Workcover Victims Victoria

Understanding is a key to coping with mental illness

2012-01-19T23:39:00.002+11:00

Harmony's Story:

Harmony Brown shares her experience because she wishes someone has spoken out to help her.

Harmony Brown is a mental health advocate who talks to groups about her own struggles and success to give people dealing with similar issues hope for the future.

Harmony Brown recalls having suicidal thoughts when she was as young as nine years old. She attempted suicide at 17 and went through years of emotional turmoil before finally finding the help she so desperately needed.

It's a personal history many people in a similar situation would hide even from their closest friends. But Brown talks about it openly because she knows discussing her mental health is a way to give hope to others facing similar challenges."I know suicide is preventable," says Brown, 36, a Toronto-based mental health advocate."Otherwise, I wouldn't be here.

And I know recovery is possible because I have gone through it."If only someone else had spoken out when she was younger, she might have understood some of the sources of mental illness, shes ays. "We didn't have much information and didn't understand the genetic factor in mental illness," says Brown, whose father also had a mental illness. "It was even more of a taboo subject then than it is now, so I didn't get the help I needed."

"There is a tendency in some families for suicide to be a common phenomenon across multiple generations," says University of Toronto professor of psychiatry Dr. David Gold-bloom, a senior medical adviser with the Centre for Addiction and Mental Health and vice-chair of the Mental Health Commission of Canada.

"But no one has identified a gene for suicide and it is unlikely that something as complex and determined by as many factors as suicide would ever be linked to a single gene. Because suicide is a complex human behaviour, the genetic contributions to it are likely to be complex."

"We know that mental illnesses aggregate in families," says Heather Stuart, a professor in the Department of Community Health and Epidemiology at Queen's University. "And we think it is a fairly complex bio-psycho-social mix of factors, so there may be genetic loading, environmental factors and a whole host of things going on at the same time."

Goldbloom emphasizes the importance of the context in which suicidal thoughts and attempts occur."For instance, alcohol abuse is a risk factor for suicide and there are many genetic components to a vulnerability to alcoholism. Depression is another common context for suicide and there is significant evidence of biological risk factors, including genetics, that increase one's vulnerability to developing depression."Brown says the factors that put her at risk were considerable.

There was the physical and emotional abuse she experienced during childhood, her parents' divorce and having to care for her three young brothers, as well as moving and changing schools several times in her teens.

"Life events like these take a toll on anyone's mental health," she says. "I was vulnerable due to genetic factors and I didn't have great self-esteem, decision-making or coping skills - all the things that come with poor mental health. I got involved in drugs and alcohol. The result of making poor life choices is cumulative and you have even more stress and turbulence in your life."

After receiving a diagnosis of bipolar disorder, "I really got discouraged and abandoned everything. The diagnosis was incorrect. So was the medication."

In 2004, when Brown was 28, her father hanged himself. "Because I was responsible for the estate, I put my grief and emotions on hold. Two years after my dad passed away, I admitted myself to the Centre for Addiction and Mental Health."

There, Brown was diagnosed with major depressive disorder and post-traumatic stress disorder. "Once I got a diagnosis and prescription that fit, I was in a better place to manage the anxiety symptoms that come with PTSD," she says.

Two years later, she returned to work and school. She was teaching English in Cambodia when her 23-year-old brother committed suicide.

"That's why I came back to Canada. I didn't have a job or a place to stay. This was the second suicide in my family. I had the same illness. My boyfriend couldn't handle the intensity and bailed. If there was ever a perfect storm for a relapse, this was it. But I hung onto my recovery when all the odds were against me."

Now, says Brown, who works for Toronto Community Housing, is completing a degree in social work and runs her own business, her aim is making "recovery an option for everyone."

Ref: The Vancouver Sun
Photograph by: Tim Fraser, Postmedia News, Postmedia News

By Iris Winston, Postmedia News January 19, 2012

Shorten: Workplace review no surprise

2012-01-19T23:24:00.001+11:00

January 18, 2012.

WORKPLACE Relations Minister Bill Shorten says the timeframe for the Fair Work Act review is not too quick - despite employers having less than a month to have their say.

He lashed out at the opposition's criticism of the timetable, saying interested parties had known the review was coming for two years now.

An expert panel conducting the review released a background paper and timetable for the submission process today.

Written submissions are due by February 17, ahead of a cut-off for supplementary submissions on March 2, with the panel due to report back to government by May 31.

The panel is planning discussions and roundtable meeting with all key employer and employee representatives and has promised all views will be heard.

Opposition workplace relations spokesman Eric Abetz says the short timeframe does not give people time for comprehensive consideration of their submissions.

He believed the process was skewed to those involved in representational groups and ignored a majority of non-union workers and small employer.

But Mr Shorten said people should be prepared for the review since it had been on the cards for the past two years.

He pointed out there would be an opportunity to make secondary submissions responding to other parties as well.

"It's not as though workplace relations is secret business conducted in a black box," he said in a statement today."Interested people have known about this for some time."

Mr Shorten said the opposition was trying to have things both ways."The federal opposition usually like to say we review too much and now they complain this one is too quick," he said."They should determine their poison and stick to it."

The Australian Industry Group, which has been vocal in saying Australia's international competitiveness is falling due to industrial relations constraints, welcomed the panel's discussions paper.

Chief executive Heather Ridout said the questions raised in the paper were useful as far as giving some focus to the review.

Her group intends to make a formal submission.

Bullying Behaviours Checklist

2012-01-17T23:58:00.002+11:00

Bullying Behaviours Checklist

WorkSafe CEO quits amid $470m budget raid

2012-01-17T21:37:00.000+11:00

January 11, 2012

The head of Victoria's workplace safety authority has announced his resignation weeks after the Victorian government ripped more than $470 million from its budget.

Greg Tweedly, who has been chief executive of WorkSafe since 2003, announced his resignation to his staff today.

The move comes less than a month after the state government announced in a revised budget outlook that $471.5 million would be taken from Victoria's workplace insurance scheme over four years and funnelled into general revenues.

But a state government spokeswoman said the resignation did not have any link to recent budgetary changes and stressed that it was "entirely Mr Tweedly's decision" to leave at this time.

The revised budget, announced in December, was designed to slash costs and prop up revenues to keep the government in surplus.

The decision meant 3600 public sector jobs would vanish while motorists would be slugged with higher registration fees.

The WorkCover Authority, which is funded by employers through premiums to insure against accidents, will have to hand over its profits until 2014-15.

The state opposition has blasted the budgetary plans and called the changes to WorkCover a cash grab.

"Mr Tweedly has obviously served WorkCover well in the nine years he's been with the organisation," opposition spokesman Robin Scott said.

"But his departure will mean it will be even more difficult for WorkSafe to recover from the half a billion dollars being ripped out of the authority."

A WorkSafe spokeswoman said budgetary changes had no bearing on Mr Tweedly's decision and that he had been thinking about it for some time.

He is expected to stay on with the authority until a replacement can be found and hired, likely by July.

AAP

WORKPLACE INJURY MANAGEMENT AND WORKERS COMPENSATION (MEDICALEXAMINATIONS AND REPORTS) ORDER 2011

2012-01-15T23:12:00.002+11:00

Medical Examinations and Reports Order 2011

Bullying Guide for Employers.

2012-01-15T23:08:00.000+11:00

‘THE REINTRODUCTION OF COMMON LAW; THE VICTORIAN EXPERIENCE’

2012-01-07T23:19:00.001+11:00

The submission below reflects the thoughts of a very experienced
Solicitor Paul Mulvaney. Paul is a previous member of the equivalent
of the Compensation Court in Victoria.

This paper acknowledges the valid criticisms of the traditional common law model and succinctly puts the arguments in favour of having the common law action as a part of a modern mixed compensation system, it being a well-focused distributive mechanism that provides an extra layer of compensation to the most seriously injured and in the most reprehensible of circumstances.

Paul acknowledges that in the modern blended compensation system,
the Common Law right must exist with appropriate conditions in respect
of reducing costs and transaction costs and there must be proper control
mechanisms which are equitable and predictable.

The Victorian Government has reinstated common law in a "limited" way.

There are clearly strong policy reasons for having a system in which
common law is available in cases where injured workers and their families
are most adversely affected economically or otherwise, particularly if there is culpability on the part of the employer.

Introduction

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’)

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 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 predicability.

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 iv 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 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 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 existence of a common law claim may discourage an employer from improving safety at the workplace (i.e. 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 claim, and the size of common law awards.

• 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 action can have a significant effect on the size of medical costs i.e. ‘medico-legals’.

• 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 (i.e. the ‘forensic lottery’)

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 v 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 community’s sense of justice.

• 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 claim’s agent /insurer.

• 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 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 vi, 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 vii 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.

1992 – 1997 WorkCover Changes

From 1992 and leading up to the abolishment of common law in 1997 some of the major Kennett government changes included:

• 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 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 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 medical questions to include questions of fact and removing judicial review of decisions

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 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 confluence of at least three factors, namely:

• 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 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 particular manage the existing common law claim process.

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 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 WorkCover’s 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 the 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 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.

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.

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.

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 business 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 sector 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.

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.

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.

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 s 83(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. 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".

The Law Institute Journal - Workcover - Cover Up

2012-01-07T22:54:00.000+11:00

Workcover Up - Law Institute Journal 1997

HABEAS CORPUS ACT 1640

2012-01-07T22:17:00.001+11:00

The `Habeas Corpus Act 1640` is an Act of the Parliament of England (16 Cha I. c. 10) with the long title `An Act for the Regulating the Privie Councell and for taking away the Court commonly called the Star Chamber.` The Act was passed by the Long Parliament shortly after the impeachment and execution of Thomas Wentworth, 1st Earl of Strafford in 1641 and before the English Civil War. It abolished the Star Chamber.

HABEAS CORPUS ACT 1679 is an Act of the Parliament of England (31 Cha. 2 c. 2)[1] passed during the reign of King Charles II to define and strengthen the ancient prerogative writ of habeas corpus, whereby persons unlawfully detained can be ordered to be prosecuted before a court of law.

The Act is often wrongly described as the origin of the writ of habeas corpus, which had existed for at least three centuries before. The Act of 1679 followed an earlier act of 1640, which established that the command of the King or the Privy Council was no answer to a petition of habeas corpus. Further Habeas Corpus Acts were passed by the British Parliament in 1803, 1804, 1816 and 1862, but it is the Act of 1679 which is remembered as one of the most important statutes in English constitutional history. Though amended, it remains on the statute book to this day.

The Act came about because the Earl of Shaftesbury encouraged his friends in the Commons to introduce the Bill where it passed and was then sent up the Lords. Shaftesbury was the leading Exclusionist—those who wanted to exclude Charles II's brother James, Duke of York from the succession—and the Bill was a part of that struggle as they believed James would rule arbitrarily. The Lords decided to add many wrecking amendments to the Bill in an attempt to kill it; the Commons had no choice to pass the Bill with the Lords' amendments because they learned that the King would soon end the current parliamentary session.

The Bill went back and forth between the two Houses, and then the Lords voted on whether to set up a conference on the Bill. If this motion was defeated the Bill would stay in the Commons and therefore have no chance of being passed. Each ide—those voting for and against—appointed a teller who stood on each side of the door through which those Lords who had voted "aye" re-entered the House (the "nays" remained seated). One teller would count them aloud whilst the other teller listened and kept watch in order to know if the other teller was telling the truth. Shaftesbury's faction had voted for the motion, so they went out and re-entered the House. Gilbert Burnet, one of Shaftesbury's friends, recorded what then happened:

"Lord Grey and Lord Norris were named to be the tellers: Lord Norris,
being a man subject to vapours, was not at all times attentive to what
he was doing: so, a very fat lord coming in, Lord Grey counted him as
ten, as a jest at first: but seeing Lord Norris had not observed it, he
went on with this misreckoning of ten: so it was reported that they that
were for the Bill were in the majority, though indeed it went for the
other side: and by this means the Bill passed." [2]

The clerk recorded in the minutes of the Lords that the "ayes" had fifty-seven and the "nays" had fifty-five, a total of 112, but the same minutes also state that only 107 Lords had attended that sitting.[3]

The King arrived shortly thereafter and gave Royal Assent before proroguing Parliament. The Act is now stored in the Parliamentary Archives

Ref: http://larryhannigan.com/habeascorpus.htm

THE MAGNA CARTA

2012-01-07T22:07:00.000+11:00

John, by the grace of God King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou, to his archbishops, bishops, abbots, earls, barons, justices, foresters, sheriffs, stewards, servants, and to all his officials and loyal subjects, greeting.

Know that before God, for the health of our soul and those of our ancestors and heirs, to the honour of God, the exaltation of the holy Church, and the better ordering of our kingdom, at the advice of our reverend fathers Stephen, archbishop of Canterbury, primate of all England, and cardinal of the holy Roman Church, Henry archbishop of Dublin, William bishop of London, Peter bishop of Winchester, Jocelin bishop of Bath and Glastonbury, Hugh bishop of Lincoln, Walter Bishop of Worcester, William bishop of Coventry, Benedict bishop of Rochester, Master Pandulf subdeacon and member of the papal household, Brother Aymeric master of the Knights of the Temple in England, William Marshal, earl of Pembroke, William earl of Salisbury, William earl of Warren, William earl of Arundel, Alan de Galloway constable of Scotland, Warin Fitz Gerald, Peter Fitz Herbert, Hubert de Burgh seneschal of Poitou, Hugh de Neville, Matthew Fitz Herbert, Thomas Basset, Alan Basset, Philip Daubeny, Robert de Roppeley, John Marshal, John Fitz Hugh, and other loyal subjects:

1. First, that we have granted to God, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired. That we wish this so to be observed, appears from the fact that of our own free will, before the outbreak of the present dispute between us and our barons, we granted and confirmed by charter the freedom of the Church's elections - a right reckoned to be of the greatest necessity and importance to it - and caused this to be confirmed by Pope Innocent III. This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity. We have also granted to all free men of our realm, for us and our heirs for ever, all the liberties written out below, to have and to keep for them and their heirs, of us and our heirs:

2. If any earl, baron, or other person that holds lands directly of the Crown, for military service, shall die, and at his death his heir shall be of full age and owe a `relief', the heir shall have his inheritance on payment of the ancient scale of `relief'. That is to say, the heir or heirs of an earl shall pay for the entire earl's barony, the heir or heirs of a knight l00s. at most for the entire knight's `fee', and any man that owes less shall pay less, in accordance with the ancient usage of `fees'

3. But if the heir of such a person is under age and a ward, when he comes of age he shall have his inheritance without `relief' or fine.

4. The guardian of the land of an heir who is under age shall take from it only reasonable revenues, customary dues, and feudal services. He shall do this without destruction or damage to men or property. If we have given the guardianship of the land to a sheriff, or to any person answerable to us for the revenues, and he commits destruction or damage, we will exact compensation from him, and the land shall be entrusted to two worthy and prudent men of the same `fee', who shall be answerable to us for the revenues, or to the person to whom we have assigned them. If we have given or sold to anyone the guardianship of such land, and he causes destruction or damage, he shall lose the guardianship of it, and it shall be handed over to two worthy and prudent men of the same `fee', who shall be similarly answerable to us.

5. For so long as a guardian has guardianship of such land, he shall maintain the houses, parks, fish preserves, ponds, mills, and everything else pertaining to it, from the revenues of the land itself. When the heir comes of age, he shall restore the whole land to him, stocked with plough teams and such implements of husbandry as the season demands and the revenues from the land can reasonably bear.

6. Heirs may be given in marriage, but not to someone of lower social standing. Before a marriage takes place, it shall be' made known to the heir's next-of-kin.

7. At her husband's death, a widow may have her marriage portion and inheritance at once and without trouble. She shall pay nothing for her dower, marriage portion, or any inheritance that she and her husband held jointly on the day of his death. She may remain in her husband's house for forty days after his death, and within this period her dower shall be assigned to her.

8. No widow shall be compelled to marry, so long as she wishes to remain without a husband. But she must give security that she will not marry without royal consent, if she holds her lands of the Crown, or without the consent of whatever other lord she may hold them of.

9. Neither we nor our officials will seize any land or rent in payment of a debt, so long as the debtor has movable goods sufficient to discharge the debt. A debtor's sureties shall not be distrained upon so long as the debtor himself can discharge his debt. If, for lack of means, the debtor is unable to discharge his debt, his sureties shall be answerable for it. If they so desire, they may have the debtor's lands and rents until they have received satisfaction for the debt that they paid for him, unless the debtor can show that he has settled his obligations to them.

10. If anyone who has borrowed a sum of money from Jews dies before the debt has been repaid, his heir shall pay no interest on the debt for so long as he remains under age, irrespective of whom he holds his lands. If such a debt falls into the hands of the Crown, it will take nothing except the principal sum specified in the bond.

11. If a man dies owing money to Jews, his wife may have her dower and pay nothing towards the debt from it. If he leaves children that are under age, their needs may also be provided for on a scale appropriate to the size of his holding of lands. The debt is to be paid out of the residue, reserving the service due to his feudal lords. Debts owed to persons other than Jews are to be dealt with similarly.

12. No `scutage' or `aid' may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter. For these purposes ouly a reasonable `aid' may be levied. `Aids' from the city of London are to be treated similarly.

13. The city of London shall enjoy all its ancient liberties and free customs, both by land and by water. We also will and grant that all other cities, boroughs, towns, and ports shall enjoy all their liberties and free customs.

14. To obtain the general consent of the realm for the assessment of an `aid' - except in the three cases specified above - or a `scutage', we will cause the archbishops, bishops, abbots, earls, and greater barons to be summoned individually by letter. To those who hold lands directly of us we will cause a general summons to be issued, through the sheriffs and other officials, to come together on a fixed day (of which at least forty days notice shall be given) and at a fixed place. In all letters of summons, the cause of the summons will be stated. When a summons has been issued, the business appointed for the day shall go forward in accordance with the resolution of those present, even if not all those who were summoned have appeared.

15. In future we will allow no one to levy an `aid' from his free men, except to ransom his person, to make his eldest son a knight, and (once) to marry his eldest daughter. For these purposes only a reasonable `aid' may be levied.

16. No man shall be forced to perform more service for a knight's `fee', or other free holding of land, than is due from it.

17. Ordinary lawsuits shall not follow the royal court around, but shall be held in a fixed place.

18. Inquests of novel disseisin, mort d'ancestor, and darrein presentment shall be taken only in their proper county court. We ourselves, or in our absence abroad our chief justice, will send two justices to each county four times a year, and these justices, with four knights of the county elected by the county itself, shall hold the assizes in the county court, on the day and in the place where the court meets.

19. If any assizes cannot be taken on the day of the county court, as many knights and freeholders shall afterwards remain behind, of those who have attended the court, as will suffice for the administration of justice, having regard to the volume of business to be done.

20. For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a husbandman the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood.

21. Earls and barons shall not be amerced save through their peers, and only according to the measure of the offence.

22. No clerk shall be amerced for his lay tenement except according to the manner of the other persons aforesaid; and not according to the amount of his ecclesiastical benefice.

23. Neither a town nor a man shall be forced to make bridges over the rivers, with the exception of those who, from of old and of right ought to do it.

24. No sheriff, constable, coroners, or other bailiffs of ours shall hold the pleas of our crown.

25. All counties, hundreds, wapentakes, and trithings--our demesne manors being excepted--shall continue according to the old farms, without any increase at all.

26. If any one holding from us a lay fee shall die, and our sheriff or bailiff can show our letters patent containing our summons for the debt which the dead man owed to us,--our sheriff or bailiff may be allowed to attach and enroll the chattels of the dead man to the value of that debt, through view of lawful men; in such way, however, that nothing shall be removed thence until the debt is paid which was plainly owed to us. And the residue shall be left to the executors that they may carry out the will of the dead man. And if nothing is owed to us by him, all the chattels shall go to the use prescribed by the deceased, saving their reasonable portions to his wife and children.

27. If any freeman shall have died intestate his chattels shall be distributed through the hands of his near relatives and friends, by view of the church; saving to any one the debts which the dead man owed him.

28. No constable or other bailiff of ours shall take the corn or other chattels of any one except he straightway give money for them, or can be allowed a respite in that regard by the will of the seller.

29. No constable shall force any knight to pay money for castleward if he be willing to perform that ward in person, or--he for a reasonable cause not being able to perform it himself--through another proper man. And if we shall have led or sent him on a military expedition, he shall be quit of ward according to the amount of time during which, through us, he shall have been in military service.

30. No sheriff nor bailiff of ours, nor any one else, shall take the horses or carts of any freeman for transport, unless by the will of that freeman.

31. Neither we nor our bailiffs shall take another's wood for castles or for other private uses, unless by the will of him to whom the wood belongs.

32. We shall not hold the lands of those convicted of felony longer than a year and a day; and then the lands shall be restored to the lords of the fiefs.

33. Henceforth all the weirs in the Thames and Medway, and throughout all England, save on the sea-coast, shall be done away with entirely.

34. Henceforth the writ which is called Praecipe shall not be to served on any one for any holding so as to cause a free man to lose his court.

35. There shall be one measure of wine throughout our whole realm, and one measure of ale and one measure of corn--namely, the London quart;--and one width of dyed and russet and hauberk cloths--namely, two ells below the selvage. And with weights, moreover, it shall be as with measures.

36. Henceforth nothing shall be given or taken for a writ of inquest in a matter concerning life or limb; but it shall be conceded gratis, and shall not be denied.

37. If any one hold of us in fee-farm, or in socage, or in burkage, and hold land of another by military service, we shall not, by reason of that fee-farm, or socage, or burkage, have the wardship of his heir or of his land which is held in fee from another. Nor shall we have the wardship of that fee-farm, or socage, or burkage unless that fee-farm owe military service. We shall not, by reason of some petit-serjeanty which some one holds of us through the service of giving us knives or arrows or the like, have the wardship of his heir or of the land which he holds of another by military service.

38. No bailiff, on his own simple assertion, shall henceforth any one to his law, without producing faithful witnesses in evidence.

39. No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed--nor will we go upon or send upon him--save by the lawful judgment of his peers or by the law of the land.

40. To none will we sell, to none deny or delay, right or justice.

41. All merchants may safely and securely go out of England, and come into England, and delay and pass through England, as well by land as by water, for the purpose of buying and selling, free from all evil taxes, subject to the ancient and right customs--save in time of war, and if they are of the land at war against us. And if such be found in our land at the beginning of the war, they shall be held, without harm to their bodies and goods, until it shall be known to us or our chief justice how the merchants of our land are to be treated who shall, at that time, be found in the land at war against us. And if ours shall be safe there, the others shall be safe in our land.

42. Henceforth any person, saving fealty to us, may go out of our realm and return to it, safely and securely, by land and by water, except perhaps for a brief period in time of war, for the common good of the realm. But prisoners and outlaws are excepted according to the law of the realm; also people of a land at war against us, and the merchants, with regard to whom shall be done as we have said.

43. If any one hold from any escheat--as from the honour of Walingford, Nottingham, Boloin, Lancaster, or the other escheats which are in our hands and are baronies--and shall die, his heir shall not give another relief, nor shall he perform for us other service than he would perform for a baron if that barony were in the hand of a baron; and we shall hold it in the same way in which the baron has held it.

44. Persons dwelling without the forest shall not henceforth come before the forest justices, through common summonses, unless they are impleaded or are the sponsors of some person or persons attached for matters concerning the forest.

45. We will not make men justices, constables, sheriffs, or bailiffs unless they are such as know the law of the realm, and are minded to observe it rightly.

46. All barons who have founded abbeys for which they have charters of the king of England, or ancient right of tenure, shall have, as they ought to have, their custody when vacant.

47- All forests constituted as such in our time shall straightway be annulled; and the same shall be done for river banks made into places of defence by us in our time.

48. A11 evil customs concerning forests and warrens, and concerning foresters and warreners, sheriffs and their servants, river banks and their guardians, shall straightway be inquired into each county, through twelve sworn knights from that county, and shall be eradicated by them, entirely, so that they shall never be renewed, within forty days after the inquest has been made; in such manner that we shall first know about them, or our justice if we be not in England.

49. We shall straightway return all hostages and charters which were delivered to us by Englishmen as a surety for peace or faithful service.

50. We shall entirey remove from their bailwicks the relatives of Gerard de Athyes, so that they shall henceforth have no bailwick in England: Engelard de Cygnes, Andrew Peter and Gyon de Chanceles, Gyon de Cygnes, Geoffrey de Martin and his brothers, Philip Mark and his brothers, and Geoffrey his nephew, and the whole following of them.

51. And straightway after peace is restored we shall remove from the realm all the foreign soldiers, crossbowmen, servants, hirelings, who may have come with horses and arms to the harm of the realm.

52. If any one shall have been disseized by us, or removed, without a legal sentence of his peers, from his lands, castles, liberties or lawful right, we shall straightway restore them to him. And if a dispute shall arise concerning this matter it shall be settled according to the judgment of the twenty-five barons who are mentioned below as sureties for the peace. But with regard to all those things of which any one was, by king Henry our father or king Richard our brother, disseized or dispossessed without legal judgment of his peers, which we have in our hand or which others hold, and for which we ought to give a guarantee: We shall have respite until the common term for crusaders. Except with regard to those concerning which a plea was moved, or an inquest made by our order, before we took the cross. But when we return from our pilgrimage, or if, by chance, we desist from our pilgrimage, we shall straightway then show full justice regarding them.

53. We shall have the same respite, moreover, and in the same manner, in the matter of showing justice with regard to forests to be annulled and forests to remain, which Henry our father or Richard our brother constituted; and in the matter of wardships of lands which belong to the fee of another--wardships of which kind we have hitherto enjoyed by reason of the fee which some one held from us in military service;--and in the matter of abbeys founded in the fee of another than ourselves--in which the lord of the fee may say that he has jurisdiction. And when we return, or if we desist from our pilgrimage, we shall straightway exhibit full justice to those complaining with regard to these matters.

54. No one shall be taken or imprisoned on account of the appeal of a woman concerning the death of another than her husband.

55. All fines imposed by us unjustly and contrary to the law of the land, and all amerciaments made unjustly and contrary to the law of the land, shall be altogether remitted, or it shall be done with regard to them according to the judgment of the twenty five barons mentioned below as sureties for the peace, or according to the judgment of the majority of them together with the aforesaid Stephen archbishop of Canterbury, if he can be present, and with others whom he may wish to associate with himself for this purpose. And if he can not be present, the affair shall nevertheless proceed without him; in such way that, if one or more of the said twenty five barons shall be concerned in a similar complaint, they shall be removed as to this particular decision, and, in their place, for this purpose alone, others shall be subtituted who shall be chosen and sworn by the remainder of those twenty five.

56. If we have disseized or dispossessed Welshmen of their lands or liberties or other things without legal judgment of their peers, in England or in Wales,--they shall straightway be restored to them. And if a dispute shall arise concerning this, then action shall be taken upon it in the March through judgment of their peers- -concerning English holdings according to the law of England, concerning Welsh holdings according to the law of Wales, concerning holdings in the March according to the law of the March. The Welsh shall do likewise with regard to us and our subjects.

57. But with regard to all those things of which any one of the Welsh by king Henry our father or king Richard our brother, disseized or dispossessed without legal judgment of his peers, which we have in our hand or which others hold, and for which we ought to give a guarantee: we shall have respite until the common term for crusaders. Except with regard to those concerning which a plea was moved, or an inquest made by our order, before we took the cross. But when we return from our pilgrimage, or if, by chance, we desist from our pilgrimage, we shall straightway then show full justice regarding them, according to the laws of Wales and the aforesaid districts.

58. We shall straightway return the son of Llewelin and all the Welsh hostages, and the charters delivered to us as surety for the peace.

59. We shall act towards Alexander king of the Scots regarding the restoration of his sisters, and his hostages, and his liberties and his lawful right, as we shall act towards our other barons of England; unless it ought to be otherwise according to the charters which we hold from William, his father, the former king of the Scots. And this shall be done through judgment of his peers in our court.

60. Moreover all the subjects of our realm, clergy as well as laity, shall, as far as pertains to them, observe, with regard to their vassals, all these aforesaid customs and liberties which we have decreed shall, as far as pertains to us, be observed in our realm with regard to our own.

61. Inasmuch as, for the sake of God, and for the bettering of our realm, and for the more ready healing of the discord which has arisen between us and our barons, we have made all these aforesaid concessions,--wishing them to enjoy for ever entire and firm stability, we make and grant to them the folIowing security: that the baron, namely, may elect at their pleaure twenty five barons from the realm, who ought, with all their strength, to observe, maintain and cause to be observed, the peace and privileges which we have granted to them and confirmed by this our present charter. In such wise, namely, that if we, or our justice, or our bailiffs, or any one of our servants shall have transgressed against any one in any respect, or shall have broken one of the articles of peace or security, and our transgression shall have been shown to four barons of the aforesaid twenty five: those four barons shall come to us, or, if we are abroad, to our justice, showing to us our error; and they shall ask us to cause that error to be amended without delay. And if we do not amend that error, or, we being abroad, if our justice do not amend it within a term of forty days from the time when it was shown to us or, we being abroad, to our justice: the aforesaid four barons shall refer the matter to the remainder of the twenty five barons, and those twenty five barons, with the whole land in common, shall distrain and oppress us in every way in their power,--namely, by taking our castles, lands and possessions, and in every other way that they can, until amends shall have been made according to their judnnent. Saving the persons of ourselves, our queen and our children. And when amends shall have been made they shall be in accord with us as they had been previously. And whoever of the land wishes to do so, shall swear that in carrying out all the aforesaid measures he will obey the mandates of the aforesaid twenty five barons, and that, with them, he will oppress us to the extent of his power. And, to any one who wishes to do so, we publicly and freely give permission to swear; and we will never prevent any one from swearing. Moreover, all those in the land who shall be unwilling, themselves and of their own accord, to swear to the twenty five barons as to distraining and oppressing us with them: such ones we shall make to wear by our mandate, as has been said. And if any one of the twenty five barons shall die, or leave the country, or in any other way be prevented from carrying out the aforesaid measures,--the remainder of the aforesaid twenty five barons shall choose another in his place, according to their judgment, who shall be sworn in the same way as the others. Moreover, in all things entrusted to those twenty five barons to be carried out, if those twenty five shall be present and chance to disagree among themselves with regard to some matter, or if some of them, having been summoned, shall be unwilling or unable to be present: that which the majority of those present shall decide or decree shall be considered binding and valid, just as if all the twenty five had consented to it. And the aforesaid twenty five shall swear that they will faithfully observe all the foregoing, and will caue them be observed to the extent of their power. And we shall obtain nothing from any one, either through ourselves or through another, by which any of those concessions and liberties may be revoked or diminished. And if any such thing shall have been obtained, it shall be vain and invalid, and we shall never make use of it either through ourselves or through another.

62. And we have fully remitted to all, and pardoned, all the ill- will, anger and rancour which have arisen between us and our subjects, clergy and laity, from the time of the struggle. Moreover have fully remitted to all, clergy and laity, and--as far as pertains to us--have pardoned fully all the transgressions committed, on the occasion of that same struggle, from Easter of the sixteenth year of our reign until the re-establishment of peace. In witness of which, more-over, we have caused to be drawn up for them letters patent of lord Stephen, archbishop of Canterbury, lord Henry, archbishop of Dubland the aforesaid bishops and master Pandulf, regarding that surety and the aforesaid concessions.

63. Wherefore we will and firmly decree that the English church shall be free, and that the subjects of our realm shall have and hold all the aforesaid liberties, rights and concessions, duly and in peace, freely and quietly, fully and entirely, for themselves and their heirs from us and our heirs, in all matters and in all places, forever, as has been said. Moreover it has been sworn, on our part as well as on the part of the barons, that all these above mentioned provisions shall observed with good faith and without evil intent. The witnesses being the above mentioned and many others. Given through our hand, in the plain called Runnymede between Windsor and Stanes, on the fifteenth day of June, in the seventeenth year of our reign.

Roger of Wendover: The Signing of Magna Carta at Runnymede, 1215

The Voice of the Australian Constitution

2012-01-07T21:59:00.000+11:00

Boy killed in farming accident & Man fighting for life after powerline accident.

2012-01-06T14:19:00.000+11:00

3AW Radio | 6 January, 2012 - 1:33 PM

A four-year old boy has been killed in a tragic farming accident in Victoria's north.

The accident happened on Friday morning in Wandella, near Kerang in Victoria.

Police say the boy was killed by a front-end loader.

WorkSafe and police are investigating.

Meanwhile, a man in his 40s is fighting for his life in hospital after coming into contact with powerlines.

The man was putting up speakers and other equipment for next week's Cycling Championships, just outside of Ballarat, when he touched the powerlines.

The man went into cardiac arrest and his work colleagues performed CPR until paramedics arrived.

He's been taken to the Ballarat Base Hospital in a critical condition.

The accident happened just before midday on Mount Buninyong Road.

Workplace Bullying

2012-01-05T16:48:00.002+11:00

Liberal Website 05/01/12

The concerns about the Bullying Code of Practice in the harmonisation of
Occupational Health and Safety laws are yet another reason why the laws
should have been delayed Senator Abetz said today.

“As of January 1, for more than half of Australians these laws came
into effect – but we’ve got many parts, like the bullying code of practice,
that are yet to be finalised,” Senator Abetz said.

“It doesn’t help anyone to have a half finished job as the law of the land.”

"Minister Shorten must prove beyond doubt that his becoming Workplace
Relations Minister is not being used by him to act out his unfulfilled ambition
to become ACTU Secretary.”

“I have asked questions at Senate Estimates about bullying in the workplace
and welcome the concentration on stamping out workplace bullying however
the Government are sending a very mixed signal when on the one hand they
condemn bullying and on the other hand are abolishing the key agency specifically
set up to deal with bullying, thuggery and illegal activity in the building and
construction sector.”

“If the Government were consistent, they would keep the ABCC as is and
step up the campaign against workplace bullying,” Senator Abetz concluded.

JEFF KENNETT - CRIME, CORRUPTION, OTHER ILLEGAL DEALINGS

2011-12-28T20:50:00.000+11:00

While the Kennett (Victoria - Australia) Government has made it known through the mainstream media (which he appears to control) that it has an allegedly hard-line on law enforcement and integrity issues including so-called 'zero-tolerance' for many kinds of crimes, to some observers, Jeff Kennett appears to be exempt from all this.

In 1993, Kennett and his wife were exposed as having used a government car to conduct private business for the advertising agency, KNF owned by Kennett and wife Felicity. Under normal circumstances such isn't allowed, but it goes without saying that Kennett wasn't punished or fined in any way for doing so. A further conflict of interest was that highly lucrative government contracts were being awarded to KNF, possibly in violation of correct procedures.

He was also revealed to have been selling liquor without a State Government issued liquor licence. He was able to escape criminal charges, which had they been pursued could have landed him in jail.

On 29 May 1996, Kennett assaulted a number of journalists by shovelling dirt on them and their cameras at a City-Link ground breaking ceremony. After attacking the journalists he said 'which will be the first one to charge me with assault'. It is perhaps notable that the usual responsibility for such charges rests with the state Police. That the Police did not charge Kennett, even though the assault was televised may have something to do with his backing them in refusing to hold a Royal Commission into the force, in spite of repeated cases of Victoria Police Corruption at the highest levels.

On January 3 1996, Kennett was able to avoid being charged for driving 143 km in a 100 km zone on the Hamilton Highway, near Lismore, Western Victoria. Normally, the minimum penalty for such an offence in Victoria is automatic licence suspension and a hefty fine. Jail is also an alternative. Kennett got no licence suspension - the Police refused to charge him. It has since been revealed that another man, a publican at Colac, was pulled over for allegedly doing 133 km in the same area. The Police officer refused to use his discretion to drop the alleged speed by a mere 3 km to allow him to keep his licence. In yet another case, Mr. Clive Goodenough was taken to court for doing more than 30 km over the limit. He was jailed for two months following an ex-parte hearing. There he was bashed and raped. Kennett refused his application to have the case reopened.

Protection of unethical and/or illegal/criminal activity by Police and others of Kennett appears to go beyond himself and seems to extend to his family. In December 1995, Kennett confirmed that his children had been involved in the illegal drug trade by smoking marijuana and yet they too have escaped charges. Currently Victorian prisons are full of others who have similarly used drugs.

Kennett also made comments on the Ray Martin Show (Channel 9) about a rape trial still in progress that was evidently in contempt of court. Again he was not charged. After making these statements, Kennett used taxpayer's funds for lawyers in a bid to avoid being charged.

Kennett's use of taxpayer's funds for his own purposes and to gag investigation seems to be a common trait of government in Victoria. He successfully sued Packer for an estimated $400,000 in an out of court settlement for a broadcast few can remember. As a rule, defamation actions by Politicians are funded by the taxpayer, and in the event that they win, the payout goes in the pocket of the politician. In the event that the politician loses the case, the taxpayer picks up the tab. In other words, defamation is a no-lose lottery for Victorian State Politicians.

More recently Kennett was accused on 4 Corners (ABC-TV) of using undue influence to gain shares in his wife's name in a company (Arthur Yates and Co.) after it was announced that the share offer had formally closed. He subsequently made a substantial paper profit.

In a separate incident, Kennett entertained representatives of the Guangdong Corporation - one of the directors of which is the biggest poker machine operator in Victoria. He accepted an invitation to buy highly sought after shares in the company (again in his wife's name) at about the same time his Government released another 5000 Poker machines onto the market.

Again in relation to Kennett's share dealings; it was revealed he was on the Mayne Nickless share register when a State Government contract was awarded to a consortium involving the company. In spite of the fact that Kennett bought the shares in February 1992, he failed to disclose his interests in the September 1992, Parliamentary register. Under normal circumstances, "wilful contravention" of the Members of Parliament (Register of Interests) Act, is punishable by fines of up to $2,000.

Kennett's actions in relation to other matters have also come under fire, including alleged breaches of confidentiality in the tendering process for the 2 Billion Dollar Crown Casino (possibly in violation of state laws), and the subsequent allowing of the successful tenderer, to have extra gaming tables at reduced rates. Notable is how the winning tenderers, including senior executives Lloyd Williams and Ron Walker, appear to be close personal friends and/or associates of Kennett. The Senate (Federal Government) looked into this, but the inquiry was apparently sabotaged because potential witnesses were fearful of reprisals should they give evidence unfavourable to Kennett and/or others with close links to the State Government. On related matters, the Casino appears to be allowed to have more than the usual four signs on roads directing motorists to it (a legal restriction on all other businesses) and appears to have sought and received tax breaks/concessions far over and above those obtained by most, if not all other businesses in Victoria. It has been alleged that Kennett has resorted to allowing the State Government to be used to prop up businesses of friends and political allies (line their pockets) at the expense of other Victorian businesses to create an unlevel commercial playing field in the state. Another apparent infraction by the Crown Casino was their running a lottery without a permit. In spite of this illegal activity, there is absolutely no doubt that the Casino operators or their casino will have their business in any way interrupted. If an ordinary citizen of Victoria attempted the same thing (running a lottery without a permit) a likely result would be jail.

Crown Casino also came under fire for giving a highly lucrative "sponsorship" for activities involving one of Kennett's sons.

Kennett's role in the tendering process for another lucrative government deal, the "transurban" tollway system, called City Link has also come under serious speculation. Again questions about the tendering process have not been adequately answered by Kennett. His excuse has been "commercial confidentiality". However because these are Government contracts involving taxpayer's funds, the "commercial confidentiality" clause doesn't hold water. That this could be due to corruption in the tendering processes cannot be discounted. For example it was recently revealed that the alleged tendering process of some lucrative Vicroads road construction contracts were being perverted to allow favoured parties to get the contracts, which some say are a licence to print money.

The State government privatisation and sell offs of other assets has come under strong fire on the basis of political opposition. This is not of concern to AAC unless it involves issues of probity. However these issues have been raised in terms of a certain USA-based private prison operator, namely Wakenhut Corp. and other buyers of State assets. Kennett has refused to allow any proper independent investigation of these matters, again on the alleged basis of "commercial confidentiality". However corruption matters and those involved in legal infractions by companies and/or their directors (in Australia and/or elsewhere) have nothing to do with "commercial confidentiality" but rather whether the given group is fit and proper to be issued a government contract and/or funds in the first instance - issues that are unresolved and therefore a matter of serious question.

So-called government "watchdogs" such as the State Ombudsman's Department, Auditor general and FOI Laws have all been perverted to prevent the public from finding out details about alleged and/or possible corruption in the Kennett government. A concerted effort to find out about one of the State Government "licences to print money" failed on November 6, 1997. An FOI claim was rejected by the government and it's rubber stamp the Administrative Appeals Tribunal (AAT), (refer to The Hoser Files for a chapter that details the charade of the AAT). The FOI claim sought details about a $24 million dollar payment to Troughton, Swier and Associates. The payment (described by some as a "gift"), was made in relation to what the Government labelled a so-called "energy consultancy" by Kennett and his treasurer, Alan Stockdale. In violation of government protocol, no public tender had been called before the so-called "energy consultancy" or payment was made. Attempts by public interest groups to find out details about the matter have been wilfully sabotaged by Kennett's government.

It has been said, that the private enterprise system in Victoria has now been superseded by a system based on patronage and corruption akin to that of the Bjelkie Peterson years in Queensland or the Wran/Unsworth years in NSW or even that of the Suharto regime in Indonesia, whereby only the politically well connected can make large amounts of money and effectively control all key sectors of the economy. No doubt more facts will become clear over time although this may be some years and after Kennett leaves the political scene. Finally it should be noted that Government corruption in the state of Victoria did not start the day Jeff Kennett became State leader. However what is clear is that there has been no effort to reduce this corruption and all obvious indicators show that it appears to have increased markedly since his coming to Government in late 1992.

Kennett's wife also went on a taxpayer funding spending binge with her State Government issued Visa credit card. Among her many purchases was a pair of $315 sunglasses from Optika Tarasoudis in Greece in September 1995. When asked by the media why Felicity Kennett had used taxpayer's funds for her own indulgence, Mr. Kennett stated on 20/11/97 that his wife had used the Visa card as the shop had not accepted American Express, which was another card his wife had. The (routine?) falsity of Kennett's statement was shown by the rebuttal by shop manager Andreas Tarassoudis the next day when he said that his shop had been accepting American Express for about ten years. Perhaps of greater significance is the simple act of issuing Mrs Kennett with a taxpayer funded credit card in the first instance. In at least five other states, no spouses of leaders are issued taxpayer funded credit cards. NSW Premier Bob Carr told the media that there was no reason why the taxpayer should pay the expenses of his wife.

Kennett's wife accepted as a "gift', free use of a BMW allegedly as part of a so-called "promotion' for the company.

In February 1998, when Kennett officially announced his separation from wife Felicity, he deceitfully blamed the media for the separation. This is ironic as Kennett, perhaps more than any other previous Victorian State leader has manipulated the media to suit his own interests more than anyone else. He has even gone so far as to ring newspaper editors themselves and tell them what he thinks should and should not be reported, in what is clearly a breach of accepted protocol. The ever present threat of defamation actions against journalists who dare question some of his activities, as well as the ever-present threat on newspapers and TV broadcasters to withdraw State Government advertising has further ensured a consistent pro-Kennett line has been run by the mainstream media - a line which deliberately and forcibly suppresses public knowledge of corruption involving the Kennett government as well as other irregularities.

For several years there have been repeated rumours of Kennett assaulting his wife. These rumours have been denied by both Jeff and Felicity. Once a Labor MP spoke to Felicity Kennett in the State Parliament House foyer and she performed a little dance and said "See. No bruises!".

There is substantially more coverage of Kennett's questionable activities in chapters 36-41 of the book Victoria Police Corruption that was released in July 1999.

Probe ordered into WorkCover bullying claim

2011-12-26T23:37:00.000+11:00

The NSW government has ordered an independent inquiry into allegations of widespread bullying in a division of WorkCover.

Finance Minister Michael Daley announced the inquiry - to be conducted by someone outside the government - following revelations in today's Herald that a "pattern" of bullying existed within WorkCover's Licensing Solutions Unit.

WorkCover is the state government agency responsible for providing "safe, secure and productive workplaces", which includes "preventing and dealing with workplace bullying", its website says.

The Licensing Solutions Unit approves workers to drive forklifts, operate cranes and work on construction sites. Mr Daley said he had been previously told by WorkCover that the agency was addressing the problem but wanted to be sure the alleged harassment was stopped.

He has asked the director general of the Department of Premier and Cabinet to commission an independent review of the allegations.

"Due to WorkCover's role as the regulator of workplace safety, including bullying matters, I have requested that this review be conducted by somebody independent from WorkCover and the government," Mr Daley said in a statement.

"Bullying and intimidation in any workplace is unacceptable."

The Greens said a premier's department probe does not go far enough and a parliamentary inquiry should be held.

"If WorkCover can't stop bullying in its own ranks, how can it be up to doing its job in other workplaces in NSW?" Greens MP and the party's industrial relations spokesman, David Shoebridge, said.

"Neither WorkCover, nor this government, can be trusted with getting to the bottom of this.
"We must have an open and accountable parliamentary enquiry into WorkCover's palpable failure to deal with bullying.

"It is not good enough to fob it off with another behind closed doors report on a report."

Saffron Howden and Georgina Robinson
Do you know more? showden@smh.com.au

Appeal successful against Wollongong company director

2011-12-20T15:56:00.000+11:00

20/12/2011

The Full Bench of the NSW Industrial Court has handed down new penalties against a Wollongong company director after his company continually ignored safety warnings that eventually resulted in a man being seriously injured.

The increased penalties imposed by the Court on the director followed a successful appeal by WorkCover NSW, which challenged the inadequacy of the penalties originally imposed.

The Court agreed with WorkCover that the $18,500 penalty originally handed down to Formcom director Peter Karabelas was inadequate considering the continued failure to comply with WorkCover’s improvement notices.

Formcom builds formwork used as a cast when building concrete floors and walls. Once the concrete has hardened, the formwork frame is removed.

In early July 2006, WorkCover visited a construction site on Crown Street in Wollongong and told the company to immediately address several safety problems, such as the lack of guardrails preventing falls.

Those warnings were ignored, and on 19 July 2006 a worker was seriously injured when he fell seven metres while working at the Crown Street Site.

When WorkCover inspectors returned on 20 July 2006 to carry out a formal investigation into the incident, they found another worker was being put at the same risk of a fall.

A WorkCover inspector issued two Improvement Notices relating to the risks of working at heights.

Then in another visit on 4 August 2006 a third worker was placed at risk from a four metre fall from a work platform that did not have guard rails or an adequate catch platform.

In handing down a $27,000 fine, the Court found that the repeated failure of Mr Karabelas to ensure the safety of his workers demonstrated an attitude of deliberate defiance of safety laws and required a stronger penalty.

WorkCover’s General Manager of Work Health and Safety Division, John Watson said this case was a reminder of the importance to businesses of being fully aware of their responsibilities to work health and safety.

“The first fall should never have happened,” Mr Watson said. “WorkCover advised the director and the company to fix the safety risks and they didn’t. This resulted in a man being seriously injured and nearly killed.

“It is incredible that WorkCover’s warnings were repeatedly ignored. The public expects WorkCover to act swiftly when companies continue to put workers’ lives at risk, and we did.

“Serious accidents and ongoing risks such as these are unacceptable in the workplace and employers need to act to safeguard workers otherwise significant injuries and fatalities will occur.”

The appeal was lodged against Mr Karabelas and not the company, which was fined a total of $125,000 in the first instance, but has since been deregistered.

PREMIER Anna Bligh will personally investigate the case surrounding whistleblower Toni Hoffman.

2011-12-17T19:19:00.000+11:00

The Premier said Ms Hoffman was upset about a Workcover decision and the case was not dealt with by Queensland Health.

Ms Bligh said she had personally told Ms Hoffman how much she admired her for her courage in bringing the Jayant Patel case to the public.

Toni Hoffman told The Australian that her career, health and psychiatric wellbeing were now severely affected because bureaucrats and successive ministers caused her to be increasingly shunned and ostracised in the six years since the debacle was exposed.

Oz whistleblower seeks $400,000 compensation for exposing surgeon's deadly malpractice

2011-12-17T19:14:00.000+11:00

Canberra, Dec 16(ANI):

An Australian whistleblower, who exposed a surgeon's malpractice,
which led to three deaths, has sought 400,000 dollars as compensation
for suffering injuries and loss of income.

Toni Hoffman had exposed the deaths of patients, who were treated
at Bundaberg Hospital by a surgeon, Jayant Patel in 2006.

Patel was subsequently sentenced to seven years imprisonment after
being convicted of three deaths and the grievous bodily harm of one
person.

Hoffman has filed a petition in the District Court demanding
compensation from Queensland Health saying that she had
undergone tremendous stress in exposing Patel's malpractice.

"Basically, I want Queensland Health to compensate me for the
last seven years.

I want to be financially compensated. I was on WorkCover for quite a
long period of time and your salary drops and I've lost a lot of money,"
The Sydney Morning Herald quoted Hoffmann, as saying.

She pointed out that she exhausted all annual leave after being denied
special leave to attend Patel's trial.

She urged the government to grant her all annual leave so that
she can take adequate rest.

"It was really difficult at the beginning because Patel still had a lot of
support in the hospital and what I did was against the code of conduct.
It's just been such a long, hard road ... they were my patients that died,"
she added.

Hoffman's lawyer Maurice Blackburn said she suffered psychologically
and financially during Patel's trial because she works in the intensive care
unit of Bundaberg Hospital.

"It is an outrage that Queensland Health did not give her the support
she needed to get on with her life and now refuses to acknowledge
her latest claim," senior partner Peter Koutsoukis said. (ANI)

Disability in Australia - PWC Report

2011-12-10T21:11:00.000+11:00

Disability in Australia

Medical Examinations and Reports Order 2011

2011-12-10T21:08:00.002+11:00

Medical Examinations and Reports Order 2011

Publisher Required

2011-12-10T20:51:00.002+11:00

Hi Readers,

We are looking for a publishing company to publish our guide
for our Injured workers.

A Guide for Injured Workers - PDF

If you are interested please contact us at: workcovervictims.gmail.com

Report: 40% of WorkCover staff felt bullied

2011-12-07T17:50:00.000+11:00

Saffron Howden
March 3, 2011.

Well over one-third of staff at WorkCover NSW feel they have been bullied or harassed, a government-commissioned report has found.

The investigation was sparked in September last year by revelations in the Herald that the government agency responsible for investigating workplace bullying was itself harbouring a serious bullying problem.

The PricewaterhouseCoopers (PwC) report, released today, found 40 per cent of WorkCover staff felt they had been bullied or harassed in the workplace. Half of those felt the source was a manager.

"Bullying and harassment by a manager or supervisor most commonly occurred in the form of nit-picking, unjustified criticisms or inequitable treatment compared to other employees," the report said.

There were also "a number of examples" of bullying complaints being "poorly handled".

PwC found that, in the case of five specific allegations, WorkCover "failed" to investigate in time and failed to clarify the complaint at the time of reporting.

It noted that there was a lack of grievance training for managers responsible for investigating allegations and that management had failed to communicate properly with the people involved.

Among the PwC recommendations were improving communication with staff, revising the internal bullying and harassment policy, an overall structural review of leaders' roles in WorkCover, implementing clear guidelines for performance management and increasing the transparency of hiring and promoting.

NSW Finance Minister Michael Daley said WorkCover had accepted PwC's six central recommendations.

“There were reports of behaviour described as bullying and harassment, and many felt that the leadership team had historically not demonstrated leadership capability in this area or had not handled specific complaints appropriately," he said in a statement.

“However, the report also noted that significant changes have been implemented in the last 12 months in respect to organisational, structural and cultural changes," he said.

"WorkCover has accepted and will implement all these recommendations.”

In September last year, the Herald revealed the findings of an internal WorkCover report into allegations of bullying within the agency's Licensing Solutions Unit.

That report found there was a "pattern" of bullying within the unit, the agency's money-spinning department that approves workers to drive forklifts, operate cranes and work on construction sites.

It concluded bullying had been "occurring for a prolonged period of time and that various factors, including selective supervision, multiple chains of command, workload equity, continuous negative feedback and a somewhat autocratic management style ... have contributed to unintended bullying".

National disgrace: poor quality of life for Australians with disabilities

2011-12-06T19:47:00.001+11:00

By ABC's Stella Young Posted December 05, 2011

On Wednesday morning people around Australia woke to some news that surprised them.

A report released by PricewaterhouseCoopers told us that people with disabilities living in Australia have the poorest quality of life among people with disabilities anywhere in the developed world. We rank 27th out of the 27 OECD countries.

That sounds like a bit of an abstract concept, so let me tell you what those countries are; Austria, Belgium, Canada, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea, Luxembourg, Mexico, Netherlands, New Zealand, Norway, Poland, Portugal, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey, United Kingdom, the United States and us, Australia.

So, in terms of the quality of life of people with disabilities, we're last on that list. Dead last.

Australians with disabilities are also more than twice as likely as those without disabilities to be living near or below the poverty line. In terms of employment opportunities for people with disabilities, we rank 21st out of those 29 categories; 39.8 per cent of us are employed, compared to 79.4 per cent for people who don't have disabilities.

As an Australian with a disability myself, did this surprise me? Nope.

We've known for decades that Australia supports people with disabilities with the absolute minimum we need to get by. If you have a disability and don't work, you can claim a disability support pension and while Today Tonight would have us believe the DSP is plenty of money to support a gambling habit, nicotine addiction and some pretty serious alcoholic tendencies, that's far from reality.

It is, admittedly, a little bit more money than the dole. The extra cash certainly isn't enough to pay for things like medication, wheelchair tyres, taxis to get to medical appointments or food to keep your guide dog alive.

We also know that people with disabilities are unemployed for a variety of reasons. Namely a lack of access to education, the built environment, personal support and equipment. And yes, there are also some people with disabilities who, even if they had all these things, could not work. In a rich country like Australia, it is not unreasonable that we support this small percentage of people.

I am the first to admit that I am one of the lucky ones. Growing up in rural Victoria I managed to escape a special school system that trains young people with disabilities in "life skills" and not academic ones. I am tertiary educated and have a fulfilling career. Yes, a career. In the disability community, we rarely talk about careers. Young people with disabilities grow up to think that maybe, if they're lucky, someone might give them a job, but to aspire to a career? That's asking too much.

I am not living near or below the poverty line like half of my fellow Australian's with disabilities. I'm a part of that lucky 39.8 per cent who are employed. Having a life like mine should have nothing to do with luck in a country like Australia.

Two weeks ago on my lunch break, a woman tried to give me $10. I was eating some sushi that had cost me almost that much, and looking at Twitter on my phone. I was dressed for work; not in a suit, but certainly not in tracksuit pants. When I leave for work in the morning I like to think I look nice. I don't like to think that I look like I'm in need of people giving me money on the street.

This woman, who didn't seem much older than I am, didn't know anything at all about me. And I'm sure she meant very well, but in trying to give me her tenner, she told me that she knows disability is linked to poverty. She told me that she knows people with disabilities quite often live near or below the poverty line, that we're very likely to be unemployed, that even before this report was released, she knew how tough it is to live with a disability in Australia.

And this woman, however misguided, was trying to do something about it. There's something really quite profound in that; that one woman is trying to make a small difference when her Government will not. I didn't take her $10, but I did take a few minutes to chat to her about why she was trying to give it to me, and to tell her a little bit about what I hope the future of people with disabilities in Australia will look like – a country that provides the things people need to live full lives and contribute to their nation.

The opportunity to be a full contributor to the prosperity of this nation, socially and economically, is one I take very seriously because I see too few of my peers without it.

Another report released this year by the Productivity Commission told us all some horrific stories; perhaps most memorably, that of Lillian Andren. I've recounted Lillian's story before, but the shock of it never subsides for me. Nor should it.

Lillian was injured in an accident in a swimming pool, and was therefore not eligible for TAC or WorkCover insurance. Her injuries make her incontinent and unable to get around on her own. Lillian has someone come to her house three times a week to assist her with showering. And Lillian, with her three showers is actually very lucky. Most people only get two.

At the Productivity Commission hearing Lillian attended in Brisbane, she said:

The delightful irony is that to receive that third shower per week I must have daily incontinence issues. So the system allows me to sit for four days a week in my own urine to provide me three showers a week...

The Productivity Commission report concluded that the current system that supports people with disability is hardly a system at all, and that we need to build a new one from scratch.

I don't see how, in a country like Australia, we can have these two reports sitting in front of us - one that tells us there are people who have to sit in their own urine for four days a week, and another that tells us there is no other country in the developed world where this is the case - and continue to ignore the problem.

The PricewaterhouseCoopers report was released last Wednesday. It's already been five days too long.

Stella Young is the editor of ABC's Ramp Up website.

Worksafe Victoria Annual Report 2011

2011-11-27T18:26:00.002+11:00

Worksafe Victoria Annual Report 2011

Submission to Federal Parliament Inquiry 2002

2011-11-07T17:12:00.002+11:00

Submission to Federal Parliament Inquiry 2002 - Sub62