PRESIDENT’S MESSAGE
Submissions a vital part of the Society’s work TIM WHITE, PRESIDENT
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ubmissions form a vital function that the Society undertakes on behalf of its Members and the profession. The Society is called upon to make submissions on a variety of topics and issues. Predominantly they are made in relation to federal and state Bills and regulations. This year has been particularly demanding in view of the numerous new amendments and new Bills introduced into parliament arising from COVID-19 aspects. To date the Society has made in excess of 80 submissions, a number that is usually not reached in a 12 month period. I wanted to highlight three particular submissions made this year, that I thought would be of interest to many practitioners. We have written to Return to Work (RTW) on several occasions in relation to the process of undertaking permanent impairment assessments. It is evident from a number of reported judgments of the South Australian Employment Tribunal (SAET) that there have been concerns with regards to RTW’s dealings with medical practitioners when providing permanent impairment assessment reports. Issues with regards to medical practitioners feeling pressured to amend their reports have been specifically commented on in a number of SAET decisions including a full bench decision of Frkic1, and also the decision of Palios2 and Canales-Cordova.3 These are important decisions to consider and be aware of. Concerns were also raised by the SAET that independent assessors, during the Section 22 process, were being unilaterally approached, and that the communications between RTW and the doctor were not being communicated to the worker or the worker’s legal representative. RTW has responded to the Society’s concerns, advising that it does not challenge or coerce assessors to produce an opinion they do not agree with. RTW have a statutory entitlement to seek clarification from an independent assessor if an error or area of uncertainty exists in their report. Part of the compliance review process permits RTW to seek clarification from an assessor, to ensure that the report is completed in
accordance with the relevant guidelines. The Society is maintaining an ongoing dialogue with RTW on this topic so if you have any concerns with how the Section 22 process is occurring please do not hesitate to contact the Society. Another aspect that detailed submissions were made in relation to was the Bill to amend Section 40 of the Sentencing Act. In relation to serious indictable offences, rather than a sentencing discount of up to 40% for a guilty plea not more than four weeks after the first court appearance, the Bill proposes to reduce it to a maximum of 25%. Further, for a guilty plea not more than four weeks after the court appearance but on or before the committal appearance, the maximum discount has been reduced to 15% (down from 30%). From the day after the committal appearance to before committal for trial, a discount previously of up to 20% is proposed to be reduced to 10%. The Society submitted that significant reductions in the early discount were not necessary or beneficial for the criminal justice system. It was likely to encourage defendants to test the evidence and run matters to hearing, which of course puts additional strain on court resources, delays outcomes and requires victims to give evidence at a trial. The delay in waiting for a trial to be reached and the inevitably stressful process of giving evidence at a trial has its greatest impact on victims. The Society requested that the court have discretion to increase the percentage reduction available by up to 5%, if it was satisfied that an additional reduction was appropriate by reason of rare and exceptional circumstances. This provision is now provided for in the draft Bill. Clearly for those practitioners advising criminal clients the implications of the Bill are significant and one that is important to be aware of if you have the client’s matter is presently before the criminal courts. If the Bill commences in its current form there will certainly be less discounts available to those that enter guilty pleas after the commencement of the Bill. A third and final area on which the
Society has again recently made written submissions relates to Advance Care Directives (ACD). This is a topic on which the Society has communicated to the Government on several occasions previously. The State Government’s response to the review of the Advance Care Directives Act was tabled in Parliament in late July. One the report’s recommendations was that it should consider how the use of digital signatures could be implemented when completing an ACD. The Society encouraged the Government to adopt that recommendation and also wrote again raising the issue of the order in which ACDs are signed. The Society requested that the person making the ACD should be the person that signs the document first. We did not support the current regime that the substitute decision maker must sign their acceptance of the appointment prior to the execution of the ACD by the donor. It was noted that the Government now seems open to considering amending the Act with regards to the order of signing. Recommendation 2 of the report dealt with simplifying the ACD form and the DIY kit associated with it. We supported that recommendation, as the current form is long and unnecessarily complex. We hope that an amending Bill will be introduced soon to provide more flexibility with the order in which an ACD is signed and also simplifying the form itself. Submissions will continue to be a main aspect the Society’s work. Many Committees perform a large amount of work each year in providing input into the submissions that are made. I thank all Committee Members for the hours of effort and time they voluntarily provide to the large number of diverse Committees. It is often unseen work that Committee Members devote but it’s a vitally important role that you each play. Thank you and please keep up the great work! B Endnotes 1 http://www8.austlii.edu.au/cgi-bin/sign.cgi/au/ cases/sa/SAET/2020/16 2 http://www8.austlii.edu.au/cgi-bin/sign.cgi/au/ cases/sa/SAET/2019/224 3 http://www8.austlii.edu.au/cgi-bin/sign.cgi/au/ cases/sa/SAET/2020/8
October 2020 THE BULLETIN
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