Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

On behalf of the Education, Employment and Workplace Relations Legislation Committee, I present the report of the committee on the provisions of the Safety, Rehabilitation and Compensation Amendment (Fair Protection for Firefighters) Bill 2011, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

by leave—I move:

That the Senate take note of the report.

I rise to make some remarks on the report of the Senate Education, Employment and Workplace Relations Legislation Committee on its inquiry into the provisions of the Safety, Rehabilitation and Compensation Amendment (Fair Protection for Firefighters) Bill. The bill seeks to amend provisions in the Safety, Rehabilitation and Compensation Act 1988 relating to injuries sustained by firefighters. The bill would provide rebuttable presumption that a number of cancers developed by firefighters will be presumed to be work related under the Commonwealth law. Subject to threshold tests set out in the bill, the burden of proof would be removed from firefighters with cancer.

The committee had the opportunity to assess a large quantity of primary evidence demonstrating the scientific link between firefighting as an occupation and a number of cancers. Study after study points to an elevated risk of cancer in firefighters. The research is robust and the committee unani­mously accepts its conclusions, even though there are some additional comments made by coalition senators, which I will address shortly. The committee also recognises the simple truth that, when a person spends their professional career serving the public and over the course of their working life inhales and absorbs a cocktail of known carcinogens, society has a moral obligation to enable to them to access compensation should they fall ill as a result. Yet, this is currently not the case.

The SRC Act as it stands certainly allows firefighters the technical means to seek compensation. However, the committee heard that the evidentiary burden of doing so is currently prohibitively onerous. Firefight­ers have to demonstrate exposure to a particular chemical and then demonstrate that the chemical in question is the cause of their cancer. This, for anyone who knows anything about the uncontrolled and unpre­dictable environment firefighters operate in, is virtually impossible. It amounts to picking a single fire incident over many years and identifying it as the root cause of a cancer when cancers we are talking about in fact develop as a result of cumulative exposure over time. They develop as a result of cumulative exposure to a cocktail of toxic chemicals released by combusting materials in houses, cars, businesses, hospitals, schools, manufacturing plants and any other number of sites a firefighter will attend over the course of his or her career. The exact chemical composition of this toxic soup is not known to the firefighter who goes in to extinguish a fire, nor is it possible to determine or record accurately after each incident. The committee heard that it is also difficult as sick firefighters are routinely advised against even attempting to seek compensation so that they might at least avoid the added emotional and financial stresses of litigation.

After thorough consultation with stakeholders, the committee has established that the proposed legislation does not create any new right or entitlement. It merely eases the access to compensation for the small number of firefighters who will be unfortunate enough to develop cancer as a result of their professional duties. Under the proposed rebuttable presumption, employers and insurers would still have every right to reject claims for compensation which are unfounded, but those that are legitimate would finally, for Commonwealth fire­fighters at least, result in compensation.

The committee heard from the widow of a firefighter who was diagnosed with kidney cancer and died in 2009. Her husband, Robert Reed, had to return to work for financial reasons after having his kidney removed. He and his family did not have ready access to compensation, and could not face the added stresses of having to go through lengthy and expensive litigation to obtain it. Like other sick firefighters the committee heard from, Robert Reed and his family decided against pursuing difficult and expensive litigation.

The committee also heard from a number of firefighters with personal experience of cancer. I will not relate each of their stories here, but on behalf the committee I would like to thank Dean Symmans, Scott Morrison, Paul Henderson and Ross Lindley for taking the time to put their experiences on the record and sharing their personal stories with the committee. They did this for future generations of firefighters, knowing that this bill would not help them personally.

To give you a mere glimpse of the situation sick firefighters can find themselves in, the committee heard how Mr Morrison's colleagues put up their own annual leave for him to use when he exhausted his leave allowance fighting non-Hodgkin's lymph­oma. This should not have to happen. These are people who risk their own health and safety to save our lives and property. They tackle dangerous environments to protect the community, going into burning buildings while the rest of us flee. It is the least we can do to help them when they are sick.

By passing this legislation Australia would by no means be in uncharted waters. Presumptive legislation has been in place across North America for the best part of a decade. It has been introduced in province after province in Canada, starting with Manitoba in 2002, and in state after state in America. The committee heard that this model of legislation has received unanimous support from all sides of politics overseas and has never been voted against. It is an issue that goes above and beyond politics.

Having said that, I acknowledge that the coalition senators are not completely convinced that presumptive legislation is the way to go. I am convinced and the majority of the committee are absolutely convinced. The committee certainly considered other avenues and believe that non-rebuttable presumption is the logical, most efficient and effective means of protecting firefighters and compensating them when they unfortunately get cancer as a result of exposure to the soup of toxic chemicals which I talked about earlier.

While I personally believe that Australia has one of the best parliamentary systems in the world, and the Senate in particular has a very robust and important Senate committee process, we also can learn from experiences from Canada and North America. Canada is a democracy similar to ours and functions in many ways like ours and is also considered one of the best parliamentary democracies in the world. They have considered this sort of legislation for many years. Every province went through an exhaustive investigation and a robust process to come up with the same conclusion—that is, non-rebuttable legisla­tion was the only way to properly and efficiently protect firefighters and properly compensate them when they get cancers as a consequence of their occupation. If there had been another way, I am sure they would have found it. Half of the states in the United States also have this style of legislation. I believe that, without trying to reinvent the wheel, we can look to those other parlia­mentary democracies and learn from them. If there was another way, it would be somewhere else for us to look at. Our committee looked and could not find another way. The committee certainly supports non-rebuttable presumptive legislation as the best course of action.

The committee took evidence from an eminent fire chief from Alberta in Canada. He told the committee that presumptive legislation has had a negligible cost impact. It has helped raised awareness of the benefits of early detection of cancers. On the weight of scientific evidence, the number of listed cancers has grown from the five originally covered to 14. The model for this legislation is so accepted in Canada today that all jurisdictions either cover or are looking to cover the full 14 occupational cancers for firefighters.

Having carefully considered all the evidence, the committee was concerned that, if passed, the legislation would only bring Australian Commonwealth law into line with outdated jurisprudence. Given the body of scientific evidence and the benefit of being able to learn from evolving jurisprudence overseas, the committee has recommended expanding the number of cancers covered by the proposed legislation.

On behalf of the committee, I wish to thank all who made submissions and appeared before the committee and gave evidence for this inquiry. I am confident that their efforts have contributed towards the development of a more robust legislation framework which should be improved with the incorporation of the committee's care­fully considered proposed amendments. The committee hopes that the state governments will look to this legislation with a view to introducing similar bills into their own jurisdictions and that, in the near future, we will see harmonised workers' compensation laws which give our firefighters the protections that they deserve.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

On behalf of the coalition I join the spirit of the comments made by the Chair of the Education, Employment and Workplace Relations Legislation Committee and the inquiry, Senator Marshall, relating to the protection of firefighters as it relates to cancers. The committee heard evidence and was particularly impressed by the balance with which those presenting to the committee conducted themselves and presented their evidence.

Early in the inquiry, as Senator Marshall has indicated, the committee was concerned to address itself to the cost impacts on employers in the event that we were able to move to a circumstance in which easier and better availability of and access to workers compensation would be afforded. That led to the Fire Chief of Edmonton Fire Rescue Services, in Alberta, with the goodwill of his minister, addressing the committee at its hearing in Perth.

Some interesting points came out of Mr Block's evidence to the committee. The first was that there had been no significant or discernible increase in workers compen­sation costs to the service as a result of the inclusion of the cancers that were mentioned in his evidence. I think more important was his report on the advice that, as a result of wellness and health awareness programs, there is generally an increase in awareness by firefighters of the importance of their work and their need to protect themselves, their work colleagues who do not go to fires and are not exposed to the chemicals and, equally, their families. We saw in the past, for example, instances in which contam­inated clothing came back to fire stations and was laundered in domestic laundries along with household laundry, only for people to learn that the carcinogens that they had picked up in those incidents were quite often still on the clothing.

It is necessary to explain why firemen, be they career or volunteer firefighters—and I do want to come back to volunteer firefighters—are placed in this position. Firefighters are amongst the very small group of employees who are required to go into highly dangerous circumstances. The question might be asked: why can't they be put in clothing that would protect them against the chemicals that are carcinogens or that will lead to cancer? The reason is that the first responsibility for the service, for the employer and for the employees themselves is to ensure that they are in clothing that can breathe so that they can lose body heat in the event of fire. Body heat is the most immediate cause of death of firefighters. So the nature of the clothing—and an enormous amount of research work has gone into this—that firefighters wear in the event of a fire incident is such that, whilst on the one hand it allows the body to lose heat and therefore not succumb to hyperthermia, on the other it allows the absorption or in some cases the ingestion of the carcinogens to which we are referring. In other events, such as a chemical spill, we saw evidence of the firefighters being placed into plastic clothing with forced ventilation capacity so that they could go into a chemical area and not succumb. But, by the very nature of plastic clothing, naturally we cannot see that in a fire circumstance.

So what are we looking at? We are looking at a situation in which these people, particularly going into vehicle fires, residential fires and industrial fires, find themselves subjected to burning chemicals as a result of their activity. In fact, even this chamber, if it were the subject of exam­ination, would probably have a number of products—the carpet, the lamination in the wood, the glue, the nature of the seating et cetera; the products upon which we are seated and around us—with a very signifi­cant number, potentially, of carcinogens in the event that they burned. Basically, that circumstance exists, as it was presented, and the coalition joins Senator Marshall in the majority report in saying that it is patently obvious that if a person is a firefighter, if a person has been subjected to the sorts of incidents I have described, if they are subjected to those sorts of carcinogens as a result of burning plastic, they are likely over time to absorb or ingest those carcinogens.

At the moment it would appear that the workers compensation legislation is deficient. It is deficient because of the under­standing of the difficulty that the fireman has in having to prove the actual incident that they may have been at to have caused the ingestion or absorption of that carcinogen, which of course is patently ridiculous. We understand that there are qualifying periods. We understand that a fireman would have to go through rigorous assessment et cetera. However, to give recognition to this—and the wider community would no doubt expect it—we need to simplify the process such that a person, be they career or volunteer firefighter, is able to show, firstly, that they are a firefighter; secondly, that they have been at incidents of the type that are likely to cause the absorption or ingestion of carcinogens; and, thirdly, that they now have one of those cancers. That should be all that is necessary for them to be able to proceed forward and be entitled to a claim under workers compensation as easily and as quickly as possible so that they do not have over their heads and those of their family the fear that they might not get that.

Where the coalition are at variance from the majority report is that we do not believe that presumptive legislation is necessary to give effect to what is a fair and reasonable request from firefighters. We say that existing workers compensation legislation should be able to be amended and that a mechanism should be found so that, under existing legislation, we can give effect to what are the most reasonable claims of the firefighters. That is the position taken in the comments by the coalition in this report, which I am very, very pleased to lend my name to. Why do we believe that we do not need presumptive legislation? Because workers compensation legislation in its present form should be adequate. I give you as an example the legislation associated with the regrettable and horrific diseases related to asbestos exposure. We now know in this country that it is only necessary for a person to be able to demonstrate that they are employed or were employed in the asbestos industry, secondly that their workplace did expose them to asbestos and thirdly that they now have one of those diseases—asbestosis, mesothelioma or whatever—hopefully in its earlier stages. Having proved those three legs of the trifecta, they are then entitled to their workers compensation. I believe that is the model and the direction in which we should be moving in this instance.

Whilst the legislation before the committee related only to Commonwealth employees, as Senator Marshall quite rightly said, if state or other jurisdictional legislation is deficient then we would hope that the successful model would find its way into those other jurisdictions. I remind the chamber that, whilst the majority of firefighters in this country, be they career or volunteers, report to, respond to or are paid by state authorities, there are also local governments that, for example, run regional airports around Australia and their firefighters would be employed by local government. We also know that the private sector—the offshore oil and gas industry, mining industry and others—employ or have as volunteers firefighters who may be exposed to the same conditions.

I will conclude my comments relating to volunteers. Whilst it is true that their qualifying period and their time of exposure to the carcinogens in question would be more limited, I am very pleased to support the fact that we are including and not excluding volunteers in this. As I say, the coalition supports the general thrust of the outcome of this inquiry and congratulates and thanks those who participated but urges that we do not need presumptive legislation to give it effect.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I am pleased to rise to acknowledge the tabling of this final report of the Senate Education, Employment and Workplace Relations Legislation Committee into my Greens colleague Adam Bandt's Safety, Rehabilitation and Compensation Amend­ment (Fair Protection for Firefighters) Bill 2011, which was co-sponsored by Russell Broadbent MP and Maria Vamvakinou MP. The report is the culmination of a great deal of hard work by the committee and it was a very positive experience to participate as a full member of the committee, being relatively new to the Senate. I have been impressed with the thorough process I have observed, overseen by the staff of the secretariat. I thank them for their work.

I would also acknowledge the extensive work of the United Firefighters Union of Australia, which enabled site visits so that the committee could experience some of the work conditions of firefighters firsthand. I say 'some' advisedly because of course there is no real way we can experience the work conditions that firefighters face on a daily basis in protecting life and property on behalf of the Australian community, but it did give us some insight into what some of those conditions would be like.

The process involved obtaining detailed information from local and international witnesses who have particular areas of expertise, such as in relation to personal protective equipment, the chemicals in the environment to which firefighters are exposed on a regular basis, international legal trends and the extensive studies that have demonstrated conclusively that there is a direct causal link between exposure to toxins and carcinogens in their work environment and the contraction by firefighters of certain cancers.

When the committee had the opportunity to experience firsthand some of the hazards encountered by firefighters in the form of flames and smoke, it brought home to me the degree to which firefighters, by the very nature of their job, are exposed to conditions over which they have almost no control and about which they have very little information before they enter the premises to deal with the fire or the hazard. One of the things that I think the committee members all learnt was the degree of speed required and the lack of time that is available to assess the risks of a situation, which in the normal course of occupational health and safety would be one of the first steps taken by any responsible employer. But the nature of the beast in firefighting, I very clearly came to under­stand, is that time is of the essence. If the reaction is not speedy enough, it is difficult to get the fire under control and the point of no return is reached. So firefighters do not have the luxury that many other employees might have of assessing the risks of the situation and doing what is necessary before they enter. In a sense, they are totally vulnerable to what the situation affords them.

A final aspect of the inquiry which I felt was equally valuable—and I think it has already been acknowledged by my colleagues—was the personal eyewitness accounts, from those firefighters and their families who have contracted cancer, of the devastating impact of their illnesses on their health, obviously, but also on their sense of wellbeing. It became very clear to me in the last committee hearing, when we heard from firefighters and their families, that contract­ing cancer had affected their sense of identity as strong, healthy, independent providers for their families. As we know, the level of health and fitness that is required of people entering into firefighting service is higher than you would expect in the ordinary population. It was brought home to me the degree to which those people take pride in that part of their identity and who they are. Contracting an illness like a cancer fundamentally erodes that sense of who they are and what it is that makes them individual and unique. I think it is only through hearing about the lived experience of people who face this that we can really gain some insight into what it means, and I am grateful to those individuals who were prepared to share very personal experiences with people who were attentive but definitely strangers.

In my view, the three most surprising and disturbing aspects of the evidence that I heard in the course of the inquiry were as follows. First of all, the greatest hazards faced by firefighters are not necessarily or not only those hazards that members of the public would expect if asked—and they would be the flames, the fire and the risk of collapsing structures. In fact, they are the often unseen hazards in the form of toxins and carcinogens within the environment. The second surprising aspect to me was that despite the best efforts of employers, despite our best efforts with innovation and modern technology and all that is available—and my understanding is that Australia has some of the world's best personal protective equipment, the suits issued to firefighters—the personal protective equipment can never adequately protect firefighters from these chemicals and hazards that they confront daily in their working environment. That is because the fabrics need to be able to breathe so that firefighters do not overheat internally. So the fabrics have to be permeable to the atmosphere and, of course, the atmosphere is where the unseen chemicals and carcinogens are carried and then ingested through firefighters' skin. Every time they go into a fire, they know that they are vulnerable to these chemicals.

Finally, the most confronting aspect for me was to understand that most firefighters who contract these cancers as a result of their work—and the evidence indicates that many of the cancers that we know firefighters contract are work related—are not able to receive adequate compensation or financial support when they do contract a work related illness because of the current legal impediment of having to prove causation. Causation means proving that it was exposure during their occupation to these chemicals that actually caused their particular cancer, even though the probability is that it was that exposure.

As a lawyer in a previous life who worked with people in relation to workers compensation and litigation, I am acutely aware of that onerous impediment to proving a legal case: causation, where it is imperative that to succeed one has to prove the risk that was encountered and that there is a direct causal link between that and the consequence—and that is almost impossible, as we heard from the witnesses. There was one person who had actually attempted a claim initially and was advised, probably wisely by their lawyer, that it would be too hard, and there were others who had not even been able to go down that track. Essentially, they were left without protection. It is that long-standing injustice that this bill seeks to remedy. I can best sum up my views about that situation by going to the final paragraph of the committee report—and I am happy to endorse the entire report on behalf of the Australian Greens. The report states:

The committee recognises that when a person spends their professional career inhaling and absorbing known—and probably some as yet unknown—carcinogens in the course of public service, it is the moral duty of the community to enable them to seek compensation should they fall ill as a consequence.

I was really heartened by the collaboration involved in the genesis of this bill and the fact that it was co-sponsored by three of the parties in the parliament. I think that it is a challenge for us to see the parliament doing what we are really here for and doing our job properly—that is, to acknowledge that there is a problem that needs to be fixed, to inform ourselves on the best evidence available and then to take the action that we know is needed to achieve a just and a very long overdue result. What a good thing it would be if were able to, in the end, pass this legislation on a collaborative non-partisan basis. What a matter of pride it would be to tell the Australian public that we have done this thing on behalf of firefighters, who risk their lives and health on behalf of the community every day.

Question agreed to.