An independent report commissioned by the Law Council showed that a more detailed analysis was required before a national scheme was established.

Law Council president Bob Gotterson QC said there were “financial dangers for Australian taxpayers in setting up the new compensation scheme” and that “it would be irresponsible to recommend taking those risks on without a better sense of the facts”. His comments followed the release of the interim report on national workers’ compensation authored by the Productivity Commission, the Commonwealth Government’s principal micro-economic policy advisory body.

Although the Productivity Commission’s own actuary recognised the financial risks to the Commonwealth, it has so far not been able to quantify the extent of the potential costs for taxpayers.

Gotterson spoke to Lawyers Weekly about the dangers inherent in the proposed scheme. On a grand scale, he said, the scheme “would abolish injured employees’ rights to an individual assessment of the monetary compensation they are to receive for their injuries”.

“Workers compensation schemes tend to work on tables and schedules where the amount of monetary compensation is rigidly fixed and no account is taken of individual circumstances,” Gotterson said.

Pointing out that the loss of a limb would inevitably have more effect on one person than on another, particularly when it comes to what work they do, Gotterson said that the scheme would be too rigid to deal with each case appropriately.

“It’s the inflexibility and arbitrariness of these schemes, which are unsupplemented by common law rights, that we object to,” he said.

This has been a long standing issue for the Law Council. Reporting to the Productivity Commission in its inquiry into national workers compensation late last year, the Council was represented by the vice chairman of its common law rights committee, Maurie Stack.

Stack commented on the ramifications of the proposed scheme for accident victims. “They do not want to be in a situation where they are depending upon handouts for the rest of their life,” he said. “They don’t want to be wondering from one day to another whether the benefits will continue or whether they’ll be cut off.”

He also made the “obvious” point that, “when you deal with justice, why should motorists have full common law rights, or have common law rights in any event, and those who are injured at work not have them? Where is the justice in that?”

Stack said the Council did “not put the submissions on the basis that the Commission should be trying to find a way to provide employment for the legal profession”, but that “in any scheme that ultimately is developed, it is important to remember that the poor, the marginalised, the people for whom English is a second language, will always need legal representation when they deal with employers who can afford to employ insurance clerks”.

Gotterson concluded that although “we can’t predict the ramifications of such a scheme for lawyers, the worst situation would be to have legal challenges to workers compensation determinations that were focused on process and not on the particular circumstances of the injured individual”.