Nick Xenophon (SA, Independent) Share this | Hansard source

Can I indicate at the outset that I will be supporting the second reading stage of the Safety, Rehabilitation and Compensation Legislation Amendment (Exit Arrangements) Bill 2015. But I do reserve my position in respect of the third reading stage because there are a number of legitimate questions that need to be asked and ventilated in the committee stages. That is what the role of the Senate is on an important piece of legislation such as this. I want to thank the minister and her office for their assistance today, and I also thank the opposition. I met with the shadow minister, Brendan O'Connor, early today and spoke to his office about that. I do have a number of unanswered questions about the position of both the government and the opposition in respect of this.

I think it is interesting to note that in the additional comments to the Senate Education and Employment Legislation Committee's report on this bill from a number of months ago Labor senators expressed some reservations about the bill rather than outright opposition. I accept and respect that the opposition has since changed its position, as they are entitled to, to oppose the bill. But I want to take issue with one thing that Senator Ludwig said. It is not a criticism, but it is an issue—he is coming back into the chamber.

Senator Ludwig interjecting—

I would not be too worried, Senator Ludwig. Senator Ludwig says that this bill will allow for a reduction in the benefits of injured workers. The only thing that will allow for the reduction of the benefits of injured workers will be if the ACT government imposes a scheme that will reduce the benefits for injured workers compared to the Commonwealth scheme. I suppose one argument is that, in respect of the Comcare scheme, it allows an exit to something that is unknown, so I will accept that. But ultimately it is up to the ACT government as to whether they want to take a draconian approach in respect of this.

I do want to disclose that I am still, for my sins, proprietor of a very small law firm that practices in the field of workers compensation law in South Australia. My understanding is that we do very little Comcare work. I was, in my previous prepolitical life, president of the Australian Plaintiff Lawyers Association in South Australia, as it then was, when we campaigned very hard against the then Olsen Liberal government's changes to workers compensation laws. I remember that Graham Ingerson, who I regard as a friend of mine and who was then Deputy Premier, asked me about my time as a member of the Communist Party at university. I had to tell him gently that, in fact, I was a member of the Liberal club, when he accused me of being a Marxist for opposing the legislation.

I can say this: whatever the then Brown and Olsen Liberal governments proposed in workers compensation changes was very mild in comparison to what a state Labor government ended up doing years later. From 1 July 2015, the Weatherill government has introduced draconian changes to workers' rights—much more sweeping and much more draconian than anything a Liberal government proposed. It has taken away workers' rights substantially, and it seems that some unions—including the peak body, SA Unions—rolled over in relation to those changes, which I will refer to briefly.

The framework established by this bill will allow Comcare to determine and collect exit contributions from former Commonwealth authorities. Senator Cash has characterised this—and I think it is not unfair to characterise it—as a procedural bill, a process bill, because, if an entity such as the ACT government wants to exit the scheme, it can do so but there will be some ambiguities or some uncertainty in respect of the transitional provisions. I guess the question I want to ask in respect of the committee stage is: will the absence of this bill make it impossible for the ACT government to exit this scheme? In other words, whilst I accept in good faith that the minister says that this is a process bill, if this bill is not passed, will it effectively mean that the ACT government cannot proceed with its plans to exit the scheme, or will it simply mean that it can exit the scheme but there will be a lot of uncertainty for workers? I think that is something that needs to be dealt with in the fullness and thoroughness of a committee stage.

I understand that the government say that they want an existing employer not to be able to leave the scheme without contributing an appropriate amount to cover any current or prospective liabilities, and I think that is one thing that needs to be taken into account. The bill also seeks to ensure that any employees injured before their employer exits the Comcare scheme continue to be supported by an appropriate rehabilitation authority. The question that I will ask in the context of a committee stage is: what will that mean to injured workers? Will they still be subject to existing Comcare legislation for those injured before that date, and what will happen if there is an aggravation? This is a technical question: if somebody has a primary injury and then they are injured subsequently in the course of any new scheme, how is there an interplay between Comcare and any new scheme in respect of that? This is something that is coming to mind now—I just want to make that clear to the minister. It is not a trick question. I genuinely want to get to the bottom of this.

In essence, this bill provides a pathway for agencies to leave the Comcare scheme while requiring them to honour their obligations to injured workers. That, I think, characterises the government's position. The opposition is saying, 'Don't support this, because it will lead to a reduction in workers' benefits.' But if they can, under the current legislative framework, exit the scheme and you cannot stop them from exiting the scheme, are we at least providing more certainty? That, to me, is the nub of one of the issues.

The impetus for this bill is the ACT government's announcement that it wishes to leave the Comcare scheme. I understand the ACT government can do this whenever it likes and that it does not need permission or approval from the Commonwealth government to do so. But whether facilitating this bill would make the difference as to whether this goes ahead or not is one of the issues that I think need to be explored in the committee stage. There is currently missing from the ACT government's exit pathway a requirement that it honour its existing obligations to injured workers, and that, I understand, is the government's motivation for this bill: it is attempting to close this loophole.

But, in the bigger picture, the Comcare scheme covers employees working for Commonwealth government agencies and statutory authorities—excluding members of the Australian Defence Force—as well as the ACT government and agencies and corporations who have been granted a licence to self-insure, provided the date of the injury was after the date of the licence. I just want to understand—and this was raised by the Senate committee's report—the effect that the bill may have on workers and their entitlements. I think that is a legitimate question. There is also an issue as to the breadth of this scheme: what other agencies or authorities can avail themselves of this bill? In other words, will it make it easier for other agencies or authorities to exit the bill? The point that Senator Ludwig made is: will that affect the viability of Comcare in itself? Will it mean a shrinking pool of revenue? Has any advice been provided by Comcare to the government about its viability with a smaller premium pool, if you like, with these proposed legislative changes?

I just want to reflect briefly on the fact that Comcare is far from perfect. Comcare was established in order to support workers who have suffered a workplace injury or illness. It is there to help employees recover and, where appropriate, return to work. That is what all workers compensation schemes should be doing, and it carries with it a very heavy responsibility.

When I think of Comcare, there is one case that always comes to mind—and I can refer to this because I introduced a bill to this effect—and it relates to my constituent Barry Crush. In 1988, Mr Crush was the master and chief engineer of the lighthouse supply vessel MV Candela. During a supply run, the ship was caught in a gale with 35-foot waves and 70-kilometre-per-hour winds. Rushing to secure equipment on deck that could otherwise shift or possibly capsize the ship, Barry fell 10 metres onto the deck. He broke his back, his ankle and his knee and suffered massive soft tissue damage. He was forced to stay on the ship while the gale raged for another three days, and what occurred when he finally got to shore was nothing short of disgraceful. He was treated appallingly by Comcare. They lost his files. They ignored him. The man had to live in the most appalling conditions until his claim was resolved many years later.

I must pay tribute to the former head of Comcare Paul O'Connor, who made a specific trip to Adelaide to go to my office and personally meet Mr Crush and apologise for Comcare getting it so absolutely wrong. There was subsequently a mediation settled on confidential terms, where I believe there was a satisfactory resolution of Mr Crush's claim on a fair basis for all parties involved. But that was a case where Comcare got it absolutely wrong and where an ombudsman's report was very critical of Comcare. Legislation that I put up to try to remedy that, whilst it was not passed, did ventilate the issue, and the eventual apology from Comcare meant a lot to Mr Crush and the matter was resolved. It shows you that Comcare can get it wrong, as can other workers compensation agencies, but Comcare did demonstrate that it was capable of owning up to its mistakes and making amends for them.

The ACT government wants to get out of the Comcare scheme, and it has cited long processing delays, high premiums and ineffective rehabilitation services as the reasons for which it wishes to leave Comcare. On the one hand, there is the Electrical Trades Union supporting that exit from Comcare, saying that the ACT should get out of the Comcare scheme. On the other hand, there is the ACTU saying, 'Not so fast! We want to know what scheme workers will be left with.' If it is simply a matter of process—and this is something that I think the committee stage ought to look at—and this is an inevitable move that the ACT government will go ahead with, then it is appropriate to have some process measures in place. I wonder, though, whether the scope of this going beyond the ACT government is appropriate at this stage. That is something that needs to be dealt with in the committee stage.

A March 2015 Canberra Times article gave figures released by the ACT government which showed that, of the 531 current territory claims, only 45 were less than a year old—in fact, more than 200 of the claims dated back more than a decade. So you really wonder whether Comcare had fulfilled its role in terms of workers rehabilitation and getting people back to work. What concerns me is the absence of any comprehensive details of a replacement scheme that injured ACT government workers will be subject to once their employer leaves Comcare. The contrary argument is: 'If they can leave Comcare anyway, there is not much you can do about it.' But I would prefer that the ACT government provide details of how that scheme will work. The March 2015 Canberra Times article referred to the ACT's Minister for Workplace Safety and Industrial Relations, Mick Gentleman, who revealed that there would be no compensation payable for pain and suffering under the new scheme. That concerns me, but, if there is a statutory scheme for lump sum payments for permanent disability, that may ameliorate those concerns. We do not know what they are planning, and that is something that needs to be taken into account.

I want to reflect very briefly on how bad things are in South Australia. It was a Labor government that slashed benefits effective from 1 July 2015. WorkCover SA has been transformed to ReturnToWorkSA, but it could well be rebadged as 'ReturnToOblivionSA', because what has happened in that state, my home state, is that many injured workers will find themselves cut off from benefits, facing the loss of their homes and in extremely difficult situations because a Labor government in that state changed the law in a draconian way. It will be a disaster for injured workers. For instance—and it concerns me that the ACT government may go down this path—it changed the criteria for assessing workplace injuries. Under the Return to Work Act in South Australia, an injured worker's payments will cease after two years from the date the incapacity occurred, unless the injury is a 30 per cent whole-of-body impairment. Examples of a whole-of-body impairment would include a severe brain injury, multiple spinal fractures and, for instance, severe injuries to both shoulders together with carpal tunnel syndrome of both hands so that you cannot effectively use your hands and your arms. Short of that, one or two spinal fractures will not do it. You will lose your benefits, even though you will never be able to go back to your work if you were in a manual job. If you have a so-called mild brain injury which means that you cannot perform cognitively as you could before, and it is a requirement of your job to have even a moderate or high level of cognitive functioning, you will be pretty well gone in terms of benefits. What concerns me is that, if the ACT government adopts the South Australian legislation, it might involve a slight reduction in premiums but it will involve a massive reduction in the benefits for genuinely and seriously injured workers.

I understand the government's argument that we cannot stop this from happening, but I do think there are some legitimate questions to ask about the scope of this legislation, how it will work, what safeguards are in place and whether other government authorities and agencies can avail themselves of this facilitative legislation. That is where I am at. It is an issue I have a particular interest in, given my previous life working as a workers compensation lawyer. I do want to engage constructively with the government and my colleagues in the opposition in relation to this. I think it is worth supporting this bill at the second reading stage, but there are some reasonable and legitimate questions that need to be asked in the committee stage before a final decision is made.