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Monday, 29 August 1994
Page: 505


Senator WATSON (5.16 p.m.) —The motion of disallowance before the Senate was the subject of an inquiry by the Senate Select Committee on Superannuation. Earlier this afternoon, the committee handed down its report, which contained brief conclusions:

The committee is not convinced that there is not a role for the Tribunal to play in dealing with medical complaints.

The committee recommends that, notwithstanding the outcome of the disallowance motion, the government re-examine the issue in the light of:

(i)  the evidence presented to the Senate Select Committee on  Superannuation;

(ii) the experience of the Tribunal over its first six months of operation; and

(iii) the review of a range of mechanisms available to the Tribunal to deal with medical complaints.

The committee further recommends that the Government:

(iv) amend the legislation to remove any doubt that may exist in relation to the handling of procedural complaints by the Superannuation Complaints Tribunal; and

(v) seeks advice from the Regulations and Ordinances Committee on the appropriate legislative instrument for defining the jurisdiction of the Superannuation Complaints Tribunal.

I believe that to be a very fair and sensible conclusion and recommendation which had the unanimous support of all of the committee's members from all the major parties in this Senate. Since the putting down of that report in the last one hour, we have examined ways which will try to expedite the government looking at the matters that we put down. It has been put to us that the government will agree to amend the regulation so that it has no effect after six months from today.

  The problem with that approach is that the government cannot amend this regulation. It can issue a new regulation. I submit that, under the circumstances, to make sure there is no doubt about the intent, the neatest approach is for us to proceed to disallow the motion. Then the government can, in the fullness of time, issue a new regulation or, if need be, it can amend the act. There is a whole range of options open to it.

  I took the opportunity in the intervening time to talk to the Australian Consumers Association. I was appalled to learn from the association that the government intends to exclude from the tribunal's jurisdiction life companies. They are going to be excised from the jurisdiction of the tribunal.

  The whole intent of setting up this tribunal in the first place is going to be, to use a vulgar term, gutted. This raises a further problem in my mind as to the government's bona fides in this whole issue. Therefore, the clearest and neatest approach to make sure that everybody acts with the integrity that we expect is for it to be disallowed. That will put pressure on the government to come back and look at these issues.

  I am concerned about the impact on people's lives of the Senate's action if we defer this matter. However, the government is concerned about a possible stacking up problem. If it were really concerned about this, it would have done a number of things. By now, nearly two months after the start of the tribunal, it would have put in place a chairperson but it has been rather slow in this regard. There is a deputy but not a chairperson in charge of the tribunal. If it were bona fide about its commitment to the tribunal, it would have had this person in place. If it is worried about stacking up, it is certainly going about matters the right way to stack things up, because it does not have a chairperson to look at matters. After all, the tribunal should have been in operation two months ago. It is not as though there has not been time to appoint one.

  The question is: is the government committed to putting the resources into this body or is it not? How committed is the government to this concept if it is talking about excluding life companies from the tribunal? We know that there are already problems in terms of government instrumentalities that cannot get access to the tribunal at the present time. It is true that it is saying, `We're going to take steps to overcome this with the support of other bodies.' But where is the commitment? There are three examples of this lack of commitment to urgency. We are providing the trigger mechanism to make sure that the government provides the degree of urgency of attention to this matter that we on this side of the chamber believe is absolutely necessary.

  We have to establish that this tribunal is not a paper tiger just to keep consumers quiet. I think our action will demonstrate the Senate's commitment to looking after the interests of consumers. We believe that the report is a responsible one. It gives time to disallow and adequate time to respond.

  I will now look at a number of the arguments. The first one is in relation to the disability discrimination legislation, and this does worry me. The Attorney-General's Department submitted that the exclusion of medical complaints is an act carried out in direct compliance with the law, other than the Disability Discrimination Act 1992. It is thereby exempt under that act for a period of three years. However, after the three-year period expires on 1 March 1996, the issue of inconsistency will have to be determined. This will be done on the basis of existing evidence as to the reasons for the continued need for the exclusion.

  The jurisdiction of the tribunal should not be restricted out of fear that it will be unable to determine matters involving medical evidence or that there will be a floodgates problem in terms of complainants. The tribunal should be given a mandate to hear medical matters. If it becomes necessary in assessment to determine whether there is a problem with floodgates or that inappropriate determinations could be made, the Senate select committee has a reference to examine the first 12 months of the operation of the Superannuation Complaints Tribunal.

  We believe that the floodgates argument, therefore, cannot be sustained, because the experience of other tribunals—such as the Administrative Appeals Tribunal and the one dealing with social security matters, known as the SSAT—is that there has not been a floodgates phenomenon. This is merely scare tactics from vested interests. The possibility that the tribunal may be asked to consider a large number of complaints of a particular type does not justify excluding those complaints from the tribunal.

  A number of mechanisms could be utilised. We are here to try to help solve the government's problems. Here are some ways in which the difficulties can be overcome: a tribunal which can effectively and efficiently deal with matters involving medical evidence; the use of inquisitorial procedures; the use of independent medical experts appointed by the tribunal; medically qualified members of the tribunal; members of the tribunal, whether qualified or not, to judge the evidence; a panel of medical experts; and various other techniques that are utilised by a host of other tribunals that satisfactorily deal with medical complaints.

  What about the question of cost? Cost of access to more formal legal forums would be prohibitive to almost all of those who would be challenging a disability claim. These are the people for whom I think every honourable senator has a great deal of sympathy. The cost of justice in this country is prohibitive. The Minister for Justice, Duncan Kerr, has referred to it on a number of occasions. The Prime Minister (Mr Keating) has spoken about it. This is a practical resolution of their concerns, and I believe we must follow it to ensure that they match their rhetoric with positive action. An example of the high costs is that it costs upwards of $20,000 for an applicant to conduct a matter in a state Supreme Court. These costs are prohibitive for the ordinary Australian; they are prohibitive for people lying on their backs who wish to lodge a particular claim. We have to ensure that the tribunal that is set up is simpler and easier for consumers than the adversarial court system which others support.

  The argument that there may be some discrepancy between trustees' decisions and decisions of an insurance company with whom a benefit is insured is irrelevant when defining the jurisdiction of a federal tribunal. The issue of whether a death or disability cover by a superannuation fund should be optional needs to be addressed in its own right, not by way of avoiding any conflicts by effectively denying access to a dispute resolution. The conduct of medical cases before the tribunal may provide an impetus for funds to review the provisions of these types of benefits and tailor them appropriately.

  I would also like to point out that it was not until today that the principal lobby group—the Association of Superannuation Funds of Australia—put in a submission on this issue. Surely, lobby groups would be aware of what is going on in relation to matters in their interest, such as matters that are before a Senate select committee and matters that are the subject of disallowance motions. Yet the lobby groups chose, for some reason, to ignore the committee until today—until the last possible opportunity. It does surprise me that another lobby group—the Life Insurance Federation—in its submission did not address the matter until last Friday.

  This raises the question as to where these lobby groups are. It is true that, on the one hand, they have made statements in the public media that they do not like these sorts of things. On the other hand, government departments and ministers have spoken in support of extending the jurisdiction of these sorts of tribunals. It seems to be an anachronism that the private sector body that looks at these matters has a jurisdiction wider than what was originally intended for this tribunal.

  So there is a good case, and the factual information to support our recommendations is in the report. Nobody is losing face in terms of what we are putting forward. It is a very constructive type of approach which is designed to assist everybody. The argument about a backlog of cases worries me. Can one assume from that that there is a bank of data before the tribunal about which our committee has not been informed? We need to be told whether or not there is a backlog.

  Why is the government running scared that the tribunal will not be able to cope? Why has the tribunal not got a full complement of staff in place as well as its permanent chair? SIS and its tribunal have not been a national secret for the past 12 months, and that surprises me about the whole approach of the industry to this particular disallowance motion. I believe that we have provided the most appropriate mechanism to enable the government with a degree of dignity to address this matter in so far as medical complaints are concerned. I had hoped that the government might have been able to give us more time to negotiate but, in view of the fact that the motion was brought on, we had to respond in the way that we have.