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Monday, 29 August 1994
Page: 503


Senator WOODLEY (5.08 p.m.) —I move:

  That regulation 4 of the Superannuation (Resolution of Complaints) Regulations, as contained in Statutory Rules 1994 No. 56 and made under the Superannuation (Resolution of Complaints) Act 1993, be disallowed.

Last Monday the Prime Minister (Mr Keating) addressed a justice forum held here in Parliament House. In his speech, Mr Keating made the following statements:

We are committed to access to justice and equality before the law. . .

While access to our courts must, of course, remain available to all, it is clear that many cases would be better resolved without resort to expensive and adversarial court action. . .

We must work to expand alternatives to litigation, while ensuring that dispute resolution remains just and fair.

This disallowance motion, if passed, would do precisely what the Prime Minister said the government wants to do. It would provide access to justice for people who want to take a complaint to the Superannuation Complaints Tribunal which requires the evaluation of medical evidence. The only recourse they have at the moment is the courts which, for many people, is just not an option.

  The regulation the Democrats are seeking to disallow excludes medical cases from the tribunal's jurisdiction. The government, along with the superannuation and life insurance industries, has put forward a number of arguments to support that exclusion. The superannuation committee has examined those arguments in some detail, and its findings may be found in the report tabled in the Senate a short time ago.

  The force of the government's arguments can be gauged from the committee's unanimous view that it is not convinced that there is not a role for the tribunal to play in dealing with medical complaints. It was suggested to us that to allow the hearing of medical complaints would swamp the tribunal with medical cases, and that the tribunal lacked the expertise to deal with them. I will not go over the committee's responses to those claims other than to say that no evidence was provided to support them; if anything, the evidence pointed in the other direction.

  In any case, these objections provide absolutely no justification for a blanket exclusion of medical cases. If resources or expertise are really a problem, then there are less draconian solutions available. My appeal to honourable senators is that, if they believe a compromise is needed, then they are certain to get one if they vote for this disallowance. If the motion is defeated, then the government will be under much less pressure to address the real concerns raised by the regulation. Disallowing it is guaranteed to focus the mind of the government very well.

  This regulation has caused a good deal of disquiet. Our attention was first drawn to it by the Australian Consumers Association, and I acknowledge its efforts to have it overturned. But opposition to it has since spread to within the government itself. The Federal Bureau of Consumer Affairs and the Administrative Review Council were both highly critical, and they have been joined in the last few days by the Disability Discrimination Commissioner. I thought the Administrative Review Council neatly disposed of the floodgates argument against disallowance. Its submission states:

. . . the Council does not consider that the possibility that the Tribunal might be asked to consider a large number of complaints of a particular type justifies excluding those complaints from the Tribunal's jurisdiction.

I would go further than that. I would argue that the possibility of a large number of complaints strengthens the case for an alternative to the courts. To argue that we should not provide access to justice where the need is greatest is to turn principle on its head. Why not go all the way and bar them from being challenged in the courts as well?

  I think it was a former Labor minister, Peter Walsh, who once wrote a newspaper article expressing amazement at how much credibility we give lobby groups whose position is based solely on self-interest. This is a classic case in point. Basically, all the industry is saying is: `Please leave medical cases with the courts because hardly anyone will challenge us if we deny them disability benefits.' Surely that is no basis for upholding this regulation. I would like to read part of a submission from Maurice Blackburn & Co, who said:

It is our submission that many of the perceived problems with disability claims would be overcome if superannuation funds had effective claims procedures in place and moved away from a confrontationist attitude to disability claims made by members. If they did so, they would be providing a valuable service and benefit to members.

I can only say, `Hear, hear.' The regulation flies in the face of the access to justice action plan, which was released to widespread approval earlier this year. The plan spells out the principles on which an adequate complaints scheme could be based. One principle is that the scheme should be comprehensive in that it should cover all of the main activities of industry participants. In failing to cover the disability insurance activities of the superannuation industry, the tribunal clearly falls short of the mark.

  This regulation also falls foul of anti-discrimination principles. I have a letter from the Disability Discrimination Commissioner, Elizabeth Hastings, to the Australian Consumers Association. Ms Hastings suggests that the exclusion of medical cases from the tribunal is a form of indirect discrimination, and is not reasonable having regard to all the circumstances. Ms Hastings has, in effect, placed the government on notice that the regulation would not survive a review under the Disability Discrimination Act.

  To summarise the arguments against this regulation, it reduces the accessibility of justice and discriminates against the disabled. I remind honourable senators that the only way to make the government come up with a compromise position is to disallow this regulation. Therefore, I commend the motion to the Senate.