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Monday, 21 November 2011
Page: 8974


Senator XENOPHON (South Australia) (13:02): I will make a short contribution on the Social Security and Other Legislation Amendment Bill 2011. Similarly to Senator Siewert, I do have concerns, particularly in relation to schedule 3. As a workers compensation lawyer in South Australia, I was aghast at the changes that came about a number of years ago in relation to relying so heavily on the American Medical Association impairment tables, where there was a much narrower focus and approach—which seems to be the case with this particular legislation. I note from the government's advisers that the impairment tables are based on WHO guidelines, in a sense, but I think we need to be careful of the unintended consequences of such moves. Of course I support moves that would ensure that people who have disabilities are encouraged to participate in the workplace and are given opportunities to be part of the workforce, where discrimination is removed and where they have a real opportunity to participate fully in the workforce. But the concern I have with the approach of this piece of legislation, particularly in relation to schedule 3, is that there may be many unintended consequences.

I think it is quite pertinent to refer to Frank Quinlan, the CEO of the Mental Health Council of Australia, who provided evidence on this issue to the inquiry. He made the point:

Several Australian and international studies have shown that people with disabilities such as mental disorders and substance abuse disorders will usually have co-occurring disorders, and a person with co-occurring disorders is likely to have greatly exacerbated negative impacts. A person with two or more moderate level disorders occurring across the tables when combined could result in a total equivalent of a severe impairment, when you combine substance, mental and physical disorders. The current amendment does not allow for cumulative totals across the tables and therefore does not take account of co-occurring disorders.

That is a concern. What happens in those circumstances? What safety valve will there be in the system in those situations?

   There is also a very fixed approach of reaching the 20 points. Is there any discretion where it is clear that people will fall between the cracks of these impairment tables? I understand the reason behind impairment tables, and that you try to have a much more efficient and effective system to deal with these issues. I understand that you do not want to take an almost common-law type approach when looking at levels of disability and functionality, and have a mini-trial of a person's disabilities, but what do you do in cases where people will clearly fall between the cracks, where people have difficulties and are not, on any reasonably objective standard, able to participate in the workplace because of cumulative disabilities but will not get to the 20 points? What safety valve is there? I understand there is no discretion: if you do not get to the 20 points, you are out.

To what extent will the government be having an ongoing review of this? I suspect what may well happen is that Senator Siewert, me and others in this chamber could well be approached by constituents saying their family member has been knocked out of a disability support pension, notwithstanding that the cumulative nature of their disabilities make it, in practical terms, impossible to participate in the workforce. How do you deal with unintended consequences? How do you deal with cases where people with an intellectual disability—there are some 20,000 people who could fall within this group—do not make the 20-points threshold?

These are the concerns that I have. These are concerns that must be addressed, because I fear that what is being proposed here is quite inflexible, quite prescriptive and does not allow for exceptional circumstances. I think it is always important in legislation such as this to allow for those genuine cases, those genuine exceptional situations, where, given an individual's personal circumstances, the rules need to be reconsidered.