TRANSPORT ACCIDENT AMENDMENT BILL 2013

I rise to make a contribution to the debate on the Transport Accident Amendment Bill 2013 and to join with my colleagues in our unambiguous opposition to this bill.

In doing so, I direct the attention of the house to comments made by the Assistant Treasurer in a media conference on 11 July where he indicated that:

The government had no intention of changing the scheme with respect to common law. In fact we made a commitment coming to government that we would not do that.

We on this side unambiguously say that the government has eroded the common-law rights of workers in this state, and we will not stand by quietly and allow that to happen. We will vigorously resist these provisions. The Leader of the Opposition has indicated that if we have the honour of returning to government in 2014, we will rescind these obnoxious provisions, which by any measure undermine the hard-fought-for common-law rights of workers in this state. That is what the Labor Party is about.

There are a number of aspects to this bill which I want to briefly go to. As we know, the Transport Accident Commission (TAC) is a no-fault comprehensive scheme, and it has been extraordinarily successful. Last financial year the TAC recorded a profit of $973 million, and the government, in seeking to balance its budget, took its fair share of this dividend — I understand it was $176 million — to ensure that it has a surplus going forward.

What are the impediments of this scheme as we articulate them? The TAC scheme allows family members to claim compensation for mental injury or nervous shock, but under the proposed changes a family member will only be able to claim to have suffered from the death of their closest relative if they can prove they were unable to work for three years after the accident occurred. This new test was not subject to any consultation with the Australian Medical Association or other experts.

It proposes to change the definition of ‘serious injury’ to limit access to compensation for claimants who suffer severe long-term mental or behavioural disturbance or disorders. It will require a person to demonstrate that they have a mental illness as a result of a transport accident for a continuous period of three years, have not responded to treatment provided by a registered mental health professional and have severely impaired relationships and social and vocational functioning.

The term ‘for a continuous period of at least three years’ does not take account of the fact that mental illness by its nature tends to fluctuate and symptoms can become worse and better during that period. I draw the attention of the house to documentation provided by Dr Louise Roufeil, executive manager, professional practice, at the Australian Psychological Society. She outlined in very great detail in her correspondence to all members of Parliament issues pertaining to mental health and how people do or do not recover from it.

The document states in part:

The requirement of failure to respond over three continuous years of treatment does not reflect the reality of clinical practice; while a minority of individuals may never respond to treatment, the most likely clinical pathway is one of some fluctuation over time. Certainly, when viewed over time, some people with serious injury will improve. However, others will experience only partial or incomplete recovery and even that may fluctuate over time.

There is a second element in relation to emergency services workers. Currently emergency services workers who suffer severe psychiatric injury from witnessing an accident can seek damages from the TAC under common law. However, these workers will no longer be able to make a claim if the accident was a result of a suicide attempt or the injured or deceased person was predominantly at fault.

Emergency services workers will also face a new, more stringent test for mental injury or nervous shock, as I have just indicated. If they seek compensation, they will have to prove that they have been unable to work for three years after the accident, yet the government would have us believe nothing has changed and workers’ rights are being maintained. I suggest that those members who seek to perpetuate this nonsense look at the TAC website, which clearly sets out that a worker receives:

… no-fault workers compensation benefits from WorkSafe and is entitled to common-law damages from the TAC when the injury or death results from a transport accident or incident that involves and arises out of the use of a registered Victorian vehicle during the course of employment or during a recess break.

I want to go back to the first part of this new test. In doing so I indicate that this is an issue that is very raw for me. It is pertinent to me and very pertinent to my family because only in the last few months my family members have been the victims of a motor car accident. My sister lost her firstborn child in circumstances that are still under investigation by the police and the coroner. I choose not to go to that. I simply say that I have never in my life seen such profound grief and psychological trauma as experienced by my sister, her husband, her surviving children and our broader family. To lose one’s firstborn child in such circumstances is utterly horrendous.

Will my family ever recover from this? I do not know. They may ultimately recover.

But this legislation ultimately means that members of my family will be subject to a test to demonstrate that for a continuous period of at least three years they have had a mental illness as a result of a transport accident, that they have not responded to treatment provided by a registered nurse or medical practitioner and that they have had symptoms causing severe impairment in relationships and social and vocational functioning. This is the real world. This is what we are suffering today. This is what my family is suffering today. This is what my sister is suffering today.

It is a tragic and sad indictment of this Parliament and this legislation that we find ourselves in a circumstance where we in this Parliament would seek to put in the way of suffering families — not just my family but many families that have been the victims of these sorts of traumas, as well as the decent people in the emergency services area who put their lives on the line in support of the common good — onerous tests of how people who are confronting the most tragic and horrendous circumstances that anybody can imagine have the potential and capacity to recover, indeed if they ever recover and are ever to go forward to live a productive life in the future.

From my point of view this is about as raw and as real as it can get, and it is in that context that I simply say: this is fundamentally wrong, it is bad legislation and it is going to hurt decent people like those in my family and so many people in the emergency services who selflessly go out there and put their lives on the line for us. It is a fundamentally wrong thing to do.

It is a disgraceful thing for the government to come in here and say that all we are doing in opposing this bill is looking after our mates at Slater and Gordon and Maurice Blackburn. There is no doubt they are generous contributors, sponsors and supporters of the Australian Labor Party, but this is not about lawyers. It is not about Slater and Gordon and Maurice Blackburn; it is about people. It is about my family; it is about so many families. It is about Mrs Markovic, who has a story in today’s paper about the tragic loss of her son. The reality is that this bill is going to hurt my family and many others. It is fundamentally wrong and ought to be opposed.