Legislative Assembly for the ACT: 2003 Week 12 Hansard (18 November) . . Page.. 4260 ..
MS TUCKER (continuing):
The act which established this scheme was passed in 2001, after some years of analysis and development by stakeholders which included employee, employer, insurance companies, medical and social service representatives. It is built upon the principle of prompt disclosure, injury management and rehabilitation, accurate record keeping, wage declaration and thus premium-based, good OH&S practices.
Without compliance with these principles, the costs of the scheme, which are always under pressure and part of public debate, would grow, adding to the pressure on entitlements. The scheme itself is still bedding down. It takes some years for factors influencing claim numbers, the size of claims, premiums and costs to insurance companies and outcomes for injured people and their families to be understood.
It is interesting to note that in the ACT employee participation in injury rehabilitation programs is now the highest in the nation. There are, however, some mixed reports on the cost containment of the scheme, with underdisclosure of employee numbers being cited as a key issue that needs to be addressed.
The scrutiny of bills committee issued an extensive report discussing the application of strict liability offences in ACT legislation when it looked at this bill. In the context of the operation of this scheme, however, some strict liability offences in regard to compliance are not just about administrative efficiency but also serve the interests of justice and welfare. For example, if the minister directs an insurance company to continue payments to an injured worker that it had unreasonably stopped paying, there is no need to give that company an excuse to contravene that direction. The issue of substance in regard to the claim under question would still need to be resolved. It is not a matter of accepting forever the minister's judgment. It is simply an issue of ensuring the wellbeing of the worker in the meantime while the dispute is sorted out.
In the case where employers would be strictly liable if they failed to respond to key requests for documents or if they failed to pass on compensation to the worker, these amendments get to the nub of the scheme. The prompt provision of information, the prompt reporting of injuries, and the consequent prompt return to work where possible is in essence what we hope to achieve. However, strict liability removes from consideration the state of mind of the person doing or not doing whatever is at issue. We need to be careful and not use this as a blanket provision.
I think it is important that timely compliance with the scheme requirements underpins its operation. The government has argued that, because this is so important to the scheme, strict liability is more appropriate than the reasonable excuse defence which applies under the current scheme.
I share Ms Dundas's concern that, since the introduction of a criminal code, the government has been overenthusiastic about creating strict liability offences. The scrutiny of bills committee reports have raised problems with this approach repeatedly. The Attorney-General's responses have not really adequately addressed the issue.
On this bill, the scrutiny committee raised concerns about strict liability being applied to offences attracting at times prison sentences and about the broad extent of coverage. The