March 2023: Report of the independent reviewers
Section 187 of the Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011 requires the Minister to cause an independent review of the operation of the Act to be undertaken every 5 years after commencement of the Act. The Act commenced on 31 October 2011.
The second independent review was conducted by Mr Rod Chandler and Ms Liz Gillam, including a call for written submissions from interested parties and stakeholder consultations (see Department of Justice Community Consultations). Submissions received to the review were highly supporting of the Asbestos Compensation Scheme. Overall, the review found that the Scheme has worked extremely well over the past five years.
The independent reviewer's Report of the Second Five Yearly Review was tabled in both Houses of Parliament on 22 November 2022. See the Report of the Second Five Yearly Review.
The report made 15 findings and 8 recommendations addressing both operational and legislative issues about the performance of the asbestos compensation laws against the objectives of the Act, the ongoing viability and sustainability of the Asbestos Compensation Scheme, and the performance of the Scheme.
The independent reviewers made an additional two recommendations about outstanding recommendations from the 2017 First Five-Yearly Review of the Act.
The Government has considered the findings and recommendations made by the reviewers to further improve the Scheme, and supports the changes proposed either in full or in principle. A summary of the Government’s response is provided in this table.
Recommendation | Government Response | |
Second Independent Review of the Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011 | ||
1 | Except as below, that there be no change to the Scheme. That consideration be given:
| The first part of this recommendation to include costs of counselling services for claimants and family members is supported. The second part of this recommendation to provide compensation for medical costs directly related to a successful claim is supported in principle. |
2 | Those recommendation numbered 7 and 8 made in the 2017 Report be abandoned. | Supported |
3 | Consideration be given to amending the cost provisions within the Act to require the Commissioner to meet the review costs of a successful claimant where an error of law has been made by a medical panel. | Supported |
4 | That advice be sought from the Solicitor General as to whether section 162 requires amendment to specifically facilitate expenditure on:
If such an amendment is required, it is further recommended that such amendment be made (in line with the recommendation of the first reviewers). Once the Commissioner’s powers are clarified, either with or without amendment to the Act, the provision of professional training and public information programs, to ensure knowledge and understanding of the Scheme, is supported. | Supported |
5 | That advice be sought from the Solicitor General as to whether an amendment to section 163 is necessary ‘to remove doubts that any monies that may arise from finalization of the HIH wind up can be incorporated into the Asbestos Compensation Fund’ (Recommendation 10, 2017 Report). | Supported |
6 | That consideration be given to how best to meet the request of insurers and self-insurers for the provision of financial information relating to the setting of levies (Recommendation 12, 2017 Report). | Supported. This recommendation is an operational matter for the Commissioner. |
7 | The Act be amended to avoid a party being required to repay to the Commissioner an amount of compensation which had been incorrectly calculated whether by incorporation of a ‘slip rule’, adoption of the test included in the Workers Rehabilitation and Compensation Act 1988 or by other means. | Supported |
8 | That on receipt of this report all necessary steps are taken to ensure that when it is tabled in Parliament it is accompanied by documentation setting out the Government’s response and including specifically its response to the recommendations of both this report and its predecessor. | Supported |
First Five Yearly Review (2017) | ||
4 | Amend section 61(1) of the Act so that a determination of an Impairment Assessor is no longer taken to be a determination of the Medical Panel | Supported |
9 | Amend the Act to ensure that if a member of the family is aggrieved by the distribution of compensation under the default position as provided by Schedule 1, the family may then refer the matter to the Tribunal to determine how the compensation should be apportioned among family members. | Supported |