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Wednesday, 25 November 1959

Mr WHITLAM (Werriwa) (12:23 PM) . - This bill is the shortest of four bills which the Treasurer (Mr. Harold Holt) introduced on Tuesday night. It covers only eight pages and it amends an act which covers only nineteen pages. Nevertheless, it deals with a matter which is the subject of a greater amount of Commonwealth and State legislation than any other subject that I can call to mind.

These various State and Commonwealth acts are more different and divergent one from another than any other acts upon which the various legislatures have to pass similar legislation or legislation in pari materia. A score of workers' compensation acts have been passed by the Commonwealth and State Parliaments.

In New South Wales, to take the most complicated example, employees generally are covered by the Workers' Compensation Act 1926. Exceptions, however, are made by other State acts with respect to employees who work in the Broken Hill area or who suffer from lead poisoning or silicosis or who act as bush fire fighters. Alternative remedies are made available by other New South Wales acts in favour of employees of the State transport services. Again, exceptions are made by Commonwealth acts with respect to Commonwealth employees and seamen.

Many thousands of employees now live on one side of the Murray River and work on the other side. Many employees live on one side and work on the other side of the borders between New South Wales and Queensland or between New South Wales and the Australian Capital Territory. The man who lives on one side of the border and who is injured on his way to work on the other side has different rights to damages or compensation according to the side of the border on which he sustains his injury. Again, seamen are covered by the State Workers' Compensation Act if their ports of departure and destination are within the one State, by a Commonwealth act if those ports are in different States, and by another Commonwealth act - the one now to be amended - if employed on one of the ships of the Australian National Line.

A Commonwealth act such as we are debating could set the highest possible standard for workers' compensation in this country. It could provide a model which the States and Territories could adopt. The Commonwealth itself could consolidate the various workers' compensation provisions in its different acts and ordinances in one act because the Commonwealth could, as in this act, provide for workers' compensation for its own employees, it could, as in the companion act, provide for workers' compensation for persons employed on ships between different States or between one State and a Territory or on an Australian ship travelling between Australia and an overseas country and it could, as in its ordinances, provide for residents of the Territories. Similarly it could provide, although the Commonwealth has not yet done so, for workers' compensation for employees in the interstate road hauling industry or the interstate aircraft industry. It is doubtful, of course, whether the Commonwealth could pass a general workers' compensation act for the whole of Australia. The social services powers of the Commonwealth, under the Constitution, are sufficient to provide for the disbursement of all benefits that any workers' compensation act provides, but there seems doubt whether the Commonwealth's power over insurance could provide for the compulsory method of insurance hitherto used to finance workers' compensation liability by all private employers. If, as we all hope, the proposals of the Parliament's all-party Constitutional Review Committee that this Parliament should be given power, by referendum, over industrial matters are adopted, the Commonwealth Parliament could pass one workers' compensation code for all employees in Australia and the divergences and anomalies that I am about to illustrate would no longer occur. I have referred to legislation because workers' compensation has hitherto been provided by State and Commonwealth legislation. Few people realize that workers' compensation provisions could be provided by the Commonwealth Conciliation and Arbitration Commission. If employers or employees created an interstate dispute on the question of workers' compensation and the commission made an award concerning it the award would displace the provisions of any State legislation.

I have stated that I would illustrate the divergencies and anomalies of the present acts. I will do it under the headings to which the Treasurer (Mr. Harold Holt) referred in his second-reading speech 27 hours ago. The figures that I give will be those relating to 1st January last. I know that some of the States have passed subsequent acts; perhaps the Minister for Territories (Mr. Hasluck) has revised some ordinances in the Territories. I have the figures for all the States and Territories as at 1st January last. They are contained in an excellent annual Conspectus of Worker's Compensation Cases prepared by Mr. W. F. Nicholls, Acting Chief Industrial Officer of the Department of Works. I shall first of all give the amounts of lump sum benefits payable upon death. The present bill proposes to increase the amount now payable under the principal act from £2,350 to £3,000. Corresponding amounts under State and Territorial legislation are as follows: - New South Wales £4,000, Queensland and South Australia £2,500, Victoria and Tasmania £2,240 and PapuaNew Guinea £1,500. Only in Western Australia, at the beginning of the year, was the amount the same as in the Commonwealth.

Thus, if a Commonwealth employee and an employee of a State government, or an employee of a private employer were going home together from work and, while crossing a street, were killed in the same accident, the widow of the Commonwealth employee would get £3,000. If they were crossing the street in Sydney the widow of the other employee would get £4,000. If the accident happened in Brisbane or Adelaide she would get £2,500, in Melbourne or Hobart £2,240 and in Port Moresby £1,500. Although the circumstances were entirely the same and there was the same degree of dependence on the part of the widows there is this inexplicable and irrational anomaly in the amounts they would receive.

Next, the Treasurer referred to lump sum benefits for specified injury. The present bill proposes to raise the maximum amount so payable from £2,350 to £3,000. In New South Wales the maximum is £2,100, in Victoria and Queensland £2,800, in South Australia £2,750, in Western Australia £2,400, in Tasmania £2,340 and in Papua-New Guinea £1,750.

Thirdly, the Treasurer referred to the weekly payments in respect of incapacity for work. First of all for the worker himself under this bill the amount will be raised from £8 15s. to £10. Tasmania is the only State where the amount is also £10. The corresponding amounts in the other States and Territories are: New South Wales £9 15s., Queensland £9 12s., South Australia £9 5s., Victoria and Western Australia £8 16s. and Papua-New Guinea £6. I quote, in each case, the male rate because in the States the female rate is sometimes lower. The weekly payments for a wife are being increased in the Commonwealth from £2 5s. to £2 10s. In New South Wales they are £2 15s., in Victoria they are £2 8s., and in Papua-New Guinea £1 15s. But in the other four States they are the same as are now being provided by this bill. Lastly, there is the dependent child under sixteen, who will now receive £1 2s. 6d. instead of £1. At the beginning of the year in Tasmania the amount was £1 4s. 6d.; in New South Wales it was £1 2s. 6d., the same as is now being provided in this bill; in South Australia it was £1; in Victoria it was 16s., and in Queensland and in Papua-New Guinea 15s.

It will be seen that not only are there differences between the various States but also between different areas of the Commonwealth's own jurisdiction.

It is true that this Parliament has always seen that there are corresponding benefits under the Commonwealth Employees' Compensation Act and the Seamen's Compensation Act. Usually, soon after these rates have been fixed, equivalent benefits have been provided under the Australian Capital Territory ordinance and, at a greater remove, under the Northern Territory ordinance. It will be noticed that in every case the Papua-New Guinea ordinance provides only two-thirds of the amount that the Commonwealth act provides. The various

Commonwealth instrumentalities do not keep in step one with the other. There is no reason why the Commonwealth could not pass one act to deal with everybody in its jurisdiction, its Territories, its employees and interstate trade.

Lastly, I come to the limit on medical expenses. This bill will raise the normal limit. I refer to it as " the normal limit " because greater amounts can be allowed in exceptional circumstances. But the amount will be raised by this bill from £200 to £350. At the beginning of the year in Victoria and South Australia there was no limit on the amount of the reasonable medical expenses which could be paid under workers' compensation. In New South Wales the normal limit was £625; in Western Australia is was £275, in Tasmania £200, and in Queensland £140; Papua-New Guinea, in this case alone fails to afford the lowest amount, £150 - £10 more than in Queensland.

The whole method of providing workers' compensation is an extravagant one. The Statistician says that for 1957-58 the premiums, less returns, rebates and bonuses which were paid for workers' compensation, amounted to £33,772,000. The claims, less amounts recoverable, which were paid as workers' compensation amounted to £24,473,000. Employers paid very much more - roughly 40 per cent. - by way of workers' compensation premiums than employees received by way of workers' compensation benefits.

That is not the only unsatisfactory feature of workers' compensation as the States manage it. In every case the State, like the Commonwealth, provides so small an amount by way of workers' compensation that employees, whenever they can, resort to the hazard, expense and delay of actions for negligence which are compensated for by lump sum verdicts. If the amounts payable by way of workers' compensation were more nearly comparable to the amounts which the employee was making before the injury and which he requires to maintain his family, then we would not have so much of the time of the superior courts taken up in the determination of liability for industrial accidents flowing from the accommodating tort of negligence.

This bill does produce many reforms and many improvements. By and large, one can say that this measure will give greater monetary benefits than any act except the New South Wales act or, 1 believe, the Tasmanian act which was passed this year. It will continue, however, to restrict the liability of the Commonwealth more severely than the liability of employers is restricted by any State act with which I have acquaintance. I cannot pretend to know them all. At least it is quite plain that employees, quite irrespective of the amounts they can recover by way of workers' compensation, can more readily recover compensation under the workers' compensation acts of New South Wales and Victoria than they can under this act.

Mr Cope - I do not think that the Minister for Labour and National Service agrees with that statement.

Mr WHITLAM - I think he does, and when he looks up the cases to which I am about to refer I think he will see that interpretations that have been given by the High Court of the existing act, and which this bill leaves unaffected, will still make it more difficult for Commonwealth employees to secure benefits than it is for workers to secure benefits under the New South Wales and Victorian acts. I cannot pretend always to agree with the Minister for Labour and National Service, but I give him credit for being an assiduous student and not being loath to do his homework. So I think he will agree with the proposition I am putting to him.

We do not oppose this bill; it does make considerable improvements in the money amounts available. Although they are still behind those in some States, the bill is still a great improvement over the existing act. However, we are taking the opportunity to criticize the bill, and in the committee stage to move amendments, because it is in other respects out of line with the New South Wales and Victorian legislation. The criticism we make is that the Government knows this fact. It has had this fact brought home to it in the last year. There have been at least three appeals to the High Court in the last year which have not only turned against the employee making the claim under this act, but have, of course, affected a very great number of pending applications. The High Court has given interpretations of the act which the Commissioner for Employees' Compensation did not always apply previously. As a result of these decisions of course he will not only be entitled to apply these interpretations of the High Court, but also be bound to apply them. We cannot criticize the commissioner if he does apply them, but we can criticize the Government if it refuses, in the light of these decisions, to amend the act by this bill. We will give the Government an opportunity to support the amendments which we will move at the committee stage.

The Commonwealth Public Service section of the Australian Council of Trade Unions has considered these decisions and has made submissions to the Treasurer (Mr. Harold Holt). I think it made them in plenty of time before the Budget was presented. In the Budget we were told that there were to be amendments to this act. It was assumed by the Australian Council of Trade Unions and the Federal Labour Party that the submissions would be accepted. They have not been accepted, and we now intend to move the amendments that I have referred to.

There is no doubt that the administration of the present act is unsatisfactory. There is a time given within which an employee must appeal from a decision or action of the commissioner, to a county or district court. I am glad to see that this bill does correct one anomaly. The 30 days within which the employee has to appeal now dates not from the date of the determination but from the date on which the employee is given notice of the determination. But there is still no time stated in the bill within which the commissioner or his delegate must act - and the commissioner has used his power of delegation profusely.

In a reply which the Treasurer gave to me on 30th September last, it appeared that there were 143 people to whom the commissioner has delegated all or some of his powers and functions under the act. I will give two recent instances of the delay there has been in such cases. They concern the Services departments which there is no need for me to name. In one case an employee died on 27th September, 1958. The matter came to my notice at the beginning of June this year. Things then got moving, and payment was finally made on 19th June - about nine months after the death of the employee. The service Minister concerned wrote to me detailing the delays which had occurred. In reading the letter I shall omit the name of the -department and the name of the widow Concerned. The letter reads -

In particular there was a delay of 22 days between the time when (the widow's) claim was received by the Sydney office of (the department) and the time when that claim was forwarded to the Commissioner for Employees' Compensation. Some of this time was consumed in obtaining statements from witnesses in order to substantiate the claim. There was a delay of 53 days between the date (28.11.58) when the Commissioner asked (the department) to arrange for the Department of Health to examine the medical evidence and the date (20.1.59) when that request was passed on to the Department of Health by (the department). And there was a delay of 27 days between the date (27.2.59) when the Commissioner asked (the department) to seek information as to whether (the widow) was a fit and proper person to receive a lump sum payment and the date (25.3.59) when (the department) passed on that request for information. In addition there were other lesser delays which appear to have been unnecessary. (The department) received the Commissioner's favorable decision on 8.6.59 and effected payment on 19.6.59.

You will notice, Sir, the unconscionable delays that occurred within this particular Service department through the commissioner's delegates in that department. I apprehend that the commissioner himself could have been more energetic at keeping pressure on the Service department concerned. But this sort of thing can happen, and there is nothing that a widow can do to speed up the process. All a woman can do in those circumstances is to go to her federal member. Of course, if there were court proceedings in the first instance instead of purely bureaucratic treatment of these applications under this act, those delays could be dealt with or ventilated.

I give the other case. It concerns another Service department one of whose members on 12th November last year lost an eye. The department did not send on the claim to the commissioner until 18th September last. On 30th September the commissioner then started the medical reviews which were necessary, and the determination was given on the 12th of this month - a year after the accident. In this instance there was no death, but the man had a just claim, having lost an eye, and the sight of his other eye was affected. He could not pursue an occupation during that time. His retirement benefits under the Defence Forces Retirement Benefits Act were not determined during that period. This service pay had ceased and he had not received Commonwealth employees' compensation. There was no way that the timetable could be accelerated except, once again, by approaching a member of this Parliament.

I said that I would give references to the cases on this matter which have been decided in the High Court this year. One is the case of the Commonwealth v. Ockenden, reported in volume 32 of the " Australian Law Journal Reports ", at page 235. This concerns the application of the section of the act which makes compensation payable in respect of personal injury by accident arising out of or in the course of employment. The facts, very briefly, were these: A member of the Navy was discovered to have defective working of the aortic valve as a result of a gradual process following rheumatic fever during childhood. The time when the valve became defective was unknown, and the court held that there was a necessity for a sudden and distinct physiological change in order to establish injury by accident, and also that it was necessary to prove that the change took place while the employee was engaged in the duties of his employment, and not, for example, while he was on leave. The decision which had been made in this man's favour by a county court judge in Victoria on appeal from a decision of the commissioner was reversed by the High Court on the Commonwealth's appeal.

We now know, therefore, that the presence of the words " by accident " in this act prevents an employee from receiving compensation in this kind of case, although there are many cases in which employees who have been similarly affected have secured compensation under State acts, the difference being that in the State acts the words " by accident " do not occur. 1 should not think that the Commonwealth would want to persist in this anomaly. The States do not persist in it.

Mr McMahon - In that case it is well worth reading the full judgment.

Mr WHITLAM - It is, indeed. The Minister, I think, would agree that as a result of this decision the commissioner will have to refuse compensation under this act in many cases in which, under all the State acts, compensation would be payable. One is not reflecting in any way on the court's decision in this matter, but what one does say is that the Parliament, when given the first opportunity to review the act, should remove this anomaly and bring the legislation into line with the State acts. If our amendment along these lines is to be resisted by the Government, I should think that the Government would reasonably have to state why it wants Commonwealth employees to be in a less advantageous position than employees covered by the score of other compensation acts in Australia.

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