The true factors about the VWA management is the now well documented
inability of the Workcover Authority to manage common law damages
claims and this inability directly effects injured workers and their families.
These inabilities include:
An inflexible approach to the management of claims and injured workers
The exclusion of skilled insurance staff and their conversion to mere
‘post boxes’ for claims;
A lack of integration between common law and the rehabilitation and
compensation process generally;
Inconsistency of approach to serious injury applications and common law
claims owing to a high level reliance on a relatively large number of
defendant panel law firms and the VWA is spending in access of $38 billion
in one year alone.
The ‘infamous’ barristers strike in late 1997 when the VWA arbitrarily
reduced fees.
In fact I would go as far as to say that at a senior level VWA management
used the other factors to deflect justified criticism of their incompetence.
In so doing the Victorian Workcover Authority skilfully manipulated a
government back-bench committee which met in secret to consider the
issue, and found a willing ally in a particularly ambitious back-bench
member of the government. As often at decisive historical moments,
individuals can play a key role, and the debate in late 1997 about
abolition of common law was no exception.
With the Kennett cabinet ambivalence about the issue, particularly in the f
ace of minor but escalating public opposition, the then CEO of the VWA
returned from overseas to stiffen the ‘resolve’ of his Minister. The die was
cast, and the legislation passed.
Why Was Common Law Reintroduced?
In our view, in 1997 the Kennett government committed three fatal
misjudgements.
Firstly, those involved in the political process failed to comprehend the
ability of the existence of common law damages to deflect community focus
on the inadequacy of statutory benefits.
The second misjudgement, intimately connected with the first, involved a
gross miscalculation as to the nature and saleability of the “improved”
impairment benefits scheme that accompanied the abolition of common
law damages.
Finally, the decision to also totally abolish rights against a third party
was astounding and was readily comprehended as such by the community.
The impairment benefit scheme enshrined in s98C and s98E of the Accident
Compensation Act relied on the component of impairment benefits on a whole
person basis substantially assessed under the American Medical Association
Guidelines for the Evaluation of Permanent Impairment (4th Edition).
Whilst the government and the Victorian Workcover Authority then contended,
and probably genuinely believed, that the impairment benefits scheme was a
dramatic improvement in the position of injured workers, the reality was different.
The transfer to the AMA 4th Edition Guides and the imposition of a 10% threshold
meant that the new impairment scheme represented a dramatic reduction in
impairment payments alone, not taking account of the loss of general damages
at common law. This flaw was quickly comprehended by some stakeholders,
particularly trade unions and plaintiff lawyers, and quickly became the subject
of "before and after” advertising by the Australian Plaintiff Lawyers Association.
Despite hasty readjustment of the 1997 legislative package both the government,
and extraordinary advertising by the VWA, they were unable to regain the
momentum in the public debate. The momentum was translated into a well-
funded coalition of trade unions, plaintiff lawyers, injured workers and other
community groups that developed a sophisticated campaign strategy focussing
in particular on the ‘human face & story’ of those seriously injured workers
whose benefits and entitlements were being reduced.
An analysis of the VWA’s projections of the cost of the “improved” impairment
benefits under s98C and s98E in the most recent review has demonstrated
the Authority’s costing to be greatly miscalculated. In the Review conducted
by the Workcover Advisory Committee in 1999/2000 material, particularly
comparative studies, undertaken by the medical panel and a study of Slater &
Gordon cases demonstrated that significant lower payment was made under
s98C than its predecessor.ix these studies together with other material
provoked a market revision of actuarial estimates of the projected costs of
s98C claims.
The abolition of third party rights was absolute and included:
Abolition of rights in cases of medical negligence arising from treatment
associated with a work injury.No right to pursue damages claims in
traffic accidents where the purpose of travel was ‘arising out of or in
the course of employment’Emergency workers such as police were also
denied damages claims against ‘third party’ offenders who caused injury
ABS statistics also revealed that over 66,000 small businesses in Victoria
employing less than five employees operated as companies.
These were primarily small family concerns and the abolition of third party
rights meant that directors could not make a common law because they
were deemed workers under the provisions of the Accident Compensation Act.
Notwithstanding the above the government was of the view that it could
‘tough out’ public opposition until the next election.
This was possibly correct save for the surprise resignation of a disgruntled
colleague of Kennett which resulted in the Mitcham by-election in March 1998.
It is now a matter of record that along with changes to the role of the Auditor
General, the other major issue fought over during the by-election was the
abolition of common law rights.
The stunning result in the Mitcham by-election in March 1998 was a
demonstration of how successful this campaign was to be. Polling carried
out at the time identified the November 1997 Workcover changes, including
the abolition of common law, to be a decisive issue in the unprecedented
swing against the Kennett government. In fact, a poll carried out by Roy
Morgan Research in late October 1997 revealed that four in five Victorians
surveyed knew of the government proposals, and without requiring any extra
information on the issue, 79% expressed their disapproval!
From 1997 through to the state election in September 1999 the campaign was
extremely well co-ordinated under the umbrella of the ‘Injured Persons
Association’. Marginal seats were targeted where every household received
literature explaining the issues. Advertising was carried out in the print and
electronic media. In particular the campaign used emergency services
workers as a potent example of what was at stake. These workers served
the community, often exposed to great risk, yet potentially not being
adequately compensated for injury as a result of the changes. Well collated
case studies were used to demonstrate the reduction in entitlements and
benefits injured workers would suffer as a result of the changes.
It was in the process of this developing campaign that I believe an important
and necessary step was taken. That was to examine, and challenge, the
economic assumptions which had been made by employer associations to
justify reductions in premiums. At issue here was a debate concerning who
actually pays for the costs of workers’ compensation.
Traditionally it is asserted that it is the corporate sectors which bears the
major costs, and therefore lower premiums (and by definition lower benefits)
are necessary for reasons of business confidence and competitiveness.
By engaging in this debate we were able to refer to respectable academic
evidence to demonstrate that it is employees who actually fund the
compensation scheme insurance levies via lower real wages.
The conventional position maintains that the increase in workers’
compensation premium constitutes an added cost to the cost of employment
as part of real labour costs that inevitably leads to reduced
employment. These views, generally contended by industry associations,
found a large measure of support within the Department of Treasury
and Finance.
The contrary view based on economic research in the United States conducted
by Chelius and Viscusi supports the proposition that “the pursuit of lower
premiums through reduced benefits and restricted eligibility provides little or
no long term benefit to business since the labour market adjusts to yield higher
take home wages at unchanged labour costs to the firm”.
Plaintiff lawyers commissioned Marsden Jacob Associates to apply similar
research techniques to the Australian labour market, and examine who pays
for workplace accidents and insurance compensation levies.
In summary their research revealed that:
Over 80% of the cost of workers’ compensation insurance levies are
shifted back to workers by the operations of the labour market and the
action of employers, particularly via lower take-home pay, and as a result
employment costs to employers are only temporarily changed by a change
in the insurance levy
Employers actually pay for less than 10% of the total costs to the
Australian economy of workplace accidents and injury
The ‘New’ Common Law :
The amendments to the Accident Compensation Act are a marked improvement
for injured Victorians. It nonetheless constitutes a remarkably modest reform
by an unduly timid government and reflects the still unresolved philosophical
debates that I have mentioned. There is no doubt that the issue of the removal
of common law damages was a significant issue in the 1999 general election
which continued to resonate in the subsequent Frankston East, Burwood, and
Benalla by-elections. It is regrettable, given the prominence of the issue, that
the Victorian government did not take the opportunity to deliver more meaningful
benefits to its constituency through a marginal extension of the levy from 2.18%
to 2.25% of payroll. This extension would have allowed both a meaningful
substituted common law payment to be made to workers seriously injured
between the 12th November 1997 and the 19th October 1999, and the
government to urgently address the substandard benefits that remain,
particularly in s98C and s98E of the Accident Compensation Act.xii
Legislation reintroduced the ability for a group of specific workers to pursue a
claim for common law damages against their employer or third party. The
reform is not fully retrospective and only applies to injuries occurring on or
after the 20th October 1999. The formal justification for failing to date the
reforms back to the 12th November 1997 was the general philosophical
opposition to the use of retrospective legislation. Whilst I understand the
reluctance of governments to utilise retrospective legislation I contend that
there is a qualitative difference between legislation removing rights and
legislation restoring those rights. The Bracks government, in my view, made
the decision not to restore the rights retrospectively firstly, on an economic
basis, ie its commitment to keep the premium level within 2.18% of wages,
and secondly, on the political judgment that the odium that would come from
its failure to restore rights would be borne by the Liberal and National parties.
Whatever the justification, the failure to introduce fully retrospective legislation
is a tragic abandonment of those workers who are injured within the window
period.
Common Law Threshold:
In the final analysis the government elected for a model that utilises the
impairment assessment as the primary gateway to common law but also
allowing access through a narrative test which will vary depending on whether
the worker’s claim is confined to a claim for non pecuniary loss or whether it
seeks to encompass pecuniary loss as well.xiii The impairment assessment test
to be utilised for access to common law damages is to be based on the fourth
edition of the AMA Guides (the ‘Guides’). You will appreciate that between 1992
and 1997 the impairment assessment test was based on the second edition of the
Guides. In reality few persons injured during that period sought access to
common law damages through the impairment assessment method and rather
elected to seek access through the narrative. Under the amendments it is clear
there will be a much greater focus on the impairment assessment for the
purpose of common law damages. It is to be the primary source of an
application for serious injury with resort to the narrative only being possible
after the assessment of permanent impairment.xiv The move from the second
edition to the fourth edition of the Guides is expected to have very marked
effects on the number of persons who will be able to achieve access to common
law through the impairment gateway. In particular there are very marked
differences in the ratings achieved under AMA 4 and AMA 2, particularly in
respect of muscular-skeletal and respiratory injuries.
The narrative test to be applied in assessing certification for serious injury for
injuries occurring on or after the 20th October 1999 has a marked similarity to
the narrative test that was in place for injuries prior to the 12th November
1997. S.134AB(37) of the Bill defines serious injury as follows:
a) permanent serious impairment or loss of a body function; or
b) permanent serious disfigurement; or
c) permanent severe mental or permanent severe behavioural disturbance
or disorder; or
d) Loss of a foetus.
Perhaps the most marked changes that have been affected related to an
application for serious injury based on a “loss of earning capacity”. It was
generally recognised that in respect of injuries prior to the 12th November
1997 a loss of earning capacity was one of the major factors that influenced
courts in its assessment of whether an injury constituted the serious injury
within the meaning of s135A of the Act. A moderate earning loss when
projected over a workers’ potential working life was generally considered
to be of serious consequence for an injured worker thus justifying the
granting of a serious injury certificate. The new provisions seek to ensure
that an actual loss of a defined extent can only be taken into account in the
establishing of a loss of earning capacity for the purposes of serious injury
certification. Subsection 134AB(38)(e)(i) & (ii) will require a worker to have
a loss of earning capacity of at least 40% as at date of serious injury
certification and that the injury will be productive of a financial loss of 40%
or more permanently into the future.
It must be recognised that if there is a significant trend to pursue claims for
damages in respect of non-pecuniary loss only this will inevitably raise major
prudential issues for the Victorian Workcover Authority. If there is no award
for pecuniary loss then the Workcover Authority does not receive the benefit
of the redemptive effect of a common law damages claim as the worker will
continue to receive entitlement to weekly payment of compensation in accordance
with the Act.
Third Party Claims – The New Common Law Position:
The new common law position in respect of third party claims in the legislation
is, I think, indicative of the “hothouse” effect of the preparation of the
legislative amendments. The Kennett government abolition for claims of
common law damages were comprehensive and resulted not only in the
abolition of common law claims in the workplace but also common law claims
in circumstances where a third party was a tort feasor but the injury occurred
in the course of employment not away from the place of employment.
It was not widely comprehended, for example, that the owner and director of a
family company, perhaps working as a plumber, was not entitled to bring a
claim in respect of a transport accident which occurred as a result of driving
in the course of their employment. Similarly a worker injured as a result of
medical malpractice was not able to sue a negligent medical treater if the
treatment related to a workplace injury. The legislation now restores the
right of workers injured in third party circumstances to pursue a claim for
common law damages.
The more curious situation arises in respect of damages claims against third
parties in other circumstances where the injury occurs away from the fixed
place of employment. S134AA(b) of the Bill extends a right to a worker to bring
proceedings for common law damages in specific circumstances without the
need to meet a threshold requirement of serious injury. Those circumstances
are set out in the section but are limited to circumstances where an employer
is not a party to the proceedings and where the injury is by virtue of s83(1) of
the Act deemed to have arisen out of or in the course of employment and if the
workers’ place of employment is a fixed place of employment the injury did not
occur while the worker was present at that fixed place of employment. It is clear
that at the time of the amendment of the Act the government had not fully
considered the potential implications of the serious injury threshold in third
party claims and thus opted to reintroduce the provision that was contained
in the Act between 1985 and 1992.xvi In doing so the government failed to
appreciate that there were no serious injury thresholds in the Act at that time
and all claims for damages were limited to claims for pecuniary loss. We are now
in the peculiar position that those workers injured in deemed employment
circumstances ie., lunch breaks or other breaks away from a place of
employment, medical treatment or attending trade schools are not bound by
the serious injury thresholds, whilst all others injured in the course of
employment but away from their place of employment are so bound.
This situation is best illustrated by example. If say a worker were injured in a
shopping centre during the course of an authorised lunch break they would
have the same rights as any member of the community to bring proceedings against the shopping centre for the negligence resulting in the injury. If the worker
however had been sent to purchase his or her employers lunch and thus was
present in the course of their employment, rather than in the course of
deemed employment, they are so bound by the thresholds. No doubt that
these anomalies, together with the anomalies that would centre on whether
or not a worker has a fixed place of employment will necessitate the further
amendment of the Act.
Conclusion :
What then are the lessons that we can draw from the Victorian experience?
The first lesson is to recognise the need to develop a new theory of relevance
for common law claims in modern and complex compensations systems.
Initially we must acknowledge that many of the traditional criticisms of the
common law have been valid. We cannot ignore issues such as delay, high
transaction costs, or other defects, as these have the tendency to ultimately
render a system unstainable. It must be recognised that everybody has an
interest in the stability and sustainability of a system. In the past the major
criticism of common law claims for damages was that they were a poor
distributive mechanism. Under modern compensation schemes I contend it is
arguable that they are a sophisticated distributive mechanism.
When a common law claim is a component of a blended compensation scheme
it actually has the potential to be a well focused distributive mechanism that
provides an extra layer of compensation to the most seriously injured in the
most reprehensible circumstances. In so doing it has the potential to meet
community expectations and to promote the deterrent effect inherent in the
remedy. The debate should therefore no longer be focused on a no fault
compensation scheme versus common law, but rather on developing the
appropriate control mechanisms for access to common law. Proper control
mechanisms will be equitable and predictable. The role of common law in
modern blended compensation systems must be accompanied by commitment
to the reduction of transaction costs for the remedy, and flexible recipes for
the claiming of damages. Generally, the right to continue in medical treatment
should be excluded from a claim for damages, and continue irrespective of a
claim. Flexible choices between damages on economic and non-economic
loss will also be an essential ingredient of a relevant common law damages
system.
It will be essential for plaintiff and labour lawyers, and other interested
groups, to develop and promote economic theories that support the role
of common law in order to meet head-on the uncritical rhetoric of employer
groups about the dis-incentives to employment. These new economic theories
will address issues such as those raised by Chelsius and Viscusi and focus on
the irrational subsides provided to injurious employers through depressed
levy payments. These theories must also research and document the deterrent
capacity of the common law remedy in occupational injuries.
The next lesson that has been learnt well in Victoria is the interest of all
stakeholders in a sustainable common law damages scheme. I think there
is a realisation among plaintiff lawyers, trade unions, and others, that a
compensation scheme has to have financial integrity and that adjustments
to the control mechanisms of a scheme will be necessary from time to time.
The reintroduction of common law in Victoria has a degree of fragility and it is
possible that some strain will be imposed on the control mechanisms in future
years. This may be avoided by the imposition of a very strict management
structure derived from the TAC, but time will tell.
The final point I want to make is that we have learned from Victoria that it is
possible to develop a tangible political campaign around the issue of “common law”.
The Victorian experience has shown that it is possible to take this issue and
convert it in to an issue of real importance to the community. To do so however,
requires dedication and co-operation amongst all relevant interest groups. The
lesson we learnt from Victoria was that the most compelling political method
was to focus on the “worthy excluded”.
Showing posts with label legislation. Show all posts
Showing posts with label legislation. Show all posts
Tuesday, 4 November 2008
YOU HAVE BEEN PUT ON NOTICE!!!
WCV's has been looking into the legal rights of Australian citizens and the
laws used by Government to either destroy or enrich our lives as it citizens.
We have questioned the legality of many of the systems used within
Worksafe Victoria and have found some startling facts.
We have shown that many of the governments representatives are not
providing a duty of care to their constituents and also that many of the
acts and legislation's in force may not be totally legal and within the
appropriate charters created for us as Australian citizens.
We have posted the following document which shows how the system
has been manipulated and controlled via the Parliament and its members.
WCV's questions the legality of the Accident Compensation Act?
The following has been taken from the basic fraud site listed in the
references:
From possibly as early as 1919 every Australian Federal & State Politician,
Judge, Magistrate, Defence Force Personnel, Federal & State Police Officer,
Sheriff, Local Mayor, etc., in other words the people in Authority, have
ALL, either knowingly or not, committed an ‘Act of Treason’ against the
Australian People, by swearing allegiance and subscribing to an oath to serve
Elizabeth II, Queen of the United Kingdom of Great Britain & Northern Ireland
and therefore the government of a Power foreign to Australia.
By all accounts Australia was recognised worldwide as an Independent Sovereign
Nation after WWI, when we were invited to join as a founding member, the League
of Nations in 1919.
Only fully self-governing nations could be members of the League of Nations:
see http://foundingdocs.gov.au/item.asp?sdID=94.
After WWII we were once again recognised worldwide as an Independent
Sovereign Nation when we were asked to join the United Nations in 1945,
which we did on the provision that we, like all other member nations, would
adhere to the UN Charter and abide by the International Law set in place.
Since 1919 the two Monarchies of the United Kingdoms have allegedly
appointed a Governor-General, who have in turn sworn into office, the
Federal Government of Australia.
This Federal Government then had the rights and privileges to administer
the laws and run the ‘Commonwealth of Australia’. However, these Monarchs
have had NO legal basis to do so!
Elizabeth II has NEVER been crowned the “Queen of Australia” and has NO
legal authority within Australia! British Law clearly cites the preclusion of the
U.K. monarch from any political intervention in a foreign land!!! (Under
International Law it is also forbidden for a Member Nation State of the United
Nations, to apply their legislation, within another Member Nation State).
If the Queen then has no legal power to appoint the Governor-General,
this position is totally invalid. This would also mean a Federal Government
legally cannot be sworn into office, so the Australian Parliament is not a
valid organ representing the Sovereignty of the Commonwealth of Australia
and cannot pass any laws which can have valid application within Australia,
or anywhere else for that matter. The only law that can have valid application
in Australia is international law, and possibly the common law of Australia.
Do you not think it strange or curious that Kevin Rudd – unlike previous
Australian Prime Ministers - changed the wording of the ‘Oath of Office’ to
“I, Kevin Michael Rudd, do swear that I will well and truly serve the
Commonwealth of Australia, her land and her people in the office of
Prime Minister” and excluded the swearing of allegiance to Queen
Elizabeth II by not also stating "I will be faithful and bear true allegiance
to Her Majesty Queen Elizabeth the Second"?
See: http://www.smh.com.au/news/opinion/majesty-missing-and-so-
was-the-medias-focus/2007/12/07/1196813020145.html
Does he think that by doing this, it will absolve him of his involvement in
treason against the Australian people? You may then start to understand
how the appointment of our Australian Governments, the various government
departments and our Australian Constitution are and have been for
decades – fraudulent, illegal and invalid.
Have your ever broken a traffic law and been stopped by the police?
Did you notice the British Crown on the car, uniform, warrant card or the
infringement notice? They have sworn an oath of allegiance to "Queen Elizabeth II".
Now let us say we elect to contest their complaint in a court - We are
then served with a summons and commanded to appear, in the name of
Her Majesty.
We then appear in a court which proudly displays the British coat of arms.
The Magistrates Act 1991 prescribes the oath which the Magistrate must
take (Magistrates Act Regulations 1993 – Form of Oath or Affirmation) and
the prosecutor plus the complainant (Police) both have sworn similar oaths
to that of the Magistrate. They will then proceed to impose British law upon
you.
Now hold it for a minute - are you not a citizen of an independent sovereign
nation? A member state of the U.N.?
The whole Judicial System in Australia is not only fraudulent but also invalid!!!
Most Judges (especially those in the High, Federal and State Supreme Courts)
are aware of this invalidity and know that their own appointments are totally
unlawful. However, these same Judges have continued to preside and rule
against hundreds of people, even when the invalidity of these Judges, were
actually questioned and challenged in documents filed in their own courts
and who were aware of this when making their rulings!
Innocent people have been ordered to pay fines, had property repossessed,
been forced into bankruptcy or imprisoned by dishonest Judges who are more
interested in protecting their own livelihoods, positions, power and the status
quo.
The Australian Taxation Office (ATO) is also an organization with NO
lawful authority. Yet people once again have had their lives ruined to the
point of suicide for being unable to pay their supposed taxes.
For any person reading this paper, who participates in perpetrating this
fraud against any Australian citizen after being made aware of these facts,
will be in breach of a Human Rights violation and in due course will be
charged in ‘The International Court’ for Human Rights abuse.
By way of a parallel situation, the report of the International Criminal
Tribunal (Yugoslavia) reveals that, this Tribunal considered human rights
abuses as more serious than war crimes and placed ‘economic deprivation’
at the upper end of the penalty scale. Any person directly involved in an
illegal act of economic deprivation (for which the United Nation’s penalty
scale is from five (5) to twenty-five (25) years).
You should now take the time to consider your position, as you have been
given notice and as an individual with access to the Internet, telephone and
postal service if you continue to act in any manner against an Australian citizen,
you will be denied any defence as to your lack of knowledge of the facts
outlined herein.
Please remember that, in matters involving human rights,
individuals are considered to be solely responsible for their
actions and the “I was only doing my job”, Nuremberg defences
of ‘acting on advice’, ‘acting under direction’, ‘acting under orders’
or any justification which involves a ‘superior authority’
(such as an unsafe court decision) does not present as an
acceptable defence.
In addition, you should note that an International Criminal Tribunal can
authorise any reparations that it deems fit. Accordingly, individual offenders
may be subject to ‘open ended’ liability. Moreover, advice received from
counsels in the United Kingdom is that the compensation that will be awarded
will be in the nature of “extraordinary punitive” damages AGAINST ANY
OFFENDER!
As they say, don’t shoot the messenger - these are legal facts and not legal
opinion! For your peace of mind, we would recommend that YOU do your
own personal research into these matters.
WEBSITE REFERENCES:
www.basicfraud.com
www.members.westnet.com.au/unrealneil
net.lib.byu.edu/~rdh7/wwi/versailles.html
www.statusquo.org/aru_html/html/GovGen.html
web.archive.org/web/20001204150500/http:/www.institutetr.com.au
www.brumbywatchaustralia.com/Principality04.htm
www.theage.com.au/articles/2004/08/08/1091903444867.html
www.principalityofcamside.cc/Audio/OzAudioIntro.htm
members.iimetro.com.au/~hubbca/young_and_free.htm
laws used by Government to either destroy or enrich our lives as it citizens.
We have questioned the legality of many of the systems used within
Worksafe Victoria and have found some startling facts.
We have shown that many of the governments representatives are not
providing a duty of care to their constituents and also that many of the
acts and legislation's in force may not be totally legal and within the
appropriate charters created for us as Australian citizens.
We have posted the following document which shows how the system
has been manipulated and controlled via the Parliament and its members.
WCV's questions the legality of the Accident Compensation Act?
The following has been taken from the basic fraud site listed in the
references:
From possibly as early as 1919 every Australian Federal & State Politician,
Judge, Magistrate, Defence Force Personnel, Federal & State Police Officer,
Sheriff, Local Mayor, etc., in other words the people in Authority, have
ALL, either knowingly or not, committed an ‘Act of Treason’ against the
Australian People, by swearing allegiance and subscribing to an oath to serve
Elizabeth II, Queen of the United Kingdom of Great Britain & Northern Ireland
and therefore the government of a Power foreign to Australia.
By all accounts Australia was recognised worldwide as an Independent Sovereign
Nation after WWI, when we were invited to join as a founding member, the League
of Nations in 1919.
Only fully self-governing nations could be members of the League of Nations:
see http://foundingdocs.gov.au/item.asp?sdID=94.
After WWII we were once again recognised worldwide as an Independent
Sovereign Nation when we were asked to join the United Nations in 1945,
which we did on the provision that we, like all other member nations, would
adhere to the UN Charter and abide by the International Law set in place.
Since 1919 the two Monarchies of the United Kingdoms have allegedly
appointed a Governor-General, who have in turn sworn into office, the
Federal Government of Australia.
This Federal Government then had the rights and privileges to administer
the laws and run the ‘Commonwealth of Australia’. However, these Monarchs
have had NO legal basis to do so!
Elizabeth II has NEVER been crowned the “Queen of Australia” and has NO
legal authority within Australia! British Law clearly cites the preclusion of the
U.K. monarch from any political intervention in a foreign land!!! (Under
International Law it is also forbidden for a Member Nation State of the United
Nations, to apply their legislation, within another Member Nation State).
If the Queen then has no legal power to appoint the Governor-General,
this position is totally invalid. This would also mean a Federal Government
legally cannot be sworn into office, so the Australian Parliament is not a
valid organ representing the Sovereignty of the Commonwealth of Australia
and cannot pass any laws which can have valid application within Australia,
or anywhere else for that matter. The only law that can have valid application
in Australia is international law, and possibly the common law of Australia.
Do you not think it strange or curious that Kevin Rudd – unlike previous
Australian Prime Ministers - changed the wording of the ‘Oath of Office’ to
“I, Kevin Michael Rudd, do swear that I will well and truly serve the
Commonwealth of Australia, her land and her people in the office of
Prime Minister” and excluded the swearing of allegiance to Queen
Elizabeth II by not also stating "I will be faithful and bear true allegiance
to Her Majesty Queen Elizabeth the Second"?
See: http://www.smh.com.au/news/opinion/majesty-missing-and-so-
was-the-medias-focus/2007/12/07/1196813020145.html
Does he think that by doing this, it will absolve him of his involvement in
treason against the Australian people? You may then start to understand
how the appointment of our Australian Governments, the various government
departments and our Australian Constitution are and have been for
decades – fraudulent, illegal and invalid.
Have your ever broken a traffic law and been stopped by the police?
Did you notice the British Crown on the car, uniform, warrant card or the
infringement notice? They have sworn an oath of allegiance to "Queen Elizabeth II".
Now let us say we elect to contest their complaint in a court - We are
then served with a summons and commanded to appear, in the name of
Her Majesty.
We then appear in a court which proudly displays the British coat of arms.
The Magistrates Act 1991 prescribes the oath which the Magistrate must
take (Magistrates Act Regulations 1993 – Form of Oath or Affirmation) and
the prosecutor plus the complainant (Police) both have sworn similar oaths
to that of the Magistrate. They will then proceed to impose British law upon
you.
Now hold it for a minute - are you not a citizen of an independent sovereign
nation? A member state of the U.N.?
The whole Judicial System in Australia is not only fraudulent but also invalid!!!
Most Judges (especially those in the High, Federal and State Supreme Courts)
are aware of this invalidity and know that their own appointments are totally
unlawful. However, these same Judges have continued to preside and rule
against hundreds of people, even when the invalidity of these Judges, were
actually questioned and challenged in documents filed in their own courts
and who were aware of this when making their rulings!
Innocent people have been ordered to pay fines, had property repossessed,
been forced into bankruptcy or imprisoned by dishonest Judges who are more
interested in protecting their own livelihoods, positions, power and the status
quo.
The Australian Taxation Office (ATO) is also an organization with NO
lawful authority. Yet people once again have had their lives ruined to the
point of suicide for being unable to pay their supposed taxes.
For any person reading this paper, who participates in perpetrating this
fraud against any Australian citizen after being made aware of these facts,
will be in breach of a Human Rights violation and in due course will be
charged in ‘The International Court’ for Human Rights abuse.
By way of a parallel situation, the report of the International Criminal
Tribunal (Yugoslavia) reveals that, this Tribunal considered human rights
abuses as more serious than war crimes and placed ‘economic deprivation’
at the upper end of the penalty scale. Any person directly involved in an
illegal act of economic deprivation (for which the United Nation’s penalty
scale is from five (5) to twenty-five (25) years).
You should now take the time to consider your position, as you have been
given notice and as an individual with access to the Internet, telephone and
postal service if you continue to act in any manner against an Australian citizen,
you will be denied any defence as to your lack of knowledge of the facts
outlined herein.
Please remember that, in matters involving human rights,
individuals are considered to be solely responsible for their
actions and the “I was only doing my job”, Nuremberg defences
of ‘acting on advice’, ‘acting under direction’, ‘acting under orders’
or any justification which involves a ‘superior authority’
(such as an unsafe court decision) does not present as an
acceptable defence.
In addition, you should note that an International Criminal Tribunal can
authorise any reparations that it deems fit. Accordingly, individual offenders
may be subject to ‘open ended’ liability. Moreover, advice received from
counsels in the United Kingdom is that the compensation that will be awarded
will be in the nature of “extraordinary punitive” damages AGAINST ANY
OFFENDER!
As they say, don’t shoot the messenger - these are legal facts and not legal
opinion! For your peace of mind, we would recommend that YOU do your
own personal research into these matters.
WEBSITE REFERENCES:
www.basicfraud.com
www.members.westnet.com.au/unrealneil
net.lib.byu.edu/~rdh7/wwi/versailles.html
www.statusquo.org/aru_html/html/GovGen.html
web.archive.org/web/20001204150500/http:/www.institutetr.com.au
www.brumbywatchaustralia.com/Principality04.htm
www.theage.com.au/articles/2004/08/08/1091903444867.html
www.principalityofcamside.cc/Audio/OzAudioIntro.htm
members.iimetro.com.au/~hubbca/young_and_free.htm
Friday, 31 October 2008
Messages from the Ombudsmans Office - Worker Information
Here is some information taken from the Ombudsman’s News Letters.
In some of the information you will find the processes used by the VWA
the Ombudsman’s recommendations of how these policies are to be enforced.
Knowledge is Power!
BULLETIN
December 2005
Transport Accident Commission - WorkCover & WorkSafe
Message from the Ombudsman
“In October my jurisdiction increased and I established a new unit to
specialise in TAC and WorkCover matters. Jo Carden joined Ombudsman
Victoria to head the new unit. She has established a strong network
encouraging effective complaints management and I look forward to
further improvement across the industry.”
G E Brouwer, Ombudsman.
Message from Workcover Victims:
I have personally dealt with Jo Carden. She did nothing to help this Workcover
victim nor did she enforce breaches of the accident compensation act by the
employer and the VWA. So much for the strong network and effective
management!
The purpose of the new team is to:
· Concentrate expertise within Ombudsman Victoria;
· Create strong networks for complaints resolution;
· Educate the public and industry about Ombudsman Victoria;
· Educate the public and industry about the legislative change that
· has extended jurisdiction; and
· Ensure industry improvement in complaints management in the
· Longer-term.
The new unit:
Manager; Jo Carden.
Outreach coordinator; Alexa Powell.
Investigation officers; Kirrily Graydon and Russell Bennett.
2nd Edition:
Welcome to the second edition of Ombudsman Victoria’s Bulletin
providing a quarterly update to the Transport Accident Commission
(TAC) and the Victorian WorkCover Authority (VWA) industries.
Please forward this bulletin on to others who may benefit from this
information.
Complaints update
On 1 October 2005 Ombudsman Victoria (OV) established the Transport
Accident and WorkCover Unit. Since then OV has received 171
complaints relating to the TAC/VWA industries which represents an
increase in complaints compared to previous years. As a result of OV
establishing networks in the industry, 98 of these complaints were
resolved quickly. The remaining 73 complaints were complex or
sensitive and so required further investigation.
Some enquiries have been referred to the TAC, VWA or the agents for a
direct response to the complainant where they have not had an
opportunity to respond to the allegations. This allows resolution
without a third party being involved, and for the TAC, VWA and the
agents to exercise their complaints management processes. It also
allows OV to direct its resources to investigations which have not been
resolved by the TAC, VWA or the agents.
The more common complaints have been:
· failure to respond to requests
· failure to pay for treatment
· failure to communicate a decision
· failure to communicate the evidence considered and reasons for a
· decision
· delays in making a decision
· conduct
· access to information
· complaints about the Medical Panel and ACCS.
Complaints also escalated if a claims decision was reviewed by a senior
officer or a review team but the review outcome letter did not list the
evidence considered in the review nor the reasons for overturning or
maintaining the decision. Providing this information allows for a
transparent review process. Finally, complaints also escalated when an
error had not been acknowledged or an apology received.
3rd Edition:
Welcome to the fourth edition of the Ombudsman Victoria (OV) Bulletin.
This edition focuses on access to information processes and complaints. In
addition, it provides information which may help you respond to challenging
behaviours and includes some useful references.
Message from the Ombudsman
OV together with the Victoria WorkCover Authority (VWA) recently
reviewed the VWA’s access to information processes. Individual complaints
were being resolved, but enquiries by my investigation officers identified the
need for further review of the processes. I recognised that this was a good
opportunity for an informal joint review and the VWA agreed. As a result of
this review the VWA will introduce changes over the next few months to
processes, information and standard letters to assist the applicants and the
people responding to the requests. The VWA will keep you informed as
these changes are implemented. In the interim, this bulletin provides
scenarios from complaint enquiries and recommendations.
G E Brouwer, Ombudsman.
Scenario Recommendation
Q. Documents and files previously considered to be lost are subsequently
after a further search.
A: Ensure you complete a thorough and complete search on the first request.*
Q. Requests made under the FOI Act are processed under ACA.
A. Ensure that the request is processed according to the application.
Q. Claims managers make decisions to exempt documents because of legal
professional privilege.
A. Ensure that Senior Legal Counsel makes this decision as is required under
the VWA’s Claims Manual.
Q. The relevant standard letters are not used and the one-off letters provide
incomplete information.
A. Use standard letters where they exist to ensure responses are consistent
complete.
Q. The term ‘The following documents you requested are not in our possession’
does not tell the reader if a document is lost or never existed.
A. Ensure that the reader is clearly advised if a document is lost or never existed.
This helps them decide their next step, if any.
Q. Exempt documents are not listed in the letter to the applicant.
A. Ensure that a list of the exempt documents is provided in the letter to the
applicant.
Q. Some solicitors write concurrent letters, one under ACA and one under the
FOI Act.
A. Clarify with the solicitor which application she or he would like to progress.
Q. Surveillance film is not routinely released when all file information is requested.
A. Surveillance reports and film should be released or a decision to exempt this
information is to be communicated.
Q. Applicants make multiple requests to access surveillance film.
A. A response should be made to the first request.
Q. Surveillance film requested is lost.
A. Consider obtaining a copy of the film from the private investigation firm.
Dealing with upset, angry, confused, or challenging people can be an extremely
difficult task, even for experienced complaint handlers. References to useful
websites are provided below to assist agency staff.
There may be a variety of reasons why a person is difficult to deal with.
Whatever the reason, an agency should not necessarily assume that a ‘difficult’
person does not have a valid complaint. Wherever possible, agencies should
apply the same standards of communication to anyone asking a question or
expressing a concern calmly. In some cases, all that is required is for someone
to take the time to talk to the person, listen to their concerns and tell them
what is happening. Therefore, it is important to listen without interruption to
what the person is saying even if they are being difficult, aggressive, or
incoherent at times. Once the person has had a chance to express their point
of view, staff may need to ask questions to clarify what has been said to them.
Remember, your tone of voice is extremely important. Try not to make
the person feel that they are being cross-examined, rather make it clear to
them that questions are being asked out of a desire to assist.
Further information on dealing with challenging behaviours is on the following
websites:
New South Wales Ombudsman, www.nswombudsman.nsw.gov.au, Public Sector
Agencies Fact Sheet No 22: Very difficult complainants
Victorian Health Services Review Council, www.health.vic.gov.au/hsc, Guide
to Complaint Handling in Health Care Services, 2005
Victorian Health Information, www.health.vic.gov.au/archive, Lecture Notes
on Persistent and Abnormal Claiming and Complaining, Dr Paul E Mullen,
Victorian Institute of Forensic Mental Health, 2003
Things to consider when handling challenging behaviours
do not make empty promises—it is better to be realistic and honest about
any limitations or expected time delays
avoid premature opinio
do not focus solely on placating an angry or upset person—treat their
complaint seriously and try and focus on the issue at hand rather than
just their emotions or behaviour
· communicate clearly—check if you are being understood
· use empathy to diffuse anger—listen without interruption
· use direct language—tell them what you can and cannot do
· use neutral tone and pitch
· be confident in your ability to help
· remain flexible—do not be too rigid in your approach
· know your limits—be willing to get help from someone else or pass
the problem on to someone with more knowledge, time or authority
· try to remain calm and think clearly
· strike a balance between logic and emotion
· always be conscious of your own emotional and physical safety.
Legislative change
Crimes (Documents Destruction) Act 2006 and
Evidence (Document Unavailability) Act 2006
In July 2006 the Victorian Government introduced the above amendments
the Crimes Act and Evidence Act respectively. The Crimes (Documents
Destruction) Act 2006 deals with the destruction of documents that are
or are reasonably likely to be used in litigation.
The Evidence (Document Unavailability) Act 2006 deals with the effect that
the destruction of documents has on the outcome of civil proceedings.
These amendments were drafted in response to the case of McCabe v British
American Tobacco Australia Services Limited [2002] VSC 73. Mrs McCabe
sued British American Tobacco (BAT) for damages after contracting lung
cancer. At the Supreme Court hearing his honour Justice Eames struck out
BAT’s defence and awarded Mrs McCabe damages of $700,000 on the
grounds that BAT had deliberately destroyed so many relevant documents
that a fair trial for Mrs McCabe was not possible. BAT appealed to the
Victorian Court of Appeal. The court upheld the appeal and overturned
the judgment of Justice Eames on the basis that it was not illegal to destroy
such documents prior to the litigation having commenced.
The Crimes (Documents Destruction) Act 2006 makes it a criminal offence
from 1 September 2006 to destroy documents that are, or are reasonably
to be, required as evidence in existing or potential legal proceedings. Both
companies and individuals can be prosecuted and significant penalties apply.
If found guilty individuals can be imprisoned for a maximum of 5 years and
companies fined up to $300,000.
The Evidence (Document Unavailability) Act 2006 provides the courts and
the Victorian Civil Administrative Tribunal (VCAT) with the discretion to
‘reverse’ the effects on a proceeding where a document(s) has become
unavailable because it has been:
· destroyed
· disposed of
· lost
· concealed, or
· Rendered illegible, undecipherable or incapable of identification.
The discretion allows the court or VCAT to make any ruling or order it
considers necessary to ensure fairness to all parties. This can include that
an adverse inference be drawn from the unavailability of the document or
that all or part of a defence or statement of claim be struck out.
These amendments came into being on 1 September 2006. They apply
to both the public and private sector. OV would expect that all agencies
review their policies and procedures to ensure they comply with these
legislative changes.1
Complaints data and themes 2005-06
On 1 October 2005 the Ombudsman established the Transport Accident
and WorkCover Unit in response to amendments to the Accident Compensation
Act 1985 and the Transport Accident Act 1986.
This provided for:
· a specialised focus for enquiries and investigations within OV
· strong networks for complaints resolution to be created; and
· a focus on industry improvement in complaints management.
Number of complaints finalised
The number of complaints finalised in 2005-06 increased by 128% compared
to 2004-05.
Complaints by category 2005/06
Thirty seven per cent of complaints received were in regard to the decision-
making process for medical and like benefits. When making a decision officers
need to consider TAC’s and VWA’s guidelines for good decision-making.
In particular they should focus on the following questions:
Have I considered all the relevant evidence?
Have I referred to the appropriate legislative provisions, policies and
procedures?
Have I documented my thinking and ‘reasons’?
Have I included the following in my decision letter?
· a list of the evidence considered
· the decision
· the reasons for the decision and the balance of evidence.
Keeping people up-to-date and providing a transparent decision-making
process may prevent the escalation of complaints. Interim letters or phone
calls to a claimant provide transparency if a decision is to be delayed.
Freedom of Information, which made up seven percent of complaints, has
been addressed in previous editions of this bulletin. This is an opportunity
to remind you of two points: how surveillance tapes are stored, retrieved
and tracked; and what you consider when you receive a request for the
whole file. Consideration needs to be given to surveillance reports and tapes
and if not released then a decision needs to be made and communicated.
If you would like more information about the complaint types and the
observations made by this office, please contact the Transport Accident
and WorkCover Unit.
Future editions and contact details
We welcome enquiries about this publication. The purpose is to provide
you with information that can assist you in your roles and the relationship
you have with OV.
Recommendations for future editions can be forwarded to
joanna.carden@ombudsman.vic.gov.au
Russell Bennett, Acting Director, Ombudsman Victoria
Level 9, South Tower
459 Collins Street, Melbourne
Ph 9613 6261
Message from the Ombudsman
In the last quarter I tabled three reports in Parliament. I encourage you to
read the report titled Conflict of interest in the public sector March 2008.
I also suggest that you to bring this report to the attention of your training
officers and senior staff as conflict of interest is an issue which, if not
responded to appropriately, erodes confidence in the public sector.’
G E Brouwer, Ombudsman.
New Fact Sheet 15: Powers of the Ombudsman
The Ombudsman is often asked about his role, jurisdiction and powers.
To assist the public sector, complainants and the general public to understand
the various topics relevant to the Ombudsman, communication products are
available at www.ombudsman.vic.gov.au. Fact sheets are a key component
of our communication strategy and have been referred to in previous editions
of this bulletin. Only a small number of cases are brought to the public’s
attention by tabling investigation reports and Annual Reports in Parliament.
The remaining enquiries and investigations are conducted in private.
Fact Sheet 15 describes the Ombudsman’s breadth of jurisdiction, source of
complaints and scope of powers.
The key points in Fact Sheet 15 are:
◊the Ombudsman can investigate private organisations contracted to
perform functions for government agencies
◊the powers used when conducting a formal investigation
◊it is a criminal offence to obstruct an Ombudsman investigation
◊under the Whistleblowers Protection Act 2001 the Ombudsman can
investigate elected councillors and members of Parliament as well as
public servants.
Commission -WorkCover -WorkSafe
March 2008
Edition 10
Conflict of interest
On 13 March 2008, the Ombudsman tabled a report in Parliament titled
Conflict of interest in the public sector. The full report examines the topic,
presents practical information and case studies. All public sector agencies
should study the full report, however, as way of introduction, the following
is the Ombudsman’s Executive Summary: ‘Conflict of interest’ is an expression
that is widely used today; however, its full significance is much less widely
understood. The essence of the issue is not complex. A ‘conflict of interest’
simply describes situations which we all encounter in the course of our
everyday lives, when we are obliged to make an ethical choice between
one obligation and another. Ought I to do this? Or should I do that?
The English language abounds in commonplace expressions that reflect the
essential notion of conflict of interest. We hear of ‘divided loyalties’; we recall
the Biblical injunction that ‘no man may serve two masters’; it may be said of
a man that he ‘wants his bread buttered on both sides’; there is an ancient
maxim that ‘no man shall be a judge in his own cause’. In this way folk
wisdom has recorded its recognition of an enduring problem.
It has been the same throughout the ages. Despite being disgraced, dismissed
and imprisoned, Francis Bacon, lawyer, scientist, philosopher and Lord
Chancellor of England under King James I, stoutly maintained that
conflicting private interests (bribes, actually) had not bent the decisions
that he handed down from his Bench.
Samuel Pepys, famous diarist in the reign of Charles II, was Secretary to
the Admiralty, and by all accounts a good one; yet he shamelessly filled
his own pockets through the pursuit of conflicting private interests.
So the story has continued. In our own day, we have watched a Secretary-
General of the United Nations and a President of the World Bank enmeshed
in issues of conflict of interest.
Conflict of interest is a critical matter for government. The legitimacy of the
state relies on public confidence in public officials to act fairly and impartially
and in the best interests of the community. However, despite its fundamental
nature, conflict of interest is in my experience not clearly understood across
the public sector. Furthermore, efforts to tackle it have generally been
reactive and limited in their effectiveness. This is reflected in the volume
of complaints to my office and the issues brought to my attention over
recent years.
Conflict of interest is recognised as part of a broader problem of public
sector ethics, which includes, at the extreme, corrupt activity. This problem
is now acknowledged to be an important factor in the weakening of citizens’
trust in public institutions worldwide and in democratic systems more broadly.
Such issues have certainly become more important in today’s environment
where there are growing numbers of often complex interconnections and
collaborations between the public sector and the business and not-for-profit
sectors, including such developments as outsourcing, contracting-out,public/private partnerships, self-regulation and sponsorships. The interchange of personnel
between the public and private sectors has also contributed to a degree of
breakdown in traditional public sector employment cultures and attendant
obligations and loyalties.
Given these developments here and overseas, I decided to conduct a broad
based review of the issue of conflict of interest in the Victorian public sector.
report is the result of that enquiry conducted in 2006–07, under my own
motion enquiry powers.
My enquiry found that there are a number of misunderstandings about
conflict of interest among public sector employees in Victoria and that these
misunderstandings often extend to management levels. This situation
contributes in turn to inadequate management of conflicts of interest and
an unsatisfactory level of accountability in many areas.
On the evidence before me, I find that there is a compelling case for the
issue to receive serious, fresh attention. Failure to act, I believe, will lead
to a progressive undermining of public confidence in the impartiality,
fairness, transparency and integrity of Victoria’s public administration.
It is a fact that conflicts of interest will continue to arise and Victorian public
sector employees need to know how to identify and deal with them properly.
To this end, one of my key recommendations is that the Code of Conduct for
Victorian Public Sector Employees be strengthened and extended to give
more detailed information and guidance on conflict of interest. I consider that
a substantial education program is also required to support this initiative.
I also recommend that there be a sector-wide management approach to the
of conflict of interest for all public sector entities. It should focus specifically
on managing the risks associated with the private activity of public officers;
on minimising the opportunities for public officers to pursue private interest;
and on developing ethical cultures that have a commitment to serve the public
interest at their core and recognise The report explores conflicts of interest
from a variety of private interests and activities and highlighting the times
when scrutiny is justified. It identifies the following areas which warrant specific
attention and careful management:
1. Outside/secondary employment and private business interests
2. Employment and business activities after leaving public sector
employment
3. Employment and private business interests of family members,
friends, and associates
4. Membership of community groups and organisations
5. Inappropriate/personal relationships.
The Ombudsman expects all public sector employees and those employed
by private organisations contracted to perform functions for government
, to act in a way which is consistent with the public sector Code of Conduct.
Annual training calendars should include modules about the public sector’s
Code of Conduct and be provided to all levels of staff and senior officers should
be promoting this behavior.
FURTHER READING
An article published in the October 2007 edition of the St James Ethics
Centre’s Living Ethics issue 69: Conflict of interest—Victorian Ombudsman’s
concerns. Mr John Taylor, Deputy Ombudsman.
Useful resources available at www.ombudsman.vic.gov.au
Unreasonable complainant conduct: interim practice manual
Complaint handling guide for the Victorian public sector
Fact sheets
Recent Parliamentary reports
Conflict of interest in the public sector March 2008
Conflict of interest in local government March 2008
Complaints can be directed to:
Mail Level 9, 459 Collins Street, Melbourne
Phone 9613 6222 or 1800 806 314
Email ombudvic@ombudsman.vic.gov.au.
Message from the Ombudsman
‘At the end of the reporting year I reflect on the enquiries and investigations
conducted by my officers and consider the progress made in regard to the
implementation of my recommendations. The remedies implemented by
public sector agencies as a result of complaint enquiries provide the
opportunity to improve the administration of the Victorian public sector.
Handling individual complaints is only one part of my responsibility.
They, however, provide me with the opportunity to drive systemic change
and influence the culture that underpins the administration of the public
sector. This edition provides information on the diverse activities of my
office. I also provide a case study as a reminder to everyone about the
personal and sensitive information held by your organisations and the care
which must be taken in handling this information
G E Brouwer OMBUDSMAN
Beyond one complaint
Section 13 (1) of the Ombudsman Act 1973 states:
The principal function of the Ombudsman shall be to enquire into or
investigate any administrative action taken in any Government Department
or Public Statutory Body to which this Act applies or by any member of staff of a
municipal council.
The Ombudsman’s jurisdiction includes private agencies performing
a function on behalf of Government. In carrying out this function, the
Ombudsman promotes excellence in public administration and seeks
to ensure the highest possible standards of public sector service
delivery to all Victorians.
Transport Accident Commission - WorkCover - WorkSafe
June 2008
Edition 11
The Ombudsman provides a means by which individuals can obtain redress for maladministration. In providing this service he focuses on obtaining
achievable practical outcomes in a timely manner for individual complaints.
The Ombudsman has recently said:I am able to draw on the knowledge gained
from dealing with individual complaints to identify systemic weaknesses
that underpin poor administrative practices. Formal reviews and investigations
conducted by my office can then inform authorities and their responsible
Ministers about underlying causes of these problems and indicate the steps
that should be taken to improve an authority’s performance. The Ombudsman’s
Complaint handling guide for the Victorian public sector clarifies importance of
linking complaint handling and business improvement.
The guide states:
Sufficient resources need to be allocated to allow an analysis of aggregated
complaint data and identification of recurring or system wide problems. The
findings should then be used to address the action or service of the agency
that has been the source of the complaints. This may be through corrective
and preventative actions and innovative improvements. The agency should
take actions to eliminate the cause of existing and potential problems leading
complaints in order to prevent further complaints.
Complaint numbers alone are not effective indicators of proper administration
as access to and promotion of complaint handling processes and compliance
with complaint handling practices may mislead the interpretation of complaint
data.
Only providing a response to an individual complaint, misses the strategic
opportunity to understand and learn. Remedying the one complaint may fail
to question a policy, a practice, compliance or the culture in which the decisions
or actions were taken. Consequently, it misses the opportunity for a broader
and deeper change.
To ensure the public receives the standard of service that should be expected
from government, providing remedies for individual complaints is only the
first step. Considering each complaint in the light of strengthening systems is
the next step. The Ombudsman said:
Ultimately, I strive for my office to contribute to the development of a culture
of public service that reflects the values of democracy – openness, transparency,
probity and the pursuit of the public interest at all times. The importance is to
effect cultural change in government administration.
Half yearly visits to agencies
Investigation officers conduct informal visits to the entities which make up the
TAC and WorkSafe industries. The officers are interested in the opportunity to
meet new staff and share information about changes in our organisations. The
discussions are about complaint handling in general and common complaint
themes. Some of the more difficult complaint enquiries are discussed such as
those where there have been delayed or incomplete responses, comprehensive
matters or where challenges presented.
Feedback has included expressions of appreciation as these visits have provided
an opportunity to clarify the role of the Ombudsman in the broader context of
Government. This understanding assists the complaint handling officers to meet
the Ombudsman’s expectations during enquiries and investigations particularly
in regard to complaint handling, systemic and cultural change.
An opportunity to reflect
On 20 April 2008 The Sunday Age published an article regarding an alleged
release of medical files to the wrong person by an authorised agent of
WorkSafe. Entities in the TAC and WorkSafe industries hold private and
sensitive information and absolute care needs to be taken to ensure that its
collection, storage, use and disclosure are consistent with the Health Records
Act 2001, the Information Privacy Act 2000 and with their policies governing
these actions. Sophisticated measures can be put in place to minimise the risk
in the future but taking care and conducting simple checks can be most effective.
For example, if you are signing a letter and enclosing information, you are
responsible for checking the documents included and sealing the envelope.
There have been many examples in other jurisdictions of sensitive documents
being left in public places. Documents and files should only leave the security
of the workplace if there is no other choice. Be aware of the examples in the
media, even if they are not related to your organisation or industry. Take them
as an opportunity to reflect on the practices and controls in your workplace and
proactively address any shortfalls.
If there are people in your organisations whom you believe will benefit from these
informal visits or more formal presentations please contact the Director of
Investigations Jo Carden on (03) 9613 6222.
Request for access to information
This office receives complaints about access to information under the Accident
Compensation Act 1985 (ACA) or the Freedom of Information Act 1982 (FoI).
One common complaint is when a WorkCover agent reports to an applicant that
the document they requested ‘does not exist’ or the ‘file cannot be located’. The
Ombudsman can make enquiries of the agent about the search process for the
information requested to ensure that a thorough and diligent search has been
conducted. The following is a case study to demonstrate how a simple request
for a file resulted in a complaint to the Ombudsman.
Found on the second search
A solicitor representing an injured worker made a request to a WorkCover
Agent for ‘all documents’ to be released. The Agent advised in writing that it
was unable to locate the file or the documents. In the Agent’s response it
identified the steps it took to locate the file. This was a limited in‐house
search. No file or documents were found and no information was released.
The solicitor made a complaint to the Ombudsman. This office made
enquiries of the Agent about how it conducted its search. The Agent then
conducted a more extensive search and located the file. The complete file was
released and the request for the information was fulfilled.
The enquiries concluded that the original search process for the file was
limited to an immediate area and did not include other locations such as
other office locations, off site storage and files in transit.
The Agent agreed to review its database to include the location of files or
documents that are in transit.
There are ways this Agent may have avoided a complaint to the Ombudsman.
The following checklist was provided in the OV Bulletin Edition 1 in 2005,
however it is worth repeating as it is well over two years since Edition 1 was
distributed and the Ombudsman continues to receive complaints of this type.
There are also additional prompt questions.
The checklist may assist you when an access to information request is received
and the initial search does not identify the requested file or document. Prior to
writing the decision letter, please consider the following. They are questions this
office may ask if the Ombudsman receives a complaint.
CHECKLIST
Electronic documents and files
Consider the databases searched and by what method.
Consider the network drives and folders searched and by what method.
What methods and systems were used to search?
What other databases could hold information relevant to the FOI request?
Copy documents and files
Consider the searches undertaken to locate physical documents relevant to the
request including: what archive/storage files were searched, other files and by
what method? What system tracks file movement and does it cover all locations
and transit files?
Who and how
Review the relevant areas and officers to undertake searches.
Consider a call for files through email or memos as well as a physical search.
Track the last claims activities and physically check the file location
Emails
Look at how backups are conducted of your computer network and how often.
Consider the software used to conduct the backup, the methods available to
search the backup, and who conducts the backup.
Lost documents
To assist an applicant, consider reconstruction of lost records using other
system data. Has a remedy been provided to meet the applicant’s needs?
Recent Parliamentary reports
Investigation into contraband entering a prison and related issues June 2008
Conflict of interest in the public sector March 2008
Conflict of interest in local government March 2008
Investigation into VicRoads driver licensing arrangements December 2007
Message from the Ombudsman
‘The Ombudsman released his annual report on 10 September 2008. The
complaint data confirms that in 2007‐08 the office received a record
number of complaints. In addition to an overall increase in complaint
numbers about public sector agencies, the matters which relate to the
TAC and WorkSafe industries are more serious and complex then
previous years. These have included matters considered under the
Freedom of Information Act, the Whistleblower Act as well as formally
investigated under the Ombudsman Act.
In this edition there is an overview of the complaint themes which were
highlighted in the annual report in order for you to reflect on your own
agencies’ practices and to proactively address improvements. There are
also case studies regarding decision‐making and record keeping which I
also encourage you to consider.’ John R Taylor Acting Ombudsman
Annual Report 2007-08
On the 10 September 2008 the Ombudsman tabled his annual report in
Parliament. In this report he calls for fairness, integrity, accountability
and transparency in the public sector and he says ‘The legitimacy of the
state relies on public confidence in public officials to act responsibly and
effectively in the best interests of the community’.
The Ombudsman notes that there is at times a disconcerting gap
between the ethical standards required of public officials and their
workplace behaviours.
The issues of conflict of interest, failure to meet statutory requirements,
poor customer service, and lack of cooperation between public agencies
remain a principal focus for the Ombudsman. However, two new areas
of focus for 2007–08 were reported on ‐ poor administration of public/
private contractual relationships and public sector compliance with the
Human Rights Charter.
Transport Accident Commission - WorkCover - WorkSafe
September 2008
Edition 12
While TAC and WorkSafe complaint numbers were consistent with previous
years the Ombudsman note ‘I am concerned that the seriousness and
complexity of the complaints received by my office has increased for both
TAC and WorkSafe.’ The complaint themes the Ombudsman has highlighted
were in relation to the Accident Compensation Conciliation Service (ACCS)
Ministerial Guidelines, the Model Litigant Guidelines, decision making and
internal complaint handling services.
TAC and WorkSafe complaints 2007-08
The Ombudsman has made it clear that in 2008–09 he intends to report to
Parliament where it appears to him that agencies have not taken appropriate
within a reasonable period of time to implement his recommendations. He said
‘This is particularly important where bureaucratic lethargy may be undermining
effective follow–up and progress’.
The annual report can be found at <www.ombudsman.vic.gov.au>.
2007-08 complaint themes
◊ Conflict of interest
◊ Failure to meet statutory requirements
◊ Poor customer service
◊ Lack of cooperation between public agencies
◊ Poor administration of public/private contractual relationships
◊ Public sector compliance with the Human Rights Charter.
Received
TAC related complaints 117 110
WorkSafe related complaints 273 260
Total 390 370
Opportunity to reflect
The Ombudsman is an independent statutory officer of the Victorian Parliament.
When an investigation is finalised the Ombudsman can present his report to
Parliament in order to make it a public report. A small number of major
investigations are tabled, however further cases are included in the
Ombudsman’s annual reports and in other reports which inform Parliament.
These demonstrate the diversity of public sector activity and complaint type.
There remain a large number of enquiries and investigations which are
conducted in private. These have provided opportunities to assist
complainants to understand and navigate the public sector and they also
provide opportunities for remedies and administrative improvement for
the respondent.
The Ombudsman tabled seven major public reports in Parliament in 2007-08.
Although these are not in regard to the TAC and WorkSafe industries,
Ombudsman recommendations can have a broader application. By considering
these reports and the lessons learnt and then reviewing your own agencies’
practices, provides you a proactive opportunity to drive improvement.
2007-08 public reports
◊ Investigation into contraband entering a prison and related issues
◊ Conflict of interest in local government
◊ Conflict of interest in the public sector
◊ Investigation into Vic-Roads driver licensing arrangements
◊ Investigation into the disclosure of electronic communications addressed
to the Member for Evelyn and related matters
◊ Investigation into the use of excessive force at the Melbourne Custody
Centre
◊ Investigation into the Office of Housing’s tender process for the
Cleaning and Gardening Maintenance Contract ‐CNG 2007
Request for access to information
Complaints regarding access to information are common across the public
sector. The Freedom of Information Act 1982 (FOI) and section 107 of the
Accident Compensation Act 1985 (ACA) provide a means for claimants to
access information however at times this process is obstructed. Some of these
obstructions have been described in previous editions of this bulletin.
The following case study is provided in order to prompt you to consider where
information is stored in your own agencies.
As far as is reasonable, information should be centralised to reduce the risk of
lost or misplaced documents and ensure responses to request for information
completed in full.
Special projects and separate files
The Ombudsman received a complaint from an injured person who had sought
a copy of a medical report and requested that it be considered as part of an
appeal process. The person managing the claims appeal stated he had neither
read nor had a copy of the report.
On enquiries being made by this office, it was identified that the report was
requested by a specialist team that was reviewing the injured person’s
entitlement to medical and like expenses. The respondent advised that the
specialist team was conducting these reviews separate to the normal claims
management activities. The specialist team had created a separate file and the
offices managing other claims activities were not aware of the team’s activities,
the separate file or existence of any report.
This matter raises concerns about the respondent’s record keeping and
internal communication processes. It also raised concerns about a possible
failure to provide a complete response to such request in the future, if the
existence of parallel claims activities, separate files and documents are not
well known and communicated. Once this was identified the report was
included as part of an appeal process and the respondent apologised to the
injured person for any inconvenience that may have been caused.
Be mindful of timing
Below is a simple case study to reinforce the importance of timing in regard to
Decision making and communication.
Last minute perception
The Ombudsman received a complaint from a doctor regarding her patient.
Her complaint was that the respondent informed her late on a Friday
afternoon that her patient was to receive by hand delivery a claim rejection
notice. This was on the last day after which the statutory time limitation
applied. The doctor expressed concern about her patient’s psychological
health, particularly his risk of self harm and lack of access to medical and
psychological support on a Friday night.
Following enquiries by this office the respondent reviewed the decision making
and timing and noted in this case the liability question was complex
and difficult. It recognised that making a decision on the last day is not a
desirable circumstance, especially when dealing with a person in the
claimant’s circumstances. The respondent was aware of the claimant’s health
risks. The respondent apologised for ‘resultant risk and for the consequential
concerns experienced by any other person’.
The respondent also clarified that the decision was explained to the claimant
and he was provided with information about access to medical advice and
assistance if required. Notwithstanding these actions, this complaint provided
an opportunity for the respondent to remind all staff making decisions to plan
ahead in regard to how and when decisions are communicated and to be
mindful of the possible perception poor timing can create.
Irrespective of the known or perceived mental health of claimants, keeping
them up to date when it appears that the decision making process is to be
delayed due to complexities can allay concerns and provide transparency in
decision making. This case reminds decision makers of the need to consider
possible perceptions and risk.
Complaints can be directed to:
Mail Level 9, 459 Collins Street, Melbourne
Phone 9613 6222 or 1800 806 314
Email ombudvic@ombudsman.vic.gov.au
In some of the information you will find the processes used by the VWA
the Ombudsman’s recommendations of how these policies are to be enforced.
Knowledge is Power!
BULLETIN
December 2005
Transport Accident Commission - WorkCover & WorkSafe
Message from the Ombudsman
“In October my jurisdiction increased and I established a new unit to
specialise in TAC and WorkCover matters. Jo Carden joined Ombudsman
Victoria to head the new unit. She has established a strong network
encouraging effective complaints management and I look forward to
further improvement across the industry.”
G E Brouwer, Ombudsman.
Message from Workcover Victims:
I have personally dealt with Jo Carden. She did nothing to help this Workcover
victim nor did she enforce breaches of the accident compensation act by the
employer and the VWA. So much for the strong network and effective
management!
The purpose of the new team is to:
· Concentrate expertise within Ombudsman Victoria;
· Create strong networks for complaints resolution;
· Educate the public and industry about Ombudsman Victoria;
· Educate the public and industry about the legislative change that
· has extended jurisdiction; and
· Ensure industry improvement in complaints management in the
· Longer-term.
The new unit:
Manager; Jo Carden.
Outreach coordinator; Alexa Powell.
Investigation officers; Kirrily Graydon and Russell Bennett.
2nd Edition:
Welcome to the second edition of Ombudsman Victoria’s Bulletin
providing a quarterly update to the Transport Accident Commission
(TAC) and the Victorian WorkCover Authority (VWA) industries.
Please forward this bulletin on to others who may benefit from this
information.
Complaints update
On 1 October 2005 Ombudsman Victoria (OV) established the Transport
Accident and WorkCover Unit. Since then OV has received 171
complaints relating to the TAC/VWA industries which represents an
increase in complaints compared to previous years. As a result of OV
establishing networks in the industry, 98 of these complaints were
resolved quickly. The remaining 73 complaints were complex or
sensitive and so required further investigation.
Some enquiries have been referred to the TAC, VWA or the agents for a
direct response to the complainant where they have not had an
opportunity to respond to the allegations. This allows resolution
without a third party being involved, and for the TAC, VWA and the
agents to exercise their complaints management processes. It also
allows OV to direct its resources to investigations which have not been
resolved by the TAC, VWA or the agents.
The more common complaints have been:
· failure to respond to requests
· failure to pay for treatment
· failure to communicate a decision
· failure to communicate the evidence considered and reasons for a
· decision
· delays in making a decision
· conduct
· access to information
· complaints about the Medical Panel and ACCS.
Complaints also escalated if a claims decision was reviewed by a senior
officer or a review team but the review outcome letter did not list the
evidence considered in the review nor the reasons for overturning or
maintaining the decision. Providing this information allows for a
transparent review process. Finally, complaints also escalated when an
error had not been acknowledged or an apology received.
3rd Edition:
Welcome to the fourth edition of the Ombudsman Victoria (OV) Bulletin.
This edition focuses on access to information processes and complaints. In
addition, it provides information which may help you respond to challenging
behaviours and includes some useful references.
Message from the Ombudsman
OV together with the Victoria WorkCover Authority (VWA) recently
reviewed the VWA’s access to information processes. Individual complaints
were being resolved, but enquiries by my investigation officers identified the
need for further review of the processes. I recognised that this was a good
opportunity for an informal joint review and the VWA agreed. As a result of
this review the VWA will introduce changes over the next few months to
processes, information and standard letters to assist the applicants and the
people responding to the requests. The VWA will keep you informed as
these changes are implemented. In the interim, this bulletin provides
scenarios from complaint enquiries and recommendations.
G E Brouwer, Ombudsman.
Scenario Recommendation
Q. Documents and files previously considered to be lost are subsequently
after a further search.
A: Ensure you complete a thorough and complete search on the first request.*
Q. Requests made under the FOI Act are processed under ACA.
A. Ensure that the request is processed according to the application.
Q. Claims managers make decisions to exempt documents because of legal
professional privilege.
A. Ensure that Senior Legal Counsel makes this decision as is required under
the VWA’s Claims Manual.
Q. The relevant standard letters are not used and the one-off letters provide
incomplete information.
A. Use standard letters where they exist to ensure responses are consistent
complete.
Q. The term ‘The following documents you requested are not in our possession’
does not tell the reader if a document is lost or never existed.
A. Ensure that the reader is clearly advised if a document is lost or never existed.
This helps them decide their next step, if any.
Q. Exempt documents are not listed in the letter to the applicant.
A. Ensure that a list of the exempt documents is provided in the letter to the
applicant.
Q. Some solicitors write concurrent letters, one under ACA and one under the
FOI Act.
A. Clarify with the solicitor which application she or he would like to progress.
Q. Surveillance film is not routinely released when all file information is requested.
A. Surveillance reports and film should be released or a decision to exempt this
information is to be communicated.
Q. Applicants make multiple requests to access surveillance film.
A. A response should be made to the first request.
Q. Surveillance film requested is lost.
A. Consider obtaining a copy of the film from the private investigation firm.
Dealing with upset, angry, confused, or challenging people can be an extremely
difficult task, even for experienced complaint handlers. References to useful
websites are provided below to assist agency staff.
There may be a variety of reasons why a person is difficult to deal with.
Whatever the reason, an agency should not necessarily assume that a ‘difficult’
person does not have a valid complaint. Wherever possible, agencies should
apply the same standards of communication to anyone asking a question or
expressing a concern calmly. In some cases, all that is required is for someone
to take the time to talk to the person, listen to their concerns and tell them
what is happening. Therefore, it is important to listen without interruption to
what the person is saying even if they are being difficult, aggressive, or
incoherent at times. Once the person has had a chance to express their point
of view, staff may need to ask questions to clarify what has been said to them.
Remember, your tone of voice is extremely important. Try not to make
the person feel that they are being cross-examined, rather make it clear to
them that questions are being asked out of a desire to assist.
Further information on dealing with challenging behaviours is on the following
websites:
New South Wales Ombudsman, www.nswombudsman.nsw.gov.au, Public Sector
Agencies Fact Sheet No 22: Very difficult complainants
Victorian Health Services Review Council, www.health.vic.gov.au/hsc, Guide
to Complaint Handling in Health Care Services, 2005
Victorian Health Information, www.health.vic.gov.au/archive, Lecture Notes
on Persistent and Abnormal Claiming and Complaining, Dr Paul E Mullen,
Victorian Institute of Forensic Mental Health, 2003
Things to consider when handling challenging behaviours
do not make empty promises—it is better to be realistic and honest about
any limitations or expected time delays
avoid premature opinio
do not focus solely on placating an angry or upset person—treat their
complaint seriously and try and focus on the issue at hand rather than
just their emotions or behaviour
· communicate clearly—check if you are being understood
· use empathy to diffuse anger—listen without interruption
· use direct language—tell them what you can and cannot do
· use neutral tone and pitch
· be confident in your ability to help
· remain flexible—do not be too rigid in your approach
· know your limits—be willing to get help from someone else or pass
the problem on to someone with more knowledge, time or authority
· try to remain calm and think clearly
· strike a balance between logic and emotion
· always be conscious of your own emotional and physical safety.
Legislative change
Crimes (Documents Destruction) Act 2006 and
Evidence (Document Unavailability) Act 2006
In July 2006 the Victorian Government introduced the above amendments
the Crimes Act and Evidence Act respectively. The Crimes (Documents
Destruction) Act 2006 deals with the destruction of documents that are
or are reasonably likely to be used in litigation.
The Evidence (Document Unavailability) Act 2006 deals with the effect that
the destruction of documents has on the outcome of civil proceedings.
These amendments were drafted in response to the case of McCabe v British
American Tobacco Australia Services Limited [2002] VSC 73. Mrs McCabe
sued British American Tobacco (BAT) for damages after contracting lung
cancer. At the Supreme Court hearing his honour Justice Eames struck out
BAT’s defence and awarded Mrs McCabe damages of $700,000 on the
grounds that BAT had deliberately destroyed so many relevant documents
that a fair trial for Mrs McCabe was not possible. BAT appealed to the
Victorian Court of Appeal. The court upheld the appeal and overturned
the judgment of Justice Eames on the basis that it was not illegal to destroy
such documents prior to the litigation having commenced.
The Crimes (Documents Destruction) Act 2006 makes it a criminal offence
from 1 September 2006 to destroy documents that are, or are reasonably
to be, required as evidence in existing or potential legal proceedings. Both
companies and individuals can be prosecuted and significant penalties apply.
If found guilty individuals can be imprisoned for a maximum of 5 years and
companies fined up to $300,000.
The Evidence (Document Unavailability) Act 2006 provides the courts and
the Victorian Civil Administrative Tribunal (VCAT) with the discretion to
‘reverse’ the effects on a proceeding where a document(s) has become
unavailable because it has been:
· destroyed
· disposed of
· lost
· concealed, or
· Rendered illegible, undecipherable or incapable of identification.
The discretion allows the court or VCAT to make any ruling or order it
considers necessary to ensure fairness to all parties. This can include that
an adverse inference be drawn from the unavailability of the document or
that all or part of a defence or statement of claim be struck out.
These amendments came into being on 1 September 2006. They apply
to both the public and private sector. OV would expect that all agencies
review their policies and procedures to ensure they comply with these
legislative changes.1
Complaints data and themes 2005-06
On 1 October 2005 the Ombudsman established the Transport Accident
and WorkCover Unit in response to amendments to the Accident Compensation
Act 1985 and the Transport Accident Act 1986.
This provided for:
· a specialised focus for enquiries and investigations within OV
· strong networks for complaints resolution to be created; and
· a focus on industry improvement in complaints management.
Number of complaints finalised
The number of complaints finalised in 2005-06 increased by 128% compared
to 2004-05.
Complaints by category 2005/06
Thirty seven per cent of complaints received were in regard to the decision-
making process for medical and like benefits. When making a decision officers
need to consider TAC’s and VWA’s guidelines for good decision-making.
In particular they should focus on the following questions:
Have I considered all the relevant evidence?
Have I referred to the appropriate legislative provisions, policies and
procedures?
Have I documented my thinking and ‘reasons’?
Have I included the following in my decision letter?
· a list of the evidence considered
· the decision
· the reasons for the decision and the balance of evidence.
Keeping people up-to-date and providing a transparent decision-making
process may prevent the escalation of complaints. Interim letters or phone
calls to a claimant provide transparency if a decision is to be delayed.
Freedom of Information, which made up seven percent of complaints, has
been addressed in previous editions of this bulletin. This is an opportunity
to remind you of two points: how surveillance tapes are stored, retrieved
and tracked; and what you consider when you receive a request for the
whole file. Consideration needs to be given to surveillance reports and tapes
and if not released then a decision needs to be made and communicated.
If you would like more information about the complaint types and the
observations made by this office, please contact the Transport Accident
and WorkCover Unit.
Future editions and contact details
We welcome enquiries about this publication. The purpose is to provide
you with information that can assist you in your roles and the relationship
you have with OV.
Recommendations for future editions can be forwarded to
joanna.carden@ombudsman.vic.gov.au
Russell Bennett, Acting Director, Ombudsman Victoria
Level 9, South Tower
459 Collins Street, Melbourne
Ph 9613 6261
Message from the Ombudsman
In the last quarter I tabled three reports in Parliament. I encourage you to
read the report titled Conflict of interest in the public sector March 2008.
I also suggest that you to bring this report to the attention of your training
officers and senior staff as conflict of interest is an issue which, if not
responded to appropriately, erodes confidence in the public sector.’
G E Brouwer, Ombudsman.
New Fact Sheet 15: Powers of the Ombudsman
The Ombudsman is often asked about his role, jurisdiction and powers.
To assist the public sector, complainants and the general public to understand
the various topics relevant to the Ombudsman, communication products are
available at www.ombudsman.vic.gov.au. Fact sheets are a key component
of our communication strategy and have been referred to in previous editions
of this bulletin. Only a small number of cases are brought to the public’s
attention by tabling investigation reports and Annual Reports in Parliament.
The remaining enquiries and investigations are conducted in private.
Fact Sheet 15 describes the Ombudsman’s breadth of jurisdiction, source of
complaints and scope of powers.
The key points in Fact Sheet 15 are:
◊the Ombudsman can investigate private organisations contracted to
perform functions for government agencies
◊the powers used when conducting a formal investigation
◊it is a criminal offence to obstruct an Ombudsman investigation
◊under the Whistleblowers Protection Act 2001 the Ombudsman can
investigate elected councillors and members of Parliament as well as
public servants.
Commission -WorkCover -WorkSafe
March 2008
Edition 10
Conflict of interest
On 13 March 2008, the Ombudsman tabled a report in Parliament titled
Conflict of interest in the public sector. The full report examines the topic,
presents practical information and case studies. All public sector agencies
should study the full report, however, as way of introduction, the following
is the Ombudsman’s Executive Summary: ‘Conflict of interest’ is an expression
that is widely used today; however, its full significance is much less widely
understood. The essence of the issue is not complex. A ‘conflict of interest’
simply describes situations which we all encounter in the course of our
everyday lives, when we are obliged to make an ethical choice between
one obligation and another. Ought I to do this? Or should I do that?
The English language abounds in commonplace expressions that reflect the
essential notion of conflict of interest. We hear of ‘divided loyalties’; we recall
the Biblical injunction that ‘no man may serve two masters’; it may be said of
a man that he ‘wants his bread buttered on both sides’; there is an ancient
maxim that ‘no man shall be a judge in his own cause’. In this way folk
wisdom has recorded its recognition of an enduring problem.
It has been the same throughout the ages. Despite being disgraced, dismissed
and imprisoned, Francis Bacon, lawyer, scientist, philosopher and Lord
Chancellor of England under King James I, stoutly maintained that
conflicting private interests (bribes, actually) had not bent the decisions
that he handed down from his Bench.
Samuel Pepys, famous diarist in the reign of Charles II, was Secretary to
the Admiralty, and by all accounts a good one; yet he shamelessly filled
his own pockets through the pursuit of conflicting private interests.
So the story has continued. In our own day, we have watched a Secretary-
General of the United Nations and a President of the World Bank enmeshed
in issues of conflict of interest.
Conflict of interest is a critical matter for government. The legitimacy of the
state relies on public confidence in public officials to act fairly and impartially
and in the best interests of the community. However, despite its fundamental
nature, conflict of interest is in my experience not clearly understood across
the public sector. Furthermore, efforts to tackle it have generally been
reactive and limited in their effectiveness. This is reflected in the volume
of complaints to my office and the issues brought to my attention over
recent years.
Conflict of interest is recognised as part of a broader problem of public
sector ethics, which includes, at the extreme, corrupt activity. This problem
is now acknowledged to be an important factor in the weakening of citizens’
trust in public institutions worldwide and in democratic systems more broadly.
Such issues have certainly become more important in today’s environment
where there are growing numbers of often complex interconnections and
collaborations between the public sector and the business and not-for-profit
sectors, including such developments as outsourcing, contracting-out,public/private partnerships, self-regulation and sponsorships. The interchange of personnel
between the public and private sectors has also contributed to a degree of
breakdown in traditional public sector employment cultures and attendant
obligations and loyalties.
Given these developments here and overseas, I decided to conduct a broad
based review of the issue of conflict of interest in the Victorian public sector.
report is the result of that enquiry conducted in 2006–07, under my own
motion enquiry powers.
My enquiry found that there are a number of misunderstandings about
conflict of interest among public sector employees in Victoria and that these
misunderstandings often extend to management levels. This situation
contributes in turn to inadequate management of conflicts of interest and
an unsatisfactory level of accountability in many areas.
On the evidence before me, I find that there is a compelling case for the
issue to receive serious, fresh attention. Failure to act, I believe, will lead
to a progressive undermining of public confidence in the impartiality,
fairness, transparency and integrity of Victoria’s public administration.
It is a fact that conflicts of interest will continue to arise and Victorian public
sector employees need to know how to identify and deal with them properly.
To this end, one of my key recommendations is that the Code of Conduct for
Victorian Public Sector Employees be strengthened and extended to give
more detailed information and guidance on conflict of interest. I consider that
a substantial education program is also required to support this initiative.
I also recommend that there be a sector-wide management approach to the
of conflict of interest for all public sector entities. It should focus specifically
on managing the risks associated with the private activity of public officers;
on minimising the opportunities for public officers to pursue private interest;
and on developing ethical cultures that have a commitment to serve the public
interest at their core and recognise The report explores conflicts of interest
from a variety of private interests and activities and highlighting the times
when scrutiny is justified. It identifies the following areas which warrant specific
attention and careful management:
1. Outside/secondary employment and private business interests
2. Employment and business activities after leaving public sector
employment
3. Employment and private business interests of family members,
friends, and associates
4. Membership of community groups and organisations
5. Inappropriate/personal relationships.
The Ombudsman expects all public sector employees and those employed
by private organisations contracted to perform functions for government
, to act in a way which is consistent with the public sector Code of Conduct.
Annual training calendars should include modules about the public sector’s
Code of Conduct and be provided to all levels of staff and senior officers should
be promoting this behavior.
FURTHER READING
An article published in the October 2007 edition of the St James Ethics
Centre’s Living Ethics issue 69: Conflict of interest—Victorian Ombudsman’s
concerns. Mr John Taylor, Deputy Ombudsman.
Useful resources available at www.ombudsman.vic.gov.au
Unreasonable complainant conduct: interim practice manual
Complaint handling guide for the Victorian public sector
Fact sheets
Recent Parliamentary reports
Conflict of interest in the public sector March 2008
Conflict of interest in local government March 2008
Complaints can be directed to:
Mail Level 9, 459 Collins Street, Melbourne
Phone 9613 6222 or 1800 806 314
Email ombudvic@ombudsman.vic.gov.au.
Message from the Ombudsman
‘At the end of the reporting year I reflect on the enquiries and investigations
conducted by my officers and consider the progress made in regard to the
implementation of my recommendations. The remedies implemented by
public sector agencies as a result of complaint enquiries provide the
opportunity to improve the administration of the Victorian public sector.
Handling individual complaints is only one part of my responsibility.
They, however, provide me with the opportunity to drive systemic change
and influence the culture that underpins the administration of the public
sector. This edition provides information on the diverse activities of my
office. I also provide a case study as a reminder to everyone about the
personal and sensitive information held by your organisations and the care
which must be taken in handling this information
G E Brouwer OMBUDSMAN
Beyond one complaint
Section 13 (1) of the Ombudsman Act 1973 states:
The principal function of the Ombudsman shall be to enquire into or
investigate any administrative action taken in any Government Department
or Public Statutory Body to which this Act applies or by any member of staff of a
municipal council.
The Ombudsman’s jurisdiction includes private agencies performing
a function on behalf of Government. In carrying out this function, the
Ombudsman promotes excellence in public administration and seeks
to ensure the highest possible standards of public sector service
delivery to all Victorians.
Transport Accident Commission - WorkCover - WorkSafe
June 2008
Edition 11
The Ombudsman provides a means by which individuals can obtain redress for maladministration. In providing this service he focuses on obtaining
achievable practical outcomes in a timely manner for individual complaints.
The Ombudsman has recently said:I am able to draw on the knowledge gained
from dealing with individual complaints to identify systemic weaknesses
that underpin poor administrative practices. Formal reviews and investigations
conducted by my office can then inform authorities and their responsible
Ministers about underlying causes of these problems and indicate the steps
that should be taken to improve an authority’s performance. The Ombudsman’s
Complaint handling guide for the Victorian public sector clarifies importance of
linking complaint handling and business improvement.
The guide states:
Sufficient resources need to be allocated to allow an analysis of aggregated
complaint data and identification of recurring or system wide problems. The
findings should then be used to address the action or service of the agency
that has been the source of the complaints. This may be through corrective
and preventative actions and innovative improvements. The agency should
take actions to eliminate the cause of existing and potential problems leading
complaints in order to prevent further complaints.
Complaint numbers alone are not effective indicators of proper administration
as access to and promotion of complaint handling processes and compliance
with complaint handling practices may mislead the interpretation of complaint
data.
Only providing a response to an individual complaint, misses the strategic
opportunity to understand and learn. Remedying the one complaint may fail
to question a policy, a practice, compliance or the culture in which the decisions
or actions were taken. Consequently, it misses the opportunity for a broader
and deeper change.
To ensure the public receives the standard of service that should be expected
from government, providing remedies for individual complaints is only the
first step. Considering each complaint in the light of strengthening systems is
the next step. The Ombudsman said:
Ultimately, I strive for my office to contribute to the development of a culture
of public service that reflects the values of democracy – openness, transparency,
probity and the pursuit of the public interest at all times. The importance is to
effect cultural change in government administration.
Half yearly visits to agencies
Investigation officers conduct informal visits to the entities which make up the
TAC and WorkSafe industries. The officers are interested in the opportunity to
meet new staff and share information about changes in our organisations. The
discussions are about complaint handling in general and common complaint
themes. Some of the more difficult complaint enquiries are discussed such as
those where there have been delayed or incomplete responses, comprehensive
matters or where challenges presented.
Feedback has included expressions of appreciation as these visits have provided
an opportunity to clarify the role of the Ombudsman in the broader context of
Government. This understanding assists the complaint handling officers to meet
the Ombudsman’s expectations during enquiries and investigations particularly
in regard to complaint handling, systemic and cultural change.
An opportunity to reflect
On 20 April 2008 The Sunday Age published an article regarding an alleged
release of medical files to the wrong person by an authorised agent of
WorkSafe. Entities in the TAC and WorkSafe industries hold private and
sensitive information and absolute care needs to be taken to ensure that its
collection, storage, use and disclosure are consistent with the Health Records
Act 2001, the Information Privacy Act 2000 and with their policies governing
these actions. Sophisticated measures can be put in place to minimise the risk
in the future but taking care and conducting simple checks can be most effective.
For example, if you are signing a letter and enclosing information, you are
responsible for checking the documents included and sealing the envelope.
There have been many examples in other jurisdictions of sensitive documents
being left in public places. Documents and files should only leave the security
of the workplace if there is no other choice. Be aware of the examples in the
media, even if they are not related to your organisation or industry. Take them
as an opportunity to reflect on the practices and controls in your workplace and
proactively address any shortfalls.
If there are people in your organisations whom you believe will benefit from these
informal visits or more formal presentations please contact the Director of
Investigations Jo Carden on (03) 9613 6222.
Request for access to information
This office receives complaints about access to information under the Accident
Compensation Act 1985 (ACA) or the Freedom of Information Act 1982 (FoI).
One common complaint is when a WorkCover agent reports to an applicant that
the document they requested ‘does not exist’ or the ‘file cannot be located’. The
Ombudsman can make enquiries of the agent about the search process for the
information requested to ensure that a thorough and diligent search has been
conducted. The following is a case study to demonstrate how a simple request
for a file resulted in a complaint to the Ombudsman.
Found on the second search
A solicitor representing an injured worker made a request to a WorkCover
Agent for ‘all documents’ to be released. The Agent advised in writing that it
was unable to locate the file or the documents. In the Agent’s response it
identified the steps it took to locate the file. This was a limited in‐house
search. No file or documents were found and no information was released.
The solicitor made a complaint to the Ombudsman. This office made
enquiries of the Agent about how it conducted its search. The Agent then
conducted a more extensive search and located the file. The complete file was
released and the request for the information was fulfilled.
The enquiries concluded that the original search process for the file was
limited to an immediate area and did not include other locations such as
other office locations, off site storage and files in transit.
The Agent agreed to review its database to include the location of files or
documents that are in transit.
There are ways this Agent may have avoided a complaint to the Ombudsman.
The following checklist was provided in the OV Bulletin Edition 1 in 2005,
however it is worth repeating as it is well over two years since Edition 1 was
distributed and the Ombudsman continues to receive complaints of this type.
There are also additional prompt questions.
The checklist may assist you when an access to information request is received
and the initial search does not identify the requested file or document. Prior to
writing the decision letter, please consider the following. They are questions this
office may ask if the Ombudsman receives a complaint.
CHECKLIST
Electronic documents and files
Consider the databases searched and by what method.
Consider the network drives and folders searched and by what method.
What methods and systems were used to search?
What other databases could hold information relevant to the FOI request?
Copy documents and files
Consider the searches undertaken to locate physical documents relevant to the
request including: what archive/storage files were searched, other files and by
what method? What system tracks file movement and does it cover all locations
and transit files?
Who and how
Review the relevant areas and officers to undertake searches.
Consider a call for files through email or memos as well as a physical search.
Track the last claims activities and physically check the file location
Emails
Look at how backups are conducted of your computer network and how often.
Consider the software used to conduct the backup, the methods available to
search the backup, and who conducts the backup.
Lost documents
To assist an applicant, consider reconstruction of lost records using other
system data. Has a remedy been provided to meet the applicant’s needs?
Recent Parliamentary reports
Investigation into contraband entering a prison and related issues June 2008
Conflict of interest in the public sector March 2008
Conflict of interest in local government March 2008
Investigation into VicRoads driver licensing arrangements December 2007
Message from the Ombudsman
‘The Ombudsman released his annual report on 10 September 2008. The
complaint data confirms that in 2007‐08 the office received a record
number of complaints. In addition to an overall increase in complaint
numbers about public sector agencies, the matters which relate to the
TAC and WorkSafe industries are more serious and complex then
previous years. These have included matters considered under the
Freedom of Information Act, the Whistleblower Act as well as formally
investigated under the Ombudsman Act.
In this edition there is an overview of the complaint themes which were
highlighted in the annual report in order for you to reflect on your own
agencies’ practices and to proactively address improvements. There are
also case studies regarding decision‐making and record keeping which I
also encourage you to consider.’ John R Taylor Acting Ombudsman
Annual Report 2007-08
On the 10 September 2008 the Ombudsman tabled his annual report in
Parliament. In this report he calls for fairness, integrity, accountability
and transparency in the public sector and he says ‘The legitimacy of the
state relies on public confidence in public officials to act responsibly and
effectively in the best interests of the community’.
The Ombudsman notes that there is at times a disconcerting gap
between the ethical standards required of public officials and their
workplace behaviours.
The issues of conflict of interest, failure to meet statutory requirements,
poor customer service, and lack of cooperation between public agencies
remain a principal focus for the Ombudsman. However, two new areas
of focus for 2007–08 were reported on ‐ poor administration of public/
private contractual relationships and public sector compliance with the
Human Rights Charter.
Transport Accident Commission - WorkCover - WorkSafe
September 2008
Edition 12
While TAC and WorkSafe complaint numbers were consistent with previous
years the Ombudsman note ‘I am concerned that the seriousness and
complexity of the complaints received by my office has increased for both
TAC and WorkSafe.’ The complaint themes the Ombudsman has highlighted
were in relation to the Accident Compensation Conciliation Service (ACCS)
Ministerial Guidelines, the Model Litigant Guidelines, decision making and
internal complaint handling services.
TAC and WorkSafe complaints 2007-08
The Ombudsman has made it clear that in 2008–09 he intends to report to
Parliament where it appears to him that agencies have not taken appropriate
within a reasonable period of time to implement his recommendations. He said
‘This is particularly important where bureaucratic lethargy may be undermining
effective follow–up and progress’.
The annual report can be found at <www.ombudsman.vic.gov.au>.
2007-08 complaint themes
◊ Conflict of interest
◊ Failure to meet statutory requirements
◊ Poor customer service
◊ Lack of cooperation between public agencies
◊ Poor administration of public/private contractual relationships
◊ Public sector compliance with the Human Rights Charter.
Received
TAC related complaints 117 110
WorkSafe related complaints 273 260
Total 390 370
Opportunity to reflect
The Ombudsman is an independent statutory officer of the Victorian Parliament.
When an investigation is finalised the Ombudsman can present his report to
Parliament in order to make it a public report. A small number of major
investigations are tabled, however further cases are included in the
Ombudsman’s annual reports and in other reports which inform Parliament.
These demonstrate the diversity of public sector activity and complaint type.
There remain a large number of enquiries and investigations which are
conducted in private. These have provided opportunities to assist
complainants to understand and navigate the public sector and they also
provide opportunities for remedies and administrative improvement for
the respondent.
The Ombudsman tabled seven major public reports in Parliament in 2007-08.
Although these are not in regard to the TAC and WorkSafe industries,
Ombudsman recommendations can have a broader application. By considering
these reports and the lessons learnt and then reviewing your own agencies’
practices, provides you a proactive opportunity to drive improvement.
2007-08 public reports
◊ Investigation into contraband entering a prison and related issues
◊ Conflict of interest in local government
◊ Conflict of interest in the public sector
◊ Investigation into Vic-Roads driver licensing arrangements
◊ Investigation into the disclosure of electronic communications addressed
to the Member for Evelyn and related matters
◊ Investigation into the use of excessive force at the Melbourne Custody
Centre
◊ Investigation into the Office of Housing’s tender process for the
Cleaning and Gardening Maintenance Contract ‐CNG 2007
Request for access to information
Complaints regarding access to information are common across the public
sector. The Freedom of Information Act 1982 (FOI) and section 107 of the
Accident Compensation Act 1985 (ACA) provide a means for claimants to
access information however at times this process is obstructed. Some of these
obstructions have been described in previous editions of this bulletin.
The following case study is provided in order to prompt you to consider where
information is stored in your own agencies.
As far as is reasonable, information should be centralised to reduce the risk of
lost or misplaced documents and ensure responses to request for information
completed in full.
Special projects and separate files
The Ombudsman received a complaint from an injured person who had sought
a copy of a medical report and requested that it be considered as part of an
appeal process. The person managing the claims appeal stated he had neither
read nor had a copy of the report.
On enquiries being made by this office, it was identified that the report was
requested by a specialist team that was reviewing the injured person’s
entitlement to medical and like expenses. The respondent advised that the
specialist team was conducting these reviews separate to the normal claims
management activities. The specialist team had created a separate file and the
offices managing other claims activities were not aware of the team’s activities,
the separate file or existence of any report.
This matter raises concerns about the respondent’s record keeping and
internal communication processes. It also raised concerns about a possible
failure to provide a complete response to such request in the future, if the
existence of parallel claims activities, separate files and documents are not
well known and communicated. Once this was identified the report was
included as part of an appeal process and the respondent apologised to the
injured person for any inconvenience that may have been caused.
Be mindful of timing
Below is a simple case study to reinforce the importance of timing in regard to
Decision making and communication.
Last minute perception
The Ombudsman received a complaint from a doctor regarding her patient.
Her complaint was that the respondent informed her late on a Friday
afternoon that her patient was to receive by hand delivery a claim rejection
notice. This was on the last day after which the statutory time limitation
applied. The doctor expressed concern about her patient’s psychological
health, particularly his risk of self harm and lack of access to medical and
psychological support on a Friday night.
Following enquiries by this office the respondent reviewed the decision making
and timing and noted in this case the liability question was complex
and difficult. It recognised that making a decision on the last day is not a
desirable circumstance, especially when dealing with a person in the
claimant’s circumstances. The respondent was aware of the claimant’s health
risks. The respondent apologised for ‘resultant risk and for the consequential
concerns experienced by any other person’.
The respondent also clarified that the decision was explained to the claimant
and he was provided with information about access to medical advice and
assistance if required. Notwithstanding these actions, this complaint provided
an opportunity for the respondent to remind all staff making decisions to plan
ahead in regard to how and when decisions are communicated and to be
mindful of the possible perception poor timing can create.
Irrespective of the known or perceived mental health of claimants, keeping
them up to date when it appears that the decision making process is to be
delayed due to complexities can allay concerns and provide transparency in
decision making. This case reminds decision makers of the need to consider
possible perceptions and risk.
Complaints can be directed to:
Mail Level 9, 459 Collins Street, Melbourne
Phone 9613 6222 or 1800 806 314
Email ombudvic@ombudsman.vic.gov.au
Wednesday, 29 October 2008
Freedom Of Information Access to files
Thanks to Suze for this post.
The Freedom of Information Act under the Freedom of Information
Act 1982 (Vic) ('the FOI Act') any person has the right to apply for
access to information held by the VWA.
This applies to documents created by the VWA as well as those created
by an external organisation or individual and in the possession of the VWA.
documents relating to your own personal affairs (regardless of the age
of the document), for example: an incident you were involved in
a workplace complaint made by you information regarding an injury you
received other documents relating to the activities of Government
(not older than 1 January 1989), for example details of VWA's procedures,
or information on a high-profile workplace incident.
The term "documents" doesn't just mean those on paper.
You can also request access to other items including computer printouts,
tape recordings, videos and photographs.
The Accident Compensation Act. If you are a worker seeking access to
your own workers' compensation claim file, you can apply, free of fees
and charges, for access under section 107 or 107A of the Accident
Compensation Act 1985.
Further information - Accessing information for workers.Does the VWA
Release All Information Requested?Not all information is automatically
released by the VWA. Consistent with the FOI Act, information is not
released if it falls within one of the following exemptions:
if its release would involve the unreasonable disclosure of information
relating to the personal affairs of a person, if release would pose a serious
threat to the life or health of any person, if the dominant purpose of creating
the document was for use in actual or anticipated litigation, or for obtaining
or giving legal advice, if the documents were prepared by VWA or Agent staff
and disclose pre-decision discussion or options, and releasing the documents
would undermine effective decision making or the scheme's integrity (the so-
called "internal working document" exception), if the documents are law
enforcement documents and their release would for example, prejudice an
investigation of a possible breach of the law or prejudice the administration
of a law, if the documents contain information about a business's trade
secrets, or other information that would expose the business unreasonably
to disadvantage if disclosed, if the information was provided in confidence.
How do I make an FOI Request?
If you are a worker and you want to access your WorkCover claim file without the need to use the FOI process.
Otherwise, if you want to make an FOI request to the VWA, Steps 1 to 3
must be followed in order to make a valid FOI request.Step 1You are required
to submit your request in writing, however there is no strict rule about what
form this request must take. You can make an FOI request by either:
completing a Freedom of Information Request Form; or sending in a request
in writing that clearly identifies the information you require.
You may appoint a representative (eg. a family member, lawyer or union
representative) to make a request on your behalf .Step 2Your FOI request
must be sent to:Freedom of Information SectionVictorian WorkCover
AuthorityGPO Box 4306Melbourne VIC 3001Telephone inquiries:
(03) 9641 1555Step 3You must pay a fee of for each FOI request you make.
A cheque (made payable to the VWA) must be enclosed with your FOI request,
otherwise it will not be processed. The fee may be waived if the payment is
likely to cause hardship to you.
How much will it cost?As a result of the introduction of the Monetary Units
Act 2004, the cost of submitting an FOI request increased from $20 to $20.50
from 1 July 2004. The Monetary Units Act also provides that the FOI
application will further increase on 1 July each year by an amount to be
notified by the Treasurer before 1 June each year. Please contact the VWA
for information about the current fee.Please note that access charges may
also apply once documents have been processed and an FOI decision has
been made ie. photocopying costs and charges for search time.How is my
FOI Request Processed?An FOI Officer at the VWA must respond to your
FOI request within 45 days of receiving your request ('the first decision').
If your request for access is denied or you are not satisfied with the first decision,
you can apply in writing to the Internal Review Officer to reconsider your FOI
request. This is called an application for an internal review. You must lodge your
request for internal review within 28 days of receiving the first decision.
An Internal Review Officer will make a fresh decision and respond to you
within 14 days of receiving your application for a review of the decision
('the internal review decision').If you are dissatisfied with the internal
review decision, you may appeal to the Victorian Civil and Administrative
Tribunal ('VCAT') within 60 days of receiving the internal review decision.
The Freedom of Information Act under the Freedom of Information
Act 1982 (Vic) ('the FOI Act') any person has the right to apply for
access to information held by the VWA.
This applies to documents created by the VWA as well as those created
by an external organisation or individual and in the possession of the VWA.
documents relating to your own personal affairs (regardless of the age
of the document), for example: an incident you were involved in
a workplace complaint made by you information regarding an injury you
received other documents relating to the activities of Government
(not older than 1 January 1989), for example details of VWA's procedures,
or information on a high-profile workplace incident.
The term "documents" doesn't just mean those on paper.
You can also request access to other items including computer printouts,
tape recordings, videos and photographs.
The Accident Compensation Act. If you are a worker seeking access to
your own workers' compensation claim file, you can apply, free of fees
and charges, for access under section 107 or 107A of the Accident
Compensation Act 1985.
Further information - Accessing information for workers.Does the VWA
Release All Information Requested?Not all information is automatically
released by the VWA. Consistent with the FOI Act, information is not
released if it falls within one of the following exemptions:
if its release would involve the unreasonable disclosure of information
relating to the personal affairs of a person, if release would pose a serious
threat to the life or health of any person, if the dominant purpose of creating
the document was for use in actual or anticipated litigation, or for obtaining
or giving legal advice, if the documents were prepared by VWA or Agent staff
and disclose pre-decision discussion or options, and releasing the documents
would undermine effective decision making or the scheme's integrity (the so-
called "internal working document" exception), if the documents are law
enforcement documents and their release would for example, prejudice an
investigation of a possible breach of the law or prejudice the administration
of a law, if the documents contain information about a business's trade
secrets, or other information that would expose the business unreasonably
to disadvantage if disclosed, if the information was provided in confidence.
How do I make an FOI Request?
If you are a worker and you want to access your WorkCover claim file without the need to use the FOI process.
Otherwise, if you want to make an FOI request to the VWA, Steps 1 to 3
must be followed in order to make a valid FOI request.Step 1You are required
to submit your request in writing, however there is no strict rule about what
form this request must take. You can make an FOI request by either:
completing a Freedom of Information Request Form; or sending in a request
in writing that clearly identifies the information you require.
You may appoint a representative (eg. a family member, lawyer or union
representative) to make a request on your behalf .Step 2Your FOI request
must be sent to:Freedom of Information SectionVictorian WorkCover
AuthorityGPO Box 4306Melbourne VIC 3001Telephone inquiries:
(03) 9641 1555Step 3You must pay a fee of for each FOI request you make.
A cheque (made payable to the VWA) must be enclosed with your FOI request,
otherwise it will not be processed. The fee may be waived if the payment is
likely to cause hardship to you.
How much will it cost?As a result of the introduction of the Monetary Units
Act 2004, the cost of submitting an FOI request increased from $20 to $20.50
from 1 July 2004. The Monetary Units Act also provides that the FOI
application will further increase on 1 July each year by an amount to be
notified by the Treasurer before 1 June each year. Please contact the VWA
for information about the current fee.Please note that access charges may
also apply once documents have been processed and an FOI decision has
been made ie. photocopying costs and charges for search time.How is my
FOI Request Processed?An FOI Officer at the VWA must respond to your
FOI request within 45 days of receiving your request ('the first decision').
If your request for access is denied or you are not satisfied with the first decision,
you can apply in writing to the Internal Review Officer to reconsider your FOI
request. This is called an application for an internal review. You must lodge your
request for internal review within 28 days of receiving the first decision.
An Internal Review Officer will make a fresh decision and respond to you
within 14 days of receiving your application for a review of the decision
('the internal review decision').If you are dissatisfied with the internal
review decision, you may appeal to the Victorian Civil and Administrative
Tribunal ('VCAT') within 60 days of receiving the internal review decision.
Monday, 27 October 2008
Researchers to examine employer awareness of OHS law
14/09/2008
A team of Sydney University researchers is inviting NSW and Victorian
employers who have not undergone OHS prosecution to discuss their
awareness of recent changes to OHS law and of other companies
being prosecuted.
Recent OHS legislation in New South Wales and Victoria has increased
penalties and fines to reduce serious injuries and deaths in workplaces.
A study being conducted by the researchers at the University of Sydney
is exploring employers’ responses to this legislation.
The researchers want to find out:
1. what kinds of actions employers take if they are prosecuted for OHS
offences, or if they hear of others being prosecuted for serious OHS offences.
2. what sorts of barriers and difficulties employers face in implementing
the Court’s orders and in preventing further serious injuries and deaths.
3. how easy is it for employers to comply with the legislation.
The researchers are seeking interviewees. Those interested should
contact Belinda Reeve (details below). Participation involves a 30
minute interview, subject to strict confidentiality requirements.
The project is an opportunity for NSW and Victorian business owners
and those involved in OHS management to give their views on OHS
legislation, especially in light of the push to harmonise OHS laws
across Australia.
Belinda Reeve
Research Assistant
Faculty of Law, University of Sydney
Phone: (02) 9351 0402
Email: b.reeve@usyd.edu.au
A team of Sydney University researchers is inviting NSW and Victorian
employers who have not undergone OHS prosecution to discuss their
awareness of recent changes to OHS law and of other companies
being prosecuted.
Recent OHS legislation in New South Wales and Victoria has increased
penalties and fines to reduce serious injuries and deaths in workplaces.
A study being conducted by the researchers at the University of Sydney
is exploring employers’ responses to this legislation.
The researchers want to find out:
1. what kinds of actions employers take if they are prosecuted for OHS
offences, or if they hear of others being prosecuted for serious OHS offences.
2. what sorts of barriers and difficulties employers face in implementing
the Court’s orders and in preventing further serious injuries and deaths.
3. how easy is it for employers to comply with the legislation.
The researchers are seeking interviewees. Those interested should
contact Belinda Reeve (details below). Participation involves a 30
minute interview, subject to strict confidentiality requirements.
The project is an opportunity for NSW and Victorian business owners
and those involved in OHS management to give their views on OHS
legislation, especially in light of the push to harmonise OHS laws
across Australia.
Belinda Reeve
Research Assistant
Faculty of Law, University of Sydney
Phone: (02) 9351 0402
Email: b.reeve@usyd.edu.au
SA Unions warn MPs to back WorkCover win
Article from: GREG KELTON, STATE EDITOR
October 19, 2008 09:30pm
JUBILANT unions will push for changes to workers' benefits after their
win on WorkCover at the ALP's state conference.
They have also warned they expect Labor MPs to support the changes
because they are now party policy.
The weekend conference backed union attempts to change ALP policy
on the issue of workers' compensation despite opposition from the
Government.
As a result, the party's platform now commits the Government to talking
to unions and resolving a raft of issues before December next year.
These include reducing employer WorkCover levies until the scheme's
unfunded liabilities are addressed.
This year, the Government and unions became embroiled in a bitter row
over reducing workers' benefits in a bid to reduce a looming financial
crisis for WorkCover. The changes were rammed through Parliament
despite strong opposition from unions and independent MPs in the
Upper House. It also provoked behind-the-scenes unrest among MPs
from the Left who opposed the changes.
SA Unions secretary Janet Giles said the conference decision was "a
significant victory for vulnerable workers".
"It is now the party's policy that worker protections must be reinstated
in law and all MPs are bound by party policy," she said.
"We have maintained from the very beginning improvements to
WorkCover could only be achieved through structural change, not
through penalising the very workers it is meant to support."
Meanwhile, Opposition Leader Martin Hamilton-Smith has signalled
he will court unions – the Liberal Party's traditional enemy – in the
lead-up to the next state election. He has written to 24 unions seeking
regular meetings to "engage with, and listen to, the union movement".
Mr Hamilton-Smith told The Advertiser he wanted to take the Liberal
Party to all stakeholders in the community. "The days of the Liberal
Party representing the big end of town at the expense of others are
over," he said. Ms Giles said the union executive would accept his invitation.
"We speak to many organisations and political groups about our
objectives," she said. "We have a very clear agenda and set of
objectives and we will talk to him about them."
October 19, 2008 09:30pm
JUBILANT unions will push for changes to workers' benefits after their
win on WorkCover at the ALP's state conference.
They have also warned they expect Labor MPs to support the changes
because they are now party policy.
The weekend conference backed union attempts to change ALP policy
on the issue of workers' compensation despite opposition from the
Government.
As a result, the party's platform now commits the Government to talking
to unions and resolving a raft of issues before December next year.
These include reducing employer WorkCover levies until the scheme's
unfunded liabilities are addressed.
This year, the Government and unions became embroiled in a bitter row
over reducing workers' benefits in a bid to reduce a looming financial
crisis for WorkCover. The changes were rammed through Parliament
despite strong opposition from unions and independent MPs in the
Upper House. It also provoked behind-the-scenes unrest among MPs
from the Left who opposed the changes.
SA Unions secretary Janet Giles said the conference decision was "a
significant victory for vulnerable workers".
"It is now the party's policy that worker protections must be reinstated
in law and all MPs are bound by party policy," she said.
"We have maintained from the very beginning improvements to
WorkCover could only be achieved through structural change, not
through penalising the very workers it is meant to support."
Meanwhile, Opposition Leader Martin Hamilton-Smith has signalled
he will court unions – the Liberal Party's traditional enemy – in the
lead-up to the next state election. He has written to 24 unions seeking
regular meetings to "engage with, and listen to, the union movement".
Mr Hamilton-Smith told The Advertiser he wanted to take the Liberal
Party to all stakeholders in the community. "The days of the Liberal
Party representing the big end of town at the expense of others are
over," he said. Ms Giles said the union executive would accept his invitation.
"We speak to many organisations and political groups about our
objectives," she said. "We have a very clear agenda and set of
objectives and we will talk to him about them."
The Hanks Review - Objections by Injured Workers
Please forward your objections to any of the changes recommended in the
Hanks Report to Mr Rose at : act_review@worksafe.vic.gov.au
Hanks Report to Mr Rose at : act_review@worksafe.vic.gov.au
'Bullied' workers to fight reforms
WCV's would like to thank "ANNA" for this article.
Article from: Sunday Mail Newspaper
Written By: RENATO CASTELLO
October 26, 2008 01:00am
INJURED workers are uniting under a new peak body to fight the
controversial WorkCover reforms, saying they have been "bullied" for too
long.
And the group's spokeswoman has vowed to help people return to work
quicker, accusing the WorkCover system of "breaking" injured workers.
The body – which has the working name of Encompass – will provide
counselling, support and advice to injured workers and families of people
killed at work.
Encompass spokeswoman and injured worker Rosemary McKenzie-Ferguson
said changes to WorkCover meant people injured at work must stand united.
"The one thing we know more than anyone else is that when you're forced
into isolation, which the system does, you start to doubt your own injuries,"
she said."(The group) has been a long time in the making but with the change
of legislation . . . it has formalised it to the point that we have to do something.
"We can't rely on the system to fix the system because it's the system itself
that is broken and injured workers are being even more broken because of it.
"With the formation of this body, we intend to be a voice to be heard . . .
this is the first time this has actually been attempted in Australia."
In June, the State Government rammed through changes to the WorkCover
scheme – including cutting workers' entitlements – in a bid to rein in ballooning
unfunded liabilities nudging $1 billion.
Ms McKenzie-Ferguson – who runs advocacy group the Work
Injured Resource Connection Office – said the lobby group would
provide social workers, community advocates and possibly financial
counsellors to help injured workers. She said the group – which already has
about 200 members – would also write to Industrial Relations Minister
Paul Caica to seek an "observational seat" at WorkCover board meetings.
"We are quite serious in what we are doing because, quite frankly,
injured workers have been pushed and bullied for far too long," she said.
"Nobody sits down and explains to them what the (WorkCover) process
is and what's actually involved in returning to work.
"What we will be doing is hand-holding until they understand those
processes and encouraging them in their own return-to-work plans.
The problem now is employers simply don't know if they can trust the work
ethic of an injured employee so our goal is to try and break down those barriers."
She said Encompass had secured office space through an "industry heavyweight"
but would apply for money through WorkCover's $15 million return-to-work fund,
which was established as part of the State Government's review of the workers
compensation system.
WorkCover is offering one-off payments to any group that can devise
strategies to get people back into the workforce."We hope the minister will
be supportive and the corporation will be supportive," Ms McKenzie-Ferguson
said. An inaugural public meeting of Encompass is scheduled for December.
Article from: Sunday Mail Newspaper
Written By: RENATO CASTELLO
October 26, 2008 01:00am
INJURED workers are uniting under a new peak body to fight the
controversial WorkCover reforms, saying they have been "bullied" for too
long.
And the group's spokeswoman has vowed to help people return to work
quicker, accusing the WorkCover system of "breaking" injured workers.
The body – which has the working name of Encompass – will provide
counselling, support and advice to injured workers and families of people
killed at work.
Encompass spokeswoman and injured worker Rosemary McKenzie-Ferguson
said changes to WorkCover meant people injured at work must stand united.
"The one thing we know more than anyone else is that when you're forced
into isolation, which the system does, you start to doubt your own injuries,"
she said."(The group) has been a long time in the making but with the change
of legislation . . . it has formalised it to the point that we have to do something.
"We can't rely on the system to fix the system because it's the system itself
that is broken and injured workers are being even more broken because of it.
"With the formation of this body, we intend to be a voice to be heard . . .
this is the first time this has actually been attempted in Australia."
In June, the State Government rammed through changes to the WorkCover
scheme – including cutting workers' entitlements – in a bid to rein in ballooning
unfunded liabilities nudging $1 billion.
Ms McKenzie-Ferguson – who runs advocacy group the Work
Injured Resource Connection Office – said the lobby group would
provide social workers, community advocates and possibly financial
counsellors to help injured workers. She said the group – which already has
about 200 members – would also write to Industrial Relations Minister
Paul Caica to seek an "observational seat" at WorkCover board meetings.
"We are quite serious in what we are doing because, quite frankly,
injured workers have been pushed and bullied for far too long," she said.
"Nobody sits down and explains to them what the (WorkCover) process
is and what's actually involved in returning to work.
"What we will be doing is hand-holding until they understand those
processes and encouraging them in their own return-to-work plans.
The problem now is employers simply don't know if they can trust the work
ethic of an injured employee so our goal is to try and break down those barriers."
She said Encompass had secured office space through an "industry heavyweight"
but would apply for money through WorkCover's $15 million return-to-work fund,
which was established as part of the State Government's review of the workers
compensation system.
WorkCover is offering one-off payments to any group that can devise
strategies to get people back into the workforce."We hope the minister will
be supportive and the corporation will be supportive," Ms McKenzie-Ferguson
said. An inaugural public meeting of Encompass is scheduled for December.
Saturday, 25 October 2008
Mr Holding thinks another expensive review will repair the system and protect Victorian Workers! - Will someone tell this guy to get with the program!
Just what injured workers need, another review!!!
Why don't worksafe just make the employers compliant instead
of wasting all this money on reviews?
This funding could go to the injured workers whom still have
no common law rights!
Media Release: Tuesday, 17 June 2008
Victorian workplace safety will be even stronger following the Brumby
Government’s response to a review of the landmark Occupational Health
and Safety Act 2004.
Minister for Finance, WorkCover and the TAC Tim Holding said the Government had accepted the majority of the review’s
recommendations to ensure Victoria remains a leader in
workplace safety.
“The response I am releasing today fulfils a commitment made by the
Government to review the legislation to ensure it is working effectively,
” Mr Holding said.“This review confirms that the legislation introduced
in 2004 provides the right framework for Victorian businesses and
workers.”Mr Holding said the recommendations required WorkSafe
Victoria to undertake changes of an operational nature.
WorkSafe has already implemented or is in the process of implementing
many of the recommendations in the review.“The review overwhelmingly
shows the implementation of the legislation has been a smooth process,
but fine tuning of operational matters will further assist workers and
employers,” Mr Holding said.Mr Holding said the Government fully supported the review’s recommendations relating to:
Why don't worksafe just make the employers compliant instead
of wasting all this money on reviews?
This funding could go to the injured workers whom still have
no common law rights!
Media Release: Tuesday, 17 June 2008
Victorian workplace safety will be even stronger following the Brumby
Government’s response to a review of the landmark Occupational Health
and Safety Act 2004.
Minister for Finance, WorkCover and the TAC Tim Holding said the Government had accepted the majority of the review’s
recommendations to ensure Victoria remains a leader in
workplace safety.
“The response I am releasing today fulfils a commitment made by the
Government to review the legislation to ensure it is working effectively,
” Mr Holding said.“This review confirms that the legislation introduced
in 2004 provides the right framework for Victorian businesses and
workers.”Mr Holding said the recommendations required WorkSafe
Victoria to undertake changes of an operational nature.
WorkSafe has already implemented or is in the process of implementing
many of the recommendations in the review.“The review overwhelmingly
shows the implementation of the legislation has been a smooth process,
but fine tuning of operational matters will further assist workers and
employers,” Mr Holding said.Mr Holding said the Government fully supported the review’s recommendations relating to:
- Improved resolution of safety issues in the workplace;
- Revised guidance for workplace consultation;
- Greater flexibility and support for workplace representation; and
- Providing improved certainty around compliance requirements.
The Government’s response also committed to greater protection of employees who raise OHS issues.“Employees and their OHS representatives have an important role in ensuring that safety issues are identified before they become a problem and supporting these roles will lead to further improvements in workplace safety,” he said.
The review was completed after extensive consultation with trade unions and employer associations. It was conducted by Mr Bob Stensholt MP, who also led the consultation process following Mr Chris Maxwell QC’s review of the 1985 Act.
“I would like to thank Mr Bob Stensholt MP for the outstanding contribution he made in conducting this important review,” he said.
The review report was released in December 2007 and it can be found, along with the Government’s response at: www.worksafe.vic.gov.au
Wednesday, 17 September 2008
‘THE REINTRODUCTION OF COMMON LAW
WCV's: This paper describes the workplace insurance system and the governments
legislation changes.
It also clearly explains, how the Kennett government lied about worksafe
statistics and costs to the public to enable the changes to our common
law rights simply, to save money by preventing the employers levy from
increasing which was a pre election promise made by the Bracks
government and nothings been done about it?
So is it, that our government can lie their arses off to change our rights,
and be caught doing it, but not be held responsible for their actions?
This has got to be a criminal offence against the workers of victoria!
When is someone going to look after the workers here?
Now in 2008, we must tolerate the bullshit produced in the Hanks Report
and lose more of our rights without any consultation or opportunity to
vote on it.
Who says Mr hanks is right?
Why isn't Mr Hanks talking to real workplace injury victims?
How would Mr Hanks know what its like to be unemployable?
He bloody wouldn't!
This is another slap in the face for injured workers and their families!
Pay specific attention to the italic parts of the letter!
The Reintroduction of Common Law - The Victorian Experience
Introduction written by Mr Paul Mulvaney, Solicitor, 2001
In order to understand the ‘Victorian Experience’ of the re-introduction of
common law claims for work injuries, it requires a brief historical review of
the development and relationship between common law, and statutory based
no-fault compensation systems generally.
In the second half of the 19th century as injured workers sought damages
through resort to common law actions, they were met by the judicial
development and application of the defences of common employment;
contributory negligence, and voluntary assumption of risk (the ‘Unholy
Trinity’)i. Statute based workers’ compensation schemes were largely an
attempt by government to ameliorate the harsh and repressive features of
the common law.
Despite the eventual introduction of no-fault legislation in all Australian
jurisdictions earlier last century, access to common law remained, so that
workers generally had at least a nominal choice of either statutory or
common law compensation. For much of this period however, the two
systems of compensation were in effect monolithic and independent systems,
with very little interchange between the two. In the main, injured workers
were restricted to a conclusive election between the two systems, and the
interrelationship between the systems was limited to an obligation to refund
compensation payments from any subsequent award of damages.
Over the last two decades there has been a significant development in the
structure of our compensation mechanisms both in the Commonwealth and
various States. There has been a move away from the twin monoliths that is
largely independent structures of Common Law damages and statutory
compensation schemes, to a different model, which I will refer to as a “blended
system”. The hallmarks of a blended system normally involve some mix of
income loss compensation by way of weekly payments (usually partial);
payment for medical and like expenses; statutory payment for levels of
impairment or defined disability; and highly regulated access to the pursuit
of common law damages. These elements are essentially components of a single
scheme where access to the various components is tightly regulated by complex
statutory provisions.
Within blended schemes there have been a number of trends that have been
discernible over recent years. These trends include the ever increasing
restrictions on the pursuit of common law damages and a limitation on the
amount of damages that can be recovered. The restrictions of access to common
law damages utilise a number of mechanisms. These include statutory
designations of ‘certificate’ or ‘serious’ injury, and minimum impairment
payments or minimum requirements for economic loss. In some jurisdictions
the damages obtainable are restricted to non-economic loss, others allow for
a choice between economic or non-economic loss damages.ii similarly in some
jurisdictions the pursuit of common law damages will not finalise an entitlement
to medical expenses. These changes have been accompanied by a restructuring
of maims payments to expand the range of conditions that may be eligible, but
at the same time to shift the focus from generalised disability assessments to
focused impairment assessments generally on the basis of some ‘pseudo scientific’
assessment scheme, driven by the international lust for measurement,
management, and predictability.
The evolution in the nature of compensation schemes is an important factor in
assessing the role of common law in modern compensation schemes. There has
been much philosophical criticism on the role of common law damages in modern
compensation schemes. It is fair to say that this criticism reached its most
significant level during 1960’s and 1970’s. The philosophical criticism was at
times judicial, political, and academic.iii these criticisms were forged as a
response to the inflexible monolithic structures to which I have referred.
As the post World War II boom laid the economic basis for the development
of the modern welfare state however the philosophical and political arguments
against the role of common law in compensating for industrial injury grew.
This was the time of full employment and rising living standards. Inexorably,
the welfare state would ensure that the basic needs of all citizens would be
satisfied. Importantly, if you were injured at work, it was the broader
community who should guarantee your compensation. After all it was they
who benefited from your labour in the increasingly complex and interdependent
society and economy which was emerging. In particular in the 1960’s and 70’s
there was increasing criticism of the role of common law in compensating for
industrial injury.
The traditional philosophical opposition to the role common law believes that
often the compensation payable bears no relation to the degree of fault, or no
relation to the means of the defendant. It is claimed that the fault principle is
not in reality a ‘moral’ principle because a defendant can be negligent without
being morally culpable, and that the fault principle pays insufficient attention
to the conduct or needs of the plaintiff. It is also suggested that once and for
all lump sum awards are crude and inadequate methods of awarding compensation
that the legal process can have a deleterious effect on rehabilitation, and that
transaction costs are too high. Payment of compensation on the basis of fault
was seen as socially regressive. It was seen as compensation for evidence, not
injury.
In 1994 the Industry Commission summarised the rationale of the historical
opposition or ambivalence to common law at that time to include:
· Delays in settlement:- which can have a detrimental effect on the financial
· Delays in settlement:- which can have a detrimental effect on the financial
position of the claimant, may effect incentives for rehabilitation and return to
work, and adds to the complexity of the compensation process
· Incompatibility with rehabilitation and return to work:- where the
· Incompatibility with rehabilitation and return to work:- where the
adversarial nature of the common law process can threaten the employment
relationship, and the consequences particularly for occupational rehabilitation
which normally commences once the injury has stabilised
· Occupational health and safety incentives:- where it is argued that the
· Occupational health and safety incentives:- where it is argued that the
existence of a common law claim may discourage an employer from improving
safety at the workplace (ie the fear of doing so being evidence that the previous
practice was unsafe)
· Common law costs:- including the legal costs of bringing a common law
· Common law costs:- including the legal costs of bringing a common law
claim, and the size of common law awards
· Lumps sums:- damages are awarded as lump sums and are criticised on
· Lumps sums:- damages are awarded as lump sums and are criticised on
the basis of over/under compensation, and the potential for ‘dissipation’ of the
compensation award
· Relationship with medical costs:- it is argued that common law legal
· Relationship with medical costs:- it is argued that common law legal
action can have a significant effect on the size of medical costs ie ‘medico-legals’
· Inconsistency with a no-fault scheme:- a large number of injured workers
· Inconsistency with a no-fault scheme:- a large number of injured workers
are unable to establish fault liability, therefore should a small proportion of
workers obtain additional compensation because they are able to demonstrate
fault (ie the ‘forensic lottery’)
Support for the role of common law in compensation for industrial injury relies
Support for the role of common law in compensation for industrial injury relies
amongst other things, on a notion of deterrence; the ability to individually
tailor compensation dependent on an individual’s needs; the ‘flexibility’ of the
common law and its ability to change with the times and community
expectations; a finality to litigation and the claims process; and community
support for the moral imperative that those (employers) who cause injury
should pay.
Importantly support within the legal community has concentrated on a
‘basic legal rights’ concept without more thorough engagement with many
of the well founded criticisms of common law. The ‘rights’ based arguments
ignored the very real issues of access, and substandard outcomes particularly
for compensation for on-going medical treatment, long term economic loss,
and the dissipation of damages on system created debts.
The 1994 Industry Commission Report summarised the opposing arguments
in support of common law as:
· Workers’ rights:- in that it is a basic legal right
· Justice:- where it is argued that the common law accords with the
· Workers’ rights:- in that it is a basic legal right
· Justice:- where it is argued that the common law accords with the
community’s sense of justice
· Damages:- a common law negligence action protects the severely injured
· Damages:- a common law negligence action protects the severely injured
by ensuring individual assessment of their losses rather than payment by
reference to a statutory formula
· Finality:- where there is both a finality for the injured worker and the
· Finality:- where there is both a finality for the injured worker and the
claim’s agent / insurer
· Benefit levels:-where it is suggested that the availability of common law
· Benefit levels:-where it is suggested that the availability of common law
may act as an incentive to maintain the adequacy of statutory benefits
Interestingly, both sides of the traditional debate contend with some
Interestingly, both sides of the traditional debate contend with some
vehemence the opposite is anti-rehabilitative.
Whilst it is true that much of the relatively recent restriction of common law
in Australia is attributable to conservative governments, it is important to
recognise a strong ambivalence within sections of the ALP, and the trade
union movement to the role of common law. It was the Whitlam government
in 1975, on the basis of the Woodhouse Report, which flirted with the
establishment of a national no-fault compensation scheme with no role
for common law entitlements. In New South Wales in 1987 it was the
Unsworth Labor government which abolished common law entitlements,
and which were eventually reintroduced in a modified form by the Greiner
government in 1990.
Similarly it was a federal Labor government which effectively, though not
formally, removed common law as a part of the Commonwealth Comcare
compensation scheme.
Following the Cooney Committee Report in 1984 (and a review of the
competing claims concerning the role of common law and a statutory scheme)
the Cain government’s introduction of the Accident Compensation Act in
September 1985, and the commencement of the Workcare scheme, saw the
first model of a blended compensation system. Admittedly this was somewhat
serendipitous, relying on a finely balanced political situation at the time, as I
have no doubt that the Cain government subscribed to the traditional
ambivalence to common law outlined above. It should be noted that the model
allowed common law compensation for pain and suffering only (economic loss
addressed in the improvements to weekly payments compensation), and medical
expenses were also separately guaranteed, thereby addressing two of the most
trenchant criticisms of common law. From then it is perhaps fair to say that
those involved in the common law debate in Victoria settled for an uneasy truce
whereby both methods of compensation played a role, in which access to common
law entitlements has generally been restricted or circumscribed, with the
emphasis placed on no-fault statutory benefits.
Why Were Common Law Claims Abolished in Victoria?
The issue of workers’ compensation is one of the most transparent intersections
of the interests of capital and labor in the political process. It therefore often
assumes symbolic importance when there is a change in the fortunes of capital
or labor, and the political parties which claim either as their heartland or
natural constituency, gain office. The reform of the compensation system
presents a new government with an opportunity to demonstrate a tangible
commitment to its power base and historically, new governments have been
quick to usher in change in workers’ compensation laws. Over the last two
decades all Victorian governments have implemented change early in their
first period of office.
From 1992 and leading up to the abolishment of common law in 1997 some of
From 1992 and leading up to the abolishment of common law in 1997 some of
the major Kennett government changes included:
1992 – 1997 Workcover Changes
· A requirement that employment be a significant contributing factor
· The exclusion of some categories of stress claims
· The exclusion of injuries which occur on the way to or from work
· The introduction of the concept of notional earnings which is the amount
1992 – 1997 Workcover Changes
· A requirement that employment be a significant contributing factor
· The exclusion of some categories of stress claims
· The exclusion of injuries which occur on the way to or from work
· The introduction of the concept of notional earnings which is the amount
actually earned or the amount that Workcover believes a worker could be
earning in suitable employment even if no such job exists
· The introduction of the concept of serious injury
· Significant changes to the weekly payments structure
· Termination of payment of routine or non-essential medical expenses
· The introduction of the concept of serious injury
· Significant changes to the weekly payments structure
· Termination of payment of routine or non-essential medical expenses
12 months after weekly payments cease
· Employer control of injured workers access to rehabilitation services
· Removal of ‘mental disorder’ as a basis for lump sum compensation
· Abolishing the specialist Accident Compensation Tribunal (including
· Employer control of injured workers access to rehabilitation services
· Removal of ‘mental disorder’ as a basis for lump sum compensation
· Abolishing the specialist Accident Compensation Tribunal (including
sacking the Judges), and abolishing the Workcare Complaints Commissioner
· Introducing impairment thresholds for hearing loss compensation
· Increasing the role and power of Medical Panels including redefining
· Introducing impairment thresholds for hearing loss compensation
· Increasing the role and power of Medical Panels including redefining
medical questions to include questions of fact and removing judicial review
of decisions
Whilst the government reintroduced rights to claim pecuniary damages in 1992,
Whilst the government reintroduced rights to claim pecuniary damages in 1992,
it introduced the threshold requirement of ‘serious injury’ by way of 30%
whole person impairment based on AMA Guides, or satisfaction of a ‘narrative’
test for access to common law, and placed monetary thresholds on both heads
of damages. A particular aim being to discourage common law claims for small
monetary amounts.
Between 1992 and 1997 the government further tightened access to common
law entitlements by removing secondary psychological injury from the assessment
of impairment, and the imposition of cost penalties including requiring the plaintiff
to pay her/his own costs if damages were assessed but could not be awarded.
The Kennett government also sought to substantially reduce the various
statutory entitlements including weekly payments, and lump sum
compensation for permanent impairment. Accordingly the abolition of common
law rights in 1997 can be seen as a continuation of the Kennett government’s
determination to restrict access to, and the benefits available under, the
Workcover scheme. It should be noted however that following the majority
of changes carried out in 1992 the Workcover scheme had settled into a
relatively stable scheme.
Up until November 1997 there had been a limited assault on common law,
primarily tightening access. The fact that the Kennett government moved
to abolish common law rights after five years in office was curious.
Partly the answer lies in the process of change begun in 1992 and carried out
Partly the answer lies in the process of change begun in 1992 and carried out
up until 1997. But the major reason I suggest, lies in a confluence of factors
merging in late 1997 that provided the political impetus to abolish common law
In my view the Kennett government changes in 1997 were driven by a
In my view the Kennett government changes in 1997 were driven by a
confluence of at least three factors, namely:
· a desire for a significant levy reduction couched in the economic rhetoric
· a desire for a significant levy reduction couched in the economic rhetoric
of employer associations (who portrayed Workcover premiums as an impost
on profitability and jobs), and support for this within government
· the remnants of support for the 1960’s & 1970’s philosophical opposition
· the remnants of support for the 1960’s & 1970’s philosophical opposition
to common law genuinely held by senior policy makers within Treasury and
the VWA and shared by some sections of the labour movement
· and the chronic inability of the Victorian Workcover Authority to in
· and the chronic inability of the Victorian Workcover Authority to in
particular manage the existing common law claim process.
The Economic Rhetoric
Employers groups and associations vigorously pursued the line that workers’
The Economic Rhetoric
Employers groups and associations vigorously pursued the line that workers’
compensation premiums were a crucial component of the economic viability
of the state. I am sure that you have experienced the same arguments here.
Without a shred of objective evidence every percentage point up or down in
premium rates is claimed to represent thousands of jobs lost or gained to other
states. Also, common law was portrayed as anti-rehabilitative, as it, rather
than the fact of negligent caused injury, was seen as the destroyer of the
employment relationship. Clearly the employer groups’ eyes were firmly
fixed on a levy reduction. It is interesting to contrast the position of twenty
five of the twenty six self-insurers in Victoria at this time who opposed the
abolition of common law. They were large corporations employing substantial
numbers of Victorians who were just as interested in the issue of business
costs, but as self-insurers would have no benefit from a levy reduction.
I would suggest that their support for the retention of common law was not
an act of altruism per se, but more a recognition that access to common law
was an important component of the compensation ‘tools’ necessary to
effectively manage their industrial injury portfolios. As well the self-insurers
found no impediment in common law to effective rehabilitation.
The Kennett government threw their support behind the employer association
The Kennett government threw their support behind the employer association
claims with a crude and essentially dishonest use of financial statistics.
In October 1997, shortly before abolishing common law rights for seriously
injured Victorian workers the then Minister for Finance (and responsible
for the Workcover scheme), Roger Hallam, issued a press release which
provided reasons for the abolition of common law that essentially relied on
financial issues, and notions of “more equitable and fairer” treatment for
injured workers. It was claimed that Workcover common law payments
had increased from $17.9 million in 1995/96 to $139.7 million in 1996/97.
Hallam claimed that common law claims constituted 20% of Workcovers
liabilities, yet less than 3% of injured workers received common law
settlements. He also claimed that lawyers were receiving $100 million a year
from Workcover and that this money would be better off going to injured
workers.
Given the continual changes to the compensation scheme since 1985, and in
particular those applying to the operation of common law, it has been almost
impossible to gather sound and objectively based statistical information,
which can be used in any meaningful way to inform policy choice. Not only
are there ‘lies, damn lies, and (Workcover) statistics’, but Hallam’s use of
them in this way represented an attempt by the Kennett government to
portray criticism as merely an esoteric debate between the government
and ‘greedy lawyers’ about money, not principle. The figures utilised by
the government drew on an artificial hump of claims created by its own
amendments in 1992, and then plotted a growth of claims from a zero
base in 1992! What was a natural and expected statistical phenomenon
was portrayed as an alarming and uncontrolled exponential growth in these
claims. Abolition of common law was portrayed as cost neutral and the
proposal as merely removing money from the pockets of lawyers to return
to injured workers.
Kennett & the ‘Historic Ambivalence’
In my view Kennett, as the consummate political animal, sensed some
ambivalence to common law in sections of the trade union movement and the
ALP. His judgment about such ambivalence was not misplaced. I recall a
conversation in mid-1997 with a senior member of the then state ALP
opposition (and now senior cabinet member of the current government).
The Kennett government was in the process of laying the political groundwork
for the abolition of common law in November 1997. Labour lawyers were
encouraging debate about the issue in the broader labour movement. In the
discussion I raised concerns about the impending abolition of common law
only to be told that there “were no votes in Workcover” Thereafter I, amongst
others resolved to ensure that there were votes in Workcover. Of course this
was largely achieved by a well orchestrated campaign conducted by plaintiff law
firms, the trade union movement, legal bodies, injured workers, and other
groups which was comprehended and supported by the wider community.
In 1997 Kennett sought to exploit the ambivalence of some sections of the
labour movement to argue that notion of ‘fault’ based compensation could finally
be put to the sword, and replaced with the protective shield of fair and equitable
statutory lump sum compensation for permanent impairment together with other
entitlements. In this I suggest he was supported by well intentioned senior policy
makers within the bureaucracy who were convinced of the need to remove the
vagaries of common law from the compensation system following the critique
developed during the expansion of the welfare state.
Crises of VWA Management
The above factors merged with the now well documented inability of the
Crises of VWA Management
The above factors merged with the now well documented inability of the
Workcover Authority to manage common law damages claims. These included
an inflexible approach to the management of claims; the exclusion of skilled
insurance staff and their conversion to mere ‘post boxes’ for claims; lack of
integration between common law and the rehabilitation and compensation
process generally; inconsistency of approach to serious injury applications
and common law claims owing to a high level reliance on a relatively large
number of defendant panel law firms; and the ‘infamous’ barristers strike in
late 1997 when the VWA arbitrarily reduced fees.viii In fact I would go as far
as to say that at a senior level VWA management used the other factors to
deflect justified criticism of their incompetence. In so doing the Victorian
Workcover Authority skilfully manipulated a government back-bench committee
which met in secret to consider the issue, and found a willing ally in a particularly
ambitious back-bench member of the government. As often at decisive historical
moments, individuals can play a key role, and the debate in late 1997 about
abolition of common law was no exception. With the Kennett cabinet ambivalence
about the issue, particularly in the face of minor but escalating public opposition,
the then CEO of the VWA returned from overseas to stiffen the ‘resolve’ of his
Minister. The die was cast, and the legislation passed.
Why Was Common Law Reintroduced?
In my view in 1997 the Kennett government committed three fatal misjudgements.
Why Was Common Law Reintroduced?
In my view in 1997 the Kennett government committed three fatal misjudgements.
Firstly, those involved in the political process failed to comprehend the ability of
the existence of common law damages to deflect community focus on the inadequacy
of statutory benefits. The second misjudgement, intimately connected with the
first, involved a gross miscalculation as to the nature and saleability of the
“improved” impairment benefits scheme that accompanied the abolition of
common law damages. Finally, the decision to also totally abolish rights against
a third party was astounding and was readily comprehended as such by the
community.
The impairment benefit scheme enshrined in s98C and s98E of the Accident
Compensation Act relied on the component of impairment benefits on a whole
person basis substantially assessed under the American Medical Association
Guidelines for the Evaluation of Permanent Impairment (4th Edition).
Whilst the government and the Victorian Workcover Authority then contended,
and probably genuinely believed, that the impairment benefits scheme was a
dramatic improvement in the position of injured workers, the reality was different.
The transfer to the AMA 4th Edition Guides and the imposition of a 10% threshold
meant that the new impairment scheme represented a dramatic reduction in
impairment payments alone, not taking account of the loss of general damages
at common law. This flaw was quickly comprehended by some stakeholders,
particularly trade unions and plaintiff lawyers, and quickly became the subject
of "before and after” advertising by the Australian Plaintiff Lawyers Association.
Despite hasty readjustment of the 1997 legislative package both the government,
and extraordinary advertising by the VWA, they were unable to regain the
momentum in the public debate. The momentum was translated into a well-
funded coalition of trade unions, plaintiff lawyers, injured workers and other
community groups that developed a sophisticated campaign strategy focussing
in particular on the ‘human face & story’ of those seriously injured workers
whose benefits and entitlements were being reduced.
An analysis of the VWA’s projections of the cost of the “improved” impairment
benefits under s98C and s98E in the most recent review has demonstrated
the Authority’s costing to be greatly miscalculated. In the Review conducted
by the Workcover Advisory Committee in 1999/2000 material, particularly
comparative studies, undertaken by the medical panel and a study of Slater &
Gordon cases demonstrated that significant lower payment was made under
s98C than its predecessor.ix these studies together with other material
provoked a market revision of actuarial estimates of the projected costs of
s98C claims.x
The abolition of third party rights was absolute and included:
Abolition of rights in cases of medical negligence arising from treatment
The abolition of third party rights was absolute and included:
Abolition of rights in cases of medical negligence arising from treatment
associated with a work injury
No right to pursue damages claims in traffic accidents where the purpose
No right to pursue damages claims in traffic accidents where the purpose
of travel was ‘arising out of or in the course of employment’
Emergency workers such as police were also denied damages claims against
Emergency workers such as police were also denied damages claims against
‘third party’ offenders who caused injury
ABS statistics also revealed that over 66,000 small businesses in Victoria
ABS statistics also revealed that over 66,000 small businesses in Victoria
employing less than five employees operated as companies. These were
primarily small family concerns and the abolition of third party rights meant
that directors could not make a common law because they were deemed workers
under the provisions of the Accident Compensation Act. Notwithstanding the
above the government was of the view that it could ‘tough out’ public opposition
until the next election. This was possibly correct save for the surprise r
esignation of a disgruntled colleague of Kennett which resulted in the Mitcham
by-election in March 1998. It is now a matter of record that along with changes
to the role of the Auditor General, the other major issue fought over during
the by-election was the abolition of common law rights.
The stunning result in the Mitcham by-election in March 1998 was a
demonstration of how successful this campaign was to be. Polling carried
out at the time identified the November 1997 Workcover changes, including
the abolition of common law, to be a decisive issue in the unprecedented
swing against the Kennett government. In fact, a poll carried out by Roy
Morgan Research in late October 1997 revealed that four in five Victorians
surveyed knew of the government proposals, and without requiring any extra
information on the issue, 79% expressed their disapproval!
From 1997 through to the state election in September 1999 the campaign was
extremely well co-ordinated under the umbrella of the ‘Injured Persons
Association’. Marginal seats were targeted where every household received
literature explaining the issues. Advertising was carried out in the print and
electronic media. In particular the campaign used emergency services
workers as a potent example of what was at stake. These workers served
the community, often exposed to great risk, yet potentially not being
adequately compensated for injury as a result of the changes. Well collated
case studies were used to demonstrate the reduction in entitlements and
benefits injured workers would suffer as a result of the changes.
It was in the process of this developing campaign that I believe an important
It was in the process of this developing campaign that I believe an important
and necessary step was taken. That was to examine, and challenge, the
economic assumptions which had been made by employer associations to
justify reductions in premiums. At issue here was a debate concerning who
actually pays for the costs of workers’ compensation. Traditionally it is
asserted that it is the corporate sectors which bears the major costs, and
therefore lower premiums (and by definition lower benefits) are necessary
for reasons of business confidence and competitiveness. By engaging in this
debate we were able to refer to respectable academic evidence to demonstrate
that it is employees who actually fund the compensation scheme insurance
levies via lower real wages. The conventional position maintains that the
increase in workers’ compensation premium constitutes an added cost to the
cost of employment as part of real labour costs that inevitably leads to reduced
employment. These views, generally contended by industry associations, found a
large measure of support within the Department of Treasury and Finance.
The contrary view based on economic research in the United States conducted
by Chelius and Viscusi supports the proposition that “the pursuit of lower
premiums through reduced benefits and restricted eligibility provides little or
no long term benefit to business since the labour market adjusts to yield higher
take home wages at unchanged labour costs to the firm”.xi
Plaintiff lawyers commissioned Marsden Jacob Associates to apply similar
research techniques to the Australian labour market, and examine who pays
for workplace accidents and insurance compensation levies.
In summary their research revealed that:
· over 80% of the cost of workers’ compensation insurance levies are
In summary their research revealed that:
· over 80% of the cost of workers’ compensation insurance levies are
shifted back to workers by the operations of the labour market and the
action of employers, particularly via lower take-home pay, and as a result
employment costs to employers are only temporarily changed by a change
in the insurance levy
· employers actually pay for less than 10% of the total costs to the
· employers actually pay for less than 10% of the total costs to the
Australian economy of workplace accidents and injury
The ‘New’ Common Law
The amendments to the Accident Compensation Act are a marked improvement
The amendments to the Accident Compensation Act are a marked improvement
for injured Victorians. It nonetheless constitutes a remarkably modest reform
by an unduly timid government and reflects the still unresolved philosophical
debates that I have mentioned. There is no doubt that the issue of the removal
of common law damages was a significant issue in the 1999 general election
which continued to resonate in the subsequent Frankston East, Burwood, and
Benalla by-elections. It is regrettable, given the prominence of the issue, that
the Victorian government did not take the opportunity to deliver more meaningful
benefits to its constituency through a marginal extension of the levy from 2.18%
to 2.25% of payroll. This extension would have allowed both a meaningful
substituted common law payment to be made to workers seriously injured
between the 12th November 1997 and the 19th October 1999, and the
government to urgently address the substandard benefits that remain,
particularly in s98C and s98E of the Accident Compensation Act.xii
Legislation reintroduced the ability for a group of specific workers to pursue a
Legislation reintroduced the ability for a group of specific workers to pursue a
claim for common law damages against their employer or third party. The
reform is not fully retrospective and only applies to injuries occurring on or
after the 20th October 1999. The formal justification for failing to date the
reforms back to the 12th November 1997 was the general philosophical
opposition to the use of retrospective legislation. Whilst I understand the
reluctance of governments to utilise retrospective legislation I contend that
there is a qualitative difference between legislation removing rights and
legislation restoring those rights. The Bracks government, in my view, made
the decision not to restore the rights retrospectively firstly, on an economic
basis, ie its commitment to keep the premium level within 2.18% of wages,
and secondly, on the political judgment that the odium that would come from
its failure to restore rights would be borne by the Liberal and National parties.
Whatever the justification, the failure to introduce fully retrospective legislation
Whatever the justification, the failure to introduce fully retrospective legislation
is a tragic abandonment of those workers who are injured within the window
period.
Common Law Threshold
In the final analysis the government elected for a model that utilises the
impairment assessment as the primary gateway to common law but also
allowing access through a narrative test which will vary depending on whether
the worker’s claim is confined to a claim for non pecuniary loss or whether it
seeks to encompass pecuniary loss as well.xiii The impairment assessment test
to be utilised for access to common law damages is to be based on the fourth
edition of the AMA Guides (the ‘Guides’). You will appreciate that between 1992
and 1997 the impairment assessment test was based on the second edition of the
Guides. In reality few persons injured during that period sought access to
common law damages through the impairment assessment method and rather
elected to seek access through the narrative. Under the amendments it is clear
there will be a much greater focus on the impairment assessment for the
purpose of common law damages. It is to be the primary source of an
application for serious injury with resort to the narrative only being possible
after the assessment of permanent impairment.xiv The move from the second
edition to the fourth edition of the Guides is expected to have very marked
effects on the number of persons who will be able to achieve access to common
law through the impairment gateway. In particular there are very marked
differences in the ratings achieved under AMA 4 and AMA 2, particularly in
respect of muscular-skeletal and respiratory injuries.xv
The narrative test to be applied in assessing certification for serious injury for
The narrative test to be applied in assessing certification for serious injury for
injuries occurring on or after the 20th October 1999 has a marked similarity to
the narrative test that was in place for injuries prior to the 12th November
1997. S.134AB(37) of the Bill defines serious injury as follows:
a) permanent serious impairment or loss of a body function; or
b) permanent serious disfigurement; or
c) permanent severe mental or permanent severe behavioural disturbance
a) permanent serious impairment or loss of a body function; or
b) permanent serious disfigurement; or
c) permanent severe mental or permanent severe behavioural disturbance
or disorder; or
d) Loss of a foetus.
Perhaps the most marked changes that have been affected related to an
d) Loss of a foetus.
Perhaps the most marked changes that have been affected related to an
application for serious injury based on a “loss of earning capacity”. It was
generally recognised that in respect of injuries prior to the 12th November
1997 a loss of earning capacity was one of the major factors that influenced
courts in its assessment of whether an injury constituted the serious injury
within the meaning of s135A of the Act. A moderate earning loss when
projected over a workers’ potential working life was generally considered
to be of serious consequence for an injured worker thus justifying the
granting of a serious injury certificate. The new provisions seek to ensure
that an actual loss of a defined extent can only be taken into account in the
establishing of a loss of earning capacity for the purposes of serious injury
certification. Subsection 134AB(38)(e)(i) & (ii) will require a worker to have
a loss of earning capacity of at least 40% as at date of serious injury
certification and that the injury will be productive of a financial loss of 40%
or more permanently into the future.
It must be recognised that if there is a significant trend to pursue claims for
damages in respect of non-pecuniary loss only this will inevitably raise major
prudential issues for the Victorian Workcover Authority. If there is no award
for pecuniary loss then the Workcover Authority does not receive the benefit
of the redemptive effect of a common law damages claim as the worker will
continue to receive entitlement to weekly payment of compensation in accordance
with the Act.
Third Party Claims – The New Common Law Position
The new common law position in respect of third party claims in the legislation
is, I think, indicative of the “hothouse” effect of the preparation of the
legislative amendments. The Kennett government abolition for claims of
common law damages were comprehensive and resulted not only in the
abolition of common law claims in the workplace but also common law claims
in circumstances where a third party was a tort feasor but the injury occurred
in the course of employment not away from the place of employment.
It was not widely comprehended, for example, that the owner and director of a
family company, perhaps working as a plumber, was not entitled to bring a
claim in respect of a transport accident which occurred as a result of driving
in the course of their employment. Similarly a worker injured as a result of
medical malpractice was not able to sue a negligent medical treater if the
treatment related to a workplace injury. The legislation now restores the
right of workers injured in third party circumstances to pursue a claim for
common law damages.
The more curious situation arises in respect of damages claims against third
parties in other circumstances where the injury occurs away from the fixed
place of employment. S134AA(b) of the Bill extends a right to a worker to bring
proceedings for common law damages in specific circumstances without the
need to meet a threshold requirement of serious injury. Those circumstances
are set out in the section but are limited to circumstances where an employer
is not a party to the proceedings and where the injury is by virtue of s83(1) of
the Act deemed to have arisen out of or in the course of employment and if the
workers’ place of employment is a fixed place of employment the injury did not
occur while the worker was present at that fixed place of employment. It is clear
that at the time of the amendment of the Act the government had not fully
considered the potential implications of the serious injury threshold in third
party claims and thus opted to reintroduce the provision that was contained
in the Act between 1985 and 1992.xvi In doing so the government failed to
appreciate that there were no serious injury thresholds in the Act at that time
and all claims for damages were limited to claims for pecuniary loss. We are now
in the peculiar position that those workers injured in deemed employment
circumstances ie., lunch breaks or other breaks away from a place of
employment, medical treatment or attending trade schools are not bound by
the serious injury thresholds, whilst all others injured in the course of
employment but away from their place of employment are so bound.
This situation is best illustrated by example. If say a worker were injured in a
shopping centre during the course of an authorised lunch break they would
have the same rights as any member of the community to bring proceedings against the shopping centre for the negligence resulting in the injury. If the worker
however had been sent to purchase his or her employers lunch and thus was present in the course of their employment, rather than in the course of deemed employment,
they are so bound by the thresholds. No doubt that these anomalies, together
with the anomalies that would centre on whether or not a worker has a fixed
place of employment will necessitate the further amendment of the Act.
Conclusion
What then are the lessons that we can draw from the Victorian experience?
What then are the lessons that we can draw from the Victorian experience?
The first lesson is to recognise the need to develop a new theory of relevance
for common law claims in modern and complex compensations systems.
Initially we must acknowledge that many of the traditional criticisms of the
common law have been valid. We cannot ignore issues such as delay, high
transaction costs, or other defects, as these have the tendency to ultimately
render a system unstainable. It must be recognised that everybody has an
interest in the stability and sustainability of a system. In the past the major
criticism of common law claims for damages was that they were a poor
distributive mechanism. Under modern compensation schemes I contend it is
arguable that they are a sophisticated distributive mechanism.
When a common law claim is a component of a blended compensation scheme
it actually has the potential to be a well focused distributive mechanism that
provides an extra layer of compensation to the most seriously injured in the
most reprehensible circumstances. In so doing it has the potential to meet
community expectations and to promote the deterrent effect inherent in the
remedy. The debate should therefore no longer be focused on a no fault
compensation scheme versus common law, but rather on developing the
appropriate control mechanisms for access to common law. Proper control
mechanisms will be equitable and predictable. The role of common law in
modern blended compensation systems must be accompanied by commitment
to the reduction of transaction costs for the remedy, and flexible recipes for
the claiming of damages. Generally, the right to continue in medical treatment
should be excluded from a claim for damages, and continue irrespective of a
claim. Flexible choices between damages on economic and non-economic
loss will also be an essential ingredient of a relevant common law damages
system.
It will be essential for plaintiff and labour lawyers, and other interested
groups, to develop and promote economic theories that support the role
of common law in order to meet head-on the uncritical rhetoric of employer
groups about the dis-incentives to employment. These new economic theories
will address issues such as those raised by Chelsius and Viscusi and focus on
the irrational subsides provided to injurious employers through depressed
levy payments. These theories must also research and document the deterrent
capacity of the common law remedy in occupational injuries.
The next lesson that has been learnt well in Victoria is the interest of all
stakeholders in a sustainable common law damages scheme. I think there
is a realisation among plaintiff lawyers, trade unions, and others, that a
compensation scheme has to have financial integrity and that adjustments
to the control mechanisms of a scheme will be necessary from time to time.
The reintroduction of common law in Victoria has a degree of fragility and it is
possible that some strain will be imposed on the control mechanisms in future
years. This may be avoided by the imposition of a very strict management
structure derived from the TAC, but time will tell.
The final point I want to make is that we have learned from Victoria that it is
possible to develop a tangible political campaign around the issue of “common law”.
The Victorian experience has shown that it is possible to take this issue and
convert it in to an issue of real importance to the community. To do so however,
requires dedication and co-operation amongst all relevant interest groups. The
lesson we learnt from Victoria was that the most compelling political method
was to focus on the “worthy excluded”.
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