Wednesday, 25 May 2022

Bills

Firefighters’ Presumptive Rights Compensation Legislation Amendment Bill 2022

Statement of compatibility

Ms MAXWELL (Northern Victoria) (09:50): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Firefighters’ Presumptive Rights Compensation Legislation Amendment Bill 2022.

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Firefighters’ Presumptive Rights Compensation Legislation Amendment Bill 2022 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Council, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

The Bill extends presumptive rights for firefighters for the purpose of claiming compensation under the Workplace Injury Rehabilitation and Compensation Act 2013, to include certain female-specific cancers to the existing schedules in the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019 and the Forests Amendment (Forest Firefighters Presumptive Rights Compensation) Act 2021.

Part 1—Human Rights issues

In my opinion, the human rights under the Charter that are relevant to the bill and consistent with the statements of compatibility for other Bills put to this Parliament that relate to presumptive cancer rights, are:

• The right to equality and protection against discrimination under section 8;

• The right to privacy as protected by section 13;

• The right to protection of family by section 17;

For the reasons outlined below, I am of the view that the Bill is compatible with this Charter because, to the extent that some provisions may limit human rights, those limitations are reasonable and demonstrably justified.

Right to equality and protection against discrimination

Section 8(3) of the Charter provides that every person is equal before the law and is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

The term ‘discrimination’ referred to in section 8(3) of the Charter is defined as:

Discrimination (within the meaning of the Equal Opportunity Act 2010) on the basis of an attribute set out in section 6 of that Act. “Sex”, “disability”, “employment activity” and “industrial activity” are identified as attributes within section 6 of the Equal Opportunity Act 2010.

This bill promotes the right to equality. The additional benefit to this cohort is justified based on associated evidence that attending fires is associated with an increased risk of developing cancer and is consistent with emerging similar rights in other international jurisdictions.

This bill improves access to compensation benefits for female firefighters to ensure they are not discriminated against or disadvantaged from accessing presumptive rights for female-specific cancers as a firefighter because research to otherwise prove a conclusive link between occupational exposure and disease is limited because female data sets are not of sufficient size to provide for epidemiological studies.

These provisions limit the ability of certain firefighters from accessing the rebuttable presumptive right to compensation by virtue of being female-specific and having defined qualifying periods, which therefore may limit the rights to equality and protection against discrimination. However, I consider these limitations to be reasonable and consistent with other qualifying periods and sex-specific cancers within the existing presumptive rights scheme.

Right to privacy

Section 13 of the Charter states that a person has the right to not have their privacy unlawfully or arbitrarily interfered with and the right not to have their reputation unlawfully attacked. This includes a right to privacy of information that relates to a person’s health and/or exposure to disease.

The presumptive rights scheme to which this Bill relates includes consideration by an advisory committee of a firefighter’s eligibility to the scheme. Access to information in the course of this process may give rise to an interference with an individual’s privacy, however there are parameters within which information is accessed and the role of the advisory committee is important to maintaining the integrity of the scheme. The presumptive rights scheme is not compulsory and an individual can choose to not apply for the scheme if their personal desire to protect their privacy overrides their desire to access the scheme. Therefore I consider any interference with privacy that may arise to be neither arbitrary or unlawful, and balanced against the positive promotion of other rights to equality.

The right to protection of family

This bill supports the State in providing protection to families by ensuring that families of female firefighters can access presumptive rights for female-specific cancers and those families will not be deprived of reasonable support.

Second reading

Ms MAXWELL (Northern Victoria) (09:50): I move:

That the bill be now read a second time.

I am pleased to bring the Firefighters’ Presumptive Rights Compensation Legislation Amendment Bill 2022 to this Parliament, a bill to extend presumptive cancer rights for firefighters to include certain female-specific cancers.

Presumptive cancer rights were provided as a workplace injury compensation provision for firefighters when fire reforms were legislated in 2019. The debate over these fire reforms was very controversial, heated and, at times, divided. In the midst of that divide was the strong and bipartisan support for presumptive cancer rights that delivered a rebuttable compensation scheme for firefighters diagnosed with certain cancers.

Firefighters across this state—whether they are career firefighters, forest firefighters or the incredible network of CFA volunteers that our regions rely so heavily on—face enormous risk every time they respond to a fire. That risk is not limited to protection of our local communities; our teams travel interstate and even internationally to fight fires in times of catastrophic emergency.

The risks are intense and wideranging: smoke inhalation; exposure to chemicals, extreme heat, ultraviolet radiation, noise, dust; and the risk of crush injuries from collapsing structures.

Exposure is not just at the fireground. Contaminants remain on firefighting equipment and need to be thoroughly cleaned. There has been a real shift away from the image of gear caked in soot as a status symbol and a greater understanding of how chemical leaching can affect a person’s health.

The United States and Canada have led the charge on presumptive cancer rights for firefighters. Of the firefighters named on the Fallen Firefighter Memorial Wall of Honor in Colorado, more than half of those firefighters died from cancer. Much of the evidence base for delivering these rights has come from studies involving male firefighters, not because they are male but because they represent around 95 per cent of the overall firefighter cohort. The evidence is clear that there is elevated risk of cancer for firefighters compared to the general population.

So far, female firefighters have been too low in numbers for research to be able to determine conclusively the risk of developing female-specific cancers from exposure to fire. Female firefighters make up less than 5 per cent of the overall workforce. They are greater in number in the forest firefighter industry in Victoria—I am told 25 per cent—and while participation rates will grow, it will still be some time before they are in sufficient numbers to provide researchers with reliable study sets.

International medical oncologist Dr Kenneth Kunz has been a longstanding advocate for a focus on the health impacts of firefighting on women and he has predicted that female firefighters get a minimum of 20 per cent more cancers than the general population.

In 2019, the US Federal Emergency Management Agency published a paper Emerging Health and Safety Issues Among Women in the Fire Service. This reports states that the incidence of cervical cancer is more than four times higher in female firefighters and suggests that elevated incidence and mortality could be associated with exposure to endocrine-disrupting chemicals in the firefighter population, which could elevate the incidence and mortality of reproductive cancers among female firefighters.

The most recent study specific to female firefighters was released in December 2021. The Women Firefighters Biomonitoring Collaborative examined exposure to fire retardants and the association with thyroid function and breast cancer among female firefighters. The study found these levels were much higher among female firefighters than in women office workers and evidence that fire retardants may affect thyroid function in humans. Breast cancer is on the list of cancers included for presumptive rights, because this cancer can affect both males and females.

Another study by this collaborative confirmed that female firefighters are exposed to higher levels of some PFAS compared to office workers. Just this year in the United States, a lawsuit was lodged claiming that PFAS in protective equipment is associated with adverse health effects, including cancer. In a massive study of 70 000 people living in the Mid-Ohio Valley, where the drinking water was contaminated with one type of PFAS chemical near a Teflon-manufacturing plant, elevated levels were associated with a greater risk of numerous cancers, including testicular and ovarian cancers.

So, while the findings are sobering, it is certainly positive that there is more attention being focused on the health of female firefighters and that research is being done where the opportunities present.

Australian research is limited, but the Australian firefighters health study conducted by Monash in 2011 emerged from several overseas studies that identified elevated cancer risks, again, in firefighters. This study found the cancer mortality risk for paid firefighters was comparatively higher than the risk for other major causes of death, although that risk was actually reduced when compared to the rest of the Australian population. This was suggested to be because working populations tend to be healthier than the population from which they are drawn and this is probably more pronounced for paid firefighters because of the strict fitness standards they have to meet. Increased risk was statistically proven in a number of cancers through this study, including overall cancer incidence for the group as a whole and for those who had worked for longer than 20 years.

This bill seeks to add three female-specific cancers to the existing list of cancers that are afforded rebuttable presumptive rights. My strong view is that in the interests of fairness and equality, we should take a precautionary approach to include these cancers and not wait for conclusive evidence.

When I first brought this proposition to the Parliament, through an amendment to the presumptive rights bill for forest firefighters, I recognised that Victoria prides itself on being progressive in its approach to gender equality.

At that time, there was broad support for my amendment but I negotiated in good faith with the government to work with them on progressing this reform. As the government said at the time, we all share an aspiration to ensure the scheme is supportive of women. We have had discussions since then, they have done some work in the background and I have too. This work will continue irrespective of this bill.

I have spoken with various fire services and their workers, both formally and informally. The United Firefighters Union support this push, as do the Volunteer Fire Brigades of Victoria and members of both Fire Services Victoria and Country Fire Authority.

We should not delay in bringing this change to the presumptive rights scheme until there are enough female firefighters to provide the evidence that exists now for men. That evidence could be years, decades away and in the meantime will deny equality to those female firefighters, those trailblazers, who serve us now and who might need this now.

Gender equality is about creating a level playing field. This sometimes requires putting in place measures that are ahead of the curve to deliver equality and ensure women are not left behind. As I have said before and I say again, we should not wait years for data to confirm what we can reasonably conclude now—and that is that the elevated cancer risk we see in male reproductive organs is probably going to be the same tragic fate for women.

If we have the enviable scenario in the future that our female participation rates grow enough to have standalone research, on this basis this Parliament can make legislative amendments to the scheme. There might be other changes in times to come, as occupational risk of other cancers may very well diminish as equipment and processes improve and drive down exposure. We should take the precautionary approach and provide the support while we shore up the science.

Ultimately, presumptive cancer rights is a scheme we want very few firefighters to access because we don’t want them developing cancer. But if they do, female firefighters should not be denied support because their participation rate is so low as to make conclusive evidence unachievable.

There are some provinces in Canada who have delivered these rights since 2019, and more have followed. Oregon in the United States has recently added female productive cancers to their presumption, and Phoenix and Arizona are pushing to follow. It’s happening.

Let’s join this charge and be the trailblazers for our female firefighters that they are for us. Let’s be ahead of the curve, Victoria, and give them the rights they deserve.

I commend this bill to the house.

Ms TAYLOR (Southern Metropolitan) (10:01): I move:

That debate be adjourned for two weeks.

Motion agreed to and debate adjourned for two weeks.