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Thursday, 4 February 2010
Page: 476


Senator ABETZ (1:00 PM) —The coalition does not oppose the Safety, Rehabilitation and Compensation Amendment Bill 2009. In saying that, the legislation does prevent non-government employers from seeking access to the Comcare scheme. That is a matter of concern to us in the coalition, because it removes an option for employers in their ability to access safety rehabilitation and compensation type schemes and, especially, requires employees to go back to their state schemes. It seems that Labor simply dislikes flexibility and options—everybody has to fit into their straitjacket. Of course, we now know what happens with these sorts of straightjackets in state jurisdictions, and one wonders what the pressure was on federal Labor not to allow employers into the Comcare scheme if they wanted to so move, given that the scheme was providing appropriate support and protection. Indeed, to all intents and purposes it is run by the Commonwealth government. So why would you try to get private employers out of this scheme and back into their state jurisdictions? I have no doubt where the pressure came from on this: it clearly would have been New South Wales Labor, against whom, thank goodness, the High Court of Australia yesterday ruled seven to nil while making very condemnatory comments about their occupational health and safety scheme. Indeed, one of the judges, Justice Hayden, went so far as to say that the authority that sought to prosecute a Mr Kirk and his company did so ‘very unjustly and in a manner causing them much harm’. His Honour also said:

It is absurd to have prosecuted the owner of a farm and its principal on the ground that the principal had failed properly to ensure the health, safety and welfare of his manager, who was a man of optimum skill and experience—skill and experience much greater than his own—and a man whose conduct in driving straight down the side of a hill instead of on a formed and safe road was inexplicably reckless. It is time for the WorkCover authority of New South Wales to finish its sport with Mr Kirk.

Those are pretty damning comments about a New South Wales scheme set up by New South Wales Labor in 2001. As an aside, I say to some of the employer organisations in this country that it may be worth while to get a bit of backbone and stand by your principles. This corrupt scheme started in 2001, but it took one man—a small business man, Mr Kirk—to have the courage to take this all the way to the High Court to finally get the result that all of us who believe in the rule of law, natural justice and fair procedure wanted.

Where were these organisations in championing the rights of small business especially against this sort of outrageous authority and the actions referred to by His Honour Justice Hayden? Where were they? Indeed, where were the civil libertarians? You know the ones: those who always have so much to say about our border protection policies but who are deafeningly silent when it comes to Australian citizens being abused by a New South Wales Labor authority—and, might I add, with unions as well, because unions themselves could bring prosecutions under this legislation. Quite frankly, some of those civil libertarians are only civil half the time, and I am not sure about their libertarian nature the other half of the time, but I say to those employer organisations—


Senator Stephens —On a point of order, Madam Acting Deputy President: I draw the attention of the chamber to the fact that the bill before it today is a non-controversial bill called the Safety, Rehabilitation and Compensation Amendment Bill and that it relates to harmonisation in the Commonwealth jurisdictions and to the issue of Comcare; it does not relate to civil libertarians and Senator Abetz’s nonsense about New South Wales.


The ACTING DEPUTY PRESIDENT (Senator Troeth)—There is no point of order, Senator Stephens.


Senator ABETZ —In case the minister at the table—who is very sensitive, having come from New South Wales Labor herself—does not understand that the legislation that we are debating does in fact to get into the area of occupational health and safety, what this legislation does is to deny private employers the chance to get out of that corrupt system that her state Labor government had in New South Wales and into the Comcare system. So I can understand the sensitivity.

Getting back to these civil libertarian organisations, I suppose one should not be surprised, because they always come out on one side of the ledger—there is no balance to their concern. If I were to really think about it, that would not surprise or concern me, but the thing that does concern me is that it took so long for a group of organisations and others to come together to back Mr Kirk all the way to the High Court. That this legislation was allowed to exist in Australia for nearly a decade is, I have to say, a disgrace and it will be seen as a blot on the Australian industrial landscape, and New South Wales Labor and their trade union movement have nothing to be proud of. I simply say to people, ‘If you think Senator Abetz and the coalition are ranting a bit about this, fine—believe that—but just read the judgment of Justice Heydon of the High Court and you will see what New South Wales Labor presided over for so long.’ I have to say I am astounded that so many business organisations did not come together for a High Court challenge immediately and I wonder why it had to wait for nearly a decade before the outrageousness of some aspects of the scheme were knocked out by the High Court, which happened only yesterday.

Labor, for whatever reason, does not want small businesses or other businesses to opt out of their state schemes into the Comcare scheme. This is, once again, ideologically driven—union driven. It does not make any sense, but we accept the reality in this chamber. Therefore, I indicate that the coalition will not be opposing the legislation.