Page 942 - Week 03 - Thursday, 10 April 2014
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people and their families who have the misfortune to suffer catastrophic injuries in a motor vehicle accident. The types of injuries usually classified as catastrophic injuries are quadriplegia, spinal damage, multiple amputations or serious burns.
I think the general benefits of the scheme are quite clear. There is also a fairly sound rationale for the mechanics of the scheme which I will go to in a moment as I note that Mr Smyth is proposing some amendments to the legislation. Suggestions for change have also been raised by stakeholders such as the Law Society and the scrutiny of bills committee. I will flag now that I will support one of Mr Smyth’s amendments but not the others. I will elaborate on the reasons why as I discuss various aspects of the bill.
One of the key elements of this bill is that it establishes lifetime care and support for people injured in motor vehicle accidents when there is no fault but also where there is fault. A question arises, therefore, why a person cannot opt out of the scheme in order to pursue care and support through regular common law means. I am satisfied with the approach proposed in the bill. It implements the approach recommended by the Productivity Commission, which is to remove the common law right to sue for future care and support needs, replacing it with this lifetime care and support scheme.
The Productivity Commission report gave several cogent reasons for this. It noted that even when an at-fault party can be identified, the processes for securing compensation for support through litigation are drawn out and costly. It noted that there was not evidence that the common law right to sue for compensation for care costs increases incentives for prudent behaviour by drivers—which is relevant to this bill—as well as doctors and other parties for other types of injuries. The report goes on to say that the creation of the national injury scheme will avoid many of the deficiencies of common law compensation systems and improve outcomes for people with catastrophic injuries. It would reduce the legal and frictional costs associated with the current fault-based adversarial arrangements. It would promote rehabilitation and adjustment and, where possible, employment.
I understand the rationale behind the idea of an opt-out or opt-in system as proposed by Mr Smyth and others, but at this point I believe we should implement the system in its pure form as proposed by the Productivity Commission and as agreed between states and territories. I also note the administrative difficulty that would probably exist if we had a dual system where people could opt in or out.
On this issue, I also note that the Productivity Commission’s report recommends that jurisdictions with a small client base or without sufficient expertise—and this would include the ACT—could use the scheme management already established in another state to reduce the fixed costs of establishing their own schemes. This is the approach that the ACT is taking. I understand that the intention is to utilise the administration of New South Wales. This leaves us with a strong incentive to mirror the New South Wales scheme wherever possible, and that has had some weight in my decision to support the scheme in its current form.
I wish to flag that I will support Mr Smyth’s motion to make the guidelines for the scheme a disallowable instrument, his amendment No 12. This is a good idea and one
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