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Parliamentary Entitlements Amendment (Injury Compensation Scheme) Bill 2016

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2013-2014-2015-2016

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

PARLIAMENTARY ENTITLEMENTS AMENDMENT (INJURY COMPENSATION SCHEME) BILL 2016

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

 

Minister for Finance, Senator the Hon Mathias Cormann)

 

 

 

 

 



 

PARLIAMENTARY ENTITLEMENTS AMENDMENT (INJURY COMPENSATION SCHEME) BILL 2016

GENERAL OUTLINE

The Parliamentary Entitlements Amendment (Injury Compensation Scheme) Bill 2016 (Bill) amends the Parliamentary Entitlements Act 1990 (PE Act) to give the Minister the power to establish the Parliamentary injury compensation scheme (PICS) by legislative instrument. The Bill provides that the PICS may prescribe benefits, applying from 1 January 2016, in relation to:

·                      an injury or disease, or an aggravation of an injury or disease, suffered by a member, arising out of, or contributed to by, the member’s activities as a member, Parliamentary office-holder or a Minister

·                      an injury or disease, or an aggravation of an injury or disease, suffered by the spouse of the Prime Minister, arising out of, or contributed to by, the person’s official activities as the spouse of the Prime Minister

·                      the loss of or damage to medical equipment used by a member or the spouse of the Prime Minister, arising in the course of their respective activities, and

·                      services, facilities and equipment intended to eliminate or minimise the risks to the health or safety of members or the spouse of the Prime Minister, arising in the course of their respective activities.

It is intended that the benefits available under the PICS for injuries, disease and damage to medical equipment will be based on the scheme applying to Commonwealth public servants under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act scheme), and that claims under the scheme will be administered by Comcare. The SRC Act scheme provides compensation benefits, including:

·                      medical treatment

·                      incapacity to work

·                      permanent impairment

·                      household and attendant care services

·                      rehabilitation programmes

·                      alteration of place of residence or place of work

·                      modifications of a vehicle or article

·                      aids or appliances, or the repair or replacement of such aids or appliances

·                      death benefits, and

·                      funeral expenses.

The Bill will also allow the PICS to provide for preventative work, health and safety services, facilities and equipment. This is in keeping with the coverage currently afforded to Commonwealth public servants and people employed under the Members of Parliament (Staff) Act 1984 . Such benefits are not currently provided under the SRC Act, rather they are provided by employers. However, there is no specific entitlement for parliamentarians and the spouse of the Prime Minister, to preventative work health or safety services facilities and equipment. It is considered appropriate to make provision for these items as part of a holistic approach to addressing their health and safety needs.

The power for the Minister to establish the PICS by disallowable legislative instrument includes specific powers to ensure that the PE Act will support the establishment of a scheme for members and the spouse of the Prime Minister that is consistent with the SRC Act. It is considered appropriate that the detail of the scheme is contained in a disallowable legislative instrument in order to provide the flexibility necessary to keep pace with any changes to Commonwealth employee’s compensation arrangements. Since this is the first time a scheme of this kind has been established for parliamentarians, such a legislative instrument will also allow flexibility to quickly address any matters that may arise as a consequence of the unique nature of parliamentary employment.

BACKGROUND

Parliamentarians are not employed by the Commonwealth and therefore the Commonwealth is currently unable to provide workers’ compensation insurance to parliamentarians without an express legislative authority. This has been acknowledged as part of a number of reviews of parliamentary entitlements, including in the 2010 Committee for the Review of Parliamentary Entitlements (Belcher review) report and the Remuneration Tribunal’s 2011 Review of the Remuneration of Members of Parliament - Initial Report .

The Remuneration Tribunal’s 2011 report noted that the Tribunal considers that the lack of workers compensation arrangements for parliamentarians is most unsatisfactory. The fact that they are not employees, in the conventional sense, should not, in the Tribunal's view, militate against suitable arrangements being established for them. Both reports recommended that the Government act immediately to implement a legislative solution that would enable the Commonwealth to establish a workers’ compensation insurance scheme for parliamentarians.  

The spouse of the Prime Minister undertakes official duties in connection with the role of the Prime Minister as the head of government, for example, hosting bilateral/multilateral events for the spouses of other heads of government, such as the Group of Twenty, the Commonwealth Heads of Government Meeting and the Asia-Pacific Economic Cooperation. It is therefore considered appropriate that the spouse of the Prime Minister is covered while performing official duties in connection with the role of the Prime Minister. 

FINANCIAL IMPACT STATEMENT

The PICS was announced as part of the 2015-16 Budget where funding of $1.4 million over the forward estimates was provided. The split between Comcare and the Department of Finance (Finance) is as follows:

            Financial Year             2015-16           2016-17           2017-18           2018-19

            Comcare ($m)             0.3                   0.2                   0.2                   0.2

            Finance ($m)               0.2                   0.1                   0.1                   0.1

            Total ($m)                   0.4                   0.3                   0.3                   0.3

The financial impact of the amendments to the Parliamentary Entitlements Act 1990 is low.

REGULATION IMPACT STATEMENT

The Office of Best Practice Regulation (OBPR) has been consulted and advised that a Regulation Impact Statement is not required, reference number: ID 19957.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in the Bill and assesses that the amendments are compatible with Australia’s human rights obligations.  A copy of the Statement of Compatibility with Human Rights is at Attachment A.

 



NOTES ON CLAUSES

Clause 1—Short title

1                     Clause 1 provides for the Act to be cited as the Parliamentary Entitlements Amendment (Injury Compensation Scheme) Act 2016 .

Clause 2—Commencement

2                     Clause 2 provides for the commencement of the Bill. Clauses 1 to 3 of the Bill commence on the day of Royal Assent. Schedules 1 and 2 to the Bill commence on the earlier of:

·                      a single day to be fixed by Proclamation, or

·                      the day after a period of six months beginning on the day the Bill receives Royal Assent.

Clause 3—Schedules

3                     Clause 3 provides that legislation that is specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule and any other item in a Schedule has effect according to its terms.



 

Schedule 1—Main amendments

4                     The items in this Schedule contain amendments to the Parliamentary Entitlements Act 1990 (PE Act) to provide the Minister with the power to formulate the Parliamentary injury compensation scheme (PICS) by legislative instrument, and confer on Comcare the power to administer the scheme.

5                     This Schedule also contains consequential amendments to the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) to allow Comcare to perform any functions conferred on it by the PICS.

Parliamentary Entitlements Act 1990

Item 1

6                     Item 1 inserts two new definitions into section 3 of the PE Act, Comcare and Parliamentary injury compensation scheme.

7                     Comcare is defined as the body corporate established by section 68 of the SRC Act. Comcare is referred to in new section 9A, as inserted by item 3 of this Schedule. New section 9A provides the Minister with the power to confer functions on Comcare via the instrument that establishes the PICS, which is taken to be a function conferred by an Act for the purposes of paragraph 69(g) of the SRC Act.

8                     Parliamentary injury compensation scheme (PICS) is defined as the scheme formulated under section 9A. New section 9A is inserted into the PE Act by this Bill, and provides the Minister with the power to establish the PICS by legislative instrument (see item 3 below).

Item 2

9                     Item 2 inserts new subsection 5(3) into the PE Act, which provides for the benefits prescribed by the PICS to be an additional benefit under the PE Act.

Item 3

10                 Item 3 inserts new section 9A into the PE Act, which provides the Minister with the power to establish the PICS and the matters that the PICS instrument may include coverage for.

Subsection 9A(1)

Summary

11                 New subsection 9A(1) provides for the PICS to include coverage of:

·                      compensation or other benefits for an injury or disease, or an aggravation of an injury or disease

·                      compensation for the loss of or damage to an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance

·                      the provision of services, facilities or equipment intended to eliminate or minimise the risks to health or safety, and

·                      matters ancillary or incidental to the above.

12                 The PICS may cover members and the spouse of the Prime Minister, where the injury or disease (including aggravation of such), damage to medical equipment, or the risk to the health or safety of the person, arises out of, in the course of, or was contributed to by (as relevant):

·                      a member’s activities as a member, Parliamentary office-holder or Minister, or

·                      for the spouse of the Prime Minister, arising out of the spouse’s official activities.

Compensation and other benefits for injury and disease

13                 New subparagraphs (1)(a)(i) and (ii) will allow the PICS to provide compensation or other benefits in respect of injuries or diseases, or the aggravation of an injury or disease, suffered by a member or the spouse of the Prime Minister arising from their activities covered by the PICS. It is intended that the PICS will provide the same compensation entitlements as the SRC Act scheme, as detailed above.

Compensation for damage to medical property

14                 New subparagraphs (1)(a)(iii) and (iv) will allow the PICS to provide benefits relating to the loss of, damage to, an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance.

15                 It is intended that compensation for damage to medical property will be available where there is an accident which causes damage to the medical equipment of a member or the spouse of the Prime Minister, even in circumstances where the accident does not result in an injury to the person. This is reflective of the compensation entitlements currently available to Commonwealth employees under section 15 of the SRC Act.

Provision of work health or safety services, facilities or equipment

16                 New paragraph (1)(b) allows the PICS to provide benefits relating to services, facilities and equipment intended to eliminate or minimise risks to the health or safety of members and the spouse of the Prime Minister, when conducting relevant activities.

17                 Such benefits are not currently provided for under the SRC Act for Commonwealth employees, as such services, facilities and equipment are the responsibility of employing entities. However, there is not currently a specific entitlement for members to work health or safety services, facilities and equipment (some equipment and facilities may currently be provided under the electorate office entitlement).

18                 Including specific provision for these benefits in the scheme will allow a full range of work health or safety related entitlements to be provided, in order to minimise risks to health or safety, and is complementary to a scheme that provides for compensation and other benefits for injuries or diseases.

19                 Benefits that may be prescribed under the PICS may include things like ergonomic and workplace assessments, risk assessments of proposed activities, toxicology or other health screening relating to activities in the workplace, training to support the management of work health or safety risks and compliance with work health or safety legislation, vaccination programmes, or preventative psychological services.

Ancillary or incidental matters

20                 New paragraph (1)(c) allows the PICS, for the avoidance of doubt, to include coverage for matters that are ancillary or incidental to the specific matters discussed above. This might include things like legal costs, which in some cases may be covered under the SRC Act scheme (for example, section 67 of the SRC Act).

Subsection 9A(2)

21                 New subsection (2) specifies, without limiting subsection (1), certain matters that may be included in the instrument made by the Minster to establish the PICS. These matters are specifically provided for in the Bill to ensure that the scheme prescribed by the Minister can be consistent with the benefits currently available under the SRC Act, to the extent that they are relevant to members of parliament and the spouse of the Prime Minister.

22                 New paragraph (2)(a) allows the scheme to confer functions on Comcare for administering the PICS. When read with new subsection (3), this will allow the PICS instrument to confer functions on Comcare for the purposes of paragraph 69(g) of the SRC Act. Comcare currently administers the SRC Act scheme, and it is expected that Comcare will administer the PICS, other than the provision of work health or safety services, facilities and equipment.

23                 New paragraph (2)(b) allows the PICS to provide for conditions that must be complied with for a person to receive and continue to receive a benefit under the PICS. This would include conditions such as requiring a person to undergo rehabilitation or medical examination. These powers will be necessary in order for Comcare to effectively assess claims and address injuries and diseases covered by the PICS. These powers are currently a feature of the SRC Act scheme, for example, section 57 of the SRC Act allows Comcare to require that a person undergo a medical examination.

24                 New paragraph (2)(c) allows the PICS to provide benefits or compensation for persons who received or are eligible to receive benefits or compensation under the scheme and subsequently suffer an injury or disease, or an aggravation of an injury or disease, in connection with an activity engaged in in accordance with the scheme. This would allow the scheme to provide benefits, for example, to former members who are injured when complying with a condition under the scheme such as attending rehabilitation or a medical appointment in connection with a claim they made under the PICS when they were a member.

25                 This is consistent with the SRC Act scheme which treats an injury as having arisen out of or in the course of employment in situations where it was sustained while undergoing a rehabilitation program, or obtaining a medical certificate, in accordance with the requirements of the SRC Act (see section 6 of the SRC Act).

26                 New paragraph (2)(d) allows the PICS to provide that compensation or other benefits may be payable to persons other than members. This is to allow certain benefits to be paid directly to people who provide services under the PICS, for example medical services or funeral services. It will also allow benefits to be paid to dependants or directly to the spouse of the Prime Minister, where appropriate.

27                 This is consistent with the way Comcare currently administers payments under the SRC Act, for example section 17 of the SRC Act provides for compensation to be paid to dependants of an employee who suffers an injury that results in their death, and section 18 provides for compensation to be paid in respect of funeral expenses (which may be paid to the person who carried out the funeral).

28                 New paragraph (2)(e) allows the PICS to provide for an amount of money paid under the scheme to be repaid in certain circumstances. This would include where a person has received the benefit of compensation for an injury under the scheme and subsequently receives compensation or damages in relation to the same injury from another source (such as through legal proceedings against a third party).

29                 Allowing the scheme to require monies to be repaid in these circumstances will ensure that a person covered by the scheme is not compensated more than once for the same injury, disease, or damage, and that Commonwealth funds are not used to provide compensation where a third party has a legal liability to compensate the claimant. This is consistent with the SRC Act scheme (section 48 of the SRC Act) which provides for a person who has received compensation under the scheme to repay monies where that person has recovered damages from another source in respect of the same matter.

30                 New paragraph (2)(f) allows the PICS to provide Comcare with the power to recover, set-off, write-off or waive debts arising under the scheme. This is complementary to the matters set out in new paragraph (2)(e), and would allow any debts arising under those circumstances to be recovered as a debt to the Commonwealth. This is consistent with Comcare’s debt recovery powers under sections 114C and 114D of the SRC Act, and reflects that compensation and other benefits will be paid from Consolidated Revenue rather than money held by Comcare.

31                 New paragraph (2)(g) allows the PICS to require a person to produce information or documents to Comcare for the purposes of the PICS. Including the power in the PICS instrument would allow Comcare to effectively administer the PICS and determine benefits, by requiring a person to produce all information and documents relevant to determining their claim. The inclusion of such a provision in the PICS would be consistent with the SRC Act scheme where section 58 of the SRC Act provides for Comcare to request information or documents from a person making a claim, and allows Comcare to refuse to finalise a claim until the information or documents are provided.

32                 New paragraph (2)(h) allows the PICS to require a person to notify Comcare of a matter set out in the PICS. This would include matters that Comcare may not become aware of through other means, such as the receipt by the person of compensation from a third party for the same injury or disease, and it is necessary to ensure that Comcare can effectively administer the scheme and accurately calculate the benefits that persons are entitled to receive.

33                 Requiring a person to notify Comcare of a matter is consistent with the SRC Act scheme. For example, section 48 of the SRC Act requires a person who has received damages from another source, in relation to an injury or disease they have received compensation for under the Act, to notify Comcare of the recovery of damages within 28 days.

34                 New paragraph (2)(i) allows the scheme to prescribe penalties for offences relating to failing to notify Comcare of matters or events set out in the PICS. These penalties must not exceed 10 penalty units. There are currently offences contained in the SRC Act relating to failure to notify Comcare of certain things (see sections 46, 47, 48 and 120 of the SRC Act). It is intended that the scheme will include the same offences as the SRC Act in order to ensure that Comcare is able to obtain the information that it requires, as a way of effectively administering and maintaining the integrity of the PICS.

35                 New paragraph (2)(j) allows the PICS to provide for the review of decisions under the PICS including allowing for jurisdiction to be conferred on the Administrative Appeals Tribunal with any necessary modifications specified in the scheme. This will ensure that persons covered by the scheme will have appropriate rights to seek merits review of any decisions regarding their entitlement to compensation and other benefits under the scheme.

36                 This is consistent with the rights that are available to Commonwealth employees under the SRC Act (see Part VI of the SRC Act) which invokes the jurisdiction of the Administrative Appeals Tribunal and also allows for Comcare to internally review its decisions. The SRC Act makes some modifications to the operation of the Administrative Appeals Tribunal Act 1975 (AAT Act) to assist in the efficient administration of claims by Comcare and provide costs to applicants in certain circumstances (see sections 65, 66 and 67 of the SRC Act). It is considered appropriate that the scheme established under the PE Act be capable of providing the same benefits and obligations available to claimants under the SRC Act scheme. Before making the instrument it is intended that the Attorney-General’s Department will be consulted on any modifications to the operation of the AAT Act.

37                 New paragraph (2)(k) allows the PICS to provide for:

·                      limitations on the right of a person to bring an action or other proceeding for damages in relation to an injury or other circumstance covered by the PICS

·                      Comcare to make a claim for damages in the name of a person, or take over the conduct of an action or other proceedings, in relation to an injury or other circumstance covered by the PICS, and

·                      Comcare to require any damages paid or to be paid to a person in respect of an injury or other circumstance covered by the scheme to be paid to the Commonwealth.

38                 Providing a power for these inclusions in the PICS will enable Comcare to effectively administer and maintain the integrity of the scheme by reducing the cost to the Commonwealth in circumstances where a third party has liability for an injury or other circumstance covered by the scheme. In these cases Comcare may be given the power to take action for damages in the name of the person and require that any damages be paid directly to the Commonwealth. In circumstances where the Commonwealth may have some liability for damages other than under the PICS, this will also allow the PICS to limit the person’s right to seek damages from the Commonwealth where the person is entitled to payments under the PICS. Such powers are currently included in the SRC Act scheme (see sections 44, 50 and 51 of the SRC Act).

39                 These powers will also allow the PICS instrument to give Comcare the power to take over the defence of an action or other proceeding relating to an injury or other circumstance under the scheme. There is provision for this under the SRC Act scheme which allows Comcare to take over the conduct of a matter for an employer where its employee makes a claim against it for non-economic loss relating to an injury covered by the scheme (see section 52A of the SRC Act). This section also allows Comcare to take over the conduct of a matter for an employee covered by the scheme, where another employee (the second employee) has taken action against them for non-economic loss relating to an injury suffered by the second employee that is covered by the SRC Act scheme. Including the ability for the PICS instrument to prescribe such powers for Comcare will ensure that the PICS is consistent with the SRC Act scheme, to the extent relevant.

40                 New paragraph (2)(l) allows the Minister to make legislative instruments for the purposes of the PICS. The SRC Act currently contains powers for the Minister for Employment to make instruments in respect of a number of aspects under the SRC Act scheme. For example, under subsection 7(1) of the SRC Act, the Minister for Employment may specify certain employment types that are taken to have contributed significantly to the development of a specific disease, and subsection 16(6) of the SRC Act allows the Minister for Employment to specify a particular rate for each kilometre travelled to obtain medical treatment that is compensable.

41                 It is intended that PICS will incorporate any relevant instruments made for the SRC Act scheme, however given the differences in the nature of the employment of parliamentarians and Commonwealth public servants it is considered that not all legislative instruments made by the Minister for Employment in relation to the SRC Act scheme will be easily applied to the PICS without the need for extensive modification. It is therefore considered prudent to provide the Minister responsible for the PE Act with the power to make instruments under the PICS to ensure that all relevant instruments can be incorporated into the scheme.

Subsection 9A(3)

42                 New subsection (3) provides for a function conferred on Comcare by the PICS to be taken to be conferred on Comcare by the PE Act. This is for the purposes of paragraph 69(g) of the SRC Act, which allows additional functions to be conferred on Comcare by another Act. This power is necessary to allow the instrument to confer the function of administering the PICS on Comcare.

Subsection 9A(4)

43                 New subsection (4) provides that the PICS may apply to events occurring on or after 1 January 2016. In particular, it may provide coverage for:

·                      an injury or disease that is suffered in connection with an activity as covered by new subparagraphs 1(a)(i) and (ii) occurring on or after 1 January 2016

·                      an aggravation of an injury or disease suffered in connection with an activity occurring on or after 1 January 2016, whether or not the injury or disease that the aggravation relates to was suffered on or after that day, and

·                      loss or damage to medical equipment as covered by new subparagraphs 1(a)(iii) and (iv) that occurs on or after 1 January 2016.

Although payments under the scheme will not be made until it is established by legislative instrument, it is intended that the PICS will cover events from 1 January 2016.

Subsection 9A(5 )

44                 New subsection (5) provides that new section 9A and the PICS, prescribed by the Minister, extends to all places outside Australia, including the external territories. This is consistent with the SRC Act scheme (see section 3 of the SRC Act) and allows the PICS to cover events occurring outside of Australia, for example injuries and diseases that occur overseas but would otherwise be covered by the scheme.

Safety, Rehabilitation and Compensation Act 1988

Items 4 to 7

45                 Items 4 to 7 make consequential amendments to the SRC Act to facilitate Comcare’s intended role in administering the PICS.

46                 Item 4 amends the note to section 69 to insert a reference to the PE Act. This makes it clear to the reader that functions will be conferred on Comcare by the PE Act, via the instrument made to establish the PICS.

47                 Item 5 amends subsection 73(1) to insert a reference to the PE Act, which will allow the Minister responsible for the SRC Act to give general directions to Comcare with respect to the performance of its functions or exercise of its power under the PE Act, otherwise than in relation to a particular case.

48                 Item 6 amends subsection 73A(1) to insert a reference to the PE Act. This will prevent the Safety, Rehabilitation and Compensation Commission (Commission), from issuing policy guidelines with respect to the PICS. It is not considered appropriate for the Commission to have a role in relation to this class of claims, consistent with the existing exemption for the Asbestos-related Claims (Management of Commonwealth Liabilities) Act 2005 which also establishes a separate scheme for persons who are predominantly not Commonwealth employees (see subsection 73A(1)).

49                 Item 7 amends paragraph 91(3)(a) to insert a new subparagraph (vi) which contains a reference to the PE Act. This will allow the money of Comcare to be applied in payment or discharge of the expenses, charges, obligations and liabilities incurred or undertaken by Comcare in the performance of its functions and exercise of its powers in relation to the PICS.

 

 

Schedule 2—Other consequential amendments

Item 1

50                 Item 1 makes a consequential amendment to the Age Discrimination Act 2004 (ADA) by including reference to the PICS, as established under the PE Act, in Schedule 1 of the ADA. This will provide an exemption to the ADA where a person acts in compliance with the PICS, for the purposes of subsection 39(1) of the ADA. The ADA provides exemptions in recognition of sound policy reasons for the use of age-based criteria in Commonwealth law and programmes. The SRC Act is one such Act that is currently listed in Schedule 1 of the ADA. It is considered appropriate that the exemption afforded by section 39(1) of the ADA extend to the PICS, which establishes benefits and eligibility criteria equivalent to that of the SRC Act scheme, which in some cases may include age based criteria.

 



 

Attachment A

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

PARLIAMENTARY ENTITLEMENTS AMENDMENT (INJURY COMPENSATION SCHEME) BILL 2016

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The main purpose of the Parliamentary Entitlements Amendment (Injury Compensation Scheme) Bill 2016 (Bill) is to make amendments to the Parliamentary Entitlements Act 1990 , to provide a legislative mechanism for establishing the Parliamentary injury compensation scheme (PICS). The PICS will provide a number of benefits to parliamentarians and the spouse of the Prime Minister, including injury compensation, rehabilitation support and work health or safety equipment, services or facilities. These measures will allow the Commonwealth to prevent, compensate and address workplace injuries and diseases for parliamentarians and the spouse of the Prime Minister. The PICS would also cover compensation for damage to medical equipment used by a member or the spouse of the Prime Minister.

The Bill allows the PICS to be established through a legislative instrument made by the Minister. The intention is that the PICS instrument will provide the same benefits to parliamentarians and the spouse of the Prime Minister that are currently available to Commonwealth public servants under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), to the extent they are relevant. Additional preventative work health or safety measures are also provided.

Legislative authority is required to establish the PICS because parliamentarians and the spouse of the Prime Minister (when engaged in official activities) are not employed by the Commonwealth. This means that the Commonwealth is unable to provide workers’ compensation insurance coverage for injuries or diseases suffered in the course of employment. This lack of coverage is inconsistent with community expectations around providing safe and healthy workplace conditions for employees more broadly.  

The spouse of the Prime Minister often undertakes official duties in connection with the role of the Prime Minister as the head of government. This might include hosting bilateral/multilateral events for the spouses of other heads of government including the Group of Twenty, the Commonwealth Heads of Government Meeting and the Asia-Pacific Economic Cooperation. It is therefore considered appropriate that coverage be extended in respect of these duties.



 

It is intended that the administration of the PICS will be conferred on Comcare, as the administrator of the SRC Act scheme. It is also considered appropriate for the PICS to be capable of imposing certain conditions on eligibility for compensation and benefits as well as mechanisms to prevent the incorrect payment of benefits and allow for recovery of overpaid or incorrectly paid benefits. Such conditions and mechanisms are intended to mirror those provided under the SRC Act, and will allow Comcare to administer the PICS efficiently and in a way that maintains the integrity of the scheme.

Human rights implications

Applicable rights and freedoms engaged

The Bill engages a number of the recognised or declared human rights and freedoms which are identified and addressed below.

Right to work and rights at work

Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) relates to conditions of work by recognising ‘the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular...[s]afe and healthy working conditions’.

Article 26 of the Convention on the Rights of Persons with Disability (CRPD) also provides that State Parties must take effective and appropriate measures to enable persons with disabilities to ‘attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.’ This includes establishing and strengthening rehabilitation services and programmes in a number of specific areas, including employment.

With respect to work and employment, Article 27 of the CRPD also provides that ‘State Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to...[p]romote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities.’

The right to health

Article 12 of the ICESCR provides that everyone has the right ‘to the enjoyment of the highest attainable standard of physical and mental health’ and that steps must be taken by State Parties for ‘the improvement of all aspects of environmental and industrial hygiene’ in addition to the ‘prevention, treatment and control of epidemic, endemic, occupational and other diseases’. This involves facilitating access to medical services and attention in the event of sickness.

The right to social security

Article 9 of the ICESCR provides that everyone has the right ‘to social security, including social insurance.’ Guidance provided by the Committee on Economic, Social and Cultural Rights (the Committee) at paragraph 17 of General Comment No. 19 provides that:

State Parties should also ensure the protection of workers who are injured in the course of employment or other productive work. The social security system should cover the costs and loss of earnings from the injury or morbid condition and the loss of support for spouses or dependents suffered as a result of the death of a breadwinner. Adequate benefits should be provided in the form of access to health care and cash benefits to ensure income security. 

Right to privacy

Article 17 of the International Covenant on Civil and Political Rights (ICCPR) provides that ‘[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence’. Where a limitation on the right to privacy is provided by law, this does not necessarily mean that the limitation will not be arbitrary.

The right to a fair hearing

Article 14 of the ICCPR provides that ‘everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law’ and that ‘[e]veryone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law’. The imposition of strict liability offences is said to engage and limit this right, because it removes the requirement to prove fault in order to establish criminal liability.

Effect of the Bill on the rights and freedoms engaged

The main objective of the Bill is to provide a legal mechanism to establish an injury compensation scheme which provides compensation for parliamentarians or the spouse of the Prime Minister where they suffer an injury or disease, or an aggravation of an injury or disease, in a workplace context. The scheme will also be capable of providing workplace health or safety services, equipment and facilities for Parliamentarians and the spouse of the Prime Minister as a means of preventing workplace injury and disease. The intention of the scheme is to provide to parliamentarians, and the spouse of the Prime Minister, the same benefits currently available to Commonwealth public servants under the SRC Act scheme.

The SRC Act scheme is administered by Comcare, whose efficient administration of the scheme is facilitated through appropriate conditions on the eligibility for, and payment of, benefits under the SRC Act scheme. Additional mechanisms that relate to the requirement to provide evidence and allow for the recovery of overpaid benefits are also considered necessary to maintain the integrity of the SRC Act scheme. It is considered appropriate that the scheme established under the PE Act contain these same controls. 

The enhancement, protection and promotion of rights

Currently parliamentarians and the spouse of the Prime Minister must pursue compensation through statutory or common law remedies where they have suffered an injury or disease as a consequence of activities relating to their respective roles. This is inconsistent with the broader workforce where employees are provided with a level of workers’ compensation insurance by their employers.

The Bill provides power to establish a scheme which is aimed providing benefits to prevent and compensate occupational injuries and diseases. The benefits available are intended to be equivalent to those currently available under the SRC Act scheme, which includes:



 

·          medical treatment

·          the cost of replacing medical equipment

·          incapacity payments

·          permanent impairment

·          the payment of household and attendant care services

·          rehabilitation costs

·          death, and

·          funeral expenses.

The Bill also provides the power for the scheme to provide preventative workplace health or safety services, facilities and equipment. Noting the above, it is considered that the Bill creates a power to establish a scheme which will enhance, protect and promote the rights to social security, health, work and rights at work, for parliamentarians and the spouse of the Prime Minister.

Reasonable, necessary and proportionate limitations on rights

The Bill provides a power to establish the PICS with broad powers to:

·          compel claimants to produce information or documents with respect to a claim made under the PICS, and

·          establish offence provisions in relation to the PICS.

It is intended that these powers will only be used to create controls that are equivalent to those currently available under the SRC Act scheme. Therefore, the information gathering power is limited to matters that relate to the PICS, and the offence creation provision is limited to creating offences with a maximum penalty of 10 penalty units (in line with the highest penalty currently available under the SRC Act).

It is important that the Bill provides for the PICS to have mechanisms that to allow claims to be processed accurately and efficiently. This includes having the power to compel claimants to produce documents and information that are relevant to their claim or ongoing eligibility. Appropriate mechanisms should also exist to discourage non compliance with these requirements as a means of maintaining the integrity of the scheme.

Noting the above, while the inclusion of a power to create information gathering powers may affect the right to privacy, limiting the power to matters that relate only to the scheme ensures that the discretion is not so wide that it creates arbitrary interference with an individual’s right to privacy. Similarly, the inclusion of a power to create strict liability offences as part of the scheme may be considered a limitation on the rights established under Article 14 of the ICCPR. However, it is considered a reasonable, necessary and proportionate limitation for the purpose of achieving the legitimate objective of providing the PICS with mechanisms that assist in maintaining the integrity of the scheme.



 

Conclusion

The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 , because it advances the protection of human rights. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Senator the Hon Mathias Cormann

Minister for Finance