Debates Day 2 - Wednesday 27 November 2002
Parliamentary Record 9
Debates for 9th Assembly 2001 - 2005; ParliamentNT; Parliamentary Record; 9th Assembly 2001 - 2005
2002-11-27
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Debates
Legislative Assembly of the Northern Territory
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DEBATES - Wednesday 27 November 2002 The amendments strike a balance and maintain the existing level of benefits under the MACA scheme since 1979 without the need to increase premiums. If the courts interpretation from Collman of section 13 is allowed to stand, the opposite results. TIO is then responsible for the labour market reality of getting people back into work. If they decide they are better off on MACA than they ever were at work, you will never get them off MACA. So, up go the premiums to pay those people for ever and a day. Premiums would rise substantially and yet, most people who receive benefits under the scheme would receive no more than they do now. I hope that goes to the core of the concerns of the member for Goyder. If he did have any further questions - 1 do not see a need to go into committee - however, if it is his wish to go into committee to explore anything that I have left undone, I have an expert here, and we can cover that in committee if he so wishes. There is no loss or stripping of rights. It is simply a restoration of what has always been - but thrown into doubt and confusion because of the decision in Collman. I am not saying the judge was wrong - far from it. He interpreted that section 13 in a way that, conceivably, any judge could have in the past 23 years. It is a bit remarkable that it lasted 23 years without a judge bringing this interpretation to it. Nonetheless, it would have been done sooner or later, I would imagine. But it did happen on 16 January 2002. After all those years, someone said: This is not right, Your Honour. He said: I think you are right. That left government with the situation of having to restore it, if you like, to the integrity and the intention of what it once was. I am happy to go into committee if there are further questions. Motion agreed to; bill read a second time. In committee: Bill, by leave, taken as a whole. Mr STIRLING: We do not want to pass the bill straight off, Mr Chairman, because there are some outstanding questions here. We wanted the availability of committee to clear up any other issues. I suggest we do not pass anything now, and we just explore whatever issues. Mr CHAIRMAN: Yes, it is the intention to now go through that. Mr MALEY: Mr Chairman, I am not suggesting that there was a responsibility that falls to the feet of the TIO or the Motor Accidents Compensation Board to find someone a job but, on a reasonable reading of the legislation as it stands, with Collmans case, it seems the onus was only upon them to determine this earning capacity by virtue of whether there was other employment reasonably available. Whether that employment, like in Collmans case, was taken up, was a matter entirely for the applicant. However, assuming that the respondent of the board at TIO could establish that the employment was reasonably available, having regard to some of those subjective factors, then payments could be cut. Okay? I agree that that is certainly not the role of the Motor Accidents (Compensation) Act and the whole regime to put people into jobs and they stay on this benefit, technically, for ever. From my reading the obligation is to put them in a position where there is an earning capacity there, albeit not exercised, then the payments can be cut. You talk about the law changing substantially in January this year, and section 13(2) being the section which you say Riley J has interpreted in a new and expanded way. At paragraph 10 of the judgment, Riley J goes on to talk about how you approach the interpretation of section 13(2). He talks about: ... determining what is 'the most profitable employment (if any) available to the applicant in a given period. The onus rests upon the respondent to establish that there was employment reasonably available to the applicant and the relevant amount the applicant is capable o f earning from that employment. He then goes on to cite a decision of Martin J, an unreported decision, of Kantros v The Territory Insurance Office Board reported in the Supreme Court of the Northern Territory dated 5 December 1991. So the interpretation Riley J has given about employment reasonably available to the applicant and the onus being upon the board, he is relying upon a decision, it seems, of Martin J back in 1991. That is the first point. He does not seem to be quoting the law: he is relying upon a previous decision. The second aspect is, just a reasonable examination of the term, reasonably capable of earning in employment, and the conclusion which Riley J comes to, and my colleague, the member for Macdonnell, read out the quote in toto, but just the conclusion he comes to that the issue is governed by the concept of reasonableness, that the work must be reasonably available to the particular applicant rather than being reasonably available to anybody. That is not an unreasonable conclusion to come to. It does not seem to be an unreasonable set of parameters for the act to operate within. So, I am not 3083