form of a fusion. His case was that the two impairments, right shoulder and neck, should be combined because the neck injury resulted from having physiotherapy, the reasonable treatment made necessary only because of the compensable right shoulder injury. Mr Preedy's case was ultimately heard by the Full Court, and on 15 June 2018 it was decided in his favour.

It is safe to say that, as of 15 June 2018, the board of the ReturnToWork corporation has known that section 22(8)(c) has been interpreted unanimously by the Full Court of the Supreme Court to mean something different from 'same trauma', meaning a departure from the meaning attributed to 'same trauma' in Marrone, and it was to be a causal test. At paragraph 55, the court said:

However, the causal test propounded in s22(8)(c) can be demonstrated by way of illustration where a worker suffers an injury to her right knee at work which causes her to favour that leg with the result that the added pressure on the left knee causes injury to that knee. The worker suffers two separate impairments: one to each leg. Those impairments can be said to be from the same injury or cause, namely, the injury to the right knee. But even if the impairment to the left leg is not from the injury to the right knee, the impairment of the left leg can be said to have been caused by the injury to the right knee.

The court could not have been clearer: the test for combination under the 2014 act was a causal test, allowing for combination of impairments because they were from the same cause rather than impairments arising from exactly the same event or series of events. Yet despite this decision and its clear implications on the scheme, in the following years the board reduced premiums in its decisions.

At the same time, the corporation refused to acknowledge this decision as being a correct interpretation of the law. It soldiered on, stubbornly making submissions in court proceedings subsequent to 15 June 2018, suggesting Preedy had been decided incorrectly and urging the SAET to adopt a different interpretation of the law.

Meanwhile, on 11 April 2019, the Full Court overturned the full bench of the SAET's decision in Mitchell, finding section 43(6) of the old act did not allow for combination of impairments resulting from the adverse consequences of medical and surgical treatment, but this decision only related to the terms of the old act and the words 'same trauma'. It had no application to the new act or the words 'impairments from the same injury or cause', as found in section 22(8)(c).

In the Summerfield litigation, the corporation tried to get a different outcome from Preedy, despite the Full Court having authoritatively ruled upon the meaning of 22(8)(c) in that earlier case. A unanimous decision of the Full Court in Summerfield left absolutely no doubt, and that is that what the court had authoritatively said in Preedy was correct. The refusal by the High Court to grant special leave compounded the result, and the Summerfield litigation came to an end on 5 November 2021.

With the end of the Summerfield litigation, workers in South Australia embroiled in a complex and convoluted scheme finally understood where their rights and entitlements were likely to begin and end when it came to assessments of multiple impairments. Subsequently, the corporation began to offer commercial resolutions of claims to workers who looked like they may be seriously injured because their impairments, only decided in contested litigation in the SAET, would exceed 30 per cent, but only people who had an injury date before 1 July 2015, the so-called transitional claims.

The corporation has continued to refuse to commercially negotiate with people who have had injuries after 1 July 2015, preferring as a matter of policy to put them on the scheme long term, despite the preparedness to take a heavily discounted sum of money to depart the scheme, thus limiting the liability—that is why we are all here, because of this liability—of the scheme and providing certainty for all concerned.

Fast-forward to 2 June of this year, and parliament was presented with a bill that, according to the government, sought to mitigate the impact of Summerfield to prevent a significant rise in premiums for South Australian businesses. The Premier was adamant that this was absolutely the approach that we should take, that he was not going to sacrifice businesses in this state over this legislation, that they needed to be preserved.

The people who did not need to be protected, though, were our injured workers. We were told that, while the scheme initially factored in 60 seriously injured workers, in reality the number is more likely to be 90 to 100. Without legislative amendments, that number would double to 200, and the scheme would require an extra $1.3 million per claim to remain fully funded.

We were told by the government that, if it did not pass this bill before the winter break—not much has changed in terms of that message—the board would be left with no other option than to bring forward its decision to give businesses sufficient notice of a significant rise in the 2023-24 premiums, premiums that would not be due payable for some 11 months. Premiums would rise to 2.2 per cent, which coincidentally would also trigger a review under the legislation, or higher and would devastate business confidence and inconveniently, as I said, trigger a parliamentary legislative review of this failed scheme.

Unions and lawyers expressed their absolute outrage at the rushed introduction of a bill that sought to do away with accrued rights of injured workers while simultaneously shifting the goalposts for future injured workers. But within two weeks, the government had bowed to that pressure. The Premier fronted up to a media conference, flanked by business and union leaders, all apparently in agreement at a new proposal to lift the impairment threshold to 35 per cent for seriously injured workers in exchange for the preservation of the Summerfield precedent.

We saw the bill that we have before us introduced subsequent to that press conference. I think at this point it is probably worth reflecting on some of the comments that were made at that time. The ALA, for one, expressed great concern that the current bill is being rushed through the parliament. The Law Society of South Australia was extremely concerned about the time frames and the real risk of unintended consequences.

Despite having stood next to the Premier and indicated their support for what they thought was an understanding of what they would see, we saw the same level of concern being expressed by the unions in relation to the new bill that was introduced into parliament. Despite an overwhelming call for more time, we have been told by the government in no uncertain terms that if this bill, the one we are now debating, does not pass before the winter break—that is, by Thursday this week—the premiums will increase and ReturnToWork will challenge Summerfield. That is what we are being told.

It would be absolutely devastating to injured workers if the bill were to pass in its current form, so we all find ourselves in the very unfortunate position of having to effectively try to make a bad bill better. Make no mistake: without amendments, this bill will be worse than the first bill proposed by this government.

Let me make it very clear for the record that without amendments, which all members have now had the benefit of seeing, we will not be supporting this bill. Without changes regarding the Summerfield decision and some other key provisions that should have been incorporated in this bill, we will not support this bill. Without consideration of transitional provisions that prevent the retrospective application of this bill, we will not be supporting this bill. We are not in the comfortable position of considering where we will find ourselves if this bill does not pass but the impacts that this bill will have on injured workers if it does pass.

There will be a number of amendments that will be moved, and we will be speaking further to those as they come up for debate, but I do want to reflect on a few other things that happened in the course of this debate and some of the comments that I have just made. Most of us were here last year when the former minister, Rob Lucas, and former industrial relations minister sat in this place, sat in that chair over there, and issued a direct warning to this parliament, to those opposite, that this issue was absolutely coming their way. It was coming our way.

Of course, he was clever enough to make a series of critical decisions before he left. I might say it in jest, but I am sure that he has been sitting at home with a bowl of popcorn and Maltesers absolutely enjoying the entertainment that this has provided to him from where he sits now. He was clever enough at the time to appoint the former architect of this scheme, John Rau, to the ReturnToWork board before he left.

The cynic, or perhaps the realist, in me cannot help but think that the former minister knew precisely what was coming their way. He was clever enough not to deal with this issue before an election and open that Pandora's box that would have absolutely resulted in his and the former government's demise. That happened anyway, but there is no part of me that questions that that was not a consideration made by the former minister. Whoever had to deal with this issue after the election had a rude surprise coming their way, and as it turns out it is this government and this Premier and this industrial relations minister that got that rude surprise.

Of course, none of us expected, I do not think, that they would handle it the way they did. It is important to note at this point that when I asked the chief executive of ReturnToWork, Mr Mike Francis, when the Premier was first advised about this bill, his advice to me was that the Premier received the original proposed reforms—that is, the Summerfield bill, the bill that overturned Summerfield—in April of this year, just weeks after coming into government. The first time we learned of the changes was when they were introduced in this place at the beginning of June, I think it was 1 June.

The union movement did not learn about this bill until about one or two days before its introduction into this chamber, into this place. Not only did the Premier fail the opportunity to consult on the proposed changes more broadly, he failed to advise his own union rank and file members about what was coming their way. One or two days before the introduction of the bill in this place, that is when they learnt about these changes.

He sat on that bill between April and June when he could have been out consulting with the unions, he could have been out consulting with the legal profession, he could have been out consulting with the broader community about the impacts that this bill would have. He did none of that. He did absolutely none of that, and instead tried to hide behind budget day hype when he introduced the bill into this place. That is when we all learnt about the Summerfield bill that was introduced into this place.

I said it then and I will say it again: that was, and remains, the single biggest act of bastardry and betrayal that this state has ever, ever seen by a government. You would struggle to find a single member of the Labor Party who would disagree with that. Absolutely, I put my house on it that you would struggle to find a single member of this Labor Party who would disagree with that assessment.

We certainly heard from the unions loud and clearly at that point. It smacked of absolute hypocrisy that the Labor Party, who talk about protecting the rights of workers, would introduce a bill and try to ram it through parliament in one week without having consulted not only with the legal profession and injured workers but their own member base. The union movement did not know about this bill in that time that was available to the Premier.

This government treated voters like absolute mugs, and injured workers even worse. It is always the easiest option to take away the rights and entitlements that apply to injured workers. It is always the easiest option to target our most vulnerable members of the community. This approach is one, of course, that is not new to this government. It was done in 2014 when they moved their previous reforms and it is one that successive governments have continued to practise.

Nobody wants to see premiums rise and businesses suffer, that is not what any of us want. None of us want that burden, but sabotaging injured workers, ignoring their rights to compensation, removing accrued rights to compensation, rights that have been accrued over years—in some cases, we are told, over decades—rather than addressing the broader systemic issues, has not and never will be the answer. We do not need more bandaids. We need to look at the functions of the board and the scheme in its entirety, and that is one thing this government and the previous government and the former Labor government have absolutely failed and refused to do. That is how we find ourselves in this position today.

Had it not been for the pressure applied by the union movement I am not convinced we would be here today considering the amendments we are considering. We know that, and the Premier knew that at the time, but what followed, and what led to the withdrawal of the original bill, is even worse, because those crisis meetings we all knew about that were taking place over that long weekend resulted in a number of undertakings by the Premier. It resulted in a press conference with the unions on one side and the business sector on the other where the Premier said, 'Don't worry folks, we've got this in hand, we're going to fix the bill. We're going to put a new bill into parliament and it's going to fix the Summerfield issue, it's going to address the issue of premiums, and all is going to be right.'

That happened after a morning of phone calls to call-back radio where we had every business sector in the state pleading with the opposition and the crossbench to support the Summerfield bill, to support the original bill. There is not one major business group that I did not hear call in that morning, and say, 'We are urging the opposition and we are urging the crossbench to support the Summerfield bill.'

Within 15 minutes of those phone calls having taken place on air, the Premier was standing in the foyer of Old Parliament House, flanked by the business sector and by the unions—those same business sector representatives who had just been on radio urging us to support a bill that this government intended to withdraw that very day. There was no transparency, no accountability, and absolutely zero honesty on the part of the Premier in the way he conducted himself.

I will say this on behalf of the unions: I do not fault them for standing next to the Premier and agreeing with a number of undertakings that were given to them. I think they pushed this issue hard enough for us to end up with a second bill, which was absolutely required, and the withdrawal of that first bill, but not one of them expected to see a bill subsequently introduced into this place, on the same day, that did not codify Summerfield. That is precisely the reason we were withdrawing the first bill: to codify Summerfield.

We were given a bill that was worse than the first one; we were given a bill that had fewer protections in it than the first one. It does zero of what the Premier had told those stakeholders he would do in terms of undertakings. It beggars belief that he would think this would be acceptable. But we all know that the Premier is not going to end up with egg on his face twice. Unlike the land tax deal, where he cannot unscramble the egg, he has gone away quietly and tried to find a resolution, tried to find a resolution to an issue that he knows is going to result in an even worse outcome than the first bill.

Can I say that the work that went into finding that resolution was done by everyone but the Premier, it was done by everyone but the government. It is the countless hours that individuals from the legal profession and from the union movement, and everyone else who has an interest in this area, has put into this bill that has finally resulted in some amendments that will improve a bill that is otherwise absolutely futile, absolutely pointless, absolutely worse than the first bill introduced in this place.

We did not get here because of our appeals to the Premier. We got here because of our appeals to the sectors who are involved, who were willing to invest the time and effort into making some improvements to what would have been an absolutely catastrophic outcome for the betterment of injured workers, the people we seem to forget at every step of the way throughout these debates, the lowest hanging fruit, the most vulnerable members of the community, who are always sacrificed for bandaid fixes to crappy schemes.

That is how we find ourselves here. That is an absolute atrocity and we should all hang our heads in shame if we think that is a good way to make laws. It should not fall on the legal profession, it should not fall on the unions, it should not fall on stakeholders to fix a government's mess, but that is precisely what it has taken to get us here. I will say that I am extremely grateful to all the individuals who have invested countless hours to ensure that there are improvements to this bill, not because they have any vested interests but because, unlike the government, they are gravely concerned about the impacts of this scheme on injured workers.

We on the crossbench are gravely concerned about the impacts on injured workers, and we are also concerned about the business sector and about premiums and about the concerns that have been raised, but fixing a problem for one sector should not result in absolutely catastrophic outcomes for injured workers, and that has been a habit of this jurisdiction for as long as I can remember, and it is one that we need to move away from.

We need to look at systemic issues around this, we need to consider reviews of the board, the functions of the board and the way we deal with redemptions, the way we keep people on the scheme and everything else that goes along with it, rather than always targeting the most vulnerable people who are at the end of this scheme.

I think I have said enough for now. I will have more to say as we get through the provisions of the bill, but like the Hon. Tammy Franks we reserve our position in terms of the final passage of this bill, pending the outcome of consideration of those amendments.

The Hon. K.J. MAHER (Attorney-General, Minister for Aboriginal Affairs, Minister for Industrial Relations and Public Sector) (16:41): I thank honourable members for their contribution to the second reading stage. Since this bill passed the house significant work has been done, as members have outlined, in relation to amendments and reforms in this bill, and significant further work has been done in terms of confirming the actuarial and financial projections in relation to potential reforms.

ReturnToWorkSA has sought and received advice from its independent actuary Finity, as it had previously on the impacts of changes in the bill. That advice was provided on 1 July 2022, and the results of a peer review of that advice that I understand had been worked on prior to that in conjunction with the actuarial advice, was provided by PwC on 3 July 2022. Both those documents and a covering document from the ReturnToWorkSA corporation were provided yesterday by email to members of this council. Having regard to these actuarial assessments, ReturnToWorkSA has confirmed its early advice that it is likely, if the bill is passed, that the board will be able to consider the average premium rate setting of 1.90 per cent for the 2023-24 financial year.

Over the past few weeks, the government has consulted very widely with affected stakeholders. There have been many meetings and discussions from a wide range of organisations, and this bill has benefited from the input from the wide range of organisations. There have also been very constructive discussions with other members of parliament in relation to the bill and the amendments that we will be considering shortly.

I take this opportunity to thank all stakeholders who have had an input into the development of these amendments and their detailed and constructive feedback. The government has carefully considered all the feedback it has received and has prepared a package of amendments to ensure the bill reflects the policy and intent as clearly as possible.

The government has had a number of priorities in these amendments. While amendments have been suggested to make the drafting of the bill clearer, to make the operation of the bill fairer or to reduce the scope for further legal disputes over interpretation of the bill, the government has been very happy to consider and has reflected the vast majority of those suggestions in the changes that are put forward in amendments. However, we have been clear that any amendment that is likely to put upward financial pressure on the scheme and increase the average premium rate will not be supported. The package of amendments that have been filed have been developed in close consultation with ReturnToWorkSA to ensure they do not put upward pressure on the average premium rate for the scheme.

Amongst other technical and drafting clarifications, the amendments include codifying the Summerfield decision within the legislation, fairer rules for interim seriously injured workers who cannot yet undertake their permanent impairment assessment, changes to ensure seriously injured workers who accept a lump sum payment under proposed section 56A are not disadvantaged compared to other workers who receive lump sum compensation, ensuring the language for combination of impairments is consistent between key provisions dealing with permanent impairment assessments, and revoking the second edition Impairment Assessment Guidelines that had previously been published and replacing them with the former first edition guidelines for future assessments.

I look forward to the committee stage of the bill and receiving questions and progressing this over the coming hours.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. C. BONAROS: My question is to the minister. What instructions will the minister provide to ReturnToWork in respect of its conduct in litigation before the Court of Appeal where the question of combination arises, principally in the matters of Williams and English, where the corporation has been contending Summerfield as 'plainly wrong'—if this bill is to pass?

The Hon. K.J. MAHER: I thank the honourable member for her question. There are, as always happens, matters ongoing that concern the interpretation of the boundaries around many parts of the operation of the scheme, including the Summerfield decision. The most directly relevant to the boundaries of the Summerfield decision are the matters of Williams and English, which have been joined for hearing before the Court of Appeal. I am advised that if this bill is passed the ReturnToWorkSA corporation will not be seeking to argue in these cases that the Summerfield decision is plainly wrong and be overturned.

The Hon. C. BONAROS: On the flip side, what will be the position of ReturnToWork if the bill does not pass with those amendments around Summerfield?

The Hon. K.J. MAHER: If this bill does not pass, then ReturnToWork will continue with the litigation in its form as is ongoing—are my instructions.

The Hon. T.A. FRANKS: Just a supplementary on that: what is the form of that advice from the board to the minister?

The CHAIR: You are going to need to repeat that, I think.

The Hon. T.A. FRANKS: What is the form that that advice took that was provided to you? Was it in writing? Was it a piece of correspondence? Was it verbal? Who was it from?

The Hon. K.J. MAHER: I thank the honourable member for her question. I have received verbal advice from the corporation, and I am placing that verbal advice on the record here, so I would expect that that is what will happen, should this bill pass.

The Hon. T.A. FRANKS: So the corporation could not be bothered writing it down in a letter and sending it to you or even an email or a text message?

The Hon. K.J. MAHER: I thank the honourable member for her question. I do not think it is a case of not being bothered. It is something that had been discussed. It is what the advice has been and particularly having placed that advice on the record here, I would expect that to be followed.

The Hon. T.A. FRANKS: Why did the board or the government not make any provisions for the possibility that they could lose the court cases of Preedy and Summerfield, and subsequent appeals, particularly after the first one was lost?

The Hon. K.J. MAHER: I thank the honourable member for her question. I know it is something that has been asked a number of times. That was the response to the single judge of SAET, the full bench of SAET. The single judge of the Supreme Court, then the full bench of the Supreme Court all happened under the previous Liberal government. It would be up to Rob Lucas and others to answer why the government did not take action at that time, but that is a quite reasonable question and one that I think the Hon. Connie Bonaros canvassed reasonably well in her contribution.

The Hon. C. BONAROS: Can I just confirm, for the record, in the most recent hearings that have taken place, has the position of ReturnToWork been to seek instructions on whether to proceed with Summerfield and, in the English case, whether they have sought instructions on how to proceed with the Summerfield case and also a Full Court of the Appeal Court?

The Hon. K.J. MAHER: What is it that the member would like me to clarify beyond what I—

The Hon. C. BONAROS: There are matters that are still being heard by the court at the moment in relation to Summerfield. What has been ReturnToWork's position in relation to Summerfield in those cases? Perhaps that is a better way of framing the question.

The Hon. K.J. MAHER: If I need further clarification I am happy for the honourable member to ask me, but my advice is the minister does not give instructions to the corporation on the running of cases. What I have been advised is that if this bill passes the argument that the Summerfield principles are plainly wrong will not be pursued because Summerfield will be codified in this legislation. The scope of the application of Summerfield in individual cases will still be something that is subject to litigation.

The Hon. C. BONAROS: This is a very important question because it goes to the heart of some of the issues that we are being asked to decide today and, despite the absence of written advice, I am asking the minister again to just confirm for the record that if this bill were to pass with the Summerfield provisions in place then ReturnToWork would be abandoning the challenge on the basis that Summerfield is plainly wrong; is that correct?

The Hon. K.J. MAHER: As I said, that is what I am advised and that is what ReturnToWork have said, that they will be abandoning that argument that Summerfield was plainly wrong.

The Hon. C. BONAROS: Given the importance of this issue and given that it goes to the heart of the issue, if the outcome of this bill is that it does not pass in the form that is acceptable to the government, however that may look at the end of the debate, then those challenges to the Summerfield decision will continue?

The Hon. K.J. MAHER: Yes, that is my advice.

The Hon. C. BONAROS: In terms of another element of this bill, the bill refers to a date fixed by proclamation. When does the government actually intend to proclaim this bill?

The Hon. K.J. MAHER: My advice is that a large part of the bill is intended to be proclaimed at the start of August, but other parts that require more operational work will come into effect at a later date. The transition provisions for the seriously injured worker threshold will be operational from 1 January 2023, but the very large part of the bill from early August.

The Hon. C. BONAROS: So those provisions around codifying Summerfield are intended to take effect from the August date that the minister has referred to?

The Hon. K.J. MAHER: My advice is yes.

The Hon. H.M. GIROLAMO: In regard to the actuarial advice, can I please ask that that advice, along with the PwC report, be tabled?

The Hon. K.J. MAHER: I am very happy to do that. The reports were sent around, I think, to the opposition and to members of this chamber. I am happy to seek leave to table a letter from the ReturnToWorkSA corporation, dated 3 July 2022. I also table a report from Finity actuaries, dated 1 July 2022, and a report from PwC, dated 3 July 2022.

Leave granted.

The Hon. H.M. GIROLAMO: Just following on from that, the scheme actuarial advice provides a range based on sensitivity analysis. One scenario describes that it is quite possible that premiums could exceed 2.2 per cent. Is the Attorney confident that the business community is aware of these possible outcomes and the nature of it?

The Hon. K.J. MAHER: My advice is that the actuarial advice from Finity accounts for a whole range of different scenarios: low impact, high impact, mid-range impact and a range for each of those. Based on Finity's advice, which feeds into what ReturnToWork then set as the average premium rate, the advice is that the likely average premium rate, based on the actuarial advice, would be 1.9 per cent.

The Hon. H.M. GIROLAMO: Following on from that, have the proposed changes or amendments coming through today been factored into that advice?

The Hon. K.J. MAHER: The advice was based on the bill as it passed the House of Assembly. The amendments that have been put forward have been developed with ReturnToWork to make sure they do not put upward pressure on a premium rate.

The Hon. C. BONAROS: Again, because it goes to the core of the deliberations today, what advice has the board given to the government about premium impacts if this bill does not pass this week and the timing of any action by the board in that regard?

The Hon. K.J. MAHER: I thank the honourable member for her question. The advice we have—based on previous work that Finity, the actuaries, have done, peer reviewed, like this one was, by PricewaterhouseCoopers and then considered by the corporation about what the average premium rate would be—has been that, in the absence of legislative change, the average premium rate would be in the order of 2.2 per cent.

The advice from the ReturnToWork board—I cannot remember exactly the number of weeks, but a month or so ago—was that, in the absence of legislative change before the winter break, they would intend to meet sometime in the middle of the year to determine the rate for the 2023-24 financial year and set the rate based on the advice to the corporation, which the corporation have said is in the order of 2.2 per cent.

I think after a request from the Leader of the Opposition in relation to the board, the board reconfirmed their intention that that would happen sometime in the middle of the year in the absence of legislative change.

The Hon. C. BONAROS: To confirm for the record, would those notices then be issued to businesses?

The Hon. K.J. MAHER: Yes. My advice is that those notices would then be issued to businesses, largely on the basis of such a dramatic increase—from the year before, it would be in the order of something like a 30 per cent increase in premiums—to give businesses enough time to have notice of what they would be facing in the 2023-24 financial year.

The Hon. C. BONAROS: Those premiums would not be payable for some 11 months in the proceeding period, though.

The Hon. K.J. MAHER: That is correct. They would not be payable for some months, but the decision was, with such a dramatic increase, to give some certainty to businesses. It became very clear in discussion with stakeholders. There are a number of businesses, for example in the building industry, with fixed-term contracts who need to factor their costs of business into what they do into the future. That was a decision of the board, to flag that in advance so that businesses would know what they were up for, essentially.

The Hon. C. BONAROS: To confirm, we have received advice that there is no mechanism in the bill to withdraw, retract or change those premium rates once that notice has been issued; is that actually the case?

The Hon. K.J. MAHER: My advice is that that is correct. There is no mechanism to revisit the premium once a decision has been made.

The Hon. H.M. GIROLAMO: Has the government received any advice regarding the impact on the scheme's funding ratio and also the impact on the unfunded liability?

The Hon. K.J. MAHER: In relation to this bill?

The Hon. H.M. GIROLAMO: In relation to this bill.

The Hon. K.J. MAHER: My advice is that the combination of measures taken in this bill is estimated to reduce the unfunded claims liability in the order of $400 million.

The Hon. C. BONAROS: Has the government costed the scheme if it were to be prospective as opposed to retrospective in its application?

The Hon. K.J. MAHER: Could the member perhaps explain further, so that I am answering the question correctly?

The Hon. C. BONAROS: The bill has retrospective application. If it were to be prospective in its application, from a date, has the government taken that into account in terms of its costings to the scheme?

The Hon. K.J. MAHER: My advice is, whilst there is not the separate, big-part actuarial work in relation to that, the effect of not setting that transitional period would mean that $400 million in unfunded liabilities that you would reduce would not be reduced. You would not get the scheme back into its target funding range, and it would be, I think, highly unlikely the scheme would be able to perform under 2 per cent, as is the legislated target.

The Hon. H.M. GIROLAMO: In regard to the funding ratios, you mentioned before about the $400 million, which is great. What is the impact then on the scheme's funding ratio with the changes to the new—

The Hon. K.J. MAHER: The $400 million?

The Hon. H.M. GIROLAMO: Yes, assuming that that is the flow-on.

The Hon. K.J. MAHER: I am advised it takes the scheme back into its target funded ratio of between 90 per cent and 120 per cent. The estimate is that it would be in the order of somewhere around 95 per cent funded.

The Hon. H.M. GIROLAMO: Is the minister confident that the rate will still sit around 1.9 per cent moving forward if the proposed bill goes into operation—if the proposed bill does happen?

The Hon. K.J. MAHER: On the advice I have received, that is the estimated outcome if this bill passes with the amendments, that it will sit, all other things being equal, for the 2023-24 financial year around 1.9 per cent. Of course, massive movements in the world economy will affect it. That is why I said all other things being equal, but for the known knowns now, that is the estimate.

The Hon. H.M. GIROLAMO: Will the government rule out any additional loading or deficit repair levies going forward? Will it be calculated?

The Hon. K.J. MAHER: My advice is that there is no intention to set some sort of separate deficit levy. My further advice is that there would not be a need to, because you are in the target funding range.

The Hon. T.A. FRANKS: I think that something should be put on the record, so I am going to ask it as a question for the minister, even though it is publicly available information. What have been the premiums for each year, annually, of the workings of this scheme?

The Hon. K.J. MAHER: I have the last three years for the honourable member. For the 2020-21 year the average premium rate was 1.65 per cent, for 2021-22 it was 1.70 per cent, and for 2022-23 it has been set at 1.8 per cent.

The Hon. T.A. FRANKS: With respect, actually the full set of figures will provide a clearer picture, for the record.

The Hon. K.J. MAHER: I can provide that. It is in the ReturnToWork covering letter to the actuarial advice. In 2017-18 the average premium rate was 1.8 per cent, in 2018-19 it was 1.7 per cent, in 2019-20 it was 1.65 per cent, in 2020-21 it was 1.65 per cent and in 2021-22 it was 1.7 per cent, and the premium set for 2022-23 is 1.8 per cent.

The Hon. T.A. FRANKS: In terms of the Preedy decision in 2018, why then did premiums go down?

The Hon. K.J. MAHER: That would be one I would have to take on notice. I can bring back a reply in relation to that year, what the factors were that informed that.

The Hon. T.A. FRANKS: As a supplementary to that, and the minister may care to bring this back, has the minister been able to access the information of the actuarials following the Preedy decision in 2018 and what preparations the corporation made at that point?

The Hon. K.J. MAHER: I thank the honourable member for her question. I do not have—and if they are already non-public actuarial assessments I expect I will not be able to access them, as a new government. I will certainly make inquiries, and I undertake to provide what I can to the honourable member.

The Hon. H.M. GIROLAMO: Referring back to the 90 to 120 per cent range, what specific changes in this bill helped to secure that range and how confident are you that that will be achieved?

The Hon. K.J. MAHER: The combination that was considered in the actuarial work and the peer review that take into account the transitional provisions that reduced the unfunded liability by that estimated $400 million, the provisions that raised the WPI from 30 to 35 per cent, and the election for a payment of that lump sum economic loss combined, is what is estimated to bring the scheme back into the financials that allow the average premium rate to be set at 1.9 per cent, as well as the funding ratio to be within that range of 90 to 120 per cent.

The Hon. C. BONAROS: I am just going to go back to the transitional provisions that we discussed. Should the government's amendments around those provisions be successful in this debate, what undertaking is the government willing to make to ensure that ReturnToWork facilitate appointments to take place prior to that 1 January 2023 date that he has referred to?

The Hon. K.J. MAHER: I thank the honourable member for her question. It is one that has been raised in the consultations. I can certainly say it is my expectation, and I have passed that on to the corporation, that nothing will be done that will hold up those assessments for your WPI. If there are any stakeholders involved that are finding any problems or concerns I am very keen to hear that.

The Hon. C. BONAROS: I am hoping that, in addition to nothing being done to hold it up, there will be a proactive approach in terms of ensuring those appointments are facilitated as far as practicable.

The Hon. K.J. MAHER: I can assure the honourable member that is being passed on as well.

The Hon. C. BONAROS: Can I ask a question about the undertakings the government gave to stakeholders, unions and businesses, indeed anyone else they have been dealing with, in terms of the ReturnToWork board, its policies and management of the scheme? What were the undertakings given to the unions and the business sector as part of that—I am not sure if we call it an MOU, I am not sure what it was—in relation to the management of the scheme?

The Hon. K.J. MAHER: There were a number of suggestions, as we have traversed these changes that have been put forward, that we think are sensible suggestions. We have committed to making sure there is a review of the policies and procedures and practices of ReturnToWork, and we are keen to see that happen. I know the honourable member herself has a motion before the chamber for a select committee and when we get to it, I think, later in the week we will continue discussions to see if that can play a part in that as well.

The Hon. C. BONAROS: I want to tease that out a little further and perhaps break down the specific commitments that were given. My understanding is that there is a systemic review that has been agreed to take place in 2027. Prior to that—and leaving aside the motion that is going to be debated in this place tomorrow—there are a number of other reviews involving perhaps interstate jurisdictions and so forth that have been agreed to. Can we have a breakdown of those reviews that have been agreed to by the government?

The Hon. K.J. MAHER: Suggestions have been made, and we have taken them on board, in relation to the comment the member previously made regarding undertaking a review into practices, policies and procedures. It has been suggested—and we think it is a good idea, a sensible thing—that a much broader systemic review take place in a number of years' time. That would be able to look at a whole range of things, including how these particular changes we are making today are having effect. In legislation we often see clauses for reviews, and we are happy to agree to suggestions that we do that in a number of years' time. If my memory serves me correctly, I think the commitment in relation to assessing was a review in 2027.

The Hon. C. BONAROS: Can the Attorney explain how that date was arrived at, 2027, whatever date that may be, but the year perhaps?

The Hon. K.J. MAHER: I do not think there was any particular science behind the date of 2027; I think it was to give time for these changes to be properly understood. It is for a review sometime in the future. We often see clauses in bills for a review a number of years in the future. It was not a date informed by something expected to happen at that date, but so that there was time to look at these changes and see their effect.

The Hon. C. BONAROS: Perhaps other than a state election, but we will leave that aside for the moment. Just going back to the undertakings given in relation to facilitating appointments, for the record can you also confirm that there will be no unilateral cancelling of appointments in relation to having those assessments done? We have confirmed that we are going to be proactive in our approach. I would like confirmation that we are not going to have any unilateral cancellation of appointments leading up to that 1 January 2023 time frame that has been alluded to.

The Hon. K.J. MAHER: My advice is that the corporation cannot think of a reason why an appointment would be cancelled unilaterally, and that is certainly not the intention.

The Hon. C. BONAROS: The government has indicated that there will be another bill brought to this place later this year. Can the minister outline what he understands will be covered by that bill to date? Bearing in mind that, as a result of this bill, there may be other factors that fall into that same basket, but at this point in time what is his understanding of what that bill will cover?

The Hon. K.J. MAHER: I thank the honourable member for her question. It is something I traversed I think in the second reading speech of the original bill that was brought to this chamber, that we would spend some months looking particularly at section 18 of the act on returning people to work and looking at ways that that section could work better if there are legislative and policy changes that give better effect to the intention of the act, that is, it is in injured workers' interests and business interests that people are returned to work.

We will look particularly at section 18, at ways workers can return to work in a better way. I said in the second reading speech in relation to the first bill that we will spend those months over the winter break in particular to look to do that. If there is anything we did not contemplate in the bill before us, we are open to that as well.

The Hon. H.M. GIROLAMO: In regard to the $400 million being covered by the unfunded liability, in the first bill it was indicated that the range could be up to $1.2 billion or $1 billion. If we take $400 million off that we still potentially have a substantial unfunded liability that could be as high as $600 million or $800 million. Can you explain how that will be covered, and also explain the potential impact on the scheme's funding ratio, given that that range of 90 to 120 per cent is quite a big range?

The Hon. K.J. MAHER: I thank the honourable member for her question. My advice is that that reduction of $400 million would bring it back into that target funding ratio. Between 90 to 120 per cent is a range, but by reducing it by $400 million you would bring it back into that targeted funding ratio.

The Hon. H.M. GIROLAMO: You are confirming that it is likely to be the lower end of the 90 per cent, or are you saying that it could be at 120 per cent? What has been factored into the actuarial reports?

The Hon. K.J. MAHER: My advice is that, with the reduction of $400 million on outstanding liabilities of the corporation, that would get you well back into the target range and be a funding ratio of about 95 per cent.

The Hon. C. BONAROS: Can the minister tell us what level of engagement has occurred over this bill or the previous bill with self-insurers?

The Hon. K.J. MAHER: My advice is that there has been communication with SISA (Self Insurers of South Australia) about what has been put before parliament and no concerns were indicated.

The Hon. C. BONAROS: Did they provide a reason as to why there were no concerns raised on behalf of their membership?

The Hon. K.J. MAHER: I will take that on notice and check, but my advice is there has been communication, given what I have now. If there is further I can add, I am happy to go back and do that for the honourable member.

The Hon. C. BONAROS: I just have one overarching question for the minister. Given what he has said about the Summerfield precedent if this bill is not passed and the intention of the board to issue notices around premiums, what is the government's position in terms of its overall plan if this bill is not to pass? What will be the effect of that? What do you plan to do?

The Hon. K.J. MAHER: If this bill is not passed, based on all the advice we have, it is likely that premiums will be set in the middle of the year for the 2023-24 financial year at 2.2 per cent. I do not instruct the corporation in relation to individual pieces of litigation. If this bill is not passed, as I indicated before, I am sure the corporation will continue with the current direction of litigation, particularly in the Williams case.

The Hon. C. BONAROS: Has the government given any consideration to what it would do in light of those outcomes in terms of any further legislative reform?

The Hon. K.J. MAHER: I think the government would have made an attempt to make reform that brings the premium back. We would have tried, it would have failed and the premium would go up, and the corporation would continue on its trajectory in terms of what it is putting forward to challenges in the courts.

The Hon. H.M. GIROLAMO: Where are we currently sitting with the unfunded liability? Assuming the bill goes through, can you confirm for the record what the unfunded liability is likely to be and how many years it is going to take to pay back?

The Hon. K.J. MAHER: I am going to try to get this right, and if I need to stop and add and correct I will. My advice is that without something to constrain the unfunded liabilities it is likely that there would have to be a reasonably aggressive strategy to get the unfunded liabilities further under control, because it would be difficult to meet the target funding range.

With the mitigation that this bill provides, I am informed that it will not be as necessary to be as aggressive in recovering the unfunded liabilities. I am informed it will take, either way, some years to pay off, but that is influenced by a whole range of things; that is, the performance of the scheme, international markets, investments. It is not intended either way, whether this bill passes or not, that it would be paid off quickly. It will be some years.

The Hon. H.M. GIROLAMO: So the unfunded liability: what do you believe it is going to be sitting at, or what are you forecasting it to be?

The Hon. K.J. MAHER: My advice is that the estimate of the full impact over time—the estimate of the Summerfield decision—would be in the range of $1 billion and maybe even more, but that is taking into account the full impact over time. My advice is that the estimated changes on this will reduce it by about $400 million, but it is possible it could be a better result than that given that the changes will come into effect now rather than the estimate of what the full impact of Summerfield would be. I am advised that if this bill comes into effect the estimate is it could be as low as a $400 million deficit, that we might see not just $400 million but, with the effect of this bill, the possibility of not seeing increases in costs. Reducing it to a $400 million liability is the estimate advice I have received.

The Hon. H.M. GIROLAMO: In regard to that, potentially there is either around $400 million or $500 million that still needs to be paid back, assuming this bill goes through. That will need to be factored in along with the break-even premiums, so obviously a portion of that will be applied each year to the premium and passed on to businesses?

The Hon. K.J. MAHER: My advice is a deficit in this range is factored into the estimated 1.9 per cent APR, taking into account other things like the BP advice.

The Hon. C. BONAROS: I have a couple of questions around Impairment Assessment Guidelines. Has ReturnToWork calculated the net impact of the change in threshold from 30 to 35 per cent; that is, how many seriously injured workers will that impact in terms of changing the threshold from 30 to 35 per cent?

The Hon. K.J. MAHER: The way that I have been advised is that currently there are about 100 seriously injured workers a year. The estimate from the Summerfield decision is approximately 200 injured workers a year. The effect of the rise from 30 to 35 would see the estimate being 140 to 170 injured workers per year, so the estimate is somewhere between 30 and 60 injured workers.

The Hon. C. BONAROS: Just to confirm, assuming all things go smoothly with the Impairment Assessment Guidelines consultation process in relation to the third revised set, and noting that we are in due course going to consider amendments intended to enshrine the first version of those IAGs, is it the government's intent that doing both those things will somehow mitigate some of the adverse impact?

The Hon. K.J. MAHER: My advice is that the advice at the time, apparently, was that when we went from the first to the second set it would not have a material impact, and the advice that I have is that going back from the set that currently goes to what was there before therefore also will not have a material impact.

The Hon. C. BONAROS: Just on those numbers that the minister referred to—because I think it is important to get this on the record, given the public comments that have been made by the Premier about this bill—we have talked about the scheme originally anticipating 60 seriously injured workers, and then it was 90 and now we are envisaging 200. The CEO of ReturnToWork, Mr Francis, confirmed with me, and I would like the minister to confirm the same, that in respect of both these bills the impact on workers is not actually limited to those 200. The impacts could very well impact workers into the thousands. That is the advice that we have received at briefings with the CEO of ReturnToWork. I would like that confirmed on the record.

The Hon. K.J. MAHER: Yes, while it will have an impact on those numbers for those who reach the seriously injured worker test threshold, there are each year a few thousand who do not meet that threshold and receive lump sum payments. The codifying that this bill contemplates certainly has the potential to impact all of those in terms of combining injuries, even though it does not meet the threshold.

The Hon. C. BONAROS: I am not going to pretend for a moment to be an economist or anyone experienced in actuarials—and I think the Hon. Ms Girolamo has handled those questions very well—but it has been put to me that we should place on the record that, when we are talking about this unfunded liability, we are not actually talking about a debt, we are talking about an arithmetic calculation, and it is only one that would apply if all workers were paid out their entitlements on any given day, based on the averages that have been provided to us by ReturnToWork.

The Hon. K.J. MAHER: My advice is that the way the scheme is accounted for is that, in the year that an injured worker is determined to come into the scheme, the scheme anticipates and collects what the whole cost would be. So the year an injured worker comes into the scheme, their whole cost is accounted for, for their lifetime under the scheme.

The Hon. H.M. GIROLAMO: Can I confirm that it is a contingent liability? Is it contingent on being drawn down, or is it basically that you have an accurate amount that you are going to be paying out?

The Hon. K.J. MAHER: I thank those with much greater accounting knowledge than mine for their questions. We have people from the scheme here today; we do not have accountants here today. I am happy to take that on notice and provide the honourable member with a reply because we do not have the people who do that here at the moment.

Clause passed.

Clause 2 passed.

Clause 3.

The ACTING CHAIR (Hon. R.A. Simms): There is an amendment to clause 3 in the name of the Hon. Cory Bonaros—apologies, honourable member, I've done that before!

The Hon. C. BONAROS: I can be Cory today if you like, Acting Chair.

The ACTING CHAIR (Hon. R.A. Simms): The Hon. Ms Bonaros, would you like to speak to your amendment?

The Hon. C. BONAROS: Thank you, Acting Chair. I am trying to think of something to call you, but nothing is springing to mind. Thank you, Mr Lucas—that was low, wasn't it?

The ACTING CHAIR (Hon. R.A. Simms): Touché.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–1]—

Page 3, lines 5 and 6 [clause 3(2)]—Delete subclause (2)

This amendment seeks to delete subclause (2) of clause 3 of the bill. The concept of stability under Return to Work is not currently defined but does appear in section 22 of the act and is an important concept. A legislative definition of 'stability' should, from my viewpoint and certainly from that of members of the legal profession whom I have consulted with, be considered by the parliament and not be made by reference to the guidelines, given the significance of its role in assessments of permanent impairments under the act.

'Stability' and 'maximum medical improvement' are defined two different ways in both Impairment Assessment Guidelines; that is, version 1 and version 2. The bill does not provide certainty to which definition would apply at any one time, so it is not appropriate, based on the advice that we have received, to define the term by guidelines. We are effectively referring to another instrument to define that term.

I am absolutely wholly supportive of the parliament, this place, amending the act to define 'stability', particularly for workers who have a progressive terminal illness such as dust diseases, but I think this needs to be considered by parliament and a definition needs to be enacted in the legislation itself.

We should be consulting with groups that specialise in the types of terminal illness and disease matters that are affected by these provisions to ensure the definition properly addresses the perceived shortfalls of the current scheme. I have to say I understand that the government's intent here was a good one, but concerns have been raised about the unintended consequences potentially of that good intent. If I can give you an example, if we have a worker with a terminal diagnosis under the current scheme, it allows for an insurer to argue, for instance, that the worker's injury has not stabilised until death, meaning that they do not receive the right to a permanent impairment assessment.

I do note that this issue arose in the case of Symeon v Southern Cross Care. The worker in that case was faced with the very real potential that, without the intervention of the tribunal, they would not have received an impairment assessment because Southern Cross Care refused to accept that their injury had stabilised because it was terminal and she was still alive. It should not have got to that point, basically, I think is the advice that we have had.

It is a failing of the scheme that the worker had to pay for legal representation to come to court just to get to square one of an assessment, and we are very fortunate that in that case a decision was made where they did in fact get to square one. That is the practical reality of the absence of this definition, but the concern that has been raised about the definition that has been provided via another instrument, which will be disallowable by this parliament, is that it may have some unintended consequences. We do not know which guidelines we are necessarily talking about. There is a third set of guidelines that are going to be canvassed.

It should come as no surprise that, and I have made this clear to the minister, I have had ongoing discussions with legal professionals who represent workers in the dust diseases area. This is an area that impacts them, but I think they need to be part of the discussion in terms of further consultation around this provision. Whilst I appreciate the government's attempt to try to remedy an issue that was raised with them, the concerns that have been raised with us are that this may have some unintended consequences or there is a lack of clarity around it, and that this is an issue that should be further contemplated by parliament.

I am hoping the government will tell us that, as part of any further reforms, this is one of the issues that will be considered in terms of providing a definition of 'stability' in the act itself, subject to that level of consultation that needs to take place.

The Hon. K.J. MAHER: I wish to place on the record that we will be supporting the Hon. Connie Bonaros's amendment. She has characterised it quite correctly. This was an attempt to address concerns for diseases that necessarily do not stabilise, like dust diseases, but we do take on board the Hon. Connie Bonaros's point that it may well be better to regularise that in legislation rather than leave it up to another instrument that could be subject to change. The honourable member is right. It was coming from a good place, but we do take on her point and it is something we are happy to look at in the future and in the course of the things that are coming for the next tranche.

The Hon. T.A. FRANKS: My question had been twofold: how did the government envisage the definition of 'stabilise' to affect cases where we do see the gradual onset of injury or degenerative injuries and conditions? Supplementary: how then does the government respond to the Law Society's suggestion that it may not be appropriate for terms in an act to be divined solely by subordinate legislation, in this case the Impairment Assessment Guidelines?

The Hon. K.J. MAHER: I thank the honourable member for her question. To the second one first: yes, we accept that. We accept that it is a better way to do it, to do it in the legislation itself rather than in instruments such as guidelines, and that is why we will be supporting the Hon. Connie Bonaros's amendment. I will just add, too: the first question is that is what we would have had a look at in terms of putting in guidelines, how that would be defined to take into account those sort of degenerative diseases that have no prospect of stabilisation, like dust diseases. That is something now we will look at in the coming months, rather than in the guidelines—looking at how we might give effect to that in the legislation itself.

The CHAIR: The Hon. Ms Girolamo, would you like to indicate the opposition's position?

The Hon. H.M. GIROLAMO: Sure. The opposition would like to indicate that they support the Hon. Ms Bonaros's amendment.

The Hon. T.A. FRANKS: Chair, for the sake of the record and your ability to count, the Greens support the Hon. Connie Bonaros's amendment.

The CHAIR: I am not sure whether I should be taking exception to that.

The Hon. T.A. FRANKS: It was given with love.

The CHAIR: Well, I will accept it. Thank you.

Amendment carried; clause as amended passed.

Clause 4 passed.

Clause 5.

The Hon. K.J. MAHER: I move:

Amendment No 1 [IndRelPubSec–1]—

Page 3, line 13 [clause 5(1), inserted subsection (2)(a)]—Delete ‘work injury has’ and substitute:

work injury or injuries have

Amendment No 2 [IndRelPubSec–1]—

Page 3, line 17 [clause 5(1), inserted subsection (2)(b)]—Delete ‘work injury has’ and substitute:

work injury or injuries have

These amendments are technical amendments that have been identified. The legislation refers to 'work injury has'. Given that the intention of this bill is to codify the Summerfield principle of combination, we are changing 'work injury' to 'work injury or injuries' to note that it can be multiple injuries. I move those amendments standing in my name to clarify that language.

The Hon. T.A. FRANKS: I actually had some questions about this amendment of the government. How many workers will now no longer be able to access ongoing compensation as seriously injured workers should the whole person impairment threshold be raised to 35 per cent for physical injuries?

The Hon. K.J. MAHER: I thank the honourable member for her question. It is one I think the Hon. Connie Bonaros asked before. The scheme has about 100 seriously injured workers at the moment. The estimate was that the effect of the Summerfield decision would raise that to about 200 seriously injured workers. If you have Summerfield stand but raise it from 30 to 35 per cent, the estimate is there would be 140 to 170 seriously injured workers, so that is 40 to 70 more than without Summerfield but, conversely, 30 to 60 fewer than if Summerfield just by itself, unabated, stood. So 40 to 70 more than pre-Summerfield, but the estimate is 30 to 60 fewer than if it was not raised to 35 per cent.

The Hon. H.M. GIROLAMO: In regard to the actuarial notes, the bill does little to risk a tail liability based on behavioural incentives, to accumulate for the purpose of ensuring you have a whole person injury, or substantial. How does the minister intend to deal with this issue to ensure that additional costs are not incurred in the event that whole person injury rates escalate?

The Hon. K.J. MAHER: My advice is that is one of the factors that is taken into account actuarially, that is built into the range of the premium, that the corporation intends to proactively manage claims for seriously injured workers and to look at ways to return workers to work as early as reasonably possible given the circumstances, to look to take into account that sort of behavioural change that the actuaries build into their assessments.

The Hon. H.M. GIROLAMO: In regard to amendments Nos 1 and 2, the opposition will be supporting both those amendments.

The Hon. C. BONAROS: I indicate we will be supporting these two amendments.

Amendments carried.

The CHAIR: The next indicated amendment I have is amendment No. 3 in the name of the Attorney. I also have amendment No. 2 in the name of the Hon. Ms Bonaros, which is virtually identical. I believe the Attorney's was filed first.

The Hon. K.J. MAHER: I indicate that, on the basis of discussions with the Hon. Connie Bonaros, the government does not intend to move our amendment No. 3 in favour of the amendment the Hon. Connie Bonaros will be moving momentarily.

The Hon. C. BONAROS: I move:

Amendment No 2 [Bonaros–1]—

Page 3, line 22 [clause 5(2), inserted subsection (3)]—Delete ‘Pending stabilisation of a worker's work injury or work injuries’ and substitute:

Pending an assessment of permanent impairment

The amendment speaks to the current wording of 21(2). The only eligibility for interim seriously injured workers assessment is that you have not had the final assessment, but when you do it will be 30 per cent or more. This amendment seeks to keep the status quo.

Importing the concept of stability, based on the advice we have received, creates additional hurdles for seriously injured workers to meet, which is not desirable and does not achieve the bill's policy intent, or the government's intent, in terms of keeping the scheme viable and providing fair compensation. This is because it will give insurance companies another basis to deny claims that are otherwise legitimate.

I will give an example for members: a person who has had three surgeries would be deemed stable, but cannot have their final assessment because they have more surgeries on the horizon, potentially, and undergoing a different form of treatment in the meantime, so they are not then regarded as interim seriously injured workers. In practice this is likely to be used as a loophole to deny seriously injured workers access to interim coverage, when they are not needing imminent major treatment like surgery.

A person who legitimately may need coverage under the act may not be covered because of the word 'stability'. This walks back the proposed policy shift on interim seriously injured workers, which was intended to produce an additional requirement that you established that your injury had not stabilised, which has the capacity to produce even more unintended consequences, and arguably then more legal challenges and greatly diminished outcomes. It is on that basis that we are proposing this amendment.

The Hon. K.J. MAHER: For the sake of completeness, given that it is almost identical to the government amendment, we agree with the amendment and the explanation put forward by the Hon. Connie Bonaros.

The Hon. H.M. GIROLAMO: The opposition is happy to support this amendment.

Amendment carried.

Sitting suspended from 18:01 to 19:45

The Hon. K.J. MAHER: I move:

Amendment No 4 [IndRelPubSec–1]—

Page 3, line 36 to page 4, line 30 [clause 5(2), inserted subsections (4) to (4e)]—Delete inserted subsections (4) to (4e) and substitute:

(4) An interim decision under subsection (3)—

(a) must be made in accordance with any requirements or principles prescribed by the regulations; and

(b) will have effect until—

(i) an assessment of whole person impairment has been made and determined under Division 5; or

(ii) it appears that, due to a material improvement in the worker’s likely degree of whole person impairment, the worker's degree of whole person impairment is no longer likely to be—

(A) in the case of physical injury—35% or more; or

(B) in the case of psychiatric injury—30% or more.

(4a) Before bringing an interim decision to an end under subsection (4)(b)(ii), the Corporation must—

(a) give the worker at least 3 months written notice of its intention to bring the interim decision to an end under that subsection; and

(b) give the worker a reasonable opportunity during that 3 month period to furnish information to satisfy the Corporation that it is appropriate for the interim decision to continue.

For the benefit of the committee, I might just go through in a little bit of detail now some of the amendments that have been put forward that are consequential or directly related to this amendment, because there are a number that follow. After discussions with the Hon. Connie Bonaros—she has amendments that are very similar or directly related to some of these—we will proceed with the government ones, and I understand the Hon. Connie Bonaros will not be moving her amendments as a result of the government ones.

I have moved amendment No. 4 and I will speak to it in just a moment. Related to that or consequential are government amendments Nos 8, 15, 16 and 23. On the basis of the government moving those amendments I understand that the Hon. Connie Bonaros will not be proceeding with the substantive amendment on this area, which is Connie Bonaros No. 4, but also the ones that are consequential or directly relate to that, which are Bonaros amendments Nos 3, 13, 17, 18 and 19. They are interrelated, but I thought it would be important just to get on the record what are almost test suggested clauses, if you like, for those suggested clauses that depend upon this one.

Government amendment No. 4, and this particular amendment—and then we will talk about the ones that follow it afterwards—are amendments that simplify provisions relating to interim seriously injured workers compared to the original bill. The amendments make clear that interim seriously injured workers can only have payments discontinued if they are no longer likely to reach the serious injury status, and the corporation is required to give at least three months' notice before discontinuation of those payments.

The Hon. C. BONAROS: I rise to indicate, as the minister has said, that I will not be moving those amendments, but will support the government's amendments, which result in largely the same outcome despite getting there in a slightly different way. The intent of the amendments is the same; we have just chosen a different route to get to the same outcome. I might speak to them now.

The government amendments, and indeed the amendments that we had sought, address serious shortfalls which are evident in the bill. I think it is actually fair to say that this is one of the non-negotiables in terms of amendments to the bill in addition to the Summerfield amendments. The Law Society, legal representatives, ALA, unions have all contacted my office, and I am sure that of other members as well, to indicate that in its original form as proposed around these amendments this bill would have been disastrous in its effect, in its application.

That is because they would see interim seriously injured workers constantly under threat from having their rights removed within short spaces of time, namely, 12 months, and needing them to go before a tribunal to dispute interpretation of 'stabilise' at the end of each 12-month period. This involves of course more legal costs, more costs to the scheme, and I think, as raised by the legal profession, it completely undermines the policy intent of the government in terms of its original bill, and the objectives of the act in particular, which is to provide fair compensation to seriously injured workers.

I am satisfied on the basis of feedback that the concerns now would be largely ameliorated with the proposed amendments. I am confident that the bill in its original form could not have been the result of consultation with any group representing employees, workers, including union movements, given the serious shortfalls and massive undermining of workers' rights at the worst possible time of their lives, had we proceeded with the original proposal of the bill.

I think the government's latest amendments do strike the right balance in amending these concerns, and again I am pretty sure that without these amendments this certainly would have been a dealbreaker for many of the stakeholders who engaged with government in terms of what needed to be done to bring this bill up to scratch. Notwithstanding that, I think also the government would have had a very difficult time in trying to convince all of us that their policy intent around interim seriously injured workers was actually being achieved by the original proposal that had been proposed in the bill.

That was not reflected in any of the conversations that we had, and I do not think it was reflected in any of the feedback to the government, but I think this set of amendments—whichever one you had gone for—I think the government's chosen suite of words deals with the same issues that we tried to address in ours, but I think it overcomes those hurdles, and is therefore a welcome addition to the bill. For those reasons, we will be supporting this set of substantive and consequential amendments that relate to it.

The ACTING CHAIR (Hon. T.T. Ngo): Could I just get the Hon. Ms Connie Bonaros to confirm that she will not be moving amendments Nos 3, 4, 13, 17, 18 and 19?

The Hon. C. BONAROS: My understanding is I will not be moving 3, 4, 13, 17, 18 and 19.

The Hon. H.M. GIROLAMO: I will just briefly comment that the opposition will be supporting this amendment as well.

Amendment carried; clause as amended passed.

Clause 6.

The ACTING CHAIR (Hon. T.T. Ngo): We will move to amendment No. 5 by the Hon. Ms Bonaros.

The Hon. K.J. MAHER: If I may just speak on clause 6 generally before we get to the Hon. Connie Bonaros's amendments. There are three groups of amendments that the Hon. Connie Bonaros and I have both proposed to clause 6 that go to a very similar thing. I understand the first amendment to clause 6 is the Hon. Connie Bonaros's amendment No. 5.

The honourable member will not be moving that and in preference, once we get to it, my amendment No. 34 does the same thing, and I think from our discussions that the Hon. Connie Bonaros will support that. Then, once we get to the Hon. Connie Bonaros's amendment No. 6, it is substantially the same as my amendment No. 5, and I will not be moving my amendment No. 5 in preference of the Hon. Connie Bonaros's amendment No. 6.

Finally, on clause 6, the Hon. Connie Bonaros's amendment No. 7 and my amendment No. 6 have substantially the same effect, and I understand the Hon. Connie Bonaros will not be moving her amendment in preference to the slightly different wording in the government amendment No. 6. We have had a lot of discussions. I think that is where we are headed in relation to that—I am getting some nods—if that is helpful to the committee.

The Hon. C. BONAROS: I indicate that I will not be moving amendment No. 5 [Bonaros-1], but will instead be supporting the government's alternative amendment that deals with the same issue.

The ACTING CHAIR (Hon. T.T. Ngo): If that is the case, then we will move on to clause 6, amendment No. 6 by the Hon. Ms Bonaros.

The Hon. K.J. MAHER: I indicate that I will not be moving my amendment No. 5 and that I will be supporting the Hon. Connie Bonaros's amendment No. 6.

The Hon. C. BONAROS: I move:

Amendment No 6 [Bonaros–1]—

Page 5, after line 26—Insert:

(2a) Section 22—after subsection (8) insert:

Note—

The Parliament confirms that this subsection is to be interpreted and applied in accordance with the principles enunciated in the reasons of the Full Court of the Supreme Court in Return to Work Corporation of South Australia v Summerfield [2021] SASCFC 17.

(2b) Section 22—after subsection (9) insert:

(9a) For the purposes of this section, an assessment (or parts of an assessment) may be undertaken by more than 1 accredited medical practitioners and their assessments combined so as to create 1 assessment.

The amendment seeks to insert a note into the bill which reads:

The parliament confirms that this subsection is to be interpreted and applied in accordance with the principles enunciated in the reasons of the Full Court of the Supreme Court in Return to Work Corporation of South Australia v Summerfield [2021] SASCFC 17.

I think it is pretty explanatory on the face of it what this amendment does. It seeks to codify the Summerfield precedent that has been the subject of the debates that we have had and the discussions that have taken place during these debates.

After seven years of litigation, the correct approach to the assessment of multiple impairments was finally and successfully addressed by the South Australian Supreme Court, which has accurately and correctly interpreted section 22(8)(c) where multiple impairments from the injury or cause are to be combined.

The decision of the court is a critical aspect of how the scheme is to operate where multiple impairments are to be assessed and taken into account when determining lump sum entitlements and whether a worker is a seriously injured worker. It is critical for working people in South Australia who have had the misfortune to suffer a workplace injury to know their rights and where they stand when it comes to assessing their impairments, and that certainly has been lacking until the court's final ruling in Summerfield. Without this certainty, workers, employers and insurers do not know where they stand and the operation of the scheme is absolutely undermined.

The Summerfield decision correctly identified parliament's intent with respect to how multiple impairments from the same injury are to be treated. It is also the reason why the first bill, the codification of Summerfield, is intended to make it abundantly clear that it is this parliament's intention that section 22(8)(c) and combination generally under the act occur in accordance with the court's reasons in the Summerfield decision. To the degree the earlier bill suggested otherwise, it is parliament's intention to abandon the concept of same trauma where it related to the treatment of multiple impairments.

I have spoken already about the policy intent of this and, indeed, the politics around this during the second reading debate and in some of my earlier contributions. I will not expand on them now, but I think the underlying premise for this amendment is important to place on the record. I look forward to the support of this amendment from the chamber.

The Hon. T.A. FRANKS: I just indicate we understand that there is a combination of both government and the Hon. Connie Bonaros's amendments being put to effect the same thing. We support the process as outlined by both the Hon. Connie Bonaros and the Hon. Kyam Maher and believe that confirming the intent to stick to Summerfield principles is something strongly welcomed by the Greens. Indeed, for a bill that we were told was brought on by the result of the Summerfield decision and that the government promised in its arrangements and negotiations that it would enshrine, it is actually good to see it finally explicitly placed into the legislation and we welcome that.

The Hon. H.M. GIROLAMO: The opposition will also be supporting this amendment. We are supportive of it given that it provides more clarity on the bill, especially around Summerfield.

Amendment carried.

The ACTING CHAIR (Hon. T.T. Ngo): The next amendment is amendment No. 7 [Bonaros-1]; is that correct?

The Hon. C. BONAROS: For the record, I indicate I will not be moving amendment No. 7 [Bonaros-1] but will be supporting the government's amendment No. 6 [IndRelPubSec-1].

The Hon. K.J. MAHER: I move:

Amendment No 6 [IndRelPubSec–1]—

Page 5, lines 27 and 28 [clause 6(3)]—Delete subclause (3) and substitute:

(3) Section 22(10) and (11)—delete subsections (10) and (11) and substitute:

(10) Subject to subsections (12) to (15) (inclusive), if—

(a) a worker has had a whole person impairment assessment under this section; and

(b) another impairment from the same injury or cause develops or manifests itself after that assessment,

then that other impairment—

(c) will be assessed separately; and

(d) —

(i) will not be combined in any respect (whether under this section or sections 56 or 58) with the impairment or impairments that have already been assessed; but

(ii) may be combined with any other impairment from the same injury or cause that has also developed or manifested itself after the earlier assessment.

Example—

A worker suffers impairments arising from injuries A and B which both arise from the same cause. The worker has those impairments assessed under section 22. After the assessment of the impairments arising from injuries A and B, the worker develops further impairments from injuries C and D which arise from the same cause as injuries A and B. The worker is entitled to be assessed for the impairment arising from injuries C and D and to combine the impairments from those injuries. However, the worker cannot combine the impairments arising from injuries C and D with the impairments arising from injuries A and B under this Act.

This is a substantially similar amendment to the one that the Hon. Connie Bonaros is not moving. This amendment spells out what the intention is in a post-Summerfield understanding of combination of injuries and importantly provides, as part of the legislation, an example of how the combination works, in particular in relation to the one assessment rule. It provides an example of how it is possible to combine injuries after the one assessment.

The Hon. C. BONAROS: I rise to indicate, as I said, our support for this amendment. It is supplemental to the Summerfield codification. It is a significant amendment that will provide great certainty for workers and employers with respect to the so-called one assessment principle. Parliament's attention is with respect to subsequent impairments that develop or manifest after the first assessment is made that will be compensable and assessable but not combinable with the earlier assessment.

The current working of section 22(10) is very unclear and produces unfair outcomes, particularly for catastrophic-type industries such as terminal dust diseases. Parliament's review and amendment of this provision is necessary to ensure the unintended and unfair consequences of the current provision—including, for instance, impairments that tend to develop or manifest gradually and which can have profound and adverse consequences on a worker's health and wellbeing—are overcome.

Without this amendment, for instance, someone with a terminal dust disease may be denied the right to a further assessment for subsequent impairment that develops or manifests later, even where that impairment is both compensable and validly assessable. It is on those grounds that we say this amendment is absolutely necessary and supplements the Summerfield codification. As such, we will be supporting it.

The Hon. H.M. GIROLAMO: The opposition will also be supporting this amendment.

Amendment carried; clause as amended passed.

Clause 7.

The Hon. K.J. MAHER: I move:

Amendment No 7 [IndRelPubSec–1]—

Page 5 lines 36 to 39—This clause will be opposed

This amendment deletes a clause that refers to 'recovery/return to work services' in the same provision that deals with medical expenses. Our advice is that there are conflicting single-member decisions in SAET about whether recovery/return to work services are a form of medical expenses. The amendment ensures that the bill applies to these services regardless of the outcome of any interpretive dispute in this area.

The Hon. C. BONAROS: I rise to indicate our support for this amendment.

The Hon. H.M. GIROLAMO: The opposition also supports the amendment.

Clause negatived.

Clause 8 passed.

New clause 8A.

The Hon. K.J. MAHER: I move:

Amendment No 8 [IndRelPubSec–1]—

Page 6, after line 3—Insert:

8A—Amendment of section 48—Reduction or discontinuance of weekly payments

(1) Section 48(2)—after paragraph (h) insert:

(ha) the worker—

(i) has been receiving weekly payments on the basis of an interim decision under section 21(3); and

(ii) the interim decision is brought to an end under section 21(4)(b)(ii); or

(2) Section 48—after subsection (10) insert:

(10a) If the Corporation is acting under subsection (2)(ha)—

(a) the notice under subsection (6) must be given as soon as practicable after the decision is made (but not necessarily before it takes effect); and

(b) subsection (10) does not apply.

This is to insert a new clause that, in effect, will mean that SAET can continue payments to interim seriously injured workers during a dispute.

The Hon. C. BONAROS: I indicate our support for this amendment.

The Hon. H.M. GIROLAMO: The opposition also supports the amendment.

New clause inserted.

Clause 9 passed.

New clause 9A.

The Hon. C. BONAROS: I move:

Amendment No 8 [Bonaros–1]—

Page 6, after line 14—Insert:

9A—Amendment of section 54—Redemptions—liabilities associated with medical services

Section 54(2)—delete subsection (2)

The amendment would allow any worker to enter into an agreement with their insurer to redeem medical expenses, even if they are seriously injured. The current act prohibits workers who are seriously injured workers from redeeming future medical expenses, even when they have the legal and medical advice that it is in their best interest to do so. A lifetime right to medical expenses for seriously injured workers marries them to the insurer for life and takes away their autonomy, their right to privacy and their right to decide for themselves what treatment and when they will seek such treatment without having to justify a case to a manager as to why that treatment is necessary.

Case managers have the right to delve very deeply into the privacy aspects of an injured worker's medical records, to demand to see medical records and notes, even if those records are not related to the injury in question, because they say they need to make sure that the medical treatment is not for some other medical condition the worker may be suffering from. This means that medical treatment records for very personal medical conditions are routinely obtained and gone over with a fine-tooth comb by insurers who may be trying to find any reason possible to deny medical treatment funding.

In theory, it may sound like it does not happen, but we are advised that this happens very regularly for injured workers who find themselves in this category. For many workers, the thought of this being a lifelong marriage to an insurance company for basic medical treatment is too much and creates a relationship fraught with anxiety and oftentimes conflict.

The amendment I am moving would allow a worker, properly advised by a legal practitioner and a medical practitioner, to enter into an agreement with the insurer to redeem that entitlement. This is currently available for seriously injured workers in respect of income support, and I believe it should be available for medical expenses as well. There have been lots of reasons that we have heard around this issue, not many that I can think that actually justify not redeeming medical expenses.

We have had cases in support of this, where people have actually wanted to uproot and leave the country but have been tied to an insurer on the basis that those medical expenses are paid for here, so they cannot just get up and decide to leave and perhaps go back to their country of origin or know that they cannot return and choose to retire to another place because they are forever tied to the WorkCover scheme. That is not good for anybody. It is not good for the scheme. It is absolutely not healthy for the scheme, and it is absolutely not healthy for a seriously injured worker.

The amendment supports the government policy intent to keep the scheme viable by allowing suitably advised workers to redeem future entitlements rather than remain on that system for life. There is a saying that has been going around for some time when it comes to WorkCover, which basically is: if you were not broken before you entered the scheme, then you will certainly be broken by the time you come out of it. That is not something that any of us in this place should be proud of. It is something that we should absolutely, as a parliament, hang our heads in shame about.

This is yet another amendment that seeks to effectively bring an end to what is often described as a very unhealthy, ongoing, lifetime commitment that someone has to a scheme, when all they really want is to get on with their lives, put this issue behind them, put it to bed and move on. Having them tied to the scheme for the purpose of medical expenses being paid for, at the expense of their own privacy and self-autonomy being degraded to the extent that it is—and in practice we know that happens often—is not acceptable.

I have used the example time and time again when I have spoken to people about this of the poor old worker who develops polyps and has an argument with ReturnToWork about whether their polyps have been the result of their injury sustained at work or some other matter that is private to their own lives, and they are having to justify seeking medical treatment to ReturnToWork about something like that. I think it is particularly degrading, humiliating and completely inappropriate and does not serve the scheme well. Indeed, it undermines the overall policy intent of the scheme when we talk about keeping that scheme viable and letting people move on with their lives.

It is for those reasons that I am really urging everybody in this place, the government included, to consider this amendment favourably. I do not think you will find a lot of opposition to it. Self-insurers have also expressed, certainly to me, that this would assist greatly in terms of their model of dealing with these in a commercially viable way. If they could have access to this, in the cases where somebody wants it, then they would. I think we also need to give people the respect and dignity they deserve to manage their own medical affairs and also their own financial affairs.

One of the justifications for not supporting this that was put to me was that, 'Well, somebody might blow the money,' much like we had with the big screen TVs and bonus payments where people cannot be responsible for their own finances. I think that is insulting and offensive to the workers who are covered by these provisions, and I am urging all honourable members to consider it favourably.

The Hon. K.J. MAHER: I thank the honourable member for bringing this amendment forward. It certainly is an issue that in consultation over the last few weeks has been canvassed, raised and discussed with stakeholders. The honourable member is right: the policy intent behind the ability to allow injured workers to get off the scheme and allow them to get on with their lives is not inconsistent with what the honourable member is moving. We will not be supporting this amendment, but we understand the policy intent behind it.

As I said, in consultation there have been differing views about it. We are not closed off to considering it when we bring forward other changes, but until we have more discussions we will not support the amendment at this time. That does not mean we will not support something like this in the future. I can confirm that, regardless of whether this amendment gets up or not, it will not add any financial cost to the scheme.

The Hon. R.A. SIMMS: I rise on behalf of my colleague the Hon. Tammy Franks to indicate our opposition to the amendment. We understand that this amendment could make a real difference to workers who no longer wish to be attached to the scheme, but we also understand the concerns raised by the union and the government about the workers no longer being able to afford the medical treatment they may later need in life. We would be open to this amendment at a later date if there has been more consultation and more consideration and, indeed, additional safeguards. My colleague Tammy Franks may have something additional to add.

The Hon. T.A. FRANKS: No, I am good.

The Hon. H.M. GIROLAMO: We will be supporting this amendment. I thank the Attorney for confirming that it does not necessarily have an impact on the scheme's premiums. From our perspective, we are always supportive of people being independent of government, and I think this is a good opportunity for this amendment to go through and for people to have that freedom and not be tied to the scheme any longer than they have to be.

Ayes 9

Noes 8

Majority 1

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

Clause 10.

The Hon. K.J. MAHER: I move:

Amendment No 9 [IndRelPubSec–1]—

Page 6, after line 20—Insert:

(2a) Section 56(5)—delete subsection (5) and substitute:

(5) If a worker suffers 2 or more impairments arising from the same injury or cause, those impairments will be assessed together and combined to determine the degree of impairment of the worker (using any principle set out in the Impairment Assessment Guidelines).

This amendment is an aid to clarity. It seeks to match the language of section 22(8)(c), that of same injury or cause, rather than same trauma. Given the bill adopts and codifies the Summerfield decision, this removes a potential element of confusion that could have the unintended consequence of leading to further litigation, which none of us wants. I understand that it is substantially almost similar to the Hon. Connie Bonaros's amendment No. 9 as well, which I understand the honourable member is supporting in favour of the amendment I have just put forward.

The Hon. C. BONAROS: Yes, that is the case, Chair. I rise to indicate our support for the amendments to 56(5) and 58(6) which complete the codification of the Summerfield judgement and ensure consistency of language and concepts concerning the treatment of multiple treatments for same injury or cause.

The ACTING CHAIR (Hon. T.T. Ngo): The Hon. Ms Bonaros, could I confirm that you are not moving your amendment No. 9; is that right?

The Hon. C. BONAROS: I am not moving my amendment No. 9.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 10 [IndRelPubSec–1]—

Page 6, line 21 to page 7, line 11 [clause 10(3)]—Delete subclause (3)

This seeks to delete subclause (3) which means it does not have any impact on changes where a worker has more than one entitlement. In effect, it does nothing one way or another in relation to issues that are before the court in relation to the Jackermis litigation.

The Hon. C. BONAROS: I rise to indicate that we will be supporting this amendment. The government bill amending 56(6) produced arbitrary and unreasonable results which are not acceptable, and certainly were not acceptable by stakeholder groups including the Law Society, legal representatives and the union movement.

The government has indicated that it will review the operation of 56(6) in the future following the further appeal of the decision of Jackermis to the Court of Appeal. I intend to hold the government to account on that in due course to require legislative review of this section should the Court of Appeal rule adversely on its interpretation, resulting in an unfair outcome to injured workers. I note for the record that I will not be moving my amendment but that the government has undertaken to review section 56(6) and I intend to hold them to that irrespective of the outcome of the Jackermis case and support this amendment that it is moving.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 11 [IndRelPubSec–1]—

Page 7, after line 11—Insert:

(3a) Section 56(8) and (9)—delete subsections (8) and (9) and substitute:

(8) Only 1 claim may be made under this Division in respect of any impairments that have been combined as provided by section 22 and this section (and any impairment or impairments that are not combined under section 22 will not be combined under this section).

This amendment removes the ability to have different arrangements by regulation. There are currently no circumstances prescribed by the regulation. The amendment seeks to reflect what section 22(10) as modified now states and is moved to avoid any doubt of the clause.

The Hon. C. BONAROS: We will be supporting this amendment.

The Hon. H.M. GIROLAMO: We will be also supporting the amendment.

Amendment carried; clause as amended passed.

Clause 11.

The Hon. K.J. MAHER: I move:

Amendment No 12 [IndRelPubSec–1]—

Page 7, after line 23 [clause 11, inserted section 56A]—After subsection (1) insert:

Note—

A lump sum payment will be calculated in accordance with section 56, subject to the operation of this section.

This amendment provides guidance. It is attempting to clarify how a lump sum election payment is calculated for the avoidance of doubt. The note specifies that election payments are calculated in accordance with section 56.

The ACTING CHAIR (Hon. T.T. Ngo): Do any honourable members want to speak on this? The Hon. Connie Bonaros?

The Hon. C. BONAROS: Other than to indicate our support for this amendment, no.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 13 [IndRelPubSec–1]—

Page 7, line 29 [clause 11, inserted section 56A(3)]—Delete ‘the election takes effect’ and substitute:

the lump sum payment is made

This amendment seeks to ensure that an injured worker who makes an election under proposed section 56A will continue to receive weekly payments until they receive the lump sum election payment.

The Hon. C. BONAROS: I rise to indicate our support for this amendment.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 14 [IndRelPubSec–1]—

Page 7, lines 30 and 31 [clause 11, inserted section 56A(3)(a)]—Delete ‘within the meaning of section 24(1)’

This amendment is intended to avoid any potential difference in reading the application between section 24(1) and section 33(2)(c) regarding recovery/return to work services.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 15 [IndRelPubSec–1]—

Page 7, line 31 [clause 11, inserted section 56A(3)(a)]—

After ‘for the work injury’ insert:

or injuries for which the election is made

This is a technical amendment that clarifies that, in the context of physical injury, a single work injury or multiple work injuries may result in permanent impairments, and therefore changes the words 'for the work injury' to 'or injuries for which the election is made'.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 16 [IndRelPubSec–1]—

Page 7, line 32 [clause 11, inserted section 56A(3)(b)]—Delete ‘for the work injury’ and substitute:

for—

(i) the work injury or injuries for which the election is made; or

(ii) another impairment arising from the same cause as the work injury or injuries for which the election is made.

This is another technical amendment to give effect to what is intended by the bill. It deletes 'for the work injury' and substitutes 'the work injury or injuries for which the election is made; or' and subparagraph (ii) 'another impairment arising from the same cause as the work injury or injuries for which the election is made.'

Amendment carried.

The Hon. C. BONAROS: I move:

Amendment No 11 [Bonaros–1]—

Page 7, lines 33 to 37 [clause 11, inserted section 56A(4)]—Delete subsection (4)

This amendment seeks to delete proposed subsection 56A(4) from the bill. The government bill provided that where an injured worker reaches a seriously injured worker threshold of 30 per cent for psychiatric injury and a seriously injured worker threshold of 35 per cent for physical injuries, if the worker elected to receive an economic lump sum payment they would no longer have the entitlement to compensation as a seriously injured worker on account of their psychological injury. This amendment deletes that clause.

It is an extremely small cohort of people who find themselves in that position, and it is utterly unacceptable that the bill, in its original form, sought to take away rights from a person who was seriously injured in respect of both physical and psychological harm. It is important to note that there is absolutely no justification for the deprivation of those rights.

The advice I have received from ReturnToWork and the briefings we have had from the government is that in four years there have been just 10 cases that would fall in that basket of entitlements that the government sought to remove from the scheme. Each year there are only seven workers who actually manage to reach the pure psychological harm impairment threshold—seven in a year—and over four years there have been only 10 injured workers who have managed to satisfy this particular provision. Of the seven in a year, we are told that four cases reach a 30 to 35 per cent threshold and only three cases ever make it over 35 per cent.

That is an extraordinarily low number of people, and shows just how high we have set the benchmark when it comes to pure psychological harm. That is one of the terms of reference that has been included in the committee which will be voted on tomorrow. It is particularly important that we focus on this and on the way we treat pure psychological harm, particularly in today's environment and given the overtures that have been made by this government in relation to their commitment to dealing with mental illness across their policies as a government.

For the record, if there is any provision in this bill that is mean-spirited, spiteful and absolutely opportunistic on the part of ReturnToWork then it has to be this one. I suppose the minister can indicate for the record, or otherwise, whether that was snuck into this bill as a mean-spirited cost-saving measure. In reality, we know that the cost savings attributable to this provision are very low because of the very high benchmark. It is almost impossible to reach that threshold, so to deny someone those payments because they have received an economic loss lump sum payment would, as I said, the utterly unjustifiable and a complete deprivation of rights for those individuals.

I am glad the government has seen sense and supports this amendment, and I urge all honourable members to do the same.

The Hon. K.J. MAHER: I indicate that, for many of the reasons outlined by the Hon. Connie Bonaros and the niche way this would apply if it stood in the bill, given the very, very small numbers, we will be supporting the Hon. Connie Bonaros's amendment. I indicate we will not be proceeding with my amendment No. 17, which goes to the same matter.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 18 [IndRelPubSec–1]—

Page 8, lines 10 to 17 [clause 11, inserted section 56A(7)]—Delete subsection (7) and substitute:

(7) If a worker makes an election under this section, the worker is entitled to continue to receive weekly payments under section 41 as a seriously injured worker until the day immediately preceding the day on which the lump sum payment under section 56 in respect of the election is paid.

This amendment provides a safeguard to seriously injured workers who elect to take a lump sum. It means they will continue to receive weekly payments up until the day before they receive the lump sum payment.

Amendment carried.

The Hon. K.J. MAHER: I move my amendment in an amended form:

Amendment No 19 [IndRelPubSec–1]—

Page 8, lines 18 to 26 [clause 11, inserted section 56A(8)]—Delete subsection (8) and substitute:

(8) There will be a reduction of the lump sum payable under section 56 to a seriously injured worker who makes an election under this section by the amount of any weekly payments made to the worker after the end of the period of 104 weeks from the date on which the incapacity for work first occurs, other than weekly payments made in accordance with subsection (7) after—

(a) in the case of an election made by a 50% or more WPI worker—the day on which the relevant application is referred to the Tribunal under this section; or

(b) in any other case—the day on which the election is received by the Corporation.

This amendment seeks to ensure that all seriously injured workers get the benefit of the first 104 weeks of weekly payments. It also seeks to provide parity for seriously injured workers who can directly elect and those who need to apply for an election and require the approval by the tribunal.

The Hon. H.M. GIROLAMO: What is the cost and potential impact on premiums of that change?

The Hon. K.J. MAHER: We tested all the amendments the government is supporting or putting forward, and the advice we have is that it is estimated that they will not have any material impact that could put pressure on the average premium rate.

The Hon. H.M. GIROLAMO: If that is the case, then the opposition is happy to support it.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 20 [IndRelPubSec–1]—

Page 8, line 39 [clause 11, inserted section 56A(11)]—After ‘for the purposes of subsection (5)(b)(i)’ insert:

if satisfied that the election is in the best interests of the worker

This is for clarification. It seeks to make clear what the tribunal must determine in respect of an approval for an election to receive a lump sum payment in lieu of ongoing weekly payments for a worker whose injuries have been assessed at over 50 per cent of the whole person impairment test. It inserts, after 'for the purpose of the subsection (5)(b)(i)' new words 'if satisfied that the election is in the best interests of the injured worker'.

The Hon. H.M. GIROLAMO: The opposition will support this.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 21 [IndRelPubSec–1]—

Page 9, line 19 [clause 11, inserted section 56A(17)]—After ‘to an’ insert:

application for an

This is a very minor technical amendment to clarify and to make it abundantly clear that the corporation will be liable for costs associated with an application made by the worker under the proposed section 56A(17).

The Hon. H.M. GIROLAMO: The opposition is happy to support this amendment.

Amendment carried; clause as amended passed.

New clause 11A.

The Hon. K.J. MAHER: I move:

Amendment No 22 [IndRelPubSec–1]—

Page 9, after line 24—Insert:

11A—Amendment of section 58—Lump sum payments—non-economic loss

(1) Section 58(6)—delete subsection (6) and substitute:

(6) If a worker suffers 2 or more impairments arising from the same injury or cause—

(a) those impairments will be assessed together and combined to determine the degree of impairment of the worker (using any principle set out in the Impairment Assessment Guidelines); and

(b) the worker is not entitled to receive compensation by way of lump sum under subsection (4) in respect of those impairments in excess of the prescribed sum.

(2) Section 58(9) and (10)—delete subsections (9) and (10) substitute:

(9) Only 1 claim may be made under this Division in respect of any impairments that have been combined as provided by section 22 and this section (and any impairment or impairments that are not combined under section 22 will not be combined under this section).

I understand from discussions that the Hon. Connie Bonaros will not be moving her amendment No. 12. They are very similar and seek to do the same thing—that is, to aid clarity. The amendment seeks to match the language of section 22(8)(c)—that of 'same injury or cause' rather than 'same trauma'. Given the adoption in the proposed amended bill of the Summerfield decision, this removes potential elements of confusion or litigation.

The Hon. C. BONAROS: I indicate for the record that I will not be moving my amendment.

The Hon. H.M. GIROLAMO: The opposition will be supporting.

New clause inserted.

Clauses 12 and 13 passed.

Clause 14.

The Hon. K.J. MAHER: I move:

Amendment No 23 [IndRelPubSec–1]—

Page 10, lines 35 and 36 [clause 14, inserted paragraph (ba)]—Delete ‘not to extend the period of operation of an interim decision under section 21(4b)’ and substitute:

to bring an interim decision under section 21(3) to an end under section 21(4)(b)(ii)

This amendment is consequential on government amendment No. 4 that we canvassed much earlier, at clause 5. It deletes the words 'not to extend the period of operation of an interim decision under section 21(4b)' and substitutes the words 'to bring an interim decision under section 21(3) to an end under section 21(4)(b)(ii)'.

The Hon. H.M. GIROLAMO: The opposition will also support this amendment.

Amendment carried; clause as amended passed.

New clause 14A.

The Hon. K.J. MAHER: I move:

Amendment No 24 [IndRelPubSec–1]—

Page 10, after line 36—Insert:

14A—Amendment of section 115—Powers of Tribunal on application

Section 115(1)—before paragraph (a) insert:

(aa) in the case of an application for an assessment of whole person impairment under Part 2 Division 5—give directions the Tribunal considers necessary to expedite the assessment; or

This amendment allows for the tribunal to have power to give directions to expedite a whole person impairment assessment under section 22 of the act.

The Hon. H.M. GIROLAMO: The opposition are also happy to support this amendment.

New clause inserted.

Clauses 15 to 17 passed.

Schedule 1.

The CHAIR: We have amendments to the schedule. I have amendments in the name of the Attorney-General, but also the Hon. Ms Bonaros that appear to be quite similar.

The Hon. K.J. MAHER: It might be useful just to make some general comments about the schedule, the amendments we have provided and an explanation of the transitional provisions we are going to consider. The government amendments include several provisions which are designed to ensure the transition provisions operate as clearly as possible. It may assist members if at the outset I provide a plain language explanation of how they are intended to apply to injured workers currently on the scheme.

For existing seriously injured workers, workers who have been determined to be seriously injured will continue to be treated as seriously injured under the bill. There will be no change in the entitlement of those workers. Existing seriously injured workers, other than those with an injury attributable to trauma before 1 July 2015, will also be eligible to elect to receive a lump sum payment under the proposed section 56A, and the calculation of this payment is subject to certain modifications in recognition of the fact that many existing seriously injured workers will have already been in receipt of weekly payments for a period of time.

In relation to new seriously injured workers, the increase in the serious injury worker threshold to 35 per cent for physical injuries will come into effect on 1 January 2023, and all workers will be subject to that higher threshold if the date of their final examination is later than 1 January 2023, other than those workers taken to be interim seriously injured workers prior to that date. For existing interim seriously injured workers, if a person is taken to be an interim seriously injured worker before 1 January 2023, referred to in the amendments as a category 1 seriously injured worker, the worker will continue to be treated as an interim seriously injured worker.

Also, the worker will have an additional 12 months to undergo their permanent impairment assessment before they are subject to the higher 35 per cent seriously injured threshold for physical injuries that will then apply to those workers from 1 January 2024. If the worker chooses to undergo their impairment assessment prior to 1 January 2024, the worker will be treated as seriously injured if they have a whole person impairment of 30 per cent or more.

Also, the worker will be eligible to elect to receive a lump sum payment under section 56A. However, the calculation for payment is subject to certain modifications that reflect the fact that (a) they have already been in receipt of weekly payments for a period of time and (b) they have been assessed as seriously injured at 30 per cent, and therefore the maximum lump sum compensation is calculated at a maximum of 29 per cent. If the worker does not undergo their impairment assessment prior to 1 January 2024, then they will be subject to the higher 35 per cent seriously injured threshold for physical injuries.

Finally, for new interim seriously injured workers, if a person is taken to be an interim seriously injured worker after 1 January 2023 date, referred to in the amendments as category 2 seriously injured workers, the worker will be subject to the higher 35 per cent seriously injured threshold for physical injury. The worker will be able to elect to receive lump sum payments under section 56A.

However, the calculation for payment is subject to certain modifications for the fact that they have already been in receipt of weekly payments for a period of time. However, the maximum lump sum payment will be calculated by reference to the higher 35 per cent seriously injured workers for psychiatric injuries. For psychiatric injuries, there will be no changes for those psychiatric injuries that result in serious injury and therefore will not have an election option. That is just by way of how, as amended, the intended transitional provisions are intended to work.

The CHAIR: The Hon. Ms Bonaros, are you going to speak to this amendment?

The Hon. C. BONAROS: Thank you, Chair. I have competing amendments on this one. As a bundle, it is amendments 14, 15, and 16. Can I move them as a package, Chair?

The CHAIR: No.

The Hon. C. BONAROS: Or at least move the first one?

The CHAIR: No. Attorney, are you going to move your amendment?

The Hon. K.J. MAHER: Sorry, I have amendment 25 standing in my name. This amendment is in effect consequential on amendment 32, and amendment 25 seeks to insert the definitions of the category 1 and category 2 seriously injured workers I referred to in my summary of how the transitional period of the amended bill would work. This is consequential on one that comes further. I move:

Amendment No 25 [IndRelPubSec–1]—

Page 11, after line 13 [Schedule 1, clause 1(1)]—Insert:

Category 1 seriously injured worker means a worker who, at any time during the period appointed by proclamation for the purposes of this definition (the Category 1 designated period), is (or becomes) an interim seriously injured worker;

Category 2 seriously injured worker means a worker who, at any time during the period appointed by proclamation for the purposes of this definition, being a period commencing immediately after the end of the Category 1 designated period, becomes an interim seriously injured worker;

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

If it aids the committee, this might be regarded as a test clause on the differences between what we are proposing under our transitional scheme and what the Hon. Connie Bonaros is proposing under hers. I think this is probably a useful test clause to see which version of the transitional scheme the committee prefers. It might be worth having the full debate on this clause about the differences in what we are proposing. I might allow the Hon. Connie Bonaros to speak on this amendment and to treat it as a test of which version of the package is preferred by the committee.

The Hon. C. BONAROS: I think that is clear. I know that my substantive amendment to this is No. 15, and 14 and 16 are consequential on 15. It is my intention to move those amendments in competition to the government's amendments, on the basis that the amendment would allow eligible injured workers to save their claim to be seriously injured at 30 per cent, by putting in a valid claim for compensation by 1 January 2023.

Based on the advice I have received, and many in this place have received, I have moved this because it is deemed necessary, because the person assessment scheme is managed exclusively by insurers who, regardless of whether we like to admit it or not or face the reality or not, hold all the power as to when and how assessments are undertaken and when they take place, even with the ability to unilaterally cancel appointments without any notice to workers.

I note that at the outset, at clause 1, the minister made a number of undertakings around encouraging ReturnToWork to be proactive in this area, to do the right thing in terms of their intended amendment over mine, but the fact still remains that under the government's proposal, as opposed to ours, the insurers will hold all the power when it comes to when and how assessments will take place.

This means government transitional provisions, which allow only six months for this complex and very convoluted process to occur, are in my view inadequate and could and will result in many people missing out. I think that is utterly unacceptable. I think the scheme can be properly managed with the amendment that has been provided, which has been the subject of very thoughtful consideration and deliberations by the legal profession and requires a valid claim to have been brought by the designated date.

If a worker is not able to arrange their own assessment, and where an insurer fails to take action timely enough and that examination takes place before 1 January 2023, that worker loses out. The government transitional provisions do not provide adequate protection to those workers, short and simple. I say that against the backdrop of the best undertakings that this government has given to ensure that there is a proactive approach. The reality of the situation is that there will be workers who miss out as a result of these transitional provisions over our transitional provisions if they were to be supported.

I do not support, and cannot support, retrospective amendments where workers are not in control of how and when their appointments take place. That lies purely and solely with insurers. I find it astounding that we would support something that would put more workers in that position, where they simply do not have control over when that appointment will take place, if indeed it will in fact take place.

This is the effect of the government's amendment over my amendment—and I can count a room so I am sure I know where this is going to go. But as a matter of the public record, if we are to lose this amendment, which unfortunately I am confident will be the case—unless I have managed to convince the opposition—I would ask the minister again to confirm for the record the government's intention when it comes to ReturnToWork, encouraging them to be proactive to ensure that workers do not miss out, encouraging them to ensure that everything is done to provide workers with the ability to undergo their assessments and, again, that there will be no unilateral cancellation of appointments without any notice to workers.

This is a really critical amendment for us. It is one that has really been driven home by the legal profession in particular in terms of its impact on those workers and, I have to say, I will be bitterly disappointed if we lose on this issue. At the same time, I am seeking very firm undertakings from the government about the direction that ReturnToWork will take to ensure that if their amendment is successful and ours is not, that that damage is minimised as much as possible for those injured workers.

The Hon. K.J. MAHER: I thank the honourable member for her contribution. I will take the last points first. I can reiterate the advice I have been provided with before, that there will not be unilateral cancellation of appointments for no reason. I can reiterate what I have put on the record before that I will continue to inform the corporation that it is not only my expectation that they will not do anything to make it harder to get appointments but will actually help facilitate appointments. I have to say, though, the government will not be supporting Connie Bonaros's amendments 14, 15 and 16.

It is true that whenever you put a date on something there is going to be someone who falls one day one side of it and another day the other side of it and whenever you put a percentage on impairments, there is going to be someone under 1 per cent and someone over 1 per cent. That is the difficult, unfortunate nature whenever you have these legislative schemes of putting boundaries somewhere, that there will be people either side of it.

The reason that we just cannot accept these amendments is the financial harm it will do to the scheme. Our advice is that the effect of the amendments that the Hon. Connie Bonaros is putting forward would undo a very, very large amount of the $400 million of past liabilities that it sought to recover. The advice is that there is no possibility that the corporation can give the assurance that rates would stay at under 2 per cent if these amendments were accepted.

The Hon. C. BONAROS: Given the response by the minister, I would ask him again to clarify at this juncture for the record the relevant days that have been stipulated by the government. I think that is really important because of the days that have been stipulated, the 1 January 2023 and the subsequent 2024 date, and how they will apply in relation to your provisions. I do so on the basis that that is one of the criticisms that has been raised about 'relevant day' not being actually defined in the bill, so we do not know what that day is.

We have two dates that have been given to us by the government, but I think going forward and, again, given that we have talked about costs to the scheme, I can see where this amendment is going. I think it is really important at this stage to confirm the 1 January 2023 date so there can be some certainty for workers and the legal profession in terms of when this bill will come into operation, but also the postponed date for interim workers. I think that is delayed by a year, is my understanding: 1 January 2024. I am asking the minister to provide those relevant days that they understand will be the dates that apply under these sections, on the record, so we all know what those days are.

The Hon. K.J. MAHER: I thank the honourable member for her question. To confirm, and I think this is what she has asked for, the relevant date when it changes from 30 per cent to 35 per cent for a seriously injured worker is 1 January 2023. For someone who is already classed as an interim seriously injured worker, that relevant date becomes a year later, on 1 January 2024.

The Hon. H.M. GIROLAMO: The opposition will be supporting the government's amendments and not supporting Ms Bonaros's. The Attorney outlined for us previously the financial implications and was very much talking our language, so at this stage we would support the government's amendments.

The committee divided on the amendment:

Ayes 13

Noes 4

Majority 9

AYES
Bourke, E.S. Curran, L.A. Game, S.L.
Girolamo, H.M. Hanson, J.E. Hunter, I.K.
Lee, J.S. Lensink, J.M.A. Maher, K.J. (teller)
Martin, R.B. Ngo, T.T. Wade, S.G.
Wortley, R.P.
NOES
Bonaros, C. (teller) Franks, T.A. Pangallo, F.
Simms, R.A.

Amendment thus carried.

The Hon. K.J. MAHER: I move:

Amendment No 26 [IndRelPubSec–1]—

Page 11, lines 16 to 19 [Schedule 1, clause 1(1)]—Delete the definition of designated worker and substitute:

designated worker means a worker who, in relation to a physical injury, has been assessed to be a seriously injured worker under Part 2 Division 5 of the principal Act;

interim seriously injured worker means a worker who is taken to be a seriously injured worker under section 21(3) of the principal Act pending an assessment of permanent impairment under Part 2 Division 5 of the principal Act;

This change is consequential to the government's amendments Nos 32 and 33, as I outlined previously.

The Hon. H.M. GIROLAMO: The opposition will support this amendment.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 27 [IndRelPubSec–1]—

Page 11, after line 20 [Schedule 1, clause 1(1)]—Insert:

relevant day means a day appointed by proclamation as the relevant day for the purposes of the provision in which the term is used.

This is an updated definition as a consequence of government amendment No. 33, which is to come.

The Hon. H.M. GIROLAMO: The opposition are happy to support the amendment.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 28 [IndRelPubSec–1]—

Page 12, line 3 [Schedule 1, clause 2(3)]—Delete ‘trauma’ and substitute:

cause

This amendment is to make sure the transitional provision is consistent with section 22 of the act and deletes the word 'trauma' and substitutes the word 'cause'.

The Hon. H.M. GIROLAMO: The opposition support this amendment.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 29 [IndRelPubSec–1]—

Page 12, lines 8 to 12 [Schedule 1, clause 2(4)]—Delete subclause (4) and substitute:

(4) For the purposes of this clause, the final examination relating to a worker by an accredited medical practitioner is the last attendance when the accredited medical practitioner needs to see the worker in order to enable the accredited medical practitioner to complete and issue the permanent impairment assessment report under section 22 of the principal Act (even if that report is subsequently substituted, supplemented or expanded).

Example 1—

If an accredited medical practitioner sees a worker, and then following that appointment determines that they do not need to see the worker again, then the final examination will be the date of that last attendance. This is even if the accredited medical practitioner determines they do not need to see the worker again but does require an x-ray or other test to be obtained.

Example 2—

If an accredited medical practitioner sees a worker, and then following that appointment determines they need further tests and will need to see the worker again following those tests, then the final examination will be the date of that further attendance (as long as the accredited medical practitioner does not need to see them again in order to complete and issue the permanent impairment assessment report under section 22 of the principal Act).

This is an amendment to aid clarity to make it very clear and as straightforward as possible when the final examination is considered to have taken place.

The Hon. H.M. GIROLAMO: We are very glad that it is straightforward and as simple as possible, so we are happy to support the amendment.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 30 [IndRelPubSec–1]—

Page 12, line 13—Delete the heading to clause 3 and substitute:

3—General provision and thresholds—seriously injured workers

It is a change in the title of the clause to read that the general provisions and thresholds relate to seriously injured workers.

The Hon. H.M. GIROLAMO: The opposition are happy to support the amendment.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 31 [IndRelPubSec–1]—

Page 12, lines 15 and 16 [Schedule 1, clause 3(a)]—Delete paragraph (a) and substitute:

(a) a worker who has been assessed to be a seriously injured worker under Part 2 Division 5 of the principal Act immediately before the designated day will continue to be regarded as a seriously injured worker; and

This is a technical clarification. It is an amendment to the definition of 'designated worker', which was changed by amendment to a worker who has been assessed to be a seriously injured worker under part 2 division 5 of the principal act in relation to a physical injury only.

The Hon. H.M. GIROLAMO: The opposition are happy to support this amendment.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 32 [IndRelPubSec–1]—

Page 12, after line 19 [Schedule 1, clause 3]—Insert:

(2) In the case of a Category 1 seriously injured worker—

(a) in relation to an assessment of the degree of whole person impairment made before the designated day—after the assessment is made the worker will be regarded as a seriously injured worker for the purposes of the principal Act if the worker is assessed to have a degree of whole person impairment that is 30% or more under Part 2 Division 5 of the principal Act; and

(b) in relation to an assessment of the degree of whole person impairment made on or after the designated day—after the assessment is made the worker will be regarded as a seriously injured worker for the purposes of the principal Act if the worker is assessed to have a degree of whole person impairment that is—

(i) in the case of psychiatric injury—30% or more under Part 2 Division 5 of the principal Act; and

(ii) in the case of physical injury—35% or more under Part 2 Division 5 of the principal Act.

(3) In the case of a Category 2 seriously injured worker, in relation to an assessment of the degree of whole person impairment made on or after the designated day, after the assessment is made the worker will be regarded as a seriously injured worker for the purposes of the principal Act if the worker is assessed to have a degree of whole person impairment that is—

(a) in the case of psychiatric injury—30% or more under Part 2 Division 5 of the principal Act; and

(b) in the case of physical injury—35% or more under Part 2 Division 5 of the principal Act.

This amendment relates to transitional provisions, general provisions and thresholds for seriously injured workers.

The Hon. H.M. GIROLAMO: The opposition are happy to support this amendment.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 33 [IndRelPubSec–1]—

Page 12, line 20 to page 13, line 25 [Schedule 1, clauses 4 and 5]—Delete clauses 4 and 5 and substitute:

4—Elections—seriously injured workers

(1) This clause applies in relation to the operation of section 56A of the principal Act, as enacted by this Act.

(2) If a worker is a designated worker before the designated day, the worker may make an election under section 56A on or after the relevant day and subclause (4) will apply in relation to the worker.

(3) If—

(a) a worker is a Category 1 seriously injured worker; and

(b) the worker is assessed to have a degree of whole person impairment that is 30% or more under Part 2 Division 5 of the principal Act; and

(c) that assessment is made before the designated day,

the worker may make an election under section 56A and subclause (4) will apply in relation to the worker.

(4) If this subclause applies in relation to a worker, section 56 (as amended by this Act) and section 56A (as enacted) of the principal Act will apply subject to the following modifications and qualifications:

(a) the age factor (AF) applying in relation to the worker will be taken to be the worker’s age at the date of the election rather than the relevant date as it applies in relation to the worker under section 5 of the principal Act;

(b) the total payment under section 56 that the worker can receive cannot exceed the prescribed sum applicable for 29% whole person impairment;

(c) section 56A(8) will apply so that the only amounts to be deducted are weekly payments made to the worker under section 41 of the principal Act where—

(i) the payments are made on or after the designated day under this subclause and before the date of the election; and

(ii) the payments are made after the period of 104 weeks from the date on which the incapacity for work first occurs, other than weekly payments made in accordance with section 56A(7) after—

(A) in the case of an election made by a 50% or more WPI worker—the day on which the relevant application is referred to the Tribunal under section 56A; or

(B) in any other case—the day on which the election is received by the Corporation under section 56A.

(5) If a worker—

(a) is a Category 1 seriously injured worker who is assessed to be a designated worker on or after the designated day under subclause (3); or

(b) is a Category 2 seriously injured worker,

the worker may only make an election under section 56A if the worker is assessed to have a degree of whole person impairment that is 35% or more under Part 2 Division 5 of the principal Act and, in the case of a Category 1 seriously injured worker, subclause (6) will apply in relation to the worker.

(6) If this subclause applies in relation to a worker, section 56 (as amended by this Act) and section 56A (as enacted) of the principal Act will apply subject to the following modifications and qualifications:

(a) the age factor (AF) applying in relation to the worker will be taken to be the worker’s age at the date of the election rather than the relevant date as it applies in relation to the worker under section 5 of the principal Act;

(b) section 56A(8) will apply so that the only amounts to be deducted are weekly payments made to the worker under section 41 of the principal Act where—

(i) the payments are made on or after the designated day under this subclause and before the date of the election; and

(ii) the payments are made after the period of 104 weeks from the date on which the incapacity for work first occurs, other than weekly payments made in accordance with section 56A(7) after—

(A) in the case of an election made by a 50% or more WPI worker—the day on which the relevant application is referred to the Tribunal under section 56A; or

(B) in any other case—the day on which the election is received by the Corporation under section 56A.

(7) Despite any other provision, a worker who is a seriously injured worker as a result of an injury that is attributable to a trauma that occurred before 1 July 2015 is not entitled to make an election under section 56A of the principal Act.

5—Interim decisions under section 21(3) of Act

(1) This clause applies in relation to the application of the amendments made by section 5(2) of this Act.

(2) In this clause, a reference to the relevant provision is a reference to subsection (4)(b)(ii) of section 21 of the principal Act as enacted by section 5(2) of this Act.

(3) The amendments made by section 5(2) of this Act apply as follows:

(a) in relation to a Category 1 seriously injured worker—

(i) the principal Act as amended by section 5(2) of this Act will apply from the designated day under this subparagraph; and

(ii) until the designated day under this subparagraph, the amendments will apply as if a reference to 35% in the relevant provision were a reference to 30%; and

(iii) on and after the designated day under this subparagraph, in relation to a worker with a physical injury, the compensating authority may also act under the relevant provision if it appears that the worker's likely degree of whole person impairment is not likely to be 35% or more;

(b) in relation to a Category 2 seriously injured worker—the principal Act as amended by section 5(2) of this Act will apply from the designated day under this paragraph.

This is an amendment in relation to transitional provisions, election for seriously injured workers and interim decisions under section 21(3) of the act.

The Hon. H.M. GIROLAMO: The opposition are happy to support the amendment.

Amendment carried.

The CHAIR: Now we have competing amendments, the first one being in the name of the Attorney-General, amendment No. 34, and then also amendment No. 20 in the name of the Hon. Ms Bonaros. Attorney, would you like to speak first?

The Hon. K.J. MAHER: I move:

Amendment No 34 [IndRelPubSec–1]—

Page 14, lines 1 to 10 [Schedule 1, clause 6(4) and (5)]—Delete subclauses (4) and (5) and substitute:

(4) Despite any other provision of the principal Act or this Act, in the case of a worker whose injury or injuries have stabilised, and who on or after the commencement of this subclause gives a written notice to the compensating authority selecting a particular accredited medical practitioner to undertake an assessment under section 22 of the principal Act of the degree of impairment resulting from the injury or injuries, the Return to Work Scheme Impairment Assessment Guidelines published March 2015 apply in relation to the injury or injuries rather than the version of the Impairment Assessment Guidelines applying immediately before the commencement of this subclause, unless the Return to Work Scheme Impairment Assessment Guidelines published March 2015 already applied, in which case, that version will continue to apply.

This in effect reverts the Impairment Assessment Guidelines back to the first edition of the guidelines, rather than the second edition of the guidelines. As was outlined earlier in debate today, the advice was that the second edition did not have any material impact on costs and reverting back to the first edition of the guidelines therefore will not have a material impact on costs.

The Hon. C. BONAROS: I have amendment No. 20 [Bonaros-1] that deals with the same issue.

The CHAIR: The Hon. Ms Bonaros, the advice we have, and we are checking it, is that there is a feeling that, if you lost amendment No. 5, basically amendment No. 20 becomes irrelevant.

The Hon. C. BONAROS: I have some clarity. I think it is my amendment No. 5—

The CHAIR: Your amendment No. 5, which was not successful.

The Hon. C. BONAROS: —which was not successful, but I will speak to the government amendment, which will be moved—

The CHAIR: Yes, but you probably do not want to move yours.

The Hon. C. BONAROS: —in place and again results in the desired outcome around IAGs. I will still move amendment No. 20 [Bonaros-1] subsequent to this as a separate amendment. That is my understanding. Is that everyone's understanding?

The CHAIR: Our understanding is that you actually cannot because you lost your amendment No. 5, but you can seek a bit of advice.

The Hon. C. BONAROS: I move:

Amendment No 20 [Bonaros–1]—

Page 14, lines 1 to 10 [Schedule 1, clause 6(4) and (5)]—Delete subclauses (4) and (5) and substitute:

(4) The relevant compensating authority must, on application under this subclause by a prescribed worker, arrange for a re-assessment of the degree of whole person impairment applying in relation to the prescribed worker in respect of the relevant injury to be undertaken in accordance with the version of the Impairment Assessment Guidelines applying under section 22(4a) of the principal Act, as enacted by this Act (and the assessment and determination of the degree of whole person impairment applying in relation to the prescribed worker in respect of the relevant injury in accordance with the re-assessment will apply for the purposes of the principal Act despite any previous assessment or determination in respect of the relevant injury).

(5) Section 22(4a) of the principal Act, as enacted by this Act, applies subject to subclauses (2) and (3).

(6) In this clause—

prescribed worker means a worker who suffered an injury and whose degree of whole person impairment in respect of the injury was assessed under the Impairment Assessment Guidelines applying on and after 24 August 2021.

I will speak to the government's amendment and my amendment together and make the case for both of them, which I said were effectively standalone provisions and that ours was an interpretive one which added to the government's amendment as opposed to replacing it. Members will recall that we dealt with the issue of the Impairment Assessment Guidelines earlier at [Bonaros-1] 5.

I will outline the reasons why we are moving this amendment No. 20 as follows. Earlier in the debate, I indicated that the minister and I had basically taken a different approach to reach the same outcome. It turns out that that different approach also results in some technical and procedural issues that had not been anticipated.

Effectively, to get to the crux of the issue, members will recall that—and I have said this before on the record—last year the former minister sought to implement a second set of guidelines which radically undermined working people's entitlements by adversely changing how impairments would be assessed.

Those guidelines applied from 24 August 2021 onwards. They ultimately became subject to extensive debate in this place and, after consistent criticism from groups like the Law Society, the ALA, the legal profession and the medical profession, the former minister was forced to authorise an additional period of consultation, but ultimately and unfortunately largely adopted changes put forward by ReturnToWorkSA—changes that were not supported by most stakeholders, including, importantly, medical assessors who have many compelling reasons why guidelines would produce injustice and inappropriate outcomes.

During that debate, we queried whether the minister at the time had gone beyond the scope of what parliament had intended by trying to manage the viability of their scheme by radically altering the guidelines and circumventing the role that this parliament plays in terms of substantive changes to legislative instruments.

The guidelines must be a disallowable instrument and subject to parliamentary scrutiny, and we have dealt with that in the context of this debate. But based on the debate that we had at the time when Rob Lucas was here, there is absolutely no question that this minister and this parliament were put on notice, as I said earlier, about further changes that would be coming and fall on whichever party ultimately formed government.

As I said again during the second reading debate, the architect of this scheme did nothing before the election and the problem was indeed handballed to Labor, as soon as they formed government, and ultimately given to the Premier in April. Again, as I said earlier, the Premier gave up the opportunity to consult on that ultimatum. In fact, the first we learnt of it was in June when he first introduced that bill into this place.

He sat on it for over a month before coming into this place with the original bill, which sought to radically alter the scheme of the act by treating workers differently, depending on how they were injured, ripping away previously accrued rights to compensation, and overnight changing thousands of people's rights to compensation without notice. The Premier tried to convince us that the impact of that bill would have been minimal. As I said earlier, when asked the exact same question, the CEO of ReturnToWork, Mike Francis, confirmed that the extent of those changes would impact workers in their thousands.

The government amendment, which we are seeking to support and then amend, addresses this issue by reverting to the first edition of the guidelines for anyone who has not had an assessment pending the consultation intending to replace all IAGs, and we think that is a good thing. We also think it is a very good thing that we are now making those disallowable instruments undergo parliamentary scrutiny before they come into effect.

The reason this amendment is so important is that, frankly, what we have seen as a result of both debates we have had on this issue is that neither the former government nor this government can be trusted when it comes to these sorts of reforms that affect injured workers, and it has been established that representations made may not ultimately be acted on. This government said, 'Trust us. We will come up with a third version of guidelines, which do what we say they will do.'

The problem with that, of course, is that is what the former person sitting in this minister's chair said, and we ultimately ended up with something that looks very much like what ReturnToWork had suggested. There is a very strong case to argue that that was a tokenistic gesture by the former minister in terms of any consultation. We are and remain concerned, as a result of the way we have handled this bill, that we cannot leave this to chance.

Clearly, this government cannot be trusted in terms of doing the right thing by injured workers when it comes to those Impairment Assessment Guidelines. I qualify that by saying that we have done one thing well, that is, to revert back to the original guidelines; that is something we agree with. This amendment is a safeguard to ensure for the time being that, at the very least, people will not be subject to what I will call the Lucas guidelines for want of a better term.

When it comes to amendment No. 20, which is the one I will speak to now and I have said is interpretive in its application, that particular amendment will apply to a very small number of people who were unfairly treated by the Lucas guidelines. It is a very small number of people who have had their assessment already processed under those guidelines, and we anticipate that it is a very small number because those guidelines have only become operational since August of last year. They have not been in place for very long, but they would have seriously undercut workers' rightful entitlements.

Amendment No. 20 would allow those workers to have a review of that assessment using the first guidelines. That will apply to everyone else and restore their basic compensation entitlement which was unfairly taken away by the Lucas guidelines. In moving this amendment, I also ask the minister to confirm for the record what we can expect.

Now that we have effectively said that we will undo the Lucas guidelines to an extent and replace them with the Rau guidelines, for want of a better term, what will the process be when it comes to the third set of guidelines that we have indicated will be drafted? They will, as I understand it, have to be the subject of consultation and will also be a disallowable instrument, so we will have the opportunity to scrutinise them further. How will the two coexist effectively, and what will that process entail in terms of the consultation for the third set of guidelines?

Again, I make the point that the reason for this addition to the government's amendment is purely and simply to apply to that very small number of injured workers who had their assessment already proceed under the Lucas guidelines and, as a result of that, their entitlement to compensation was unfairly taken away from them.

The Hon. K.J. MAHER: I thank the honourable member for her contribution and for bringing forward this amendment. The government appreciates the intent behind the amendment in relation to those first and second sets of guidelines; however, the government will not be supporting the amendment. We are advised it would introduce significant operational complexity for the corporation, its agents and self insurers in terms of having the possibility of, in effect, two sets of guidelines running at the same time.

Whilst we absolutely appreciate the honourable member's intention in moving this, there could be some circumstances where workers may apply to overturn their assessment based on the second set of guidelines and seek to revert back to the first set of guidelines without knowing what the assessment was going to be, and there is a real possibility that some workers could find themselves with an assessment that is worse than the first one. There is that possibility, particularly if an injury between the two guidelines may not be as severe as first assessed. While we appreciate the intentions behind the guidelines, we will be opposing this amendment in preference to what we have moved.

I think the honourable member had questions in relation to whether we are moving to a new set of guidelines. My advice is that there are elements of the former government's second guidelines that do clarify things that are beneficial, but there are significant elements that are not beneficial. However, we will consult very thoroughly on any replacement to the guidelines before any are brought into effect.

The Hon. H.M. GIROLAMO: The opposition will be supporting the government's amendment and not supporting amendment No. 20 from the Hon. Connie Bonaros. I am pleased to hear that there will be thorough consultation. That is something we would all like to see more of going forward. I am relatively new to this place, but this is an absolutely epic number of amendments that we have had to go through, and I think all of us here would like to see changes made to the way the government approaches bills, especially bills that are this important and this complex.

As a former auditor, I know how long it would normally take to do actuarial checks and balances, and I appreciate that the government was able to deliver that within the tight time frame. However, that would have put enormous pressure on ReturnToWork and PwC to deliver that in the time frame. We will support the government's amendment, especially if it does decrease operational complexity and provide further safeguards.

The Hon. C. BONAROS: I would like to add just one thing for the record, and I think this is important. I accept what the outcome is going to be, but I want to make it clear that we support—in fact, it is in line with our amendments—moving from the Lucas guidelines to the Rau guidelines. It may procedurally be a difficult task but, for the record, it is important to note that the advice I have is that there is absolutely nothing in here that could possibly result in a worker being worse off.

In fact, what we are offering them is the opportunity to choose to have the assessment that was done under the Lucas guidelines reassessed under the Rau guidelines. That is entirely consistent with what the government has said in its amendment, where it says that the Rau guidelines are the ones that are going to apply. I understand procedurally that it is going to be technical; however, to suggest—as I understand has been the case—that there could be workers who are potentially worse off as a result of the addition of my amendment No. 20 is, I maintain, factually incorrect.

What we are actually doing is giving those workers who were assessed between August and whenever it was under the Lucas guidelines the opportunity to be reassessed under the very guidelines that the government is now putting in the legislation. I think that is a very important clarification to make, and I am hoping that the minister will be open to further considering this issue in terms of that.

Again, for the record, we are not doing anything that is going to adversely impact injured workers, or make them worse off, by seeking to add this interpretive note that allows them to have their assessment reassessed under the Rau guidelines, which are consistent with the government's position.

The Hon. T.A. FRANKS: For the sake of clarity, the Greens, out of an abundance of caution, are going to be supporting the government's approach. Largely, people have the same intent here, there is no dispute on the principles, and, loath as I am to say this, we will certainly all be embracing that intent to go to the Rau guidelines as opposed to the Lucas guidelines. I never thought I would say those words.

The Hon. K.J. Maher's amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 35 [IndRelPubSec–1]—

Page 14, after line 16 [Schedule 1, clause 7]—Insert:

(2) Subclause (1) does not apply in relation to the Impairment Assessment Guidelines that apply under clause 6(4).

This is consequential to amendment No. 34.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 36 [IndRelPubSec–1]—

Page 14, lines 17 to 19 [Schedule 1, clause 8]—Delete clause 8 and substitute:

8—Supplementary income support

The amendment made to the principal Act by section 8 of this Act applies in relation to surgery approved by a compensating authority—

(a) before the designated day in relation to surgery that is conducted on or after the designated day; or

(b) on or after the designated day.

The clause of the bill that addresses the anomaly in relation to supplementary income support for injured workers who undergo approved surgery will be expanded to surgery approved prior to the designation day.

Amendment carried; schedule as amended passed.

Title passed.

Bill reported with amendments.

Third Reading

The Hon. K.J. MAHER (Attorney-General, Minister for Aboriginal Affairs, Minister for Industrial Relations and Public Sector) (21:53): I move:

That this bill be now read a third time.

The Hon. T.A. FRANKS (21:53): At this third reading stage, given the Greens' position to consider the debate and formulate our final position, I just wish to place on the record that we do oppose the bill in its final form. While there have been some significant improvements, it is not something that we feel we want to take ownership of going forward. We just want to put that on the record because, while Labor and Liberal often are in furious agreement with regard to these workers compensation return to work bills, this was a far better debate than the one in 2014, I must say. There was a very different attitude, so I do thank the government for that particular aspect. If you think that this was a rushed bill, then you have not seen that many bills yet.

I want to also place on the record the confusion about the medical expenses lump sum payment. Our concern was that that had not been consulted on. What I would say to the government and those who are concerned that that needs to be further consulted on is there was a process fix there, and that particular clause can be enacted once the consultation has happened rather than be brought back for the next round, which was the advice that we had been given.

So we can have that particular clause consulted on. The minister has the power to enact that much later than the rest of the legislation, should he need to have that consultation process, and I think the principle, however, was not disagreed with, and so the principle will be now in the legislation, and should there need to be further work done it will put a time on that work to be done more quickly.

Bill read a third time and passed.

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