Territory Stories

Debates Day 2 - Wednesday 27 November 2002



Debates Day 2 - Wednesday 27 November 2002

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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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Attribution International 4.0 (CC BY 4.0)

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Legislative Assembly of the Northern Territory



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DEBATES - Wednesday 27 November 2002 saying that the TIO has to act as an employment agency and find someone a job. All they have to do is pay them enough money and look after medical expenses to put them in a position where they are reasonably able to secure a job. Whether they chose to do it - Mr Collman did not choose to do and the tribunal ruled against him so it did not cost the taxpayer any extra money apart from the legal fees - but that seems to be an inherently reasonable sort of interpretation and that is probably the second point. Mr STIRLING: Can we deal with a couple first? Mr MALEY: Yes, we will do it two at a time. Mr STIRLING: It might get far away. In relation to a decision by Martin J and picked up on by this judge, I have no understanding or knowledge of what that decision was in 1991 and how that related to this case we are talking about here in January 2002. If a decision along these lines had been made way back in 1991, it is inconceivable that the repercussions would not have flowed then as we are seeing here. Mr MALEY: Could I interrupt for a second. Can I give you a copy of this decision? Perhaps I can table this. At paragraph 10 and that is what I read from, that is Riley J saying as observed by Martin J as he then was in Kantros v The TIO unreported in December 1991, in the very next paragraph there is a citation directly from that decision. I will read that out - really the first two or three lines are not that relevant, but it goes on to say this, starting on the third line: ... but it is for the defendant to establish the failure o f the plaintiff to mitigate, or, fo r the respondent to prove here the amount which the applicant is reasonably capable o f earning for the purposes o f the subsection. Once again you have this reasonableness concept. It is specifically referring to the point which you say arose like a phoenix from the ashes in January this year. Mr STIRLING: I am advised this was not in relation to section 13, although it would appear to have been picked up - oh, I should be standing up. Sorry, Mr Chairman, I am a bit confused. Mr CHAIRMAN: I thought I had an opportunity there. Mr MALEY: It says that specifically, though. That is the problem. It says: A consideration of section 13(2), and then deals with the same things you have just touched upon. It then says: As observed by Martin J and quotes what seems to be a portion of that judgement on the very point that you are talking about. Mr STIRLING: Nonetheless, we are talking about a moot point. Clearly, whatever that decision was in 1991, it did not appear to create any sort of precedent or upset the way TIO and MACA have been operating since 1979 through to 1991 in the way that this interpretation of January 2002 has. He has made it very clear here that MACA does have the responsibility to ensure that there is not just reasonable employment reasonably available in the area where that person is, but particularly suited to that person. Now, that was never the intent of the scheme. It has no part in the origins of the scheme. Once the person was assessed as fit for work, they signed off on MACA and they went and got a job. If they did not get a job, there was income supplement available through Centrelink and the rest. Under this, if we do not address this, then MACA has to carry this for - you know, it could carry people forever. Even though they are assessed as fit for work, MACA would still have the responsibility of looking after them and if they chose not to get a job - I mean, there is no labour market test here. There is nothing to say that if they earned more on the MACA benefit than they did in whatever form of employment they had before, there would be no incentive to get a job. Premiums for TIO and the MACA scheme would have to go up to cover those extra people sitting there unable to be moved, and nothing in the world would ever move them because there would be no incentive to go to work If you are going to have to work and receive less money than the MACA benefit, there is no incentive. It was never the intention that MACA had any responsibility to find a person employment, locate them or anything of that nature. Once the person was medically assessed fit for work, sorry about the accident but we have you right, see you later. No more MACA. Mr MALEY: So even if a job is not available in the Territory? Mr STIRLING: It never was a question in all the time MACA operated. I mean, I am interested in what you say in relation to Martin J in 1991. I do not understand - it is a further question that I would be interested to explore, but we do not have the time here - why that did not have the impact that this January 2002 decision quite clearly has had. I cannot answer that. You know the law better than I do. Some things blow up and affect everything, and it looks like this decision was allowed to sit there and seemingly have no effect, at least in relation to MACA. I cannot answer it. 3084