Debate resumed from 27 September 2018.
Mr ALISTER HENSKENS (Ku-ring-gai) (10:43:09): I lead for the Government on the Workers Compensation (Firefighters' Presumptive Rights to Compensation) Bill 2018. I commend the member for Fairfield for the intent behind the bill. It is important to properly look after our brave firefighters to whom the community owes so much. I make clear at the outset that Government members certainly express our absolute and unqualified support for all firefighters in New South Wales. However, in respect of these very serious issues, it is paramount to carefully formulate legislative provisions so that they adequately look after not only firefighters but all the legitimate public interests involved. Indeed, the member for Fairfield will be aware that recently the Government made an announcement with regard to this matter and I will refer to that later in my contribution.
The dedicated firefighters across our State, who every day perform work that is often dangerous and unpredictable, deserve our admiration and thanks because they keep our communities safe. Under Fire and Rescue NSW the people of New South Wales are protected by one of the world's great urban fire and rescue services; indeed, I would say the world's most professional urban fire and rescue service. They are constituted by extraordinary men and women. Firefighters help anyone, anywhere, anytime by responding to any emergency necessary. They are passionate about safety, education and prevention. The firefighters employed by Fire and Rescue NSW do those things every day of the week, every week of the year.
Fire and Rescue NSW has 335 fire stations across New South Wales. Fire and Rescue NSW has over 6,000 active firefighters and these firefighters protect 90 per cent of the State's population from emergencies involving fire, motor vehicle accidents and other dangerous situations. These firefighters protect 100 per cent of the State's population from hazardous materials, emergencies and building collapses. In 2016-17 our firefighters responded to 123,711 emergencies, with 21,784 of those being actual fires. These are just extraordinary numbers, numbers which represent the protection that our firefighters provide to the people of New South Wales. As our firefighters protect the people of New South Wales, so, too, is the Government committed to providing the best possible protection and support for all of our firefighters and their families across New South Wales when they need it most; it goes without saying that this Government supports our firefighters.
It is often assumed by those opposite that because the Australian Labor Party has a special relationship with the union movement they have some sort of unique insight into the working conditions of people like firefighters. I would contend that that is no longer the case and, as the Government leadership often says, the Coalition is now the party of the worker. For example, Coalition members have not been cloistered in the union environment or an environment where they have worked as party apparatchiks all their lives. They have real-life experience and through that real-life experience they are able to understand issues through the casual conversations they have had with relevant sections of the community.
I can offer a personal example. The parents of two of my daughter's best friends at school included a long-time worker in the fire and rescue services and a train driver. People often think that those who live on the North Shore are multimillionaires but our community is full of ordinary workers, giving members on this side of the House opportunities to hear what I would call casual testimony, in a social context, of the sorts of issues that affect the working lives of everyday people. I have been inside the home of a fire and rescue service worker and a train driver, as they have been inside my home. Through convivial conversations, often facilitated by a beverage or two, I have learnt about some of the demands on the grassroots members of organisations such as the fire and rescue services.
Firefighters have to deal with situations that cause them greater trauma, which thankfully many of us in the community do not have to deal with, and as a consequence it is recognised that that the community, through the New South Wales Government, supports sensible benefits to these workers based upon evidence, decision‑making, careful legal drafting of legislation and sensible fiscal responsibility. To that end this Government supports the introduction of presumptive workers compensation legislation for our firefighters regarding specific cancers where the research shows there is a link between their work and the cancer. What this Government does not support is legislation that does not fulfil that criterion. Not only are the people and property of New South Wales protected by firefighters employed by Fire and Rescue NSW but also they are protected by the extraordinary volunteers who provide their time in service to the people of New South Wales through the NSW Rural Fire Service.
The NSW Rural Fire Service is the world's largest volunteer fire service. That is a fantastic reflection on the community spirit of the people of New South Wales. As a member of Parliament one of the great pleasures I have had is to get to know these unique people very well. It is well known that in the Upper North Shore, which I represent, is the Ku-ring-gai Chase National Park. Our very leafy area is full of beautiful trees, and also includes the Lane Cove National Park, and provides challenges in terms of bushfires. That has galvanised the community to have many volunteers in the NSW Rural Fire Service. Through meeting them I can say it is an amazing cross‑section of our society that are in the Rural Fire Service—in my area we have judges, engineers, tradies, school teachers and all manner of occupations, even some politicians—and their level of service is quite extraordinary. On 20 September 2018 I attended the medal presentation for the Hornsby-Ku-ring-gai Rural Fire Service. Jack Barnett, who is a great constituent in our area, was recognised for 60 years of service to the NSW Rural Fire Service.
The DEPUTY SPEAKER: That is older than you.
Mr ALISTER HENSKENS: That is older than me; almost older than the Deputy Speaker.
The DEPUTY SPEAKER: Not quite.
Mr ALISTER HENSKENS: Four other people, including John Hanscombe, had 50 years of service—that is almost as old as me. It was appropriate that on that occasion Commissioner Shane Fitzsimmons, local members of Parliament and others came together as a community to recognise this outstanding service. In one local area in the electorate of the member for Hornsby it seemed as if every member of the community was a member of the NSW Rural Fire Service. That is absolutely extraordinary. These are the sorts of people who do not get paid. They voluntarily risk their lives to protect their community and the people of our State. They deserve our great gratitude. The NSW Rural Fire Service volunteers are supported by more than 800 full-time staff, the majority of whom volunteer in the NSW Rural Fire Service.
It would be remiss of me not to mention Mark Sugden who leads the Hornsby-Ku-ring-gai Rural Fire Service in my area. Indeed, so important is the Hornsby‑Ku‑ring‑gai Rural Fire Service brigade that it is now being split into two brigades. There will now be a new Ku-ring-gai brigade based at Killara. I acknowledge the leadership of Mark Sugden and Stuart Clark, who is a very distinguished lawyer and former managing partner at Clayton Utz, and who has been very active in the rural fire service for many years, in this very important development in my local area. In 2016-17 the NSW Rural Fire Service volunteer members attended more than 24,000 incidents across New South Wales, including more than 11,500 fires, and it also undertook more than 2,000 controlled hazard reduction burns. I categorically inform the House that this Government supports our firefighters whether they be from NSW Fire and Rescue or members of the NSW Rural Fire Service.
Ms Trish Doyle: Why oppose the bill then?
Mr ALISTER HENSKENS: It is very regrettable that we are getting interjections of that kind. This is a very serious subject. We are talking about very serious illnesses that are suffered by firefighters.
Dr Hugh McDermott: That sounds dirty.
Mr ALISTER HENSKENS: I note another interjection from a member who does not even give the House the courtesy of sitting in the Chamber.
The DEPUTY SPEAKER: If the member for Prospect wants to make a contribution he should come into the Chamber. The member will cease back-answering and leave the Speaker's Gallery.
Mr ALISTER HENSKENS: The member for Prospect is sitting in the Speaker's Gallery drinking a cup of coffee. The way in which members such as the member for Prospect are disrespecting this House and this Parliament is an absolute disgrace. We all know about the member for Prospect and his faux medals and carry on. He is going red in the face.
The DEPUTY SPEAKER: Order! The member for Prospect will leave the Chamber.
Mr ALISTER HENSKENS: I am sorry for getting a little bit upset.
The DEPUTY SPEAKER: The member for Prospect had no right to interject from where he was sitting or to be drinking a cup of coffee.
Mr ALISTER HENSKENS: This is a serious matter. That sort of behaviour ought not to be tolerated by this House.
Before I was rudely interrupted I believe I was saying that the NSW Rural Fire Service undertook more than 2,000 controlled hazard reduction burns in 2016-17, which are very important for communities like mine. The Government supports our firefighters and it supports the introduction of presumptive workers compensation legislation for our firefighters regarding specific cancers where the research shows there is a link between the work they do and the cancer that the firefighter has unfortunately contracted. The Government made a very important announcement on 27 September that it would soon bring to Parliament a bill to provide for presumptive legislation for firefighters regarding the specific cancers that research has shown can be linked to the dangerous work that firefighters perform. I hear a few murmurs from the member for Fairfield about that, but the fact is that these issues require detailed consideration and careful formulation to properly deal with them, and that is what the Government is doing.
I am not critical of the member for Fairfield. It is fair to say that the Opposition does not have all the resources of Government to be able to do these things as thoroughly as the Government can do them, and the Government certainly has access to resources that the Opposition does not have, but the Government is not going to rush into these matters. The Government will address this matter properly and carefully so there are no mistakes or problems, because that is what the people of New South Wales deserve and it is certainly what the firefighters deserve. I will outline some of the problems with this bill, which will not be repeated in the legislation that the Government introduces. On 27 September the Minister for Finance, Services and Property and member for Ryde, and the Minister for Emergency Services and member for Dubbo, announced that the Government would introduce presumptive legislation for firefighters. I quote from their media statement:
The Government will introduce amendments to workers compensation legislation to reverse the onus of proof for NSW firefighters who are diagnosed with one of 12 prescribed cancers and meet the applicable minimum employment periods.
Anyone who is diagnosed from today onwards will be entitled to the presumption, subject to the passing of this legislation.
Known as presumptive legislation, similar provisions have been introduced in most other states and territories and the Commonwealth over the past seven years.
One reason the Government does not agree with Labor's bill is that, as described by the shadow spokesman, it contains a 10-year post-employment limitation on making a claim. I do not think firefighters would be happy to know that there is a limitation of that kind. The Government believes that our firefighters deserve better protection than that and is currently finalising the costings and operational changes required to implement its preferred reform, which will not contain Labor's 10-year limitation period.
Over the past 12 months the Government has been consulting with the Fire Brigade Employees Union and the NSW Rural Fire Service Association, which represent the more than 100,000 current and former firefighters who will benefit from the Government's reform. The principal firefighting agencies, including Fire and Rescue NSW and the NSW Rural Fire Service, have been part of the consultation. The Government is committed to bringing effective and fair legislation before the Parliament that establishes presumptive rights to workers compensation for firefighters. The member for Fairfield's bill—and I am not critical of him personally—the Workers Compensation (Firefighters Presumptive Rights to Compensation) Bill 2018 is not effective or fair legislation. I do not say that as a personal attack on the member, but the Government wants to get this legislation right and to make it better.
All Australian jurisdictions with presumptive legislation prescribe the same 12 types of primary cancers and apply the same qualifying periods of service for each of those cancers. Despite the consistency and types of prescribed cancers and corresponding service periods, there are several differences in the design features across Australia. The member for Fairfield noted that the first presumptive legislation for firefighters in Australia was enacted in 2011 in the Commonwealth Workers Compensation Scheme and that this move recognised the very important and occupationally hazardous role firefighters play every day. The Commonwealth legislation provided presumptive rights for those who are unfortunately diagnosed with one of the specified 12 cancers, which had been expanded from seven specified cancers following a Senate inquiry. Following the passage of that bill, other jurisdictions across Australia reviewed the research and sought to pass presumptive legislation modelled on the Commonwealth legislation.
In September 2013 Tasmania passed legislation for employed firefighters and volunteer firefighters who could demonstrate 150 exposures over 10 years. In October 2013 Western Australia passed legislation providing presumptive provisions for employed firefighters, extending that to volunteer firefighters in 2016. In March 2014 South Australia enacted provisions based on the Tasmanian model. That was amended in 2015 to remove the requirement for volunteers to have attended at least 150 exposure events. In March 2015, the Northern Territory passed legislation based on the Commonwealth legislation for employed firefighters, with presumptive rights for volunteers who have had 150 exposures, similar to the Tasmanian legislation. The Government will seek to introduce amendments aligning New South Wales workers compensation arrangements with other Australian jurisdictions that have presumptive legislation.
I will now list the 12 prescribed cancers that the Government supports being included in workers compensation legislation for serious medical conditions, and their qualifying service periods. The first is a primary site brain cancer for which the qualifying service period will be five years. A primary site brain cancer occurs when abnormal cells form within the brain. Tumours can be cancerous or benign, and primary tumours are those that start within the brain and will be covered by the legislation, as opposed to secondary tumours that spread from elsewhere in the body. The second of the 12 prescribed cancers is primary leukaemia, for which the qualifying period will be five years. Leukaemia is a group of cancers that usually begin in the bone marrow and result in a high number of white blood cells. These white blood cells are not fully developed and are called blasts or leukaemia cells.
The third of the 12 prescribed cancers is breast cancer and the qualifying service period will be 10 years. Breast cancer is a cancer that develops from breast tissue. It is relatively widely known in the community. Signs of breast cancer usually, but not always, include a lump in the breast. The fourth prescribed cancer is primary site testicular cancer and the qualifying service period will be 10 years. Testicular cancer is a cancer that develops in the testes, which, as we all know, are part of the male reproductive system. The fifth of the 12 prescribed cancers is primary site bladder cancer and the qualifying service period is 15 years. Bladder cancer is any of several types of cancer arriving from the tissues of the urinary bladder. It is a disease in which cells grow abnormally and have the potential to spread to other parts of the body.
The sixth of the prescribed cancers is primary site kidney cancer and the qualifying service period is 15 years. Kidney cancer is also known as renal cancer, and it is a type of cancer that starts in the cells in the kidney. The two most common types of kidney cancer are renal cell carcinoma and transitional cell carcinoma, also known as urothelial cell carcinoma of the renal pelvis. These names reflect the type of cell from which the cancer develops. The seventh of the prescribed cancers is primary Non-Hodgkin lymphoma and the qualifying service period is 15 years. Non‑Hodgkin lymphoma is a group of blood cancers that includes all types of lymphoma, except Hodgkin's lymphoma. Symptoms include enlarged lymph nodes, fever, night sweats, weight loss and tiredness. The eighth type of prescribed cancer is multiple myeloma and the qualifying service period is 15 years. I note that the word "multiple" is not included in the private member's bill, which I think may be a drafting error. Multiple myeloma, also known as plasma cell myeloma, is a cancer of plasma cells, a type of white blood cell normally responsible for producing antibodies.
The ninth type of prescribed cancer is primary site prostate cancer and the qualifying service period is 15 years. Prostate cancer is a common cancer among men. It is the development of cancer in the prostate gland in the male reproductive system. I think that is well known in the general community. The tenth type of prescribed cancer is primary site ureteral cancer and the qualifying service period is 15 years. Ureteral cancer is a cancer of the ureters, the muscular tubes that propel urine from the kidneys to the urinary bladder. It is also known as ureter cancer. The eleventh type of prescribed cancer is primary site colorectal cancer and the qualifying period is 15 years. Colorectal cancer is also known as bowel cancer and colon cancer. It is the development of cancer from the colon or rectum, and involves the abnormal growth of cells that have the ability to invade or spread to other parts of the body. The twelfth prescribed cancer is primary site oesophageal cancer and the qualifying period is 25 years. Oesophageal cancer is a cancer arising from the oesophagus, the food pipe that runs between the throat and the stomach. Symptoms often include difficulty in swallowing and weight loss.
Importantly, the Government has taken the time to review and learn from these other Australian workers compensation jurisdictions. This will ensure that our firefighters who work so hard to protect the lives and property of the people of New South Wales are provided with the best possible protection and support when they need it the most. This legislation deserves careful, informed, evidence-based drafting and that is what the Government is committed to doing. The Government's position is informed by extensive Australian and overseas research on cancer incidents and mortality rates in firefighters. I will talk briefly about the research and inform the House of that research conducted both in Australia and internationally that informs the Government's position. A 2014 study that the Australasian Fire and Emergency Service Authorities Council commissioned and the Monash University undertook looked at cancer incidence and mortality rates in firefighters. The study, an extensive study of nearly 233,000 serving or former full-time, part-time and volunteer firefighters in Australia, made a number of findings including the following.
First, full-time and part-time male career firefighters had a statistically significant increase in prostate cancer incidence, particularly for those employed for more than 20 years and 10 years respectively. Secondly, there was a trend of increasing overall cancer incidence with increased attendance at vehicle fires for male career firefighters. Thirdly, lymphohematopoietic cancer was significantly elevated for full-time career firefighters with at least 10 years of service compared with those who had worked for fewer than 10 years. Fourthly, male breast cancer was statistically significantly increased among full-time career firefighters employed for more than 20 years. Lastly, general mortality of firefighters was significantly lower than the wider Australian population, attributed generally to better health and fitness amongst our firefighters. Many of our firefighters are extraordinarily fit men and women, which is of great assistance to them in the performance of their duties.
The DEPUTY SPEAKER: You are one, aren't you?
Mr ALISTER HENSKENS: No, I regret to say. In fact yesterday at the Parliamentary friends, I suggested that perhaps the Treasurer could do with a bit of strength and conditioning, given his frame, which is contrary to the frame of many members of Parliament [MPs]. Many MPs do not suffer a lack of conditioning.
The DEPUTY SPEAKER: Please do not look at me when you are saying all this.
Mr ALISTER HENSKENS: Mr Deputy Speaker, I am not casting any aspersions on you. I certainly would be in a glass house throwing stones if I were to do so. I turn now to the international research that has informed the Government's position. The LeMasters study is a 2006 meta-analysis of 32 separate studies on firefighters to determine their cancer risk. Put together, the 32 studies involved 110,000 firefighters, most of them full-time male firefighters. Risk for 20 different cancers was classified into three categories—"probable", "possible" or "not likely". Patterned after the risk assessment model used by the International Agency for Research on Cancer the study made the following findings.
First, there was a probable risk for multiple myeloma, Non‑Hodgkin lymphoma and prostate cancer. Secondly, there was a possible risk for testicular cancer, skin cancer, malignant melanoma, brain cancer, and cancer of the rectum, buccal cavity, pharynx, stomach and colon, as well as leukaemia. Thirdly, there was an unlikely risk for cancer of the larynx, bladder, oesophagus, pancreas, kidney, liver and lung, as well as Hodgkin's disease. Another large international study was the study of cancer amongst United States firefighters published in 2016. This was a five year study of nearly 30,000 firefighters from Chicago, Philadelphia and San Francisco fire departments. The firefighters showed higher rates of certain types of cancers than the general United States population.
Ms Liesl Tesch: Which is why they need workers compensation legislation.
Mr ALISTER HENSKENS: Based on United States cancer rates, first, firefighters in the study had a greater number of cancer diagnoses.
Ms Liesl Tesch: So why don't you look after them in the compensation?
Mr ALISTER HENSKENS: I know the member for Gosford has come in halfway through the speech but her interjections show a lack of knowledge of what I have been saying to the House for some time and they are regrettable. I would prefer it if she desisted from making such uninformed and erroneous comments. I will continue. First, firefighters in the study had a greater number of cancer diagnoses and cancer-related deaths. These were mostly digestive, oral, respiratory and urinary cancers. Secondly, there were more cancers among young firefighters. For example, firefighters in the study who were under 65 years of age had more bladder and prostate cancers. The Ottawa firefighters study published in 2017 made two critical findings. First, firefighters absorb carcinogenic and DNA damaging chemicals through their skin, and preventing skin exposure can greatly reduce the risk of disease.
Secondly, according to researchers, many previous studies show firefighters have an increased risk of cancers and other serious illnesses because of their exposure to hazardous chemicals found in smoke. As I mentioned earlier, these studies are robust credible academic studies. These studies inform the Government's position to establish presumptive rights to workers compensation for firefighters in respect of certain cancers. I am emphasising this because it is important to get this right. Presumptive legislation is important and it is important our firefighters get the protection they need. I now turn to the Workers Compensation (Firefighters' Presumptive Rights to Compensation) Bill 2018 introduced by the member for Fairfield. which is, as noted on the bill:
An Act to establish presumptive rights to workers compensation for firefighters suffering from certain kinds of cancer.
It is a noble and proper aim and an aim that this Government supports. However, this bill is not the right vehicle to achieve this aim. The Government supports the introduction of presumptive workers compensation legislation for our firefighters regarding specific cancers where the research shows there is a link. The bill proposed by the member for Fairfield does not sit well with the existing workers compensation legislative framework. It provides further complication and complexity by introducing yet another Act to sit alongside the current Act. I quote from the bill. Clause 3 states:
3. Relationship to workers compensation Acts
(1)This Act is to be construed with, and as if it formed part of, the following Acts:
(a)the 1987 Act,
(b)the 1998 Act,
(c)the volunteer firefighters compensation Act.
(2)In the event of an inconsistency between this Act and the 1987 Act, the 1998 Act or
the volunteer firefighters compensation Act, this Act prevails to the extent of the
Where the Acts are defined as:
the 1987 Act means the Workers Compensation Act 1987.
the 1998 Act means the Workplace Injury Management and Workers Compensation Act 1998
the volunteer firefighters compensation Act means the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987.
Members of this Parliament are all too familiar with and recognise that there is extreme complexity in the workers compensation Acts. A firefighter is already covered by the Workers Compensation Act 1987, the Workplace Injury Management and Workers Compensation Act 1998, and the Workers Compensation Regulation 2016. A volunteer firefighter is covered by the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998, the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 and the Workers Compensation Regulation 2016. The members opposite, through this private member's bill, want to add another Act into that already complex mix. I think it really raises a question for those members opposite. Noting that this bill introduces a new Act into the workers compensation legislation, how was the Act intended to operate with the definitions of workers compensation legislation as per the Workplace Injury Management and Workers Compensation Act 1998? I quote the definition of workers compensation legislation in the 1998 Act:
"workers compensation legislation" means:
(a)this Act and the instruments under this Act, or
(b)the 1987 Act and the instruments under that Act, or
(c)theWorkers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 and the instruments under that Act, or
(d)theWorkers' Compensation (Dust Diseases) Act 1942 and the instruments under that Act, or
(e)any other Act or instrument (or part) prescribed by the regulations.
I have read the Workers Compensation (Firefighters' Presumptive Rights to Compensation) Bill 2018 from front to back several times, yet I am not clear that the proposed Act would operate within that definition. The Workers Compensation (Firefighters' Presumptive Rights to Compensation) Bill 2018 introduces more complexity. This Government is committed to simplifying workers compensation as much as possible, not adding to the complexity of an already complex system. Section 5 of the Workers Compensation (Firefighters' Presumptive Rights to Compensation) Bill 2018 seeks to define "firefighters" in clause 5 as:
(1)Aneligible firefighter is a person who is an employed firefighter or a volunteer firefighter.
(2)Anemployed firefighter is a worker who:
(a)is employed as a firefighter, or
(b performs firefighting duties as a substantial part of his or her employment.
(3)Volunteer firefighter has the same meaning as official fire fighter has in Part 2 of the volunteer firefighters compensation Act.
(4)Theservice period for an eligible firefighter is the total period during which the firefighter is employed as a firefighter (including where the employment involves the performance of firefighting duties as a substantial part of the employment) or is engaged as a volunteer firefighter (or both).
Definitions are very important to any legislation, particularly in workers compensation legislation. Poor, open and vague definitions will ultimately lead to disputes. Just yesterday this House debated and passed the Workers Compensation Legislation Amendment Bill 2018. I thank the Minister for Finance, Services and Property, the member for Ryde, for the work he and his staff have undertaken to bring the Workers Compensation Legislation Amendment Bill 2018 to Parliament. As all members would be aware a key objective of that bill was to simplify the dispute resolution process and introduce amendments to reduce workers compensation disputes. It seems that members of the Opposition have not taken into account anything from that process, as the Workers Compensation (Firefighters' Presumptive Rights to Compensation) Bill 2018 that they brought before this House will inevitably lead to an increase in disputes. For example, the definition of "firefighter" in clause 5 (1) of the bill states:
Aneligible firefighter is a person who is an employed firefighter or a volunteer firefighter.
That seems simple and clear enough but clause 5 (2) then states:
Anemployed firefighter is a worker who:
is employed as a firefighter, or
performs firefighting duties as a substantial part of his or her employment.
Clause 2 (a) also seems simple enough but under clause 5 (2) (b) does the firefighter have to prove or provide evidence that they performed firefighting duties as a substantial part of their employment? I ask members opposite: What does "substantial" mean in this case? Does it mean 10 or 20 per cent of their work time? Does it mean 10 hours a day or 50 per cent? By leaving critical definitions ambiguous as to who can and who cannot claim under the bill through vague language leads to uncertainty. It will lead to distress to workers. It will burden our courts. It will lead to judges having to determine those matters and it will ultimately lead to stress and anxiety for workers as to what their legal position is. The definition of "firefighting duties" in the bill presents similar problems. These are but some examples of the problems inherent in the drafting of this bill. As I have already said, it is extremely important that a well formulated and considered bill is put to this Parliament. As a consequence the Workers Compensation (Firefighters' Presumptive Rights to Compensation) Bill 2018 should not be supported in its current form.