Wednesday, 8 June 2022

Bills

Firefighters’ Presumptive Rights Compensation Legislation Amendment Bill 2022

Second reading

Debate resumed on motion of Ms MAXWELL:

That the bill be now read a second time.

Mr MELHEM (Western Metropolitan) (14:52): I rise to speak on the Firefighters’ Presumptive Rights Compensation Legislation Amendment Bill 2022. I want to thank Ms Maxwell for raising this very important issue. However, the government at this point in time will not be supporting this bill, not because of the intention of the bill—I think we all support the intention, what the bill is trying to do—but we do not believe, in the way it is currently constituted and put together, it has fully addressed the issue. It seeks to rush to a solution without proper research and consultation.

I want to take the opportunity today to thank first responders—it is Thank a First Responder Day—and I want to thank all the female firefighters and indeed all our amazing first responders who are across our state right now keeping us safe. The government does recognise the contribution of and the great work that is done by our first responders, particularly firefighters, the dangerous work they do and their susceptibility to certain types of cancer. That is why we developed and passed the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act in 2019 after incredible work by the sector to identify the risks of certain cancers.

Now, the cancer types and qualifying period in Victoria’s presumptive rights scheme are based on the commonwealth legislation and are consistent with other Australian jurisdictions. That is why I made the point earlier that before we put that bill in place a fair bit of research needed to be done to make sure we got it right. I remember the debate here not long ago in relation to the amendments in relation to the presumptive rights, when we wanted to include some 90-odd mechanics into the presumptive rights, and that caused a bit of tension. So it is important that whatever scheme we design—or if we are expanding an existing scheme—further research is done. And as I said, by no means should it be taken that we are not supporting the intent and the issue itself in making sure we actually get that right.

Our government is committed to increasing the number of women in our fire services and making those spaces safer and more welcoming for them. We are also fiercely committed to the landmark presumptive rights scheme that we passed, as I said earlier, so people who contracted cancers known to be caused by firefighting are able to access the help they need when they need it.

While we support the intention of this bill, we have been doing a significant body of work already on the expansion of the presumptive rights to further cancers. Ms Maxwell knows this very well because we had these discussions in this place a few months ago during the passage of the Workplace Safety Legislation and Other Matters Amendment Bill 2021, which included vehicle and equipment maintenance workers, as I mentioned earlier, in the presumptive rights scheme due to potential exposure at fires. I remember that that went through a committee of the whole, and a lot of questions were asked, and rightly so, and that issue itself was actually discussed in some detail.

Now, these changes did include further employees in the scheme. It did not change the fundamentals of the scheme but rather prevented the exclusion of people who regularly attend fires. I think that is very important. While we made that amendment to cover the 90-odd maintenance workers who should have been and are now covered by the scheme but were not covered under the 2019 legislation, extending the list of cancers has some implications for both the existing list of covered cancers and any future inclusions. During that debate we undertook directly to members of this house to do the work on the issue of including female cancers, and we are doing that.

The minister is not in today—she is recovering—but hopefully she will recover and be here, maybe tomorrow or next sitting week. I am aware that she has asked the department to look into this issue and is working on an effective and lasting solution to bring back to the house at the proper time. So it is very important that the house is aware of what the minister has done already and will continue to do by instructing the department to make sure we address this issue properly and bring in the appropriate amendment or legislation to the house to address the very issue Ms Maxwell has raised. So this work is ongoing and will involve broad consultation on the proposed changes once they have been drafted. We have kept Ms Maxwell up to date on the progress of this work, and we will gladly also update any other member interested in knowing more.

One of the major obstacles rightly identified here is that having low numbers of female firefighters impacts the ability to sufficiently study the cancer risk and to obtain statistically significant results. I think it is very important to make sure that whatever decision we make in relation to these presumptive rights is based on some proper research, and statistics have to back whatever decisions we might arrive at. Again I go back to the decision we made to include the 90-odd maintenance workers, and that in itself has caused a lot of angst amongst the existing members of our firefighting teams, who basically thought including just 90 people could actually compromise the system. I do not believe that would be the case. But the point I am making is I think in order to expand the definition we need to make sure it is based on proper research and statistical support, and any change we make should not compromise other schemes we might have in place.

We are now working hard as a government to get more women in our firefighting services, and unfortunately that will not happen overnight. But it will happen, and I encourage more women to actually join the service. I am sure over time we will have more female members of the firefighting services, whether that is in the career firefighting service or the CFA and the volunteer fire services. We know, however, there is some emerging evidence coming out of North America about these female cancers, and this is one of the things we are looking at closely when developing our policy on that issue. So it is important to get these changes right and not to try to pass legislation on this in bits and pieces or in a form that will require amendment later. Female firefighters need certainty about their eligibility and coverage. Rushing into these changes without proper process risks having to amend the changes later.

It is my understanding that there have also been other cancers added to other international schemes beyond the three female-specific cancers of uterine, vaginal and cervical cancer. Additional cancers that could be considered for inclusion in Victoria in the presumptive rights scheme include lung, ovarian, cervical, penile, thyroid, pancreatic, skin and uterine cancer. Some of these have been included in the presumptive rights schemes in Canadian provinces and some states in the United States, and we are also aware that different cancers have different onset qualifying periods for them in relation to the scheme needed to accurately reflect these differences. So that is why we want to get these qualifying periods right, to make sure that women get the coverage of their cancers at the right time and none are excluded unfairly. The reason I mention some of these experiences in North America is to actually demonstrate that the government is not dismissing what Ms Maxwell is trying to put into legislation. The fact is we are working on making sure that we look at what happens in other jurisdictions around the world, where they are researching, to make sure we are developing more comprehensive legislation to address that very issue. With some of the issues we have here today we are not there yet, but hopefully we will get to a point where we are able to bring a bill to the house to address these issues.

The other thing is we need to encourage more women to actually join the firefighting services, as I said earlier. For example, the 2022–23 budget provided $9 million for gender-inclusive upgrades at 40 priority CFA stations and our three major training campuses. Women who want to sacrifice their time to keep Victorians safe deserve facilities to match, and we know that the lack of proper change rooms, for example, bathrooms and turnout facilities has been a major obstacle. So that is why it is very important that we actually put in the right investment to make sure we encourage more women to join the services.

I want to conclude by saying this. We in the Andrews government are supportive of having—and we already have demonstrated that we want to have—more and more women in the fire service, whether it is Fire Rescue Victoria or the CFA, because we believe that the door should be open, actually double doors should be open, to make sure that we give women the opportunity to participate. I know there are a lot of women who would actually love to be firefighters. If we look at the other first responders—whether it is paramedics, whether it is nurses, whether it is doctors or whether it is people from SES—the number of women participating and part of emergency services is actually increasing, and firefighting is one other example. As another example, in the forest firefighting space there are a significant number of female participants, and now we need to spread that to other services like the CFA and Fire Rescue Victoria.

The Andrews Labor government will work hard to make sure that all the protection afforded to their male counterparts is actually afforded to female firefighters. More importantly, we will continue to consult with these women in the sector to make sure we hear from them so that whatever proposal we put in place has the support of our female firefighters. As I said earlier, we look at the experiences in North America and other jurisdictions around the world. If we learn from them, hopefully, sooner rather than later the Minister for Emergency Services will be able to come back to the house with comprehensive legislation or an amendment to the current legislation to address the very issue Ms Maxwell is trying to address in these amendments.

I commend Ms Maxwell for bringing this bill to the house and raising it as an issue, but I can assure Ms Maxwell and the house that the government have actually started work on putting together a process to basically bring that to the house, hopefully, one day.

Ms Taylor: Nicely done.

Mr MELHEM: Well, thank you. With those comments, I will leave my comments at that.

Mr RICH-PHILLIPS (South Eastern Metropolitan) (15:07): I am pleased to make some remarks on the Firefighters’ Presumptive Rights Compensation Legislation Amendment Bill 2022, which seeks to expand the range of cancers for which presumptive rights are available to firefighters. To provide some context for this debate, the WorkCover scheme provides that where a person is injured at work they are entitled to compensation and rehabilitation for their injuries, and those injuries can include contracting a disease—obviously cancer, and there are many respiratory diseases which can be contracted in the work environment. Under the WorkCover scheme a worker, or in some cases a volunteer, in a work environment or a volunteer environment is entitled to compensation and rehabilitation where they contract a disease or an illness as a consequence of their work. That is obviously a well-established principle of the WorkCover scheme, and it extends to—in this instance—firefighters who contract cancer as a consequence of their work as a firefighter. This bill specifically calls out primary site cervical cancer, primary site ovarian cancer and primary site uterine cancer as examples of cancers which may be contracted by firefighters as a consequence of their work as a firefighter.

Under existing legislation, if a firefighter was to contract one of those three cancers listed in the bill, they would be entitled to compensation and rehabilitation, if possible, under the WorkCover scheme, just as anyone else making a WorkCover claim for an illness would be entitled to seek compensation and rehabilitation under the WorkCover scheme. What the bill seeks to do is shift those three cancers into a special category where the onus of proving that the cancer or the illness was caused by the work activity is shifted from the person seeking to make the claim to the employer who in a common-law sense is defending the claim. This is something which has been used sparingly in the past where there is a strong recognised link between a particular illness and a particular workplace.

One of the earliest examples of where presumptive rights were created in respect of illness is the disease of Q fever. Q fever is a disease which is very rare in the general population. It is most commonly associated with people who work in the meat industry—people who work in abattoirs. Because Q fever is very rare in the general population and its occurrence is most common among people who work in the meat industry, it was very easy to establish the link between working in the meat industry and contracting Q fever. Because that link was very clear between the workplace, the type of work and the disease, Q fever was included in the scheme as an illness for which presumptive rights were available. That is to say that a worker who brought a WorkCover claim as a consequence of Q fever did not need to prove that Q fever was contracted as a consequence of their work; it was deemed to be the case because incidents of Q fever outside people working in the meat industry are very rare. There is a very clear causal link between that illness and that workplace, and for that reason people with Q fever making WorkCover claims were deemed to have contracted Q fever as a consequence of their work. If there was a belief that that was not the case, the onus was on the insurer or the employer to disprove the link between the illness, Q fever, and the workplace.

As the scheme has evolved we have seen more recently a similar presumptive mechanism put in place for 12 different types of cancer in relation to work as a firefighter. Those cancers, which are now listed in the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019, have been introduced into the presumptive framework, so again a person who is working as a firefighter and contracts one of those cancers is able to make a claim against the scheme for compensation for having that cancer without having to prove the cancer was contracted as a consequence of their work as a firefighter because the legislation deems that causal link to be there.

The reason those particular cancers were identified, and work was done at the commonwealth level as well as in other jurisdictions, was on balance it was believed there was a sufficient causal relationship between the 12 listed cancers and work as a firefighter. Consequently, earlier in this Parliament the decision was taken to insert those cancers into the schedule as deemed illnesses arising from the activity of firefighting based on evidence which existed in Australia—a body of evidence which also existed in North America—showing a higher incidence of the 12 listed cancers in people who participate in firefighting activity over a long period of time. The legislation also specifies the period of service as a firefighter that is required in order to access the presumption of cause for the particular cancers.

The bill we are dealing with today does, as I said, seek to add three cancers to that list—cervical cancer, ovarian cancer and uterine cancer—each after a 10-year period of service as a firefighter. The difference with these three cancers, though, as the second-reading speech acknowledges, is the evidentiary base to support their inclusion as having a causal link with firefighting activity has not yet been established. In the second-reading speech the proposer of the bill, Ms Maxwell, acknowledged that at this point in time that causal link has not yet been established. That is one of the challenges with a proposal such as this. Where the other 12 cancers were adopted into legislation on a presumptive basis it was where there was a long body of evidence that showed higher instances of those cancers among the firefighting population. What we do not have yet with the three cancers in the bill is evidence of that causation. It is important, in saying that, to recognise that where these cancers are believed to have occurred as a consequence of firefighting activity a person who contracts those cancers is entitled to make a claim under the WorkCover system and to have that claim tested and to receive compensation and treatment accordingly, as anyone else making a claim which is not within the presumptive framework can do.

The coalition appreciates the intent of this legislation. This is an evolving field, and we look forward to seeing over time where the evidentiary basis for these additional cancers is established and where consideration can be given to whether they be within the framework of presumptive rights.

Ms SHING (Eastern Victoria) (15:16): At the outset I want to thank Ms Maxwell for the work that she has done. I do not mean to talk about you in the third person; you are sitting directly opposite me. Ms Maxwell, you have done a power of work to really bring some sunlight to the issue of injury faced by workers in the course of their work, whether or not causation is established. It is a small point but one that I want to pick up on, following Mr Rich-Phillips’s contribution. I do not think that it was intentional, but he said that in the event of a cancer that was caused by attendance at a particular fire there would be a presumption that it had occurred in a way that connected the attendance with the presence of a number of listed cancers. The very nature of presumptive legislation is that you do not need to prove causation, that the very existence of one or more of a number of listed cancers in that legislation is sufficient to overcome any evidentiary requirements that might otherwise have been in place but for the attendance at certain types of fires, including structural fires. So I think that that is a really important thing to outline and just put onto the record in the course of this discussion, and so is the work that you have done, Ms Maxwell, in seeking to advance the conversation that we are having around presumptive legislation and around the inherent risks associated with frontline and first-responder work.

As Mr Melhem has indicated, it is poignant and it is also directly relevant that today is Thank a First Responder Day. We know that our first responders time and time again put themselves in harm’s way in order to protect life and property and that every year we see that time and time again at great personal cost, not just physically but psychologically, to our first responders and also to their families. I know, from various discussions we have had over the years around the impact of work-related injury on families, that is a source of ongoing devastation and of trauma, and I think that is worth noting in the context of Thank a First Responder Day and then also in bringing it back to the conversation we are having here today around the bill, which is proposed to address those female-specific cancers, including as they arise within a range of circumstances listed in the bill.

Again, I want to touch on a range of other cancers as they have been flagged in other jurisdictions and what that looks like as far as ongoing work is concerned. The three specific forms of cancer being proposed in this bill are uterine, ovarian and cervical cancer. We know though that there are other forms of cancer which do in fact as a primary presentation have a propensity, from looking at other jurisdictions, to occur in similar circumstances to that exposure or a reasonably anticipated or concluded exposure through attendance at a fireground or in another hazardous circumstance. Those cancers that I think are really relevant to this discussion include lung cancer, ovarian cancer, cervical cancer, as I have referred to, penile cancer and thyroid, pancreatic, skin and uterine cancers. We have got those three that are already proposed by this bill, but then there are others. I think that we really need to make sure that this work continues to create a scheme which does the right thing by those who are exposed in a range of circumstances, including as those cancers may arise in other presentations beyond the three set out in this bill.

I know from discussions with the Minister for Workplace Safety’s office and indeed with the minister that this is an issue which does require ongoing work and that there is a commitment to working with Ms Maxwell on progressing these issues so that we can give this the same level of attention and interrogation that it deserves to fill these gaps in policy and also to correct the wicked problem that we face here, which is the disproportionate application of protection and recognition for work-related injury and for first responder related injury, whether or not that causative link has been established. I think that that probably underpins the basis upon which the bill will not be supported, noting that the purpose and the objectives as they have been put in this private members bill are in fact the starting point for the work which government is undertaking to do this and to do it properly. So it should not be concluded—and I would hope that it would not be concluded—that government is not committed to this work and is not putting in the work at a departmental level, at a ministerial level, at an agency level and of course at a level which includes members like you, Ms Maxwell, who have fought really hard for these additional issues to be recognised.

We have had a long journey in relation to presumptive legislation, and we have had a number of significant inquiries. The Fiskville inquiry was a really important part of the discussion around the exposure of firefighters to PFOS and PFAS and the way in which hazardous materials were stored, deployed, managed and indeed addressed in the event of spills. This is something which, again, I would hope, Ms Maxwell, you can recognise as having been a key focus of the government across a number of different portfolios, not just since you came to the chamber but also in the years preceding. There are a range of things which this government is particularly resolute on when it comes to workplace health and safety. I am really pleased that Minister Stitt has been able to drive such an ambitious agenda around recognising the risks associated with certain industries, certain occupations, and the fact that all too often we turn away from having these conversations and amending law because it is too hard or it might cost money or indeed it might not serve some form of political narrative. The Andrews government has worked really tirelessly to lean into these conversations and to have them in a way that reflects various inquiries, various reports and the forensic examination of injury, of risk, of cause, of systems of work that exist and indeed should be improved and of the nature of education, of prosecution and of deterrence in encouraging and indeed pushing people toward best and indeed better practice that is safer and that means that people can get home to their loved ones and can in fact live their lives without the spectre of exposure following attendance at a site such as a structural fire.

Work is ongoing as it relates to the mechanisms by which these additional protections can be incorporated into a presumptive rights scheme. This will be a scheme that is brought back as a fully developed proposal once that development and consultation are complete. We are in really complex territory as it relates to what other jurisdictions have done, in particular the way in which Canadian provinces and some states of the US have looked at this set of concerns and issues as they relate to further refinements to presumptive legislation. But in the meantime we are also really keen to invest in women in firefighting and what that means across the board in culture, in safety, in training and in career opportunities, volunteering opportunities and the respect and the recognition that women in particular deserve over and above what is being done in this space.

I hope that gives you both some comfort around the level of seriousness with which this government, our government, is approaching these issues, I hope that these conversations that you are driving and that you are a key part of will continue and I hope that that will then culminate in a proposal which does not only meet the challenges that you have identified in the bill but provide a full consideration of the incidence of cancer or exposure that should, by the operation of a presumption, be recognised to have been caused by or contributed to by attendance at a frontline response situation.

With those few words I am going to sit down and perhaps enable one of you to sum up. But thank you for bringing this bill. Thank you for your ongoing advocacy. I look forward to this work being completed so that more Victorians can get the respect and the recognition that they deserve through investment in safe and healthy workplaces and frontline response locations.

Mr GRIMLEY (Western Victoria) (15:27): I move:

That debate be adjourned until later this day.

Motion agreed to and debate adjourned until later this day.