Tim Hammond (Perth, Australian Labor Party) Share this | Hansard source

I'm delighted to rise to speak in support of the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016. It is one of those areas that doesn't often get a lot of headline attention, and it is often overshadowed by a lot of other things, both in this place and the community more generally. But I say as someone who, over many years—16 years before coming to this place—has worked in this area of compensation for those who have been injured through no fault of their own, that we are dealing with really, really important legislation here. The mechanisms proposed in this bill separate the Defence Force compensation from the Safety, Rehabilitation and Compensation Act, which is a pragmatic, sensible and effective move that one hopes will have the ultimate aim of making it easier for injured veterans and injured workers to navigate what can be a very complicated system in relation to seeking compensation simply to put them back in the position they were in before they suffered their injury.

Safety, rehabilitation and compensation legislation has some history, and it is a history worth touching on, albeit only briefly, because it demonstrates how important it is to get the balance right: to make sure that workers spend their time having appropriate treatment and rehabilitation and receive compensation whilst they are injured, and to make sure that, whether it is an injury through no fault of their own or the injury has occurred as a result of the negligence of an employer, there is an appropriate level of recourse available through the act insofar as that remedy is concerned.

The reason why a no-fault scheme is fundamentally important—and the reason why this legislation is fundamentally important—is that, if one is injured in the course of one's employment or in the course of one's service to our nation, what we don't want from our community and what we don't want from our governments is a situation where, in navigating the path just to try to be in the position you were in before the incident or injury occurred, that path adds stress and complication to what is already a very stressful time and circumstance.

The introduction of the Safety, Rehabilitation and Compensation Act in 1988 achieved that goal. It gave injured workers and injured service people—and injured sailors, for that matter; merchant seamen and the like, through an equivalent piece of legislation, the Seafarers Rehabilitation and Compensation Act—the ability to make a claim once they had been injured and to be paid compensation and offered rehabilitation upon proof of causal connection to the injury, not necessarily upon proof of negligence. That's important, because we do want to keep these cases out of the courts and we do want to focus on a return to work for these injured workers and a return to service for these injured service personnel as quickly and as practicably possible.

That is what this act does, and it is important to make sure that we keep amending this legislation so as to properly reflect the concerns of the community. There were holes in the legislation, going all the way back to 1988. For me, one of those seminal moments in one's career before coming to this place involved this legislation and this terrific fellow whose name was Stephen Smith, funnily enough.

An honourable member: Great name!

Not my predecessor who walked the halls of this place for some 20 years but another Stephen Smith, a merchant seaman. He was trying to move an electric generator across the deck of a ship just off the Port of Sakai in Japan and horribly injured his back in a circumstance in which one could not necessarily say that there was negligence but there was a failure of a safe system of work, as it ultimately transpired. It was a circumstance in which that Stephen Smith could have otherwise made a claim of negligence against his employer for a lump sum of compensation. But the act was changed back in those times in order to implement the Safety, Rehabilitation and Compensation Act and replace those common law rights. So, all of a sudden Stephen Smith couldn't go down that track of a common law claim and had to access compensation under this act. The problem was that the act did not transfer upon him the same rights he would have had if he'd brought a common law claim of negligence against his employer. That was an acquisition of property on other than just terms.

I don't know whether many of my colleagues here remember that fantastic Australian movie The Castle. One can't forget The Castle. You'll be pleased to know that Mr Smith came to see me and my firm at that time and said, 'I'd like to make a claim, because the Safety, Rehabilitation and Compensation Act is denying me my right to bring a common law claim', and I said, 'Tell 'em they're dreamin'!' And we sued the Commonwealth and the Australian National Line under section 51(xxxi) of the Constitution—the precise same provision through which the Kerrigans sought compensation in the famous movie.

Mr Husic interjecting—

Well, that's another story; I'd need an extension of time to talk about that! But I'll tell you what we did. The claim was lodged in the Supreme Court, and Mr Smith lost. It was appealed to the Court of Appeal in Western Australia, and Mr Smith lost, 2-1. We then made an application for special leave to appeal to the High Court, and Mr Smith was successful in that appeal. So there we were, just down the road, in court No. 1, and I tell you what: you've never in your entire life met a junior lawyer looking and feeling more like Dennis Denuto than I did! There I was, shivering and quaking, looking up at the seven Supreme Court justices. Peter Hanks QC, as he then was, was eloquently making submissions as to why, under the Safety, Rehabilitation and Compensation Act, Mr Smith had his common law claim taken away on other than just terms.

Well, I tell you what: I passed a few notes, I asked Mr Hanks if he wanted a glass of water, it all went swimmingly and three months later a judgement was handed down from the High Court in which Mr Smith was successful, 5-2. Mr Smith had his day in court. We argued a couple of fairly technical arguments. We didn't argue Mabo, but what we argued got Mr Smith a historic common law claim in a circumstance in which—just as for the Kerrigans—without pushing all the way through he would not have managed to receive the compensation to which he was entitled.

That really was a great moment in time. You'll note in this legislation that there is a clause commonly known as a Henry VIII clause. The reason these clauses can be important, provided that they are drafted in the right way, is that in circumstances like Mr Smith's, where property is taken away on other than just terms, we can ensure that no-one will be worse off. Sometimes there are unintended consequences, and sometimes there are people who don't have the tenacity of Mr Smith to spend eight years of his life in litigation just to have his day in court and make sure that they are properly compensated. That is also why I'm pleased to speak in support of this legislation to make sure that there are mechanisms in play to ensure that there are no unintended consequences of the bill.

I'd like to use the time I have remaining, before we move on to other matters, to pay tribute to all those hardworking service men and women who commit so much of their lives to keeping us safe. It's only appropriate that we bend over backwards to make sure they are compensated in the unfortunate circumstance of being injured. We're very grateful for their service.

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