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Thursday, 15 September 2011
Page: 6194


Senator MARSHALL (Victoria) (12:11): On behalf of the Education, Employment and Workplace Relations Legislation Committee, I present the report of the committee on the provisions of the Safety, Rehabilitation and Compensation Amendment (Fair Protection for Firefighters) Bill 2011, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

Senator MARSHALL: by leave—I move:

That the Senate take note of the report.

I rise to make some remarks on the report of the Senate Education, Employment and Workplace Relations Legislation Committee on its inquiry into the provisions of the Safety, Rehabilitation and Compensation Amendment (Fair Protection for Firefighters) Bill. The bill seeks to amend provisions in the Safety, Rehabilitation and Compensation Act 1988 relating to injuries sustained by firefighters. The bill would provide rebuttable presumption that a number of cancers developed by firefighters will be presumed to be work related under the Commonwealth law. Subject to threshold tests set out in the bill, the burden of proof would be removed from firefighters with cancer.

The committee had the opportunity to assess a large quantity of primary evidence demonstrating the scientific link between firefighting as an occupation and a number of cancers. Study after study points to an elevated risk of cancer in firefighters. The research is robust and the committee unani­mously accepts its conclusions, even though there are some additional comments made by coalition senators, which I will address shortly. The committee also recognises the simple truth that, when a person spends their professional career serving the public and over the course of their working life inhales and absorbs a cocktail of known carcinogens, society has a moral obligation to enable to them to access compensation should they fall ill as a result. Yet, this is currently not the case.

The SRC Act as it stands certainly allows firefighters the technical means to seek compensation. However, the committee heard that the evidentiary burden of doing so is currently prohibitively onerous. Firefight­ers have to demonstrate exposure to a particular chemical and then demonstrate that the chemical in question is the cause of their cancer. This, for anyone who knows anything about the uncontrolled and unpre­dictable environment firefighters operate in, is virtually impossible. It amounts to picking a single fire incident over many years and identifying it as the root cause of a cancer when cancers we are talking about in fact develop as a result of cumulative exposure over time. They develop as a result of cumulative exposure to a cocktail of toxic chemicals released by combusting materials in houses, cars, businesses, hospitals, schools, manufacturing plants and any other number of sites a firefighter will attend over the course of his or her career. The exact chemical composition of this toxic soup is not known to the firefighter who goes in to extinguish a fire, nor is it possible to determine or record accurately after each incident. The committee heard that it is also difficult as sick firefighters are routinely advised against even attempting to seek compensation so that they might at least avoid the added emotional and financial stresses of litigation.

After thorough consultation with stakeholders, the committee has established that the proposed legislation does not create any new right or entitlement. It merely eases the access to compensation for the small number of firefighters who will be unfortunate enough to develop cancer as a result of their professional duties. Under the proposed rebuttable presumption, employers and insurers would still have every right to reject claims for compensation which are unfounded, but those that are legitimate would finally, for Commonwealth fire­fighters at least, result in compensation.

The committee heard from the widow of a firefighter who was diagnosed with kidney cancer and died in 2009. Her husband, Robert Reed, had to return to work for financial reasons after having his kidney removed. He and his family did not have ready access to compensation, and could not face the added stresses of having to go through lengthy and expensive litigation to obtain it. Like other sick firefighters the committee heard from, Robert Reed and his family decided against pursuing difficult and expensive litigation.

The committee also heard from a number of firefighters with personal experience of cancer. I will not relate each of their stories here, but on behalf the committee I would like to thank Dean Symmans, Scott Morrison, Paul Henderson and Ross Lindley for taking the time to put their experiences on the record and sharing their personal stories with the committee. They did this for future generations of firefighters, knowing that this bill would not help them personally.

To give you a mere glimpse of the situation sick firefighters can find themselves in, the committee heard how Mr Morrison's colleagues put up their own annual leave for him to use when he exhausted his leave allowance fighting non-Hodgkin's lymph­oma. This should not have to happen. These are people who risk their own health and safety to save our lives and property. They tackle dangerous environments to protect the community, going into burning buildings while the rest of us flee. It is the least we can do to help them when they are sick.

By passing this legislation Australia would by no means be in uncharted waters. Presumptive legislation has been in place across North America for the best part of a decade. It has been introduced in province after province in Canada, starting with Manitoba in 2002, and in state after state in America. The committee heard that this model of legislation has received unanimous support from all sides of politics overseas and has never been voted against. It is an issue that goes above and beyond politics.

Having said that, I acknowledge that the coalition senators are not completely convinced that presumptive legislation is the way to go. I am convinced and the majority of the committee are absolutely convinced. The committee certainly considered other avenues and believe that non-rebuttable presumption is the logical, most efficient and effective means of protecting firefighters and compensating them when they unfortunately get cancer as a result of exposure to the soup of toxic chemicals which I talked about earlier.

While I personally believe that Australia has one of the best parliamentary systems in the world, and the Senate in particular has a very robust and important Senate committee process, we also can learn from experiences from Canada and North America. Canada is a democracy similar to ours and functions in many ways like ours and is also considered one of the best parliamentary democracies in the world. They have considered this sort of legislation for many years. Every province went through an exhaustive investigation and a robust process to come up with the same conclusion—that is, non-rebuttable legisla­tion was the only way to properly and efficiently protect firefighters and properly compensate them when they get cancers as a consequence of their occupation. If there had been another way, I am sure they would have found it. Half of the states in the United States also have this style of legislation. I believe that, without trying to reinvent the wheel, we can look to those other parlia­mentary democracies and learn from them. If there was another way, it would be somewhere else for us to look at. Our committee looked and could not find another way. The committee certainly supports non-rebuttable presumptive legislation as the best course of action.

The committee took evidence from an eminent fire chief from Alberta in Canada. He told the committee that presumptive legislation has had a negligible cost impact. It has helped raised awareness of the benefits of early detection of cancers. On the weight of scientific evidence, the number of listed cancers has grown from the five originally covered to 14. The model for this legislation is so accepted in Canada today that all jurisdictions either cover or are looking to cover the full 14 occupational cancers for firefighters.

Having carefully considered all the evidence, the committee was concerned that, if passed, the legislation would only bring Australian Commonwealth law into line with outdated jurisprudence. Given the body of scientific evidence and the benefit of being able to learn from evolving jurisprudence overseas, the committee has recommended expanding the number of cancers covered by the proposed legislation.

On behalf of the committee, I wish to thank all who made submissions and appeared before the committee and gave evidence for this inquiry. I am confident that their efforts have contributed towards the development of a more robust legislation framework which should be improved with the incorporation of the committee's care­fully considered proposed amendments. The committee hopes that the state governments will look to this legislation with a view to introducing similar bills into their own jurisdictions and that, in the near future, we will see harmonised workers' compensation laws which give our firefighters the protections that they deserve.