Debates Day 2 - Wednesday 27 November 2002
Parliamentary Record 9
Debates for 9th Assembly 2001 - 2005; ParliamentNT; Parliamentary Record; 9th Assembly 2001 - 2005
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Legislative Assembly of the Northern Territory
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Legislative Assembly of the Northern Territory
DEBATES - Wednesday 27 November 2002 I am asking a question about the mechanism. Is someone disadvantaged by that happening? In other words, by going onto unemployment, are they disadvantaged because they should be entitled if they could get employment? The only reason they cannot get what they are entitled to is because there is no job available and, therefore, are they losing? That is my question, minister. I will take the brunt of not having the briefing but the point is, briefings can be held in parliament, that is what we are here for. I would like to hear what the answer is to that and I will make my judgment on what I hear. Mr ELFERINK (Macdonnell): Mr Acting Deputy Speaker, I have read this stuff, scratched my head, struggled with it, and thank god that the minister was here today because he has made it clear exactly what is going on with this piece of legislation. This legislation is geared up simply as a cost shifting exercise - shifting the cost from the MACA Scheme to the federal government through the social security system. Mr Stirling: The way it has operated for 23 years, John. It was never a problem for the CLP in 23 years! Mr ELFERINK: In the second reading speech - and you can sit here, minister, and say as much as you like about, Oh, we worked under it for 27 years, because for 27 years ... Mr Stirling: Twenty three years. Mr ELFERINK: Twenty three years - we worked with a piece of legislation which was quite clear. In your second reading speech you talk about ambiguities and those sorts of things. There is no ambiguity in Collmans case. I will quote you paragraph 7 from that case: Both o f their Honours observed that whilst it may be the case that the legislature did not intend to provide compensation to a person who has suffered a loss o f earning capacity where that capacity would never have been exercised, that is not what the legislation says. It would have been a simple drafting exercise to limit the right to compensation to a person whose capacity to earn income is reduced ... There is no ambiguity. This is what the court is saying: This is not ambiguous. This is not the intention of the legislature. The intention of the legislature is clearly set out and that is what we, as judges, are interpreting. They then go on to outline the issue in paragraph 11 of the decision: ... The issue is governed by the concept of reasonableness. The work must be reasonably available to the particular applicant rather than being reasonably available to anybody. There is nothing ambiguous about these statements. There is nothing untoward or unclear about these statements. These are very clear statements. And where the issue comes up is that the proposed change to the legislation changes that concept of reasonableness. The section in question, at the bottom end of section 5(3), is quite clear. It is changing it from what was visited by Collman to: X is the number o f hours worked per week (not exceeding 40) the Board determines, based on a medical assessment, that the person is capable o f working in any employment, whether such employment is reasonably available or not; In the court they are talking about reasonably available to anybody. So what this shift is, is an attempt to erode the process of reasonableness which is available to the courts. If I register a car and then sign up for my third party insurance policy, it is a contract that I am engaging in with TIO and that contract has certain conditions applied to it. That is an obligatory contract. I have no choice about that. I have to deal with TIO under the arrangements in the Northern Territory. I have to pay the fee otherwise my car does not get registered. So I am stuck in this invidious situation already where I have to sign up to an insurance policy, which has certain terms and conditions, and now the government has found a way, if I should be injured and claim against that policy, to be able to shift the costs of that to push me on to the dole. The MACA scheme does not pick up the cost anymore, now it is the federal government, therefore it is no longer a pain for the minister. That is really what this whole exercise is about. Does he say it in the second reading speech? Absolutely not! This is the intent of this change of legislation: to shift the cost of rehabilitation and lost earnings through employment from the Northern Territory to the federal government. That is the entire nub of this process, by changing the rules, by changing the contract in the extreme. Only governments have the privilege of doing that. I now clearly understand where the government is coming from, and all members in this room should clearly understand where this government is coming from. I think that you are being a little bit cute, minister, by interjecting saying, Oh well, if you are determined to be fit you have to go and work for the dole, when any job is available. What are you going 3077
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