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2013-2014-2015-2016
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PARLIAMENTARY ENTITLEMENTS AMENDMENT (INJURY COMPENSATION
SCHEME) BILL 2016
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Finance, Senator the Hon Mathias Cormann)
PARLIAMENTARY ENTITLEMENTS AMENDMENT (INJURY COMPENSATION
SCHEME) BILL 2016
GENERAL OUTLINE
The Parliamentary Entitlements Amendment (Injury Compensation Scheme) Bill 2016 (Bill)
amends the Parliamentary Entitlements Act 1990 (PE Act) to give the Minister the power to
establish the Parliamentary injury compensation scheme (PICS) by legislative instrument.
The Bill provides that the PICS may prescribe benefits, applying from 1 January 2016, in
relation to:
an injury or disease, or an aggravation of an injury or disease, suffered by a
member, arising out of, or contributed to by, the member's activities as a
member, Parliamentary office-holder or a Minister
an injury or disease, or an aggravation of an injury or disease, suffered by the
spouse of the Prime Minister, arising out of, or contributed to by, the person's
official activities as the spouse of the Prime Minister
the loss of or damage to medical equipment used by a member or the spouse
of the Prime Minister, arising in the course of their respective activities, and
services, facilities and equipment intended to eliminate or minimise the risks
to the health or safety of members or the spouse of the Prime Minister, arising
in the course of their respective activities.
It is intended that the benefits available under the PICS for injuries, disease and damage to
medical equipment will be based on the scheme applying to Commonwealth public servants
under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act scheme), and that
claims under the scheme will be administered by Comcare. The SRC Act scheme provides
compensation benefits, including:
medical treatment
incapacity to work
permanent impairment
household and attendant care services
rehabilitation programmes
alteration of place of residence or place of work
modifications of a vehicle or article
aids or appliances, or the repair or replacement of such aids or appliances
death benefits, and
funeral expenses.
2
The Bill will also allow the PICS to provide for preventative work, health and safety services,
facilities and equipment. This is in keeping with the coverage currently afforded to
Commonwealth public servants and people employed under the Members of Parliament
(Staff) Act 1984. Such benefits are not currently provided under the SRC Act, rather they are
provided by employers. However, there is no specific entitlement for parliamentarians and
the spouse of the Prime Minister, to preventative work health or safety services facilities and
equipment. It is considered appropriate to make provision for these items as part of a holistic
approach to addressing their health and safety needs.
The power for the Minister to establish the PICS by disallowable legislative instrument
includes specific powers to ensure that the PE Act will support the establishment of a scheme
for members and the spouse of the Prime Minister that is consistent with the SRC Act. It is
considered appropriate that the detail of the scheme is contained in a disallowable legislative
instrument in order to provide the flexibility necessary to keep pace with any changes to
Commonwealth employee's compensation arrangements. Since this is the first time a scheme
of this kind has been established for parliamentarians, such a legislative instrument will also
allow flexibility to quickly address any matters that may arise as a consequence of the unique
nature of parliamentary employment.
BACKGROUND
Parliamentarians are not employed by the Commonwealth and therefore the Commonwealth
is currently unable to provide workers' compensation insurance to parliamentarians without
an express legislative authority. This has been acknowledged as part of a number of reviews
of parliamentary entitlements, including in the 2010 Committee for the Review of
Parliamentary Entitlements (Belcher review) report and the Remuneration Tribunal's 2011
Review of the Remuneration of Members of Parliament - Initial Report.
The Remuneration Tribunal's 2011 report noted that the Tribunal considers that the lack of
workers compensation arrangements for parliamentarians is most unsatisfactory. The fact
that they are not employees, in the conventional sense, should not, in the Tribunal's view,
militate against suitable arrangements being established for them. Both reports
recommended that the Government act immediately to implement a legislative solution that
would enable the Commonwealth to establish a workers' compensation insurance scheme for
parliamentarians.
The spouse of the Prime Minister undertakes official duties in connection with the role of the
Prime Minister as the head of government, for example, hosting bilateral/multilateral events
for the spouses of other heads of government, such as the Group of Twenty, the
Commonwealth Heads of Government Meeting and the Asia-Pacific Economic Cooperation.
It is therefore considered appropriate that the spouse of the Prime Minister is covered while
performing official duties in connection with the role of the Prime Minister.
3
FINANCIAL IMPACT STATEMENT
The PICS was announced as part of the 2015-16 Budget where funding of $1.4 million over
the forward estimates was provided. The split between Comcare and the Department of
Finance (Finance) is as follows:
Financial Year 2015-16 2016-17 2017-18 2018-19
Comcare ($m) 0.3 0.2 0.2 0.2
Finance ($m) 0.2 0.1 0.1 0.1
Total ($m) 0.4 0.3 0.3 0.3
The financial impact of the amendments to the Parliamentary Entitlements Act 1990 is low.
REGULATION IMPACT STATEMENT
The Office of Best Practice Regulation (OBPR) has been consulted and advised that a
Regulation Impact Statement is not required, reference number: ID 19957.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
amendments in the Bill and assesses that the amendments are compatible with Australia's
human rights obligations. A copy of the Statement of Compatibility with Human Rights is at
Attachment A.
4
NOTES ON CLAUSES
Clause 1--Short title
1 Clause 1 provides for the Act to be cited as the Parliamentary Entitlements
Amendment (Injury Compensation Scheme) Act 2016.
Clause 2--Commencement
2 Clause 2 provides for the commencement of the Bill. Clauses 1 to 3 of the Bill
commence on the day of Royal Assent. Schedules 1 and 2 to the Bill commence on the earlier
of:
a single day to be fixed by Proclamation, or
the day after a period of six months beginning on the day the Bill receives
Royal Assent.
Clause 3--Schedules
3 Clause 3 provides that legislation that is specified in a Schedule to the Act is amended
or repealed as set out in the applicable items in the Schedule and any other item in a Schedule
has effect according to its terms.
5
Schedule 1--Main amendments
4 The items in this Schedule contain amendments to the Parliamentary Entitlements Act
1990 (PE Act) to provide the Minister with the power to formulate the Parliamentary injury
compensation scheme (PICS) by legislative instrument, and confer on Comcare the power to
administer the scheme.
5 This Schedule also contains consequential amendments to the Safety, Rehabilitation
and Compensation Act 1988 (SRC Act) to allow Comcare to perform any functions conferred
on it by the PICS.
Parliamentary Entitlements Act 1990
Item 1
6 Item 1 inserts two new definitions into section 3 of the PE Act, Comcare and
Parliamentary injury compensation scheme.
7 Comcare is defined as the body corporate established by section 68 of the SRC Act.
Comcare is referred to in new section 9A, as inserted by item 3 of this Schedule. New
section 9A provides the Minister with the power to confer functions on Comcare via the
instrument that establishes the PICS, which is taken to be a function conferred by an Act for
the purposes of paragraph 69(g) of the SRC Act.
8 Parliamentary injury compensation scheme (PICS) is defined as the scheme
formulated under section 9A. New section 9A is inserted into the PE Act by this Bill, and
provides the Minister with the power to establish the PICS by legislative instrument (see
item 3 below).
Item 2
9 Item 2 inserts new subsection 5(3) into the PE Act, which provides for the benefits
prescribed by the PICS to be an additional benefit under the PE Act.
Item 3
10 Item 3 inserts new section 9A into the PE Act, which provides the Minister with the
power to establish the PICS and the matters that the PICS instrument may include coverage
for.
Subsection 9A(1)
Summary
11 New subsection 9A(1) provides for the PICS to include coverage of:
compensation or other benefits for an injury or disease, or an aggravation of an
injury or disease
compensation for the loss of or damage to an artificial limb or other artificial
substitute, or a medical, surgical or other similar aid or appliance
6
the provision of services, facilities or equipment intended to eliminate or
minimise the risks to health or safety, and
matters ancillary or incidental to the above.
12 The PICS may cover members and the spouse of the Prime Minister, where the injury
or disease (including aggravation of such), damage to medical equipment, or the risk to the
health or safety of the person, arises out of, in the course of, or was contributed to by (as
relevant):
a member's activities as a member, Parliamentary office-holder or Minister, or
for the spouse of the Prime Minister, arising out of the spouse's official
activities.
Compensation and other benefits for injury and disease
13 New subparagraphs (1)(a)(i) and (ii) will allow the PICS to provide compensation or
other benefits in respect of injuries or diseases, or the aggravation of an injury or disease,
suffered by a member or the spouse of the Prime Minister arising from their activities
covered by the PICS. It is intended that the PICS will provide the same compensation
entitlements as the SRC Act scheme, as detailed above.
Compensation for damage to medical property
14 New subparagraphs (1)(a)(iii) and (iv) will allow the PICS to provide benefits relating
to the loss of, damage to, an artificial limb or other artificial substitute, or a medical, surgical
or other similar aid or appliance.
15 It is intended that compensation for damage to medical property will be available
where there is an accident which causes damage to the medical equipment of a member or the
spouse of the Prime Minister, even in circumstances where the accident does not result in an
injury to the person. This is reflective of the compensation entitlements currently available to
Commonwealth employees under section 15 of the SRC Act.
Provision of work health or safety services, facilities or equipment
16 New paragraph (1)(b) allows the PICS to provide benefits relating to services,
facilities and equipment intended to eliminate or minimise risks to the health or safety of
members and the spouse of the Prime Minister, when conducting relevant activities.
17 Such benefits are not currently provided for under the SRC Act for Commonwealth
employees, as such services, facilities and equipment are the responsibility of employing
entities. However, there is not currently a specific entitlement for members to work health or
safety services, facilities and equipment (some equipment and facilities may currently be
provided under the electorate office entitlement).
18 Including specific provision for these benefits in the scheme will allow a full range of
work health or safety related entitlements to be provided, in order to minimise risks to health
or safety, and is complementary to a scheme that provides for compensation and other
benefits for injuries or diseases.
7
19 Benefits that may be prescribed under the PICS may include things like ergonomic
and workplace assessments, risk assessments of proposed activities, toxicology or other
health screening relating to activities in the workplace, training to support the management of
work health or safety risks and compliance with work health or safety legislation, vaccination
programmes, or preventative psychological services.
Ancillary or incidental matters
20 New paragraph (1)(c) allows the PICS, for the avoidance of doubt, to include
coverage for matters that are ancillary or incidental to the specific matters discussed above.
This might include things like legal costs, which in some cases may be covered under the
SRC Act scheme (for example, section 67 of the SRC Act).
Subsection 9A(2)
21 New subsection (2) specifies, without limiting subsection (1), certain matters that may
be included in the instrument made by the Minster to establish the PICS. These matters are
specifically provided for in the Bill to ensure that the scheme prescribed by the Minister can
be consistent with the benefits currently available under the SRC Act, to the extent that they
are relevant to members of parliament and the spouse of the Prime Minister.
22 New paragraph (2)(a) allows the scheme to confer functions on Comcare for
administering the PICS. When read with new subsection (3), this will allow the PICS
instrument to confer functions on Comcare for the purposes of paragraph 69(g) of the
SRC Act. Comcare currently administers the SRC Act scheme, and it is expected that
Comcare will administer the PICS, other than the provision of work health or safety services,
facilities and equipment.
23 New paragraph (2)(b) allows the PICS to provide for conditions that must be
complied with for a person to receive and continue to receive a benefit under the PICS. This
would include conditions such as requiring a person to undergo rehabilitation or medical
examination. These powers will be necessary in order for Comcare to effectively assess
claims and address injuries and diseases covered by the PICS. These powers are currently a
feature of the SRC Act scheme, for example, section 57 of the SRC Act allows Comcare to
require that a person undergo a medical examination.
24 New paragraph (2)(c) allows the PICS to provide benefits or compensation for
persons who received or are eligible to receive benefits or compensation under the scheme
and subsequently suffer an injury or disease, or an aggravation of an injury or disease, in
connection with an activity engaged in in accordance with the scheme. This would allow the
scheme to provide benefits, for example, to former members who are injured when
complying with a condition under the scheme such as attending rehabilitation or a medical
appointment in connection with a claim they made under the PICS when they were a
member.
25 This is consistent with the SRC Act scheme which treats an injury as having arisen
out of or in the course of employment in situations where it was sustained while undergoing a
rehabilitation program, or obtaining a medical certificate, in accordance with the
requirements of the SRC Act (see section 6 of the SRC Act).
8
26 New paragraph (2)(d) allows the PICS to provide that compensation or other benefits
may be payable to persons other than members. This is to allow certain benefits to be paid
directly to people who provide services under the PICS, for example medical services or
funeral services. It will also allow benefits to be paid to dependants or directly to the spouse
of the Prime Minister, where appropriate.
27 This is consistent with the way Comcare currently administers payments under the
SRC Act, for example section 17 of the SRC Act provides for compensation to be paid to
dependants of an employee who suffers an injury that results in their death, and section 18
provides for compensation to be paid in respect of funeral expenses (which may be paid to
the person who carried out the funeral).
28 New paragraph (2)(e) allows the PICS to provide for an amount of money paid under
the scheme to be repaid in certain circumstances. This would include where a person has
received the benefit of compensation for an injury under the scheme and subsequently
receives compensation or damages in relation to the same injury from another source (such as
through legal proceedings against a third party).
29 Allowing the scheme to require monies to be repaid in these circumstances will
ensure that a person covered by the scheme is not compensated more than once for the same
injury, disease, or damage, and that Commonwealth funds are not used to provide
compensation where a third party has a legal liability to compensate the claimant. This is
consistent with the SRC Act scheme (section 48 of the SRC Act) which provides for a person
who has received compensation under the scheme to repay monies where that person has
recovered damages from another source in respect of the same matter.
30 New paragraph (2)(f) allows the PICS to provide Comcare with the power to recover,
set-off, write-off or waive debts arising under the scheme. This is complementary to the
matters set out in new paragraph (2)(e), and would allow any debts arising under those
circumstances to be recovered as a debt to the Commonwealth. This is consistent with
Comcare's debt recovery powers under sections 114C and 114D of the SRC Act, and reflects
that compensation and other benefits will be paid from Consolidated Revenue rather than
money held by Comcare.
31 New paragraph (2)(g) allows the PICS to require a person to produce information or
documents to Comcare for the purposes of the PICS. Including the power in the PICS
instrument would allow Comcare to effectively administer the PICS and determine benefits,
by requiring a person to produce all information and documents relevant to determining their
claim. The inclusion of such a provision in the PICS would be consistent with the SRC Act
scheme where section 58 of the SRC Act provides for Comcare to request information or
documents from a person making a claim, and allows Comcare to refuse to finalise a claim
until the information or documents are provided.
32 New paragraph (2)(h) allows the PICS to require a person to notify Comcare of a
matter set out in the PICS. This would include matters that Comcare may not become aware
of through other means, such as the receipt by the person of compensation from a third party
for the same injury or disease, and it is necessary to ensure that Comcare can effectively
administer the scheme and accurately calculate the benefits that persons are entitled to
receive.
9
33 Requiring a person to notify Comcare of a matter is consistent with the SRC Act
scheme. For example, section 48 of the SRC Act requires a person who has received damages
from another source, in relation to an injury or disease they have received compensation for
under the Act, to notify Comcare of the recovery of damages within 28 days.
34 New paragraph (2)(i) allows the scheme to prescribe penalties for offences relating to
failing to notify Comcare of matters or events set out in the PICS. These penalties must not
exceed 10 penalty units. There are currently offences contained in the SRC Act relating to
failure to notify Comcare of certain things (see sections 46, 47, 48 and 120 of the SRC Act).
It is intended that the scheme will include the same offences as the SRC Act in order to
ensure that Comcare is able to obtain the information that it requires, as a way of effectively
administering and maintaining the integrity of the PICS.
35 New paragraph (2)(j) allows the PICS to provide for the review of decisions under the
PICS including allowing for jurisdiction to be conferred on the Administrative Appeals
Tribunal with any necessary modifications specified in the scheme. This will ensure that
persons covered by the scheme will have appropriate rights to seek merits review of any
decisions regarding their entitlement to compensation and other benefits under the scheme.
36 This is consistent with the rights that are available to Commonwealth employees
under the SRC Act (see Part VI of the SRC Act) which invokes the jurisdiction of the
Administrative Appeals Tribunal and also allows for Comcare to internally review its
decisions. The SRC Act makes some modifications to the operation of the Administrative
Appeals Tribunal Act 1975 (AAT Act) to assist in the efficient administration of claims by
Comcare and provide costs to applicants in certain circumstances (see sections 65, 66 and 67
of the SRC Act). It is considered appropriate that the scheme established under the PE Act be
capable of providing the same benefits and obligations available to claimants under the SRC
Act scheme. Before making the instrument it is intended that the Attorney-General's
Department will be consulted on any modifications to the operation of the AAT Act.
37 New paragraph (2)(k) allows the PICS to provide for:
limitations on the right of a person to bring an action or other proceeding for
damages in relation to an injury or other circumstance covered by the PICS
Comcare to make a claim for damages in the name of a person, or take over
the conduct of an action or other proceedings, in relation to an injury or other
circumstance covered by the PICS, and
Comcare to require any damages paid or to be paid to a person in respect of an
injury or other circumstance covered by the scheme to be paid to the
Commonwealth.
38 Providing a power for these inclusions in the PICS will enable Comcare to effectively
administer and maintain the integrity of the scheme by reducing the cost to the
Commonwealth in circumstances where a third party has liability for an injury or other
circumstance covered by the scheme. In these cases Comcare may be given the power to take
action for damages in the name of the person and require that any damages be paid directly to
the Commonwealth. In circumstances where the Commonwealth may have some liability for
damages other than under the PICS, this will also allow the PICS to limit the person's right to
seek damages from the Commonwealth where the person is entitled to payments under the
10
PICS. Such powers are currently included in the SRC Act scheme (see sections 44, 50 and 51
of the SRC Act).
39 These powers will also allow the PICS instrument to give Comcare the power to take
over the defence of an action or other proceeding relating to an injury or other circumstance
under the scheme. There is provision for this under the SRC Act scheme which allows
Comcare to take over the conduct of a matter for an employer where its employee makes a
claim against it for non-economic loss relating to an injury covered by the scheme (see
section 52A of the SRC Act). This section also allows Comcare to take over the conduct of a
matter for an employee covered by the scheme, where another employee (the second
employee) has taken action against them for non-economic loss relating to an injury suffered
by the second employee that is covered by the SRC Act scheme. Including the ability for the
PICS instrument to prescribe such powers for Comcare will ensure that the PICS is consistent
with the SRC Act scheme, to the extent relevant.
40 New paragraph (2)(l) allows the Minister to make legislative instruments for the
purposes of the PICS. The SRC Act currently contains powers for the Minister for
Employment to make instruments in respect of a number of aspects under the SRC Act
scheme. For example, under subsection 7(1) of the SRC Act, the Minister for Employment
may specify certain employment types that are taken to have contributed significantly to the
development of a specific disease, and subsection 16(6) of the SRC Act allows the Minister
for Employment to specify a particular rate for each kilometre travelled to obtain medical
treatment that is compensable.
41 It is intended that PICS will incorporate any relevant instruments made for the
SRC Act scheme, however given the differences in the nature of the employment of
parliamentarians and Commonwealth public servants it is considered that not all legislative
instruments made by the Minister for Employment in relation to the SRC Act scheme will be
easily applied to the PICS without the need for extensive modification. It is therefore
considered prudent to provide the Minister responsible for the PE Act with the power to make
instruments under the PICS to ensure that all relevant instruments can be incorporated into
the scheme.
Subsection 9A(3)
42 New subsection (3) provides for a function conferred on Comcare by the PICS to be
taken to be conferred on Comcare by the PE Act. This is for the purposes of paragraph 69(g)
of the SRC Act, which allows additional functions to be conferred on Comcare by another
Act. This power is necessary to allow the instrument to confer the function of administering
the PICS on Comcare.
Subsection 9A(4)
43 New subsection (4) provides that the PICS may apply to events occurring on or after
1 January 2016. In particular, it may provide coverage for:
an injury or disease that is suffered in connection with an activity as covered
by new subparagraphs 1(a)(i) and (ii) occurring on or after 1 January 2016
11
an aggravation of an injury or disease suffered in connection with an activity
occurring on or after 1 January 2016, whether or not the injury or disease that
the aggravation relates to was suffered on or after that day, and
loss or damage to medical equipment as covered by new subparagraphs
1(a)(iii) and (iv) that occurs on or after 1 January 2016.
Although payments under the scheme will not be made until it is established by legislative
instrument, it is intended that the PICS will cover events from 1 January 2016.
Subsection 9A(5)
44 New subsection (5) provides that new section 9A and the PICS, prescribed by the
Minister, extends to all places outside Australia, including the external territories. This is
consistent with the SRC Act scheme (see section 3 of the SRC Act) and allows the PICS to
cover events occurring outside of Australia, for example injuries and diseases that occur
overseas but would otherwise be covered by the scheme.
Safety, Rehabilitation and Compensation Act 1988
Items 4 to 7
45 Items 4 to 7 make consequential amendments to the SRC Act to facilitate Comcare's
intended role in administering the PICS.
46 Item 4 amends the note to section 69 to insert a reference to the PE Act. This makes it
clear to the reader that functions will be conferred on Comcare by the PE Act, via the
instrument made to establish the PICS.
47 Item 5 amends subsection 73(1) to insert a reference to the PE Act, which will allow
the Minister responsible for the SRC Act to give general directions to Comcare with respect
to the performance of its functions or exercise of its power under the PE Act, otherwise than
in relation to a particular case.
48 Item 6 amends subsection 73A(1) to insert a reference to the PE Act. This will prevent
the Safety, Rehabilitation and Compensation Commission (Commission), from issuing policy
guidelines with respect to the PICS. It is not considered appropriate for the Commission to
have a role in relation to this class of claims, consistent with the existing exemption for the
Asbestos-related Claims (Management of Commonwealth Liabilities) Act 2005 which also
establishes a separate scheme for persons who are predominantly not Commonwealth
employees (see subsection 73A(1)).
49 Item 7 amends paragraph 91(3)(a) to insert a new subparagraph (vi) which contains a
reference to the PE Act. This will allow the money of Comcare to be applied in payment or
discharge of the expenses, charges, obligations and liabilities incurred or undertaken by
Comcare in the performance of its functions and exercise of its powers in relation to the
PICS.
12
Schedule 2--Other consequential amendments
Item 1
50 Item 1 makes a consequential amendment to the Age Discrimination Act 2004 (ADA)
by including reference to the PICS, as established under the PE Act, in Schedule 1 of the
ADA. This will provide an exemption to the ADA where a person acts in compliance with
the PICS, for the purposes of subsection 39(1) of the ADA. The ADA provides exemptions in
recognition of sound policy reasons for the use of age-based criteria in Commonwealth law
and programmes. The SRC Act is one such Act that is currently listed in Schedule 1 of the
ADA. It is considered appropriate that the exemption afforded by section 39(1) of the ADA
extend to the PICS, which establishes benefits and eligibility criteria equivalent to that of the
SRC Act scheme, which in some cases may include age based criteria.
13
Attachment A
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
PARLIAMENTARY ENTITLEMENTS AMENDMENT (INJURY COMPENSATION
SCHEME) BILL 2016
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The main purpose of the Parliamentary Entitlements Amendment (Injury Compensation
Scheme) Bill 2016 (Bill) is to make amendments to the Parliamentary Entitlements Act 1990,
to provide a legislative mechanism for establishing the Parliamentary injury compensation
scheme (PICS). The PICS will provide a number of benefits to parliamentarians and the
spouse of the Prime Minister, including injury compensation, rehabilitation support and work
health or safety equipment, services or facilities. These measures will allow the
Commonwealth to prevent, compensate and address workplace injuries and diseases for
parliamentarians and the spouse of the Prime Minister. The PICS would also cover
compensation for damage to medical equipment used by a member or the spouse of the Prime
Minister.
The Bill allows the PICS to be established through a legislative instrument made by the
Minister. The intention is that the PICS instrument will provide the same benefits to
parliamentarians and the spouse of the Prime Minister that are currently available to
Commonwealth public servants under the Safety, Rehabilitation and Compensation Act 1988
(SRC Act), to the extent they are relevant. Additional preventative work health or safety
measures are also provided.
Legislative authority is required to establish the PICS because parliamentarians and the
spouse of the Prime Minister (when engaged in official activities) are not employed by the
Commonwealth. This means that the Commonwealth is unable to provide workers'
compensation insurance coverage for injuries or diseases suffered in the course of
employment. This lack of coverage is inconsistent with community expectations around
providing safe and healthy workplace conditions for employees more broadly.
The spouse of the Prime Minister often undertakes official duties in connection with the role
of the Prime Minister as the head of government. This might include hosting
bilateral/multilateral events for the spouses of other heads of government including the Group
of Twenty, the Commonwealth Heads of Government Meeting and the Asia-Pacific
Economic Cooperation. It is therefore considered appropriate that coverage be extended in
respect of these duties.
14
It is intended that the administration of the PICS will be conferred on Comcare, as the
administrator of the SRC Act scheme. It is also considered appropriate for the PICS to be
capable of imposing certain conditions on eligibility for compensation and benefits as well as
mechanisms to prevent the incorrect payment of benefits and allow for recovery of overpaid
or incorrectly paid benefits. Such conditions and mechanisms are intended to mirror those
provided under the SRC Act, and will allow Comcare to administer the PICS efficiently and
in a way that maintains the integrity of the scheme.
Human rights implications
Applicable rights and freedoms engaged
The Bill engages a number of the recognised or declared human rights and freedoms which
are identified and addressed below.
Right to work and rights at work
Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
relates to conditions of work by recognising 'the right of everyone to the enjoyment of just
and favourable conditions of work which ensure, in particular...[s]afe and healthy working
conditions'.
Article 26 of the Convention on the Rights of Persons with Disability (CRPD) also provides
that State Parties must take effective and appropriate measures to enable persons with
disabilities to 'attain and maintain maximum independence, full physical, mental, social and
vocational ability, and full inclusion and participation in all aspects of life.' This includes
establishing and strengthening rehabilitation services and programmes in a number of
specific areas, including employment.
With respect to work and employment, Article 27 of the CRPD also provides that 'State
Parties shall safeguard and promote the realization of the right to work, including for those
who acquire a disability during the course of employment, by taking appropriate steps,
including through legislation, to...[p]romote vocational and professional rehabilitation, job
retention and return-to-work programmes for persons with disabilities.'
The right to health
Article 12 of the ICESCR provides that everyone has the right 'to the enjoyment of the
highest attainable standard of physical and mental health' and that steps must be taken by
State Parties for 'the improvement of all aspects of environmental and industrial hygiene' in
addition to the 'prevention, treatment and control of epidemic, endemic, occupational and
other diseases'. This involves facilitating access to medical services and attention in the event
of sickness.
The right to social security
Article 9 of the ICESCR provides that everyone has the right 'to social security, including
social insurance.' Guidance provided by the Committee on Economic, Social and Cultural
Rights (the Committee) at paragraph 17 of General Comment No. 19 provides that:
State Parties should also ensure the protection of workers who are injured in the
course of employment or other productive work. The social security system should
15
cover the costs and loss of earnings from the injury or morbid condition and the loss
of support for spouses or dependents suffered as a result of the death of a
breadwinner. Adequate benefits should be provided in the form of access to health
care and cash benefits to ensure income security.
Right to privacy
Article 17 of the International Covenant on Civil and Political Rights (ICCPR) provides that
'[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence'. Where a limitation on the right to privacy is provided by law, this
does not necessarily mean that the limitation will not be arbitrary.
The right to a fair hearing
Article 14 of the ICCPR provides that 'everyone shall be entitled to a fair and public hearing
by a competent, independent and impartial tribunal established by law' and that '[e]veryone
charged with a criminal offence shall have the right to be presumed innocent until proved
guilty according to law'. The imposition of strict liability offences is said to engage and limit
this right, because it removes the requirement to prove fault in order to establish criminal
liability.
Effect of the Bill on the rights and freedoms engaged
The main objective of the Bill is to provide a legal mechanism to establish an injury
compensation scheme which provides compensation for parliamentarians or the spouse of the
Prime Minister where they suffer an injury or disease, or an aggravation of an injury or
disease, in a workplace context. The scheme will also be capable of providing workplace
health or safety services, equipment and facilities for Parliamentarians and the spouse of the
Prime Minister as a means of preventing workplace injury and disease. The intention of the
scheme is to provide to parliamentarians, and the spouse of the Prime Minister, the same
benefits currently available to Commonwealth public servants under the SRC Act scheme.
The SRC Act scheme is administered by Comcare, whose efficient administration of the
scheme is facilitated through appropriate conditions on the eligibility for, and payment of,
benefits under the SRC Act scheme. Additional mechanisms that relate to the requirement to
provide evidence and allow for the recovery of overpaid benefits are also considered
necessary to maintain the integrity of the SRC Act scheme. It is considered appropriate that
the scheme established under the PE Act contain these same controls.
The enhancement, protection and promotion of rights
Currently parliamentarians and the spouse of the Prime Minister must pursue compensation
through statutory or common law remedies where they have suffered an injury or disease as a
consequence of activities relating to their respective roles. This is inconsistent with the
broader workforce where employees are provided with a level of workers' compensation
insurance by their employers.
The Bill provides power to establish a scheme which is aimed providing benefits to prevent
and compensate occupational injuries and diseases. The benefits available are intended to be
equivalent to those currently available under the SRC Act scheme, which includes:
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medical treatment
the cost of replacing medical equipment
incapacity payments
permanent impairment
the payment of household and attendant care services
rehabilitation costs
death, and
funeral expenses.
The Bill also provides the power for the scheme to provide preventative workplace health or
safety services, facilities and equipment. Noting the above, it is considered that the Bill
creates a power to establish a scheme which will enhance, protect and promote the rights to
social security, health, work and rights at work, for parliamentarians and the spouse of the
Prime Minister.
Reasonable, necessary and proportionate limitations on rights
The Bill provides a power to establish the PICS with broad powers to:
compel claimants to produce information or documents with respect to a claim made
under the PICS, and
establish offence provisions in relation to the PICS.
It is intended that these powers will only be used to create controls that are equivalent to
those currently available under the SRC Act scheme. Therefore, the information gathering
power is limited to matters that relate to the PICS, and the offence creation provision is
limited to creating offences with a maximum penalty of 10 penalty units (in line with the
highest penalty currently available under the SRC Act).
It is important that the Bill provides for the PICS to have mechanisms that to allow claims to
be processed accurately and efficiently. This includes having the power to compel claimants
to produce documents and information that are relevant to their claim or ongoing eligibility.
Appropriate mechanisms should also exist to discourage non compliance with these
requirements as a means of maintaining the integrity of the scheme.
Noting the above, while the inclusion of a power to create information gathering powers may
affect the right to privacy, limiting the power to matters that relate only to the scheme ensures
that the discretion is not so wide that it creates arbitrary interference with an individual's
right to privacy. Similarly, the inclusion of a power to create strict liability offences as part of
the scheme may be considered a limitation on the rights established under Article 14 of the
ICCPR. However, it is considered a reasonable, necessary and proportionate limitation for the
purpose of achieving the legitimate objective of providing the PICS with mechanisms that
assist in maintaining the integrity of the scheme.
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Conclusion
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011, because it advances the protection of human rights. To the extent that it may limit
human rights, those limitations are reasonable, necessary and proportionate.
Senator the Hon Mathias Cormann
Minister for Finance
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