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Wednesday, 30 October 1974
Page: 2151


Senator WHEELDON (Western AustraliaMinister for Repatriation and Compensation) - I think it would be quite improper for me not to offer some comment on what Senator Drake-Brockman has said. In fact, I was aware that he was going to make a non-second reading speech of a somewhat second reading nature and we had agreed that this procedure would be followed. When I constantly hear my reasonableness being referred to I feel somehow that over recent years I must be slipping because 1 now find myself in the position of Warren Hastings of being amazed at my own moderation. There are some matters on which Senator DrakeBrockman has touched and on which I could perhaps briefly comment. First of all, it was a proposal from the Government- an honourable senator on the Government side- which we agreed to quite some time ago before the debate took place in the other place, that this National Compensation Bill should be referred to the Senate Standing Committee on Constitutional and Legal Affairs for further investigation.

I certainly do not want to achieve some footnote in history as being the Minister who was responsible for some disastrous piece of legislation. Obviously any legislation of this sort needs to have very careful consideration. I did not write the report. I do not accept responsibility for all of the things which are in the report. All I say is that this was a report which we believed was prepared by the best available jurists who have worked in this field. The Committee had the best available advice and it produced the best possible report and the Bill is based on that. In fact, the Bill is part of the report which was prepared by a very distinguished parliamentary draftsman who worked with members of the committee of inquiry and particularly Professor Palmer, probably one of the leading authorities in the common law world on the law of compensation. I am well aware of the matters which Senator DrakeBrockman has raised about the necessity not to be unduly hasty with this BDI. That is one of the reasons, for example, provision is made that that part of it applying to sickness will not come into effect for some 5 years from now, at the earliest. That part relating to accident will not come into effect for almost 2 years from this date. It is not a precise parallel to compare this Bill with the Trade Practices Bill or with the Compensation (Commonwealth Employees) Bill 1973 which were due to come into force immediately.

It is provided in the nature of this Bill itself that it should not come into force immediately; that the application should be delayed. I have made clear, and I have meant it, that we believe that this Bill, while it is still a Bill and indeed once it becomes an Act is something which, of necessity, will have to be subject to constant scrutiny and, I believe, constant amendment. I do not think it would be possible for anybody to devise a perfect piece of legislation which would remain unamended for all time. We have taken that fact into account in the way in which we have approached this Bill.

I have had conferences with representatives of the insurance industry. One of the very great difficulties, as Senator Drake-Brockman said, in making predictions about future arrangements with the insurance industry is to know precisely to whom one should be talking. As far as I can tell, there seems to be 3 main streams in the general insurance industry with regard to these proposals. One of them is a group which appears to be quite categorically opposed to them. Another is a group which does not like them particularly but which thinks that in due course something like them is inevitable, that no-fault insurance of one form or another has come into force in many parts of the Western world, that, in any event, in the long run the present system is becoming a losing proposition and that somehow private insurance companies ought to be phased out of it. There is another group. One member of this group was named in my second reading speech. I refer to Mr Pettigrew, the general manager of the oldest and one of the biggest insurance companies in the world, who said that he is completely in favour of these proposals and that compulsory insurance work of a third party or workers' compensation nature is not a suitable field in which private enterprise insurance should engage. I think this indicates some of the difficulties that one has in actually finding out what one should do with insurance companies.

One company with which I have had some dealings- I do not want to put words in anybody's mouth- seemed to believe that a scheme similar, if not identical, to the one that we have before us tonight will be adopted. It has a problem with regard to clinics which it has had for some years as part of its activities in the workers' compensation field. Arrangements have been made for me to inspect those clinics. I think the company is anticipating that in due course it will be going out of the workers' compensation field. It wants to make some arrangements about transitional provisions. I am prepared to do this. If I were asked to state the transitional arrangements I could not answer because the insurance companies have been unable to tell me what they want to have done. All I can say is- it is my view, and I believe it is the view of the Government- if people, because of legal obligations, have been acting as insurers in a field in which insurance is compulsory, obviously if the law is changed they should be protected. There should be transitional provisions to cover any difficult situation in which they find themselves. The reason that they are in this field of insurance is largely because Government legislation required somebody to be in that field.

I deal now with the aspect of common law and lawyers. I am afraid that one finds a disagreement among lawyers on this subject. The closer lawyers are to practice in the field of third party insurance, running down cases, and workers' compensation, the more enthusiastic they would appear to be about the retention of the existing system. The further they are from it, whether they are working as academic lawyers, sitting as judges although their practice before they became judges was in this field, or practising in other fields, the less enthusiastic they seem to be about the retention of the existing common law remedies. All these matters can be considered by the Committee. I appreciate Senator DrakeBrockman 's contribution tonight. All the issues which he has raised are very real problems. It would be quite useless and futile to deny that they are real problems.

I suppose that the only thing which can be said in addition to what I have said already is to stress again the very real problems which are involved in the existing system. In the existing system, if one is not injured in the course of one's employment but is injured as a result of negligence, one is able to obtain quite substantial damages. If one is injured outside the course of one's employment but not as a result of somebody else's negligence, generally speaking one obtains nothing. There is absolutely no moral virtue possessed by the person who is injured as a result of the negligence of a motor vehicle driver as compared with the person who is injured as a result of being struck by a car whose driver died of a stroke, was stung by a bee, or whatever happened, and who was not behaving negligently. It seems rather strange that we should have a social welfare system, which is virtually what compulsory third party insurance is, which provides payments enforceable by law to one group but not to another and there is no more moral worth about one than about the other.

Under the existing systems of workers' compensation and common law damages vast sums are spent on litigation and on all the machinery which is required to maintain these systems. For example, in Victoria, for each $1 that is paid in workers' compensation something like 50c is spent on administration and litigation. Our view is that this scheme would introduce considerable savings, however big the staff may be and whatever the number of typewriters may be, compared with the present colossal expenditure on litigation in relation to workers' compensation. Like Senator Drake-Brockman, I am not taking part in a second reading debate. I am discussing the reference of the matter to the Committee. I trust that the motion moved by Senator Everett will be carried.







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