TABLE OF CONTENTSMEMBERSHIP OF THE COMMITTEE ...................................................... iiiRECOMMENDATIONS ................................................................................. viiCHAPTER 1 ........................................................................................................ 1Background ............................................................................................................... 1Reference ................................................................................................................ 1Conduct of the inquiry and submissions ................................................................ 1Acknowledgement .................................................................................................. 1Background............................................................................................................. 2Purpose of the Bill .................................................................................................. 2Provisions of the Bill .............................................................................................. 6

CHAPTER 2 ........................................................................................................ 9The science................................................................................................................. 9International studies................................................................................................ 9The healthy worker effect ..................................................................................... 13Exposure and protection ....................................................................................... 14

CHAPTER 3 ...................................................................................................... 21Key issues................................................................................................................. 21Burden of proof .................................................................................................... 21The SRC Act......................................................................................................... 22Costs ..................................................................................................................... 30Coverage of volunteer firefighters........................................................................ 32Cause of illness and period of employment ......................................................... 33The case for non-rebuttable legislation ................................................................ 34

CHAPTER 1BackgroundReference1.1On 5 July 2011, the Senate referred the provisions of the Safety,Rehabilitation and Compensation Amendment (Fair Protection for Firefighters) Bill2011 to the Senate Standing Legislation Committee on Education, Employment andWorkplace Relations for inquiry and report by 15 September 2011.1.2The Bill was introduced into Parliament by Mr Adam Bandt MP on 4 July2011 and co-sponsored by Ms Maria Vamvakinou MP and Mr Russell Broadbent MP.

Conduct of the inquiry and submissions1.3The committee advertised the inquiry inThe Australianon 20 July 2011,calling for submissions by 29 July 2011. Details of the inquiry were placed on thecommittee website.1.4The committee contacted a number of organisations inviting submissions tothe inquiry. Submissions were received from 27 individuals and organisations, aslisted in Appendix 1.1.5Public hearings were held in Melbourne on 9 August, Canberra on 23 Augustand Perth on 2 September 2011. Witness lists for the hearing are at Appendix 2.1.6The committee also conducted a number of site visits in Melbourne, Geelongand Brisbane.

Acknowledgement1.7The committee thanks those individuals and organisations who made writtensubmissions and gave evidence at the committee's hearings.1.8The committee particularly wishes to extend its appreciation to thefirefighters, and families of firefighters, who made submissions and those whotravelled to relate their personal experiences to the committee at its hearings. Theseindividuals invested valuable time and effort knowing that they personally did notstand to benefit from the provisions of this Bill. Their evidence was both importantand extremely moving. The committee thanks them and recognises their efforts tohelp current and future generations of firefighters.1.9The committee is grateful to the United Firefighters Union of Australia forfacilitating a series of site visits over the course of this inquiry, which have given thecommittee valuable exposure to the functions, duties and responsibilities offirefighters. The committee greatly appreciates the time and cooperation it has

received staff at from Aviation Rescue and Fire Fighting (ARFF), a division of AirServices Australia (Tullamarine Station), the Country Fire Authority (CFA) inGeelong, the Queensland Fire and Rescue Service (QFRS) and the QueenslandCombined Emergency Services Academy (QCESA) at Whyte Island.1.10The committee also extends a particular note of gratitude to Mr Alex Forrestand Fire Chief Ken Block, who travelled from Canada to share with the committeetheir valuable and extensive experience with presumptive legislation overseas.

Background1.11For several decades scientific studies have shown that firefighters are atincreased risk of developing certain types of cancer. This is due to ongoing exposureto carcinogenic particles released by combusting materials of varying toxicity, whichfirefighters routinely encounter during the normal course of their employment:Firefighters are by the nature of their work exposed to a large range ofchemical carcinogens. Although most chemicals have not been tested fortheir toxic effects there are a number of chemicals that arise as the productsof combustion that have been shown to be carcinogenic.1

Purpose of the Bill1.14The Safety, Rehabilitation and Compensation Amendment (Fair Protection forFirefighters) Bill 2011 (the Bill) seeks to amend provisions in theSafety,Rehabilitation and Compensation Act 1988(the SRC Act) relating to injuriessustained by firefighters.1.15The Bill would provide for a rebuttable presumption that the followingcancers developed by qualifying firefighters will be presumed to be work relatedunder Commonwealth law. Subject to qualifying periods set out in the Bill as outlinedbelow, the burden of proof would be removed from the cancer sufferer.1.16The seven primary site cancer types covered by the Bill and the respectivequalifying periods are:1.Brain cancer (5 years);

The committee received the following definition of a presumption in law:A presumption in law is a rule of law which permits a court to assume a factis true until such time as there is a preponderance (greater weight) ofevidence which disproves or outweighs (rebuts) the presumption. Eachpresumption is based upon a particular set of apparent facts paired withestablished laws, logic, reasoning or individual rights. A presumption isrebuttable in that it can be refuted by factual evidence. One can presentfacts to persuade the judge that the presumption is not true.2

1.19In effect, the establishment of this legal presumption would facilitate access toworkers' compensation for firefighters who fit the qualifying criteria by shifting theburden of proof from the firefighter to the employer or insurance company seeking todispute the occupational linkage between a firefighter's cancer and his or heremployment duties.1.20However, even when the above threshold criteria are met, the presumptionthat the cancer in question is related to employment would remain rebuttable. Thenature of the rebuttable presumption would mean that a firefighter's claim forcompensation would remain '...subject to any legal defences otherwise available.'41.21This means that acceptance of occupational causation is not automatic:[I]t does not mean that the employee’s claim will automatically beaccepted. The employer may provide evidence to show that the disease isdue to some other factor that is not employment related and, if that evidenceis sufficiently strong, it may rebut the presumption that the disease is

1.22This would protect employers and insurance bodies, and ensure the policyresponse is appropriately based on scientifically demonstrable evidence.1.23This differs from non-rebuttable presumptive legislation insofar as the latter isbased on consistent epidemiological evidence that an illness is linked to a particularcause associated with the workplace or work process in almost every case, as in thecase of mesothelioma resulting from asbestos exposure.6

Coverage

1.24The SRC Act has limited coverage:Each state and territory has its own workers compensation legislation.Coverage of the SRC Act is limited to Commonwealth employees, ACTGovernment employees and the employees of licensed entities. As a result,coverage of the SRC Act is limited to only a relatively small proportion ofthe Australian workforce.7

1.25The proposed Bill would therefore cover only employees classified asfirefighters under the SRC Act.1.26There are currently approximately 2800 firefighters covered by the Act. Ofthese, around 2000 are employed by the Australian Capital Territory (ACT)Government. Some 1500 of these are volunteer firefighters who would not qualify forcoverage by the Bill. Most of the others are firefighters employed by the aviationindustry nationwide:8Based on ABS Labour Force Statistics (November 2010), it is estimatedthat employed firefighters covered by the SRC Act represent approximatelyeight per cent of the Australian firefighting labour force. The remainder

Department of Education, Employment and Workplace Relations,Submission 25,p. 7.See Mario Racco, Parliamentary Assistant to the Minister of Labour, Canada, 'Report toMinister Peters on the treatment of Firefighter Cancer Claims by the Workplace Safety andInsurance Board,' Ontario Ministry of Labour. Available athttp://www.labour.gov.on.ca/english/hs/pubs/firefighters/review.php(accessed 15 August2011).Department of Education, Employment and Workplace Relations,Submission 25,p. 4.Department of Education, Employment and Workplace Relations,Submission 25,p. 6.

1.28Similar presumptive legislation is already in place in much of Canada and theUnited States, countries which are in many ways analogous to Australia, and is beingconsidered in parts of Europe.

Presumptive legislation overseas

1.29The majority of jurisdictions in Canada and the United States have enactedcomparable presumptive legislation.1.30The Canadian province of Manitoba was the first to introduce presumptivelegislation of this kind in 2002, following a report on the scientific links betweencancer and firefighting commissioned by the province.11Being the first jurisdiction totake this step, Manitoba's initial legislation was cautious in nature, covering only fivecancers: brain, bladder, kidney, non-Hodgkin's lymphoma and leukaemia.1.31Since then, nine of the thirteen Canadian jurisdictions have passedpresumptive legislation recognising the link between certain types of cancer andfirefighting.121.32Manitoba itself today covers fourteen cancers, with the scope of thelegislation expanded following further research linking a greater number of cancerswith firefighting as an occupation.13The committee was advised that the fewremaining Canadian provinces which do not currently have similar presumptivelegislation in place are either in the process of implementing it or considering doingso:We have 10 provinces and three territories. Right now seven provinces haveit, two provinces are in the process of putting legislation or regulationsforward and in one province two days after I get back to Canada I will be

Department of Education, Employment and Workplace Relations,Submission 25,p. 6.United Firefighters Union of Australia,Submission 19,p. 11.The report by Dr Tee Guidotti is discussed by Mr Alex Forrest,Submission 1,p. 14.For discussion see Mr Alex Forrest,Submission 1,p. 6 andProof Committee Hansard,2September, pp 4–6.Canadian jurisdictions today list 14 cancers in their presumptive legislation. For discussion seeProof Committee Hansard,2 September 2011, pp 5–6.

meeting with the premier of that province and I believe that province willenact the legislation before the end of the year. Even within our territoriestwo of the three have just passed legislation. The template right now is the14 cancers that were initially put forward in Manitoba and have now beenreplicated in Alberta. So now there are 14 cancers and I can tell you thatevery single province is now looking at moving to the 14 cancers, largelybecause of the Le Masters study of 2007.14

1.33In the United States presumptive legislation is in place in roughly half of thestate jurisdictions, with more pending. The legislation is far from uniform, varyingbetween states in the cancers covered, qualifying periods and other requirementsnecessary for firefighters to fulfil the criteria for compensation.151.34Canada and the United States have responded to science and moved awayfrom the system currently in place in Australia. Here, the onus is on firefighters withcancer to pinpoint a single event, or fire, which caused their illness if they seek toobtain compensation for their illness. For reasons to be discussed later in this reportthis requirement is very difficult to satisfy and has to date served as an almostinsurmountable obstacle to firefighters seeking compensation. In many cases this hasleft sick firefighters and their families struggling not only physically and emotionally,but also financially, at their time of greatest need. It has meant that firefighters whoput their health and lives at risk to help the community are let down when theythemselves are in need of assistance.

Provisions of the Bill1.35Schedule 1 of the Bill inserts provisions into the SRC Act relating to cancersdeveloped by firefighters.

Subsection 7(8)

1.36A new subsection 7(8) would be added to Part 1 of the SRC Act, providingthat firefighters diagnosed with one of seven primary site cancers after a set number ofyears of employment will have their employment taken to have been the dominantcause of the cancer, unless the contrary is established. Cancers listed in the Bill willnot be covered if they are found to be secondary, that is, if they originated in andspread from other parts of the body.1.37Subsection 7(8)(a) confines the presumption of occupational illness to cancersidentified in the paragraph 1.16. This ensures that 'only the clearest examples ofoccupational disease can seek to access the presumptive gateway.'16

1.38The inclusion of the qualifying period in provisional subsection 7(8)(b)reflects that:...broadly considered, the evidence of work relatedness of diseasestrengthens as the duration of potential occupational exposure increases...As an alternative, the medical evidence as to the latency periods for theprescribed diseases from occupational exposure could equally haveoperated as part of the rebuttal process. That is, claims could have beencontested on the basis of insufficient latency to support a work contribution.The approach adopted ought properly be viewed as a concession to findingan approach to the operation of presumptive legislation that takes intoaccount the natural fears that scheme administrators might hold from timeto time.17

1.39Subsection 7(8)(c) makes reference to the 'hazards of fire'. Slater and GordonLawyers informed the committee that this was '...an important statement of principlegoing to the heart of the subject matter of the Bill – that the hazards of a fire scene areboth pervasive and insidious.'18This recognises that the hazards of fire may betransported away from the fire scene by firefighters and the equipment they carry:The one complicating factor is that when we talk about the hazards of a firescene that immediately invokes images of attending the fire itself or theimmediate aftermath, but the thing with the cancers and the chemicals thatfirefighters are exposed to in this context is that quite often the hazard canmigrate. It might not be the primary exposure at the site; it might be that thehazard is also experienced when cleaning fire equipment or cleaning out thetruck back at the station if those chemicals have imposed themselves uponthe clothing or the apparatus of a firefighter or on the truck itself. Iunderstand that there is clearly a distinction between a clerical officerworking for the department and the firefighter in confronting the hazards ofthe scene, but I think that we ought not to limit the concept of 'exposure tothe hazards of a fire scene' to the immediate emergency because thesethings have a tendency to migrate away from the scene.19

1.40The committee heard that the proposed legislation draws a line aroundfirefighters and those engaged in firefighting activities. Coverage would not expend toother officers—such as mechanics or clerical officers—employed by the fire services:The duties of the clerical officer who is running the accounts back at thestation do not involve firefighting as a substantial portion of their role;therefore, I do not believe they would fall within the confines of theproposed amendment. I guess the point that I was making was more that arecognised firefighter may have had exposure beyond just at the primaryscene, but I think those who are not employed to undertake firefighting

Subsection 7(9)

1.41A new subsection 7(9) would also be added to Part 1 of the SRC Act. Thissubsection would stipulate that workers must have been involved in firefighting dutiesas a substantial portion of their employment in order for subsection 7(8) to apply.Subsection 7(9) also allows firefighters who were employed over several separateperiods which add up to the qualifying period to be taken to have been employed forthe qualifying period.1.42The committee also notes that item 8 listed in the Bill would provide thatother cancers prescribed in the future would also be governed by the provisionsestablished by this Bill.211.43These qualifying periods are a conservative but certain benchmark for thelatency periods for various cancers. The committee understands that not all firefighterswho develop cancer will be captured by the legislation due to these qualifyingrequirements. They are, however, necessary in order to create a culture of acceptanceand certainty for firefighters, employers and insurers.22

CHAPTER 2The science2.1The science underpinning this legislation is pivotal to its justification. Thecommittee received as evidence a large amount of the research that has beenconducted into the link between firefighting and cancer. These studies were used toinform this report and are all publicly available.1Given the quantity and quality ofevidence presented, the committee is confident that a link between firefighting and anincreased incidence of certain cancers has been demonstrated beyond doubt.

International studies2.2The health consequences of firefighting have attracted substantial academicresearch due to the occupational risks firefighters are exposed to. Studies haveprogressively become more sophisticated. The committee was informed thatpolicymakers are now able to access several large-scale studies which conclusivelyshow that a link exists between firefighting and cancer:2It has been stated that firefighting is the most studied occupation in theworld when it comes to cancer. There are literally dozens of major studiesfrom around the world spanning over twenty years and they have made adefinitive connection between firefighting and elevated cancer risk.3

2.3One of these studies, commissioned by the Canadian province of Manitoba in2002, looked at evidence gathered from 1994 to 2002. Led by Tee L. Guidotti, thestudy analysed research conducted worldwide looking at firefighters and five specifictypes of cancer: brain, bladder, kidney, non-Hodgkin's lymphoma and leukaemia.Processing enormous volumes of information, the researchers concluded that a firmlink exists between firefighting and these primary-site cancers. In his report to theWorkers Compensation Board of Manitoba, Guidotti stated:The evidence available since 1994 suggests it is reasonable given theavailable scientific evidence to adopt a policy of presumption for braincancer, bladder cancer, kidney cancer, non-Hodgkin's lymphoma(lymphatic cancer) and leukaemia (hematopoietic cancer) for claimsassociated with occupation as a firefighter.4

2.4The conclusions were used to inform Manitoba's presumptive legislation, thefirst of its kind in the world, and subsequent presumptive legislation in otherjurisdictions.52.5Other studies have confirmed a link between more than just theabovementioned cancers and firefighting. Bateset alconducted a retrospective cohortstudy of mortality and cancer in professional New Zealand firefighters in 2000,following a cluster of testicular cancers detected in Wellington firefighters in the1980s. They looked at the incidence of testicular cancer in a cohort of firefighters andcompared it to the incidence among the general population, using data obtained fromthe New Zealand Health Information Service (NZHIS). The committee was told thatthe results of the Bates study:...put the scientific world on its heels. They found that the level of testicularcancer for New Zealand firefighters—I believe they looked at 4800 NewZealand firefighters within about three decades—was upwards of five timesthat of the general population.6

2.6Mr Alex Forrest, President of United Fire Fighters of Winnipeg and CanadianTrustee of the International Association of Fire Fighters, told the committee:When this study came out I read it and said: ' Five times the level—it justcannot be true.' Almost immediately different epidemiologists around theworld took on the challenge of discrediting this study out of New Zealand.A gentleman by the name of Jockel out of Germany looked at allfirefighters in Germany. What he found surprised him. His study almostexactly replicated the results—the rate of testicular cancer in New Zealandwas the same as the rate in Germany. That just shows you the global aspectof this.7

2.7Another large meta-study confirmed these results in 2006. Researchers led byGrace LeMasters '...looked at 110 000 firefighters and replicated the rate of testicularcancer....You have three studies—one from New Zealand, one from Germany and onefrom the United States—all showing the same rate of cancer.'82.8The LeMasters study was commissioned by the Department of EnvironmentalHealth at the University of Cincinnati college of Medicine and is the largest study ofits kind finalised to date. It looked at 32 other studies which addressed the cancer riskto firefighters who are routinely exposed to harmful substances such as lead,cadmium, uranium, chemical substances, harmful minerals and 'various gases that

may have acute, toxic effects.'9The LeMasters study found '...an elevated metarelativerisk' of certain cancers among firefighters.102.9Studies conducted in the years since Manitoba first introduced presumptivelegislation in 2002 have led that province to expand the number of cancers itslegislation covers from five to 14.112.10The committee heard that most overseas jurisdictions with similar legislationin place have moved substantially beyond the five cancers covered by Manitoba'sinitial legislation in 2002 and those listed by the proposed Bill. Today, with thebenefit of a large volume of scientific research, every province in Canada is movingtowards covering 14 cancers.122.11This increase in the number of cancers covered has been driven by growingscientific evidence over the past decade, with lung cancer being a strong example ofhow legislation has progressed:...[T]here was a major study done out of British Columbia by Tee Guidottiwhich looked at lung cancer. Once you take out the factor of smoking,firefighters had a risk of lung cancer three or four times as high as thegeneral population. So, within a few months of that study, we saw theprovinces of first Manitoba and then Alberta, British Columbia andSaskatchewan add lung cancer in nonsmokers. Again, that shows thespecific nature and narrow scope of the legislation, but it also shows thatscience really drives this more than anything.13

Scientific consensus

2.12A submission from the ACT Chief Minister and Cabinet Directorate arguedthat a lack of scientific consensus exists on this issue among researchers andclinicians, posing challenges to this Bill.142.13This view does not, however, appear to be supported by evidence received bythe committee, nor was it expressed by representatives of the ACT Governmentsubsequently. Mr Andrew Kefford, Deputy Director-General of the ACT ChiefMinister and Cabinet Directorate, confirmed that a link between firefighting andcancer is recognised, explaining that he was not in a position to ascertain the strengthof the scientific link:91011121314Grace LeMasters et al, 'Cancer Risk Among Firefighters: A Review and Meta-analysis of 32studies,'Submission 1 Attachment 7,p. 1189.Grace LeMasters et al, 'Cancer Risk Among Firefighters: A Review and Meta-analysis of 32studies,'Submission 1 Attachment 7,p. 1189.Seehttp://news.gov.mb.ca/news/index.html?item=10328(accessed 9 September 2011).Mr Alex Forrest,Proof Committee Hansard,2 September 2011, p. 6.Mr Alex Forrest,Proof Committee Hansard,2 September 2011, p. 7.ACT Chief Minister and Cabinet Directorate,Submission 24,p. 2.

2.14In the absence of clear evidence before the committee refuting the causal linkbetween cancer and firefighting as defined by this Bill, the committee is satisfied thatthe science underpinning this legislation is sound.

Committee view

2.15The committee is confident in the quality of the studies it has seen andconsiders them to be compelling evidence in support of this Bill.2.16The committee emphasises that, as outlined in Chapter 1 of this report, claimsunder the proposed legislation would be rebuttable. This reflects the fact that sciencetells us that if a firefighter with a certain number of years of service develops cancer,that cancer ismost likelyto be caused by occupational exposure to carcinogens. Notdefinitelycaused by occupational exposure, but most likely. In that light, any potentiallack of absolute scientific consensus—which is incidentally absent in most fields ofstudy—becomes immaterial:Adjudication under workers' compensation requires an examination of theweight of evidence, not scientific certainty.16

2.17The committee also notes that the body of scientific evidence has expandedsince presumptive legislation was first introduced to cover five cancers in Canada in2002. Researchers have since demonstrated that firefighters are at risk of a greaterrange of occupational cancers.2.18The committee is concerned that, even if passed, the proposed legislationwould only serve to bring Australian commonwealth law into line with outdatedjurisprudence. Considering that similar legislation has been in place overseas fornearly a decade, and has in fact been strengthened to cover more cancers as a result ofgrowing scientific evidence, the committee would prefer to see Australia enactlegislation in step with the most advanced jurisprudence available. The committeesees no reason to ignore scientific evidence demonstrating a link between firefightingas an occupation and a greater number of cancers than the seven listed by this Bill.Recommendation 1

The healthy worker effect2.20Studies looking at firefighters and occupational disease also highlight theimpact of what is known as the 'healthy worker effect'. The phenomenon is foundacross scientific literature and describes the protective effect of above-average healthstatus on morbidity and mortality levels among groups who are otherwise at elevatedrisk of illness.2.21In the case of firefighters, the impact of the healthy worker effect means thattheir health and fitness levels, which are markedly higher on average than those of thegeneral population, may protect them from diseases—including cancer—to a certainextent. In turn this suggests that were firefighters' health and fitness levels the same asthose of the rest of the community, given their occupational exposure to carcinogens,they would suffer from cancers at a far greater rate than is currently the case.2.22It also means that the relatively high rates of certain types of cancers amongfirefighters are still lower than the rates we would see among the general populationwere the latter regularly subjected to similar carcinogenic environments.2.23The healthy worker effect therefore may mask the true level of riskfirefighters are exposed to:One would expect the morbidity and mortality rates to be lower amongfirefighters than in the general population containing people who are ill,infirm and generally not suited for fire service....Because of this, a study may show no difference in morbidity or mortalityrates between firefighter and the general population when, in reality, thefirefighters may be sustaining greater illness and death than would beexpected in a similar healthy group. Additionally, only healthy firefightersstay on the job. Those who become ill may leave the fire service withoutdocumented disability before retirement. Others may leave seeminglyhealthy, only to suffer the long-term effects long after their association withthe fire service has ended.17

Exposure and protection2.27As outlined, studies and meta-studies conducted around the world, includingin Australia in the 1980s, demonstrate that certain types of cancer are caused by therelease of carcinogens from combusting materials in structure fires. These knowncarcinogens can include benzene, styrene, chloroform and formaldehyde, and areabsorbed by firefighters through the skin or by way of inhalation.212.28Submissions to this inquiry discussed the protection available to firefightersthrough the world-class safety gear and clothing Australian firefighters utilise.22Thecommittee heard that this protective gear, although consistent with all national andinternational safety regulations, cannot and does not form an impenetrable barrierbetween firefighters and the toxins they work amidst.

Toxins

2.29Mr Brian Whittaker, Commander of the Hazardous Materials (HAZMAT)Scientific Unit of the Metropolitan Fire Brigade, Melbourne, provided the committeewith extensive evidence based on his expertise in HAZMAT response and publicsafety. Mr Whittaker concluded the following concerning the risk to firefighters:

Dalsu Barriset al,'Cohort Mortality Study of Philadelphia Firefighters',American Journal ofIndustrial Medicine,vol. 39, p. 723.Mr Alex Forrest,Proof Committee Hansard,9 August 2011, p. 4.Mr Alex Forrest,Proof Committee Hansard,9 August 2011, p. 4.Thomas Fabian et al, 'Firefighter Exposure to Smoke Particulates,' (Final Report) 1 April 2010,including Table 3-4 Effluent gases detected in combustion of material-level test samples,Submission 19, Attachment 10 and Appendix A.See for example Mr Brian Whittaker,Submission 16;Mr Philip Taylor,Submission 17;UnitedFirefighters Union of Australia,Submission 19.

Their workplace is an uncontrolled environment where safety controlscannot eliminate all hazardous products encountered. Risk exposure tovarious toxic gases, vapours and particulate matter found in fire smoke doesexist. These products can be carcinogenic and cause irritation,incapacitation, systemic toxicity and asphyxiation. The effects fromexposure to the above products can be both acute and chronic.Many studies have concluded that the combustion or pyrolysis (heating) ofgeneral household materials can generate many carcinogenic products. Theprediction of combustion products is a complex area and there is potentialfor generation of a huge range of products depending on the nature of thefire and the conditions of burning.23

2.30Most operational activities undertaken by urban firefighters are structural andnon-structural fire incidents. Car fires, although technically considered non-structural,produce toxic chemicals rivalling those found in structure fires. This, the committeeheard, is due to the prevalence of plastic components found in cars.242.31Unsurprisingly, even ordinary houses and household products release toxicchemicals when they burn.It is estimated there are tens of thousands of toxins and chemicals in theaverage household fire. Fabrics, furniture and construction materials giveoff a range of toxic gasses when burning. These toxins include acetic acid,phenol, formaldehyde, benzene, styrene, ammonia, carbon monoxide andcyanide. In a fire, the combination of these chemicals increases the toxicitysignificantly.25

2.32The committee heard that although all fires have individual characteristics,there are a number of common toxic chemicals which may be present in most fireeffluent:•Polycyclic Aromatic Hydrocarbons (PAHs): naphthalene, benzo[a]pyrene;•Irritant gasses: formaldehyde, acrolein, oxides of nitrogen; and•Asphyxiant gasses: carbon monoxide, hydrogen cyanide.2.33Many of these are either known or suspected carcinogens. PAHs, for instance,are substances found in particles of soot and linked to certain types of cancer.26As far

back as the year 1775, an increased rate of cancer among chimneysweeps routinelyexposed to soot had already been reported.27

Smoke

2.34Smoke is an aerosol consisting of liquid or solid particles dispersed in agaseous medium. This gaseous medium consists largely of toxic gases.282.35The toxicity of these gases has been rising with modernisation of industrypractices, meaning that the modern environment presents greater hazards tofirefighters than their colleagues in past years. This is partly due to changes made bythe construction industry, namely the shift away from natural materials such as woodto lighter construction materials that feature synthetics and petroleum-based materials:These materials ignite and burn 2–3 times hotter and faster thanconventional materials and when heated, emit a gas or smoke that will alsoignite 2–3 times faster and burn 2–3 times hotter.29

2.36Synthetic materials used extensively in commercial and residential propertiesinclude plastics, polymers such as styrofoam and polyutherine foam and nylons.Combustion has a marked effect on these synthetics and the smoke they produce whenburning. They are commonly carbon based and bonded with nitrogen, sulphur,hydrogen and chlorine atoms. The increased speed at which they ignite and burn helpsin the speedy creation of a toxic environment.302.37It is this growing prevalence of synthetic materials that is an enormous causefor concern:Chemicals are highly pervasive in the modern world. Since World War II,astronomic increases in the variety and production volumes of syntheticchemicals have occurred. Today more than 70 000 distinct chemicals areused commercially in the United States and are registered with the U.S.Environmental Protection Agency. Approximately 1000 new chemicals areregistered each year. These chemicals are combined into more than 7million mixtures, formulations and blends that are found in homes, publicbuildings and workplaces across the United States.Testing of chemicals for their carcinogenic and other toxic effects has notkept pace with chemical production. Despite decades of concern about thetoxic effects of chemical substances, the toxic effects of most of thechemicals currently in commercial use have never been evaluated...Theabsence of toxicity data on the majority of chemicals in commercial usemeans that firefighters are exposed on a daily basis to chemicals withunknown effects. It is quite likely, therefore that in addition to their

Protective clothing and equipment

2.38The committee heard that occupational environments involving fire inherentlypreclude the design of personal protective clothing (PPC) that would provide animpermeable physical barrier between firefighters and the toxic smoke to which theyare exposed.2.39Nevertheless, firefighters work hard to mitigate and eliminate workplacehazards in an emergency situation. Hazards are mitigated through a process known asthe Hierarchy of Controls, which includes a range of options:••••••Elimination of hazard;Substitution of hazard;Isolation of hazard;Engineering controls;Administrative controls; andPersonal protective clothing.

2.40The key principle of the hierarchy is to try and eliminate hazards at theirsource:In regards to the 'Hierarchy of Controls' the core activity of firefighters is toeliminate, substitute and isolate hazards. This is routinely achieved by theuse of engineering controls (equipment), administrative controls (skills andoperational protocols) and PPC/E [personal protective clothing andequipment]. However with the inherent nature of fire fighting it isimpossible to eliminate all hazards.32

2.42Respiratory equipment available to firefighters can also help eliminateinhalation as a source of exposure or contamination. Protective clothing, however, islimited in its capacity to mitigate contamination, so hazards are managed rather thaneliminated through its use.2.43Managing hazards is achieved through standards for protective equipment setby the National Fire Protection Association (NFPA):•Level A: Fully encapsulating gas tight suit with breathing apparatus(BA);•Level B: Chemical splash suit (protection from liquids and solids) withBA;•Level C: Chemical splash suit (protection from liquids and solids) withrespirator; and•Level D: Structural firefighting ensemble with breathing apparatus.34

2.44Levels of protection are chosen to be fit for purpose. Levels A, B and C offerprotection for incidents which involve hazardous materials but not fire or risk of fire.Therefore, Level A protection is suitable, for example, when firefighters attend anincident involving a chemical spill. The kind of protection required could change ifthe chemical spill involved fire or if detection equipment indicated a flammableenvironment.2.45In incidents involving fire or risk of fire, Level D protection is designed tooffer the best possible protection. However, although it protects firefighters inenvironments involving fire, it does not offer fully encapsulated protection asprovided by Level A:Structural fire fighting ensemble has limited protection from gases, vapoursand particulate matter due to the requirement and necessity to have acompromise between protection from radiated heat exposure and the releaseof metabolic heat build up. In short the breathability is in effect a hazard tofirefighters that cannot be eliminated.35

Breathability

2.46An average structure fire can expose firefighters to temperatures approaching1000 degrees Celsius.36This means that the protective clothing firefighters wear infire incidents must be able to breathe in order for them to be able to operate in theseextreme temperatures. If the clothing did not breathe, firefighters would suffer heatstress and could quickly perish from metabolic heat buildup damaging their internalorgans.

2.47This requirement for breathability in protective clothing prevents firefightersfrom wearing fully encapsulated suits designed to seal all routes of chemical entry.The protective clothing they wear when fighting fires protects them from flames, butleaves them exposed to toxins through inhalation or absorption through eyes, skin, orwounds.372.48Therefore, the very nature of the environment firefighters operate in preventsthe design of protective clothing and equipment which could offer complete protectionand isolation from toxic smoke.

'Flash-over' and response time

2.49To minimise loss of life, property damage and interruption to business, '...fireservices mandate a quick response by applying standards for their firefighters torespond to emergencies.'382.50This response time standard is considered crucial:Underpinning fire services response time standards is scientific researchthat dictates that a fire must be suppressed within five to 10 minutes ofignition. The physical characteristics of fire cause the temperature in abuilding to rise extremely rapidly, and a sudden and dramatic simultaneousignition of most combustible materials and gases is called flash-over. Thetime required for flash-over to occur varies according to buildingconstruction and furnishing materials and usage. The fire spreads quicklyonce flash-over has occurred. In order to maximise the potential of savinglife and minimize damage to property, firefighters must enter the buildingto commence suppression activities to avoid flash-over. In short,firefighters must enter the toxic environment...It is not an option for afirefighter to delay entering a structure to commence rescue operations andsuppression activities.39

Committee view

2.51The committee understands that firefighters work in uncontrolledenvironments which make it necessary for their protective gear to breathe, thereforeleaving them vulnerable to toxins and carcinogens.On the weight of considerable evidence supplied to the committee supporting a likelycausal link between firefighting and certain cancers, as well as the understanding thatclaims for compensation would be legally contestable, the committee is confident thatrebuttable presumption is a solid—and fair—foundation for workers' compensationpolicy for career firefighters.

CHAPTER 3Key issuesBurden of proof3.1Firefighters who are killed or injured attending a fire incident are givencompensation for work-related injuries. However, firefighters who develop cancer andbelieve their illness to be work-related currently face substantial obstacles to seekingcompensation.3.2The committee was informed that, at present, any attempt to obtaincompensation requires firefighters to undertake adversarial, costly and oftenprotracted legal proceedings to establish:a) The link between firefighting and cancer; andb) Causation between aspecificfire incident and their illness.3.3The United Firefighters Union of Australia (UFUA) informed the committeethat medical practitioners generally advise firefighters with cancer to minimise stressand focus on their cancer treatment.1Many firefighters, as the committee heard frompersonal accounts relayed in the next chapter, fund their own leave from work andeven their treatment. Their families cannot access compensation in the event that theydie.23.4As a result, the emotional and financial costs of litigation involved mean thatnot many firefighters who develop cancer seek to access any entitlement orcompensation:These transactional costs and the potential stress and delay often act as adisincentive for firefighters with cancer to pursue their proper entitlements.I myself have seen firsthand several firefighters with potential claimsdiscouraged from pursuing those claims for these reasons. Often the shockand trauma of a cancer diagnosis and subsequent treatment places a greatstrain on those affected and their families. The threat of litigation is oftenoverwhelming and the need to focus on treatment and improving health isoften paramount. In this way, the scheme can sometimes be as confrontingas the injury.The introduction of presumptive legislation will therefore lead to greatertransactional efficiency. It will remove some of the emotional and financial

3.5Those who would pursue compensation face considerable litigation costs.Representatives from Slater and Gordon Lawyers informed the committee thatpresumptive legislation in other jurisdictions often results in a reduction in litigation:The presence of the rebuttable presumption means that it is open to insurersto still defend those claims where the cause of the cancer may be inquestion. However, I have certainly seen it in the proclaimed diseasesprovisions within the Accident Compensation Act in Victoria, where it doescreate more of a culture of acceptance of the claim rather than disputation.To give you an example, it might be the occurrence of Q fever amongstabattoir workers. Rather than having a protracted legal argument as towhether that disease has been caused by that type of employment, I havenoticed that where that has occurred here it has been more readily accepted.That is to be applauded. It means that we are putting the resources into theappropriate places; they are not going to be expended on litigation. Inlitigation it is not only the cost; it is the emotional toll too. For workers whoare quite ill and who quite often have a battle for their lives, the emotionaltoll of going to see doctor upon doctor for independent opinion or going tosee a lawyer or going to court to give evidence can be quite stressful. Thosepeople are, I guess, discouraged from pursuing that and sometimes willrelinquish what their proper entitlement might otherwise be. So when wespeak of these amendments not creating a new entitlement, it does not, butit does make it more efficient and more readily available for those whoperhaps are most deserving of our support.4

The SRC Act3.6The Safety, Rehabilitation and Compensation Act (the SRC Act) sets up theframework for workers' compensation and rehabilitation for the Government'sComcare5scheme. The Department of Education, Employment and WorkplaceRelations provided the following on the Act:It establishes a fully funded premium based system and a licensed self-insurance based system of compensation and rehabilitation for employeeswho are injured in the course of their employment. The scheme coversapproximately 211,000 Australian and ACT government employees andapproximately 163,000 employees of self-insured licensees (as of 30 June2010).It provides a comprehensive benefit structure that includes:

3.7'Disease' is defined by the SRC Act as an ailment suffered by an employeethat was contributed to by employment:The way that scheme works is that there is an ILO [International LabourOrganisation] list of occupational diseases. There is an expert panel thatassesses exposure and likelihood of causation. Once a disease is on that list,under the provisions of the act as it applies, if—to take a hypothetical—oneof our firefighters were to acquire a disease to which these deemingprovisions apply, then that would bring into effect the workerscompensation arrangements under the act.7

The ILO list of occupational diseases

3.8All Australian jurisdictions except Queensland already include in theirrespective workers' compensation legislation lists of biological agents and chemicalswith known links to certain diseases. These, including those listed under the SRC Act,are all based on the International Labour Organisation's (ILO) List of OccupationalDiseases.83.9The ILO list was created following the Workmen's Compensation(Occupational Diseases) Convention (Revised) 1934. Australia ratified thisconvention in 1959. The diseases included in the ILO's list adhere to set criteria:(i)(ii)(iii)(iv)there is a causal relationship with a specific agent, exposure or workprocess;they occur in connection with the work environment and/or in specificoccupations;they occur among groups of persons concerned with a frequency whichexceeds the average incidence within the rest of the population; andthere is scientific evidence of a clearly defined pattern of diseasefollowing exposure and plausibility of cause.9

3.10Although most Australian jurisdictions list some of the toxins cited by theILO's list, not all have updated their respective lists of deemed diseases to reflectreviews and updates made by the ILO.103.11Furthermore, the committee heard that the list of deemed diseases in the SRCAct, which is based on the ILO list, does not in fact include all the cancers listed bythe proposed Bill:Advice from Comcare is that their preliminary research—noting that thatresearch has not been conducted through a medical or scientific expert—indicates that the existing list of declared diseases that can be caused byexposure to relevant toxins would encompass certain cancers but may notencompass all cancers listed in the firefighters bill. Comcare have furtheradvised that this would continue to be the case even if the current list ofdeclared diseases and toxins under the SRC Act is updated to bring it intoline with the current ILO list of occupational diseases.11

Subsection 7(1) of the SRC Act

3.12Subsection 7(1) of the Act provides that:Where:(a) an employee has suffered, or is suffering, from a disease or the death ofan employee results from a disease;(b) the disease is of a kind specified by the Minister, by legislativeinstrument, as a disease related to employment of a kind specified in theinstrument; and(c) the employee was, at any time before symptoms of the disease firstbecame apparent, engaged by the Commonwealth or a licensed corporationin employment of that kind;the employment in which the employee was so engaged shall, for thepurposes of this Act, be taken to have contributed, to a significant degree, tothe contraction of the disease, unless the contrary is established.12

Department of Education, Employment and Workplace Relations,Submission 25,p. 8.Ms Michelle Baxter, General Manager, Workplace Relations Implementation and SafetyGroup, Department of Education, Employment and Workplace Relations,Proof CommitteeHansard,23 August 2011, p. 9. For the ILO list of occupational diseases see:http://www.ilo.org/global/publications/ilo-bookstore/order-online/books/WCMS_150323/lang--en/index.htm(accessed 12 September 2011).Subsection 7(1),Safety, Rehabilitation and Compensation Act 1988.Slater & Gordon Lawyers,Submission 14,p. 3.

3.15The ACT Government argued that the above subsection of the SRC Actalready provides adequate coverage for ACT firefighters. Mr Andrew Kefford, DeputyDirector-General in the ACT's Chief Minister and Cabinet Directorate stated:...all of those firefighters we have mentioned are covered in the course oftheir duties by the act to which this bill relates. We note in that context thatthat act provides a reverse onus of proof where a worker—and they are allclassified as workers for this purpose—contracts a disease that is specifiedunder the act. The act provides for compensation for all territory workerswhere diseases associated with particular toxin exposure in theiremployment on the balance of probabilities involved exposure to suchtoxins. This means in practice that, if a firefighter contracts cancer and thatdisease is linked to exposure to toxins during their employment, then itwould more than likely be taken to be a compensable injury, although I notefor the information of the committee that to the best we have been able toascertain from the history there has not been a claim for occupationalcancer amongst the territory's firefighters.15

3.16Mr Kefford added that records of incident notifications kept by the ACT's fireservices would help ACT firefighters obtain compensation:If we were in the situation of someone who had been a firefighter in theACT contracting cancer then part of the process that applies at the momentis that they would need to show that they had been a firefighter and exposedin the course of their work. There would be records that would permit themto do that.16

3.17The records in question refer to the Australian Incident Reporting System(AIRS). The committee heard that AIRS data, however, is used to measure emergencyresponse effectiveness and is not designed to collect information which could bereliably used in compensation claims:AIRS is a mechanism for fire services to collect data as to the incidence offire and is used to identify trends in fires and incidents. It is not a systemdesigned to record the event from the firefighter's perspective, experienceor exposure to toxins.17

3.19UFUA expanded on the limitations of the AIRS system, citing the followingdrawbacks:•The system does not record firefighters' exposure to toxins as a result ofcombustion at the fire scene;•The exposure recorded refers to exposure from the fire scene—for examplefrom spread to another structure—not exposure to the firefighter;•The use of breathing apparatus and specialist protective equipment is recordedas the number of sets used without details about which firefighter used theequipment;•The recording of respiratory protection and protective equipment is notcompulsory for structure fires;•It is not mandatory to fill each field in the system; this may mean thatimportant information is at times omitted;•The recorded data relies on what is visible to the officer at the scene; and•Due to the short timeframes firefighters operate in, officers do not haveadequate time to record precisely which toxins or carcinogens are present in theenvironment.193.20Therefore the records available do not appear sufficiently reliable to form thebasis of solid compensation claims.

Does the SRC Act provide adequate cover?

3.21The ACT Government's evidence that any ACT firefighters who wish to makea claim can already do so under subsection 7(1) of the SRC Act reaffirmed theposition expressed by the ACT Government earlier in its submission:The SRC Act already provides presumptions for prescribed occupationaldiseases.20

3.24Mr Steve Kibble of Comcare outlined for the committee the tests and processinvolved in determining claims under subsection 7(1) of the SRC Act as it stands:When we determine claims under that subsection there are two evidentiarytests considered. The first one is disease of a kind—and I am referring tothe legislation—and the second is employment of a kind, which involvesexposure to a specified risk. For example, the notice of the deemed diseasesprovides coverage for occupational diseases caused by benzene, for thoseemployees whose employment involves exposure to benzene.With that example, firstly, it must be established that the disease is of a kindcaused by benzene and the person who is making a decision about the claimwould rely on specialist medical evidence or research that provides ascientific and medical link to the contraction of a kind of disease caused bybenzene. Secondly, the delegate would rely upon the information providedon the claim form or obtain factual evidence from the employer and/or theemployee to establish that the employee was engaged in a kind ofemployment involving exposure to the risk—that is, of benzene—beforethey contracted the disease and their employment involved exposure to therisk. For example, if a firefighter fought structural fires, therefore it can betaken that he or she had been exposed to benzene.23

However UFUA reminded the committee that:Firefighters cannot prove 'exposure' to the particular chemicals or toxins atthe specific fires or incidents they have attended. It is simply not possible orpracticable for the detection of the numerous toxins firefighters are exposedto at each particular fire. This problem is exacerbated as the exposure canbe over a long period of time at a number of fires/incidents and the cancershave various latency periods.

3.26Asked how a firefighter could prove exposure under subsection 7(1) of theSRC Act as it stands, representatives of the ACT Government stated the following:If we were in the situation of someone who had been a firefighter in theACT contracting cancer then part of the process that applies at the momentis that they would need to show that they had been a firefighter and exposedin the course of their work. There would be records that would permit themto do that. I might come back to what you were saying before aboutknowledge of the provisions. I should say that safety generally and workers'safety generally in our fire services are things that are at the front of thegovernment's mind. They are at the front of the minds of all of the peopleinvolved in it. So I am confident that any firefighter who contracted adisease or work injury that even might have been related to their workwould know about the appropriate channels through which they should goto pursue their claim, whether they be a member of our ESA or a volunteerbrigade.25

3.27The onus, therefore, would still be on the sick firefighter to proveoccupational exposure to carcinogens. In fact, given that cancer results fromcumulative exposure, firefighters seeking compensation could be required to provide atrail of evidence on exposure going back a decade or more.3.28This, the committee understands, would be achievable only if, after every fireevent, authorities conducted a thorough scientific analysis of chemicals present in thefire, and then provide each firefighter involved in the response with a detailed list ofchemicals they were exposed to. The administrative burden and cost of such anendeavour would be prohibitive. Easing the extremely difficult task of proving thelink between their work and their cancer goes, as outlined earlier in this report, to thevery heart of the proposed legislation.3.29In addition, this question of proving exposure leads to the fine point ofdifference between the current SRC Act and amendments proposed by this Bill. Thelatter would not require firefighters battling cancer to go out of their way to proveexposure. It would assume exposure to carcinogens for firefighters with a set numberof years of service.3.30Slater and Gordon Lawyers pointed to the out that the Bill does not representa significant departure from the SRC Act, but rather a narrowing of its intentions:

3.31The Slater and Gordon submission argued that the effect of the proposed Billis limited to:...shift[ing] the balance of an evidentiary burden away from a severelyinjured worker and their family at a time where that family is likelyexperiencing significant stress. It shifts this burden to a professionaladministrator who has ready access to the resources and expertise necessaryto assess the merits of the situation. Indeed, it is in many ways the corebusiness of this administrator to make such assessments. It does not denythe administrator any legal defence that it may otherwise considerappropriate to rely upon in the given circumstances.27

Committee view

3.32The committee recognises that subsection 7(1) of the SRC Act already allowsfor a presumption that employment contributed significantly to a listed disease.However, critically, the Act still requires proof of exposure to be established by theclaimant before the presumption can take effect. A firefighter would have to:1. suffer from a disease listed under the SRC Act (which appears not to include allthe cancers covered by the proposed legislation);2. show that their employment involved a risk of exposure to particular chemicalsprior to the disease; and3. prove a link between the chemical and disease in question.3.33The committee considers the SRC Act an inadequate mechanism to achievethe objectives of the current Bill because of the heavy evidentiary burden it places onfirefighters with cancer.3.34The Bill being considered relies on scientific evidence and assumes anassociation between the length of occupation as a firefighter and certain cancers. If theBill is passed, firefighters with these primary site cancers will only have to provelength of service.3.35The committee acknowledges the volume of evidence received—particularlythat from Slater and Gordon Lawyers—pointing out that the ultimate effect of this Billwould be to merely shift, not scrap, the evidentiary burden. The committee recognises

Costs3.36Workers' compensation claims through Comcare are funded by premiumspaid for by governments:The way our scheme operates is that it is very much an experience basedscheme. You may be aware of some of the state and territory workerscompensation schemes which have some elements of an experience base interms of some of the claims experience and performance of individualemployers but because of the size of the schemes and the number ofemployers they quite often operate on an industry basis et cetera. But ourscheme is very much an employer based experience, so the premium whichis charged in each year is based on the actual claims experience of theindividual employers as well as the overall costs of the scheme itself.28

3.37The committee explored the possibility that the Bill could bring aboutsignificant increases in premiums by improving the ease with which firefighters canaccess compensation. However, based on overseas experience as well as the fact thatthe legislation would not provide for any new grounds to claim, the committee is ofthe view that there would be negligible impact on the Commonwealth or ACT budget.3.38For information on the cost impacts of similar presumptive legislation in otherjurisdictions the committee considered evidence provided by the Fire Chief Ken Blockof Edmonton Fire Rescue Services in Canada. Fire Chief Block informed thecommittee that the cost impact of presumptive legislation in Canada had been'minimal if not negligible.'293.39To illustrate the point, Fire Chief Block cited the example of the province ofAlberta, Canada, for the committee. Alberta introduced presumptive legislation in2003, starting with seven cancers listed. In 2005 the province added lung cancer innon–smokers to its list of covered cancers, then expanded the list in 2010–2011 toinclude another six cancers. In all, Alberta now covers 14 cancers in its presumptivelegislation.3.40There are approximately 13 500 firefighters in Alberta, of which 3500 arefull-time firefighters and 10 000 volunteer or part-time. Figures provided for thecommittee show that in the period 2006–2010 there were 19 occupational cancerclaims with the Alberta Workers Compensation Board (WCB).30

3.41The committee heard that the total cost of the WCB—including all workplaceinjury and illness claims—to the Edmonton Fire Rescue Services budget is less thantwo per cent of its $158 million recurrent operating budget:Within the two per cent of the Edmonton Fire Rescue Services recurrentoperating budget it is estimated that there would be a very small percentageof work related illness falling within presumptive legislation coverage.Again, that two per cent encompasses all of the work related injuries, notjust cancer....From 2003 the WCB cost for Edmonton Fire Rescue Services was$916,347, increasing over a seven-year period to $2,332,414 in 2010. Toput that into perspective, that is the equivalent of a $202,295 increase perannum in total for all claims, not just occupational cancer under WCB—and, again, all claims include the range of work related illnesses, such asback injuries, sprains, strains et cetera.31

3.42The committee also heard that much of the increase in costs can be attributedto increased staffing levels, with the Edmonton fire department growing byapproximately 15 per cent over the past decade.3.43Fire Chief Block discussed with the committee the 'immeasurable butbeneficial' impacts of presumptive legislation in Edmonton, Alberta. Raised awarenessof the correlation between firefighting and certain cancers has led to a proactiveapproach to health awareness through the Edmonton Fire Rescue Services Health andWellness program, introduced in 2005. The program encourages firefighters toundergo regular, voluntary medical assessments, which have resulted in earlydetection of cancers and subsequently a much higher survival rate.32Through early occupational cancer detection, there is transferring of costsbetween death benefits and issues such as lost time and medical claims.This is essentially a balancing and neutral costing, while detecting a cancerearly and hopefully saving a firefighter, which is the right thing to do.33

Canada, and has no reason to believe that the introduction of presumptive legislationhere would lead to a flood of claims. Evidence suggests otherwise, as only a smallnumber of firefighters will be in the unfortunate position of having to make a claimfor occupational cancer.3.46On the basis of this evidence, the committee is confident that the cost impactof the proposed legislation would be as insignificant in Australia as it has beenelsewhere.3.47The committee also notes with great interest that presumptive legislationoverseas has led to greater health awareness, earlier detection of cancers andconsequently a higher survival rate. First and foremost this is positive in terms of thefirefighters' lives saved. However, it also leads to a reduced number of death benefitsneeding to be paid.

Coverage of volunteer firefighters3.48Some submissions sought clarification on which firefighters the Bill would35cover.3.49The proposed legislation does not expressly differentiate between volunteerand professional firefighters, but subsection 7(9) includes the following definition ofbeing employment as a firefighter:(9) for the purpose of subsection (8):(a) an employee is taken to have been employed as a firefighter iffirefighting duties made up a substantial portion of his or her duties;and(b) an employee who was employed as a firefighter for several periodsthat add up to the qualifying period is taken to have been so employedfor the qualifying period.36

3.50This definition means that volunteer firefighters would not be covered by thelegislation because firefighting does not comprise a substantial portion of their duties,nor would they be able to satisfy the requirements of the qualifying periods outlined inChapter 1.3.51During the course of its inquiry the committee sought clarification as to whythe proposed legislation did not seek to cover volunteers, who are covered in certainjurisdictions overseas. In response to its questions, the committee heard that thedefinition of volunteer firefighter differs between Australia and overseas:

Cause of illness and period of employment3.52Subsection 7(8) of the proposed legislation states:(8)If an employee:(a) suffers a disease mentioned in the following table; and(b) before the disease was first diagnosed, was employed as afirefighter for the qualifying period mentioned for that disease; and(c) was exposed to the hazards of a fire scene during that period;the employment is taken to have been the dominant cause of the contractionof the disease, unless the contrary is established.

3.53Slater and Gordon Lawyers questioned why subsection 7(8) of the Billemploys the term 'dominant' instead of 'significant' cause, since the threshold test forentitlement elsewhere in the SRC Act is that employment contributed to a disease to a'significant' degree:It is not clear why the term dominant has been selected. The threshold testfor entitlement to compensation for disease under the Act is thatemployment has contributed to a significant degree. The threshold test forsignificance is less than for dominance, so the use of the higher test will notdisadvantage workers who otherwise qualify.38

Committee view

3.56The committee agrees with the concerns expressed by Slater and GordonLawyers, and believes the reference to 'dominant' cause in the Bill should be revisitedin order to preserve consistency within the SRC Act.3.57The committee also supports the view that the term 'several periods' ofemployment should be amended to 'more than one period' of employment.Recommendation 23.58The committee recommends that proposed subsection 7(8) of the Bill beamended to replace the term 'dominant' cause with 'significant' cause.Recommendation 33.59The committee recommends that proposed subsection 7(9)(b) of the Billbe amended to replace the term 'several periods' with 'more than one period'.

The case for non-rebuttable legislation3.60The committee is aware that some submitters, such as the ACT Branch ofUFUA, believe the Bill should go further and provide stronger presumption ofoccupational cancer possible for firefighters. This would require the legislation to benon-rebuttable.403.61As already outlined, the Bill as it stands reverses the onus of proof from theindividual to the employer or insurer, who can then rely on the rebuttable nature ofthis legislation to deny a firefighter's claim for compensation and have the case heardbefore the Administrative Appeals Tribunal or the Federal Court.41Making thepresumption non-rebuttable would render it automatic and not provide employers andinsurers with the opportunity to reject a weak or unfounded claim for compensation.3.62The committee is not aware of significant support for this alternativeapproach. Furthermore, this is not the approach taken by leading jurisdictions acrossCanada and the United States.3.63The Bill as it stands enjoys support from the overwhelming majority ofsubmissions to this inquiry. This, it should be mentioned, includes support from theACT Branch of UFUA, which represents the firefighters who would be directlyaffected by this Bill:

3.64The committee is satisfied that the proposed presumptive legislation shouldremain rebuttable.

Committee view

3.65The committee understands that this legislation would not create a new rightor entitlement, and would not bring about a flood of new claims. Nor would itfundamentally change the nature of the Australian compensatory system. Rather, itwould shift the burden of proof from a sick individual to their employer or insurer,and only in defined cases founded on premises supported by scientific research.3.66The committee notes that the proposed legislation as it stands could lead tofirefighters with two periods of service, which nonetheless add up to the qualifyingperiod, being denied compensation. For this reason the committee has recommendedamending subsection 7(9)(b) of the Bill to replace the term 'several periods' with 'morethan one period'. Similarly, noting that the threshold test for significance is less thanfor dominance, the committee has recommended that subsection 7(8) be amended tomaintain consistency throughout the SRC Act.3.67The committee is convinced that this legislation removes, at least for somefirefighters, the unreasonable impediment to compensation that currently exists. It is,the committee believes, legislation which finally recognises the scientificallydemonstrated link between firefighting as an occupation and certain forms of cancer.As stated in 2002 when the Canadian province of Manitoba was considering theintroduction of such legislation:A presumption assumes that, all other things being equal, most cases of acertain type of cancer will be associated with occupational exposure, eventhough it is not possible to determine which case is actually caused by theoccupation. A presumption is a way of being inclusive in the acceptance ofsuch claims given that it is not possible to distinguish among them....A presumption is also appropriate when the condition is rare and there is apattern or strong suggestion of strong association with an occupation thatmay be concealed by other factor that complicate interpretation of the riskestimate.43

CHAPTER 4Personal accounts4.1The committee heard that firefighters are, upon recruitment, within the top5–10 percent of the general population in terms of physical health and fitness. Yet,within a few years of employment, firefighters are between 2 and 5 times more likelyto develop one of the cancers listed in the Bill than the general population.14.2Currently, as outlined earlier in this report, firefighters who develop cancerare required to prove—often through litigation—a causal link between the cancer andtheir work. The committee received extensive evidence about the hardship and stressthis causes firefighters who are battling a serious disease. This Bill, the committeeheard, would simply remove that hardship and stress and give firefighters a betterchance at recovery.24.3The committee received submissions and heard from a number of firefighters,and families of firefighters, whose lives have been changed by cancer. The committeeagain thanks them for taking the time to make submissions and give evidence. A fewof their stories are outlined below.

Janet Reed

4.4Janet Reed's husband, Robert James Reed, had been a firefighter for 14 yearswhen he was diagnosed with kidney cancer in 2008. He died ten months later, leavingbehind a wife, two children and many friends in the firefighting community.4.5As a firefighter, the committee heard that Robert Reed was always consciousof safety. He was nevertheless exposed, as all firefighters are, to toxins which werebeyond his ability to control:In Rob's everyday work where he looked after people in our communities asa fire fighter, performing road crash rescues, confined space rescues,dealing with hazardous material spills and other work he was regularlyexposed to toxins and risk. He was a safe and conscientious worker and hewore protective clothing and used special safety equipment but it did notprevent him from being exposed to all sorts of toxins and some of thatexposure was cumulative throughout his career.3

4.6His widow, Janet Reed, told the committee of the difficult and stressfulmonths of her husband's ultimately unsuccessful treatment:The circumstances of Rob's treatment was extremely difficult emotionallyand physically...In July Rob had routine testing 6 months after his surgeryand a CT Scan revealed that the cancer had returned to his lymph nodes inhis chest. Rob was hospitalised and had a biopsy which was complexprocedure because his lung had to be collapsed to perform the biopsy, andthe results confirmed that it was secondary cancer originating from the renalcell cancer. That diagnosis was dreadful and very stressful. Rob was thenreferred to an Oncologist and he commenced a course of chemotherapytreatment.4

4.7Robert Reed's family remained hopeful for a positive outcome despite aserried of hurdles and discouraging results:Rob's health declined and the cancer spread to his brain. In September Robhad a course of radiotherapy treatment for 4 weeks to treat the cancer in hishead and chest. I supported Rob through this terrible time and we wereoptimistic for a good outcome. Rob wanted to carry on as though it was"business as usual" to minimise the impact of his illness for everyone else.5

4.8Shortly after this treatment, the family went on a short holiday to spend somequality time together. Within two weeks of the break Robert Reed was hospitalisedwith swelling on his brain. Janet Reed told the committee that her husband died threedays later on 29 October 2009, their 21stwedding anniversary.4.9On 2 September 2011 Janet Reed attended one of the committee's hearings totell the committee of the emotional and financial stress Robert Reed and his familyhad to undergo because Robert was forced to return to work for financial reasons:I am here to ask you to carefully go through this presumption legislationand to consider it, because if this had been available to Rob and me whenhe had cancer it would have made our life easier. I am here for Rob. That iswhy I am here. And I believe that if Rob had not had to return to work afterhe had his operation—he had his kidney removed—after he thought that thecancer was all gone, I believe there would have been a lot less stress in ourlives and maybe the lower stress would not have accelerated his cancer soquickly.6

we were going through such a hard time especially when his cancer cameback six months after he was diagnosed. The last thing that any personneeds to do in that situation is to worry about seeking compensation whenyou are already worrying about how you are going to get through thecancer. That is why I think it is important for me to be here today to let youknow that just having cancer alone is a struggle and the financial part is abigger struggle again that you do not have the strength to fight.7

4.11The committee thanks Janet Reed for her evidence, and acknowledges howdifficult it must have been for her to attend the public hearing.

Dean Symmans

4.12The committee also took evidence from Mr Dean Symmans, a firefighter for26 years. In April 2009 he was diagnosed with leukaemia, and has been undergoingtreatment since that time. He is currently in remission, undergoing chemotherapy,monthly blood tests and bone marrow aspirate tests every three months.4.13He told the committee of his treatment:Upon diagnosis I was given a 70 per cent survival. Treating doctors had lessthan two weeks to use chemotherapy drugs to place me into remission.Stationed in Albany 400km south of Perth, I was air lifted to Perth by RoyalFlying Doctor to Sir Charles Gardner Hospital where chemotherapy andintravenous drugs were initiated.8

4.14Being away from home for treatment meant that his family had to travel, attheir own cost, to see him:Over the next 6 months, I received 3 x monthly intravenous chemotherapytreatments in SCGH hospital. My wife and sons travelled regularly to visitme at my hospital bedside. This was obviously disruptive to family life,schooling and an expensive exercise. My wife had to reduce her hours ofwork and we relied heavily on friends to assist with childcare andtransport.9

4.17Today, like other cancer sufferers in remission, Mr Symmans now lives withthe fear of a relapse:My big fear was if I did not stay in remission—which I am at the moment,thankfully—I would need to have stem cell transplants. If that takes place itwould further chew out sick leave and I would then have to fall onto acharity that the firefighters themselves have set up. It is a sick and deathbenefit fund. I was, as I said, trying to preserve what sick leave I had left sothat I could battle through my treatment.12

4.18He told the committee of the financial strain he and his wife faced during hisillness, and the impact on their family and lifestyle:In my case, being the main breadwinner, it was immense. During my illnessmy wife, who at that point was job sharing, had to cut back on those hoursas well. I guess we were very grateful to her employer, who did the rightthing and looked after her—offered her time off and supported her duringmy ordeal. I have the privilege here today to say how disappointed I was inthe return-to-work system of my employer. All that was in place as far asreturn to work goes was an account-keeping process, which I probablycome across as a little bit bitter with at the moment. All they wanted toknow was how many hours I was working that day. The hours I did notwork they were going to take off my remaining sick leave. That made melivid. I had worked for an organisation for such a long period of time andthat was what they were offering me. I thought it was pretty ordinary.13

He added:I went to the point of contacting my area manager and asking 'How the helldo you work this sort of thing?' It should not be pushed down to people infire stations and their area managers to try to make the thing work. Thereshould be something put in place. That, to me, is part of this process ofgetting presumptive legislation up so that I would not have to worry abouthow much sick leave I have and my family would be looked after.14

4.20Although Dean Symmans believes he was exposed to iridium radiation, heinformed the committee that he did not think he could confidently identify a singleincident which had caused his leukaemia:In 1991, I believe, I was probably exposed to radiation caused by iridium.There are ongoing diesel fume concerns at fire stations and on the fireground. The leukaemia I have is believed to be caused by an exposure to achemical or radiation, and benzene gets the green light there. I guess therehas been an accumulation of carcinogens over 24 years. The more I lookinto things, the more I find things. I have only just learnt from a fellowfirefighter that the firefighting foam we have been using over the years canbe a carcinogen. A lady who is doing research into leukaemia contacted meone time and told me that a chemical called 2-butoxyethanol, I think it is,was in AFFF foam. I'm not a scientist; I did my own home research comehome. She indicated that there is a carcinogen in firefighting foam. I don'tknow how I can nail it down to one specific thing.15

Scott Morrison

4.21Mr Scott Morrison is a leading firefighter with Melbourne's metropolitan firebrigade. He was diagnosed with non-Hodgkin's lymphoma in 2001:My journey with cancer began 10 years ago. In August 2001 I was admittedinto hospital as it was not known what was wrong with me. I was diagnosedwith non-Hodgkin's lymphoma. I had large cell cancers which areconsidered aggressive. That was the start of a battle for my life that wouldspan six years and is something I am still very vigilant and concerned abouton a daily basis.16

On 11 September 2001 Scott Morrison began his chemotherapy treatment:The date 11thSeptember 2001 is a day of sadness and shock for firefightersas the New York Fire Department lost more than 300 firefighters in theterrorist attacks. For me that day also marked the first round ofchemotherapy. I had six rounds of chemotherapy ending on the 24thDecember 2001. By that stage I had not even told my mother I had canceras I thought the chemotherapy would be the end of it.17

4.23Unfortunately, chemotherapy did not produce the results Mr Morrison hadhoped for, and he had to undergo further rounds of the treatment. Due to ongoingchemotherapy and tests his veins collapsed and a fine tube had to be inserted into hisbody in order for the chemotherapy to continue:Then I went back for more tests, and they showed that that had failed, so Ihad to have a stem cell transplant in February. In March 2002 I wentthrough the procedure, and I was in hospital for eight days. I was returned

home for four days because those four days could have been my last fourdays, but then I went back to the hospital for six weeks—I was in isolation.I finally got through that, and I was sent back for more tests. They said,'You've still got something there near your left kidney,' and I had to gothrough six weeks' radiation. In between that, I spoke to the doctor. He said,'If this doesn't work you're going to palliative care.'18

4.24Fortunately, Mr Morrison responded to treatment and in 2002 went intoremission for five years. He was re-diagnosed with non-Hodgkin's lymphoma in 2007,which was successfully treated with radiation therapy. The committee was shocked tohear that he had to rely on the generosity of his colleagues who gave up their ownleave entitlements to allow him to take the necessary time off work:I was lucky because my wife had her own dancing school. She spent thewhole time at the hospital when I was there. I had a few hours of sick leave,but I was off for nearly 18 months. When I did run out of sick leave I waslucky enough to have great work mates who put their annual leave up forme so I would not lose money. I cannot thank them enough....They helped me get through everything. I love those guys. Ever since Iwent back to work I have said 'I owe you all that much.' I learnt to cook andfrom then on I have cooked lunches every day for the guys. Whatever Icould do for them, if they need something, I would go in the car and do itfor them. Still to this day I thank them for helping me survive what I wentthrough.19

4.27Mr Henderson's experience reminded the committee of the benefits, outlinedearlier in this report, of health awareness and early detection:I found the lump myself though self examination and mentioned it to mydoctor at a health monitoring appointment that is standard practice for thefire brigade. I was being vigilant because I knew of other firefighter thathad testicular cancer and knew the earlier it was diagnosed the betterchance the person had. I was aware of the link between firefighting andtesticular cancer. I understand that testicular cancer is more commonly ayoung man's disease, but I had known older firefighters to be diagnosedwith it so I remained vigilant.22

He related his experience with illness and accident insurance:I started off with 1,900 hours of sick leave. I exhausted all that sick leaveand ended up on a policy that I had when I joined the fire brigade for sickand accident insurance. I ended up on that for a further two months. When Iwas cleared to be operationally fit to resume duties and got back to thework the insurance company kindly notified me that they no longer wishedto cover me and my policy was cancelled. I appealed and in the wisdom ofsunlight they agreed to keep the policy running but refused to cover cancer.I did not get any discounts in the policy.23

4.29Mr Henderson reflected on whether it would be possible to reduce the riskposed to firefighters by controlling the materials used in manufacturing. He stated:I think that what a lot of it comes down to is probably the expansion ofglobalism. We have ships with containers full of all sorts of goods goingfrom one country to another. We have ships of convenience now, and no-one can systematically keep enough records to link all the dots to find atrend or a commonality in something that is being abused. I think we dohave a system, but I think the system also has some holes in it that otherpeople are using to drive their goods through. There is the fire load in thisroom—these tables and the formaldehyde in them, or what they use in thecarpet. You have already had this discussion in Melbourne. From our pointof view, we would like to see a system that is fail safe, accountable andcredible....

4.30Paul Henderson's prognosis is, fortunately, good. Nonetheless, like othercancer sufferers, he lives with the spectre of cancer even when in remission:When I did not have cancer I never walked around thinking, 'What's goingto happen when I get cancer?' Now that I have had cancer and now that Iam in remission, is that little monkey going to tap me on the back with'Knock, knock.' 'Who's there?' 'It's cancer.' I live with that.25

Ross Lindley

4.31Ross Lindley joined Melbourne's Metropolitan Fire Brigade in 1984. Heserved as a firefighter for 26 years before being retired for medical reasons in 2010.4.32He was diagnosed with multiple myeloma in January 2009 after an MRI scan.He immediately underwent an aggressive chemotherapy regime and had a stem celltransplant. The treatment itself was so intensive that it necessitated 18 months ofrecovery.4.33Ross Lindley told the committee how daunting a task he faced when heconsidered seeking workers' compensation:I actually applied. I was one of the firefighters that Craig Sidebottom spokeabout. The wife and I went in. It is very frightening when they tell you thisis what you have to prove, this is what you have got to do: you will take itto court; you will have to fight the insurer; if you lose you are going to havecourt costs; chances are you are going to lose it because you have to findthis information, which is near impossible. So we let it slide. We thought itwas just too hard—let's get better.26

4.34Having given up on pursuing compensation, he later sought to obtain recordsof chemicals he might have been exposed to during the course of his duties. He foundthat no records existed:I rang the BA department to try to chase up these records and was informedthat the records do not exist—after 24 hours they get thrown out...Theywere all gone. So there were no records of exposures of any kind. I thensent a letter to the metropolitan fire brigade requesting all the calls I hadbeen to for my entire 26 years in the job and any exposures that I had beento and so forth and so forth—all the incidents and whatever. They sent aletter back saying, 'All we can give you is the reporting system. There areno records on exposures at all.' That was the brick wall I hit. You just

4.35His words echoed previous evidence the committee had received concerningthe difficulty firefighters faced when seeking to access records of exposure, recordswhich, even when available, are unreliable and often inaccurate.4.36Mr Lindley used up his sick leave, and, like many others, turned to incomeprotection:That reduces your income down to 70 per cent, which you have to pay taxon as well. Then I returned to work on light duties because it was just toomuch of a financial struggle being on income protection and still having amortgage and family commitments, medical expenses and so forth. Onlight duties I could only work two-day shifts, so I was taking the nightshifts off as annual leave which I had accumulated while I was crook. Onceall that went I then had to go out on a pension. I was not allowed to returnto work as a firefighter and I took a pension and left. Financially it has beenvery hard. I have redrawn on my housing loan, I am paying off a tax debtthat I have incurred from the income protection and at this stage I am notworking. I am just plodding along trying to make ends meet.28

Conclusion4.37The community holds a deep respect and gratitude for those who serve toprotect and assist. If we are honest, however, along with this respect and gratitudecomes a generous dose of expectation. We expect firefighters to come to ourassistance when our homes, schools, hospitals and businesses are ablaze. We expectthat a firefighter will enter a burning building when every human instinct tells us toleave. We expect they will search for those trapped inside and bring them out alive.We expect them to do what they can to minimise loss of life and damage to property.While everyone else is fleeing danger, it is the firefighter's duty to tackle it head-on, toenter an extreme and dangerous environment, armed with the best protective gearavailable.4.38It is a duty firefighters take seriously, aware of the inherent risks to their ownhealth and safety. This awareness on their part does not mitigate the community'sresponsibility towards them.4.39The committee has carefully examined the large amount of evidence withwhich it has been presented. Study after study has pointed to a higher risk of cancerfor firefighters than the general population. Science has confirmed what firefighterssuspected for decades: that a disproportionate number of them in the prime of theirlives are brought down with illnesses usually reserved for the old and the infirm.

4.40The committee recognises that cancer is an illness that touches many fit,healthy people in the non-firefighter population as well. In many cases it isunpredictable and incomprehensible, due to genetics or factors we do not yetunderstand. But when the science tells us that a particular group of people who areroutinely exposed through their service to the community to known carcinogens are athigher risk of developing certain types of cancer, then the response becomes clear.4.41The committee recognises that when a person spends their professional careerinhaling and absorbing known—and probably some as yet unknown—carcinogens inthe course of public service, it is the moral duty of the community to enable them toseek compensation should they fall ill as a consequence. For this reason the committeebelieves this Bill needs to be passed after being improved upon through incorporationof the committee's amendments.4.42The committee has conducted its analysis in the hope that similar legislationwill be introduced across state jurisdictions in future as part of the harmonisation ofworkers' compensation laws. If this Bill is passed, the committee encourages statejurisdictions to engage in a dialogue which will eventually see a positive, and fair,outcome for firefighters across Australia.Recommendation 44.43The committee recommends that this Bill be passed subject to theforegoing recommendations.

Coalition senators welcome the opportunity to inquire into this important issue, andbroadly support the arguments underpinning the committee majority's report.Coalition senators wholeheartedly share the committee majority's objective ofsecuring a workable compensatory system for firefighters who fall ill with cancerrelated to their service. However, coalition senators remain to be convinced thatpresumptive legislation is necessarily the best mechanism to achieve this.RecommendationCoalition senators recommend that further consideration be given to ascertainhow best to streamline firefighters' access to compensation for occupationalcancer without necessarily resorting to presumptive legislation.

APPENDIX 1Submissions received by the Committee123456789101112131415161718192021222324United Fire Fighters of WinnipegMr Mick BusstMr Phillip WiggMr Paul HendersonMr Frank BesankoMr Guy McCrorieMr Scott MorrisonMr Ross LindleyMr Philip BrownMs Karen LindleyFire Brigade Employees Union and United Voice, Northern Territory BranchWorkSafe VictoriaMr Michael Smith AFSMSlater and GordonAustralian Council of Trade UnionsMr Brian WhittakerMr Phil TaylorUnited Firefighters Union of Australia, ACT BranchUnited Firefighters Union of AustraliaMr Janet ReedMs Sarah ReedMr Corey ReedMr Dean SymmansACT Department of Chief Minister and Cabinet

APPENDIX 2Witnesses who appeared before the CommitteeSt James Court Conference Centre, Melbourne, Victoria9 August 2011FARRELL, Mr Mick, National President and Aviation Branch Secretary,United Firefighters Union of AustraliaFORREST, Mr Alex, Private capacityMARSHALL, Mr Peter, National Secretary, United Firefighters Union ofAustraliaTAYLOR, Commander Philip Taylor, Private capacityWATSON, Ms Joanne, National Industrial Officer, United Firefighters Union ofAustraliaWHITTAKER, Commander Brian, Private capacity

Parliament House, Canberra, Australian Capital Territory23 August 2011BAXTER, Ms Michelle, General Manager, Workplace RelationsImplementation and Safety Group, Department of Education, Employment andWorkplace RelationsBRIGHTON, Ms Meg, Director, Continuous Improvement and Workers'Compensation Branch, Chief Minister and Cabinet Directorate, AustralianCapital TerritoryKEFFORD, Mr Andrew, Deputy Director-General, Chief Minister and CabinetDirectorate, Australian Capital TerritoryKIBBLE, Mr Steve, ComcareLIS, Mr Henry, Branch Manager, Workplace Relations Legal Group,Department of Education, Employment and Workplace Relations

Cliftons Conference Centre, Perth, Western Australia2 September 2011BLOCK, Mr Ken, Private capacityFORREST, Mr Alex, Private capacityHENDERSON, Mr Paul Xavier, Private capacityLINDLEY, Mr Ross Edward, Private capacityMARSHALL, Mr Peter, National Secretary, United Firefighters Union ofAustraliaMORRISON, Mr Scott, Private capacityREED, Mrs Janet Lucille, Private capacitySIDEBOTTOM, Mr Craig Andrew, Practice Group Leader, WorkersCompensation Department, Slater and Gordon LawyersSYMMANS, Mr Dean, Private capacityWATSON, Ms Joanne, National Industrial Officer, United Firefighters Union ofAustralia