Page 3445 - Week 12 - Tuesday, 11 October 1994
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Despite the comparatively small size of the premium pool in the ACT, the benefits under the ACT scheme have been maintained. No common-law restrictions have been imposed; no gates or barriers to benefits have been created. Consequently, in dealing with this Bill and the amendments - especially this one - it should be recognised that they do not strike at workers' basic rights but attempt to bring some balance to what many would consider an anomalous situation. As a consequence of the decision in the Barbaro case mentioned by Mr Lamont - the Barbaro case was in 1980 - there has been an ongoing impediment to the delivery of benefits in the compensation process. The effects of this case are that, once compensation payments commence, they cannot be terminated without the order of the court, unless a worker has returned to work or accepts that he or she is fit for work. Consequently, an employer or insurer will be cautious in making that initial payment as, once the benefits commence, there is no capacity for reconsideration, other than through the court process. We know that in the ACT that could be a long and arduous process.
Madam Speaker, this must lead to delays and, in the absence of quick access to courts, fast-tracking facilities to sort out issues. Pending a full hearing of these issues in court, the initial decision making process must be tempered by a high degree of risk. In the main, disputes about compensation entitlements flow from matters that relate to causation or to the nature and degree of incapacity. There are issues that go to the facts of causation; professional opinion on the medical condition, as to both its nature and its continuation; or lay evidence that the worker is, in fact, functioning in a way otherwise than claimed. When the court finally comes to decide the disputes and issues, there is no order for restitution of benefits received to which there was no entitlement. Apart from bringing proceedings for fraud that carry the criminal onus of proof, there is little prospect of recoupment of benefits paid. The termination clause in this Bill recognises this inequity. However, its provisions do not address the problem adequately. An eight-week notice period before cessation of benefits would, by comparison with all other legislation, be considered very liberal.
Madam Speaker, at this stage, it is worth while noting the provisions in the other States and Territories. Keep in mind that in the ACT, under this provision, there is eight weeks' notification. In Queensland, payments are reviewed by the Workers Compensation Board and payments can be terminated, decreased or increased at their discretion. In South Australia, in general, the corporation can terminate a worker's payments 21 days after the issuing of notification; the worker has the right to appeal and, if done within one month, payments continue or are back-paid until the matter is heard by the review officer. In Western Australia employers and workers can apply to the directorate to review payments - discontinue, reduce or increase them. If the employer satisfies the directorate, then the directorate can reduce or terminate payments by that employer giving 21 days' notice, at which time the payments alter. The worker can dispute within 21 days that payments should continue until reviewed by the directorate and the outcome is determined.
In Tasmania, employers can terminate payments after notification of 10 days; notice and certificate must be served on the worker before termination or reduction takes effect. In the Northern Territory, 14 days' notice of reduction or cessation of payments is required. In New South Wales, which I think we should be really reflecting on, the employer can terminate payments on a three-tiered format. On payments for less than
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