Page 1405 - Week 04 - Thursday, 4 April 2019
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vested business interest in ensuring that as few people as possible get the care that they need. This is what Labor and the Greens are supporting.
There are other serious, unanswered and significant questions about the bill and its operation. For example, the legislation proposes the establishment of a new jurisdiction for ACAT to deal with the claims. This raises serious jurisdictional issues with other higher courts and may even lead to judicial challenges in order to determine the validity of this newly created jurisdiction.
On top of this, victims will be worse off than under the current system by appearing before ACAT without proper legal representation. The government has lauded these changes as making the justice system more accessible. However, it actually undermines what justice individuals are able to access.
When these claims go before ACAT the insurer will not be sending an intern, they will not be sending a novice, they will be sending seasoned lawyers who know the system back to front and they will be up against a victim that does not. This is not fair. This is not the stuff of model litigants. This really is a clear example of the inequality in this legislation that Labor and the Greens are supporting.
Additionally, ACAT may award costs, which will act as a deterrent for self-represented litigants and favour the insurance companies even more. The innocent motor vehicle accident victims will be at a clear and distinct disadvantage as a result of this legislation.
There is a multitude of other additional issues with the bill yet to be addressed. These include: injured people will no longer be able to claim for gratuitous care, for example parents taking time off work. There is nothing in the bill that requires the insurer to consider comments made by injured persons or their physician when determining a recovery plan, leaving it entirely in the insurers’ remit to dictate the injured persons’ recovery.
The bill creates offences for individuals, with no commensurate offence for insurance companies engaging in similar behaviours. Insurers will be able to bypass an injured person’s legal representation and contact individuals directly, creating yet another power imbalance and put further pressure on people in a vulnerable position.
The bill ignores the most fundamental concept of common law principles by legislating that silence equates to acceptance of offers made by insurance companies. A very low bar is set for insurance companies to refuse to accept liability for accidents. Insurance companies can require injured persons to attend medical appointments and suspend payments if they do not comply, which could be abused by insurers who require injured individuals to continuously attend appointments, with little power to object.
Gross income used for income replacement does not include superannuation, meaning that individuals will be worse off at retirement age—this coming from the Labor Party, the Labor Party that seems to want to bang on about superannuation when it suits them but not when it suits victims. Insurers must not commute income replacement
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