Duncan Kerr (Denison, Australian Labor Party) Share this | Hansard source

The Employment and Workplace Relations Legislation Amendment (Welfare to Work and Vocational Rehabilitation Services) Bill 2006 has a number of intended beneficial consequences. I do not seek to criticise the motivation behind the legislation but I do want to put on record a couple of cautionary remarks. The first is a general one in relation to the increasing practice of Commonwealth services to be rendered—in the language of the day—contestable. Whilst in some instances this has proved to be beneficial, in a number of areas it has led to the prime provider becoming essentially a residual service for those who fall outside the capacity of the service providers in the private sector to make money from or, if there is a fee-for-service arrangement, who cannot meet the fee-for-service costs.

This always needs to be watched because the ‘residualisation’, or the shrinking, of the public sector to a role which provides a very frayed safety net to those who are least well off in the community is a challenge that an incoming Labor administration will have to face in a large number of different areas. It will not be easy to address. Even the current administration should give some thought to it and make certain that it does not disadvantage those who are least well off in our community.

The second point I make is that the regime that currently applies to those who receive disability payments has been modified to a degree that excludes a very large number of Australians whom most of us in this House would regard as fitting the requirement for receiving disability payment. I will give an instance of a constituent of mine who faced a real set of difficulties in this regard. I will not give the name of the constituent, but the background facts are well known to the Commonwealth because it was the subject of repeated litigation—I suppose that is the right word—in front of the Social Security Appeals Tribunal and the AAT. It was ultimately resolved in a way which permitted a disability payment, but let me give you the background.

My constituent was a bricklayer and had had no other profession since his youth. He had been increasingly afflicted by rheumatoid arthritis. His hands became crabbed and he basically could not undertake any significant work in his area of professional expertise. He had no educational background that suggested he might have some alternative employment opportunities.

In the ordinary course of events, as his disability increased over time and there was professional medical advice from specialists that his disability would continue to increase such that not only his hands but his whole body would be affected, he would have gone through the normal Welfare to Work system. But in the intervening period he suffered cancer. His cancer was life threatening and led to his having a series of operations and being bedridden. On top of that, he then suffered massive heart attacks. When he applied for a disability pension, it was only the recognised disability—that is, his rheumatoid arthritis—that could be taken into account because none of his treating doctors could honestly say that it was impossible that his cancer would not resolve itself within two years time. Of course, the probabilities of that occurring were very slight. His health had continued to deteriorate, he was in great pain, he was effectively immobilised, he was bedridden and he then suffered heart attacks. In any realistic scenario, he was incapable of work for an indefinite, protracted period. Given that he had reached his late 50s, that he had no education and that his only trade was now denied him because of his rheumatoid arthritis, it seemed the smart thing to do was to enable him to go onto a disability pension.

But there was this long, protracted process where the real disability that he suffered—that is, cancer and a weak heart afflicted by a number of heart attacks—could not be taken into account, so the arguments were simply about the progression of his rheumatoid arthritis. So we had this fairyland, Alice in Wonderland discussion as if my constituent were an otherwise well man suffering rheumatoid arthritis. He was continually, at least for the initial period, being required to turn up for all the interviews and what have you relating to his obligations under the unemployment Newstart arrangements as if he were employable.

Eventually some sanity prevailed and there was a reduction in the number of times he had to fill in these forms—or, rather, his wife filled them in on his behalf because he had become incapable of doing that; he could not do it himself. We had this absurd situation where a man who was facing the prospect of death, fearful that he might not live any time longer at all, bedridden, with no real prospect of resuming work, was denied disability benefit. I imagine that if it has happened in this instance—I was eventually successful in having my constituent permitted to receive disability benefits backdated for a significant period of time—it must have happened many other times to people who are less able to access their parliamentarians or other assistance to remedy the circumstances in which they find themselves. The consequences for such people are quite severe. Firstly, the payments they get are lower when they are not eligible for disability benefits. More importantly, if they lose the capacity to respond to some of the demands that are placed on them in those circumstances, they risk the prospect of being removed entirely from receipt of any benefit.

So I think we have to have a pretty hard look at the way in which the present scheduling arrangements that recognise only certain disabilities—and permit benefits to be paid in respect of only those that will certainly persist for a period greater than two years—and look realistically at the whole person. Everywhere else we talk about approaching human needs in a holistic way, so we ought to approach in the same holistic way the human needs of people who suffer massive disabilities.

It was such a silly situation. His wife really couldn’t understand it. I remember going before the Social Security Appeals Tribunal. Very well meaning members of the tribunal were asking his wife—because he could not turn up; she was advocating for him with my assistance—about his rheumatism, because that was the basis on which they could grant disability benefit. She just couldn’t get it: she couldn’t understand why they were asking questions about his rheumatism. For her his rheumatism had become almost the most minor of her concerns. She was worried about him dying of cancer. She was worried about him lying in bed stricken with pain, with his stomach bloated, and suffering heart attacks. That is what she was worried about. That is why she thought he should get a disability pension.

The tribunal rejected the claim because, even with my assistance, she could not bring herself to focus on the reality that she needed to address this: ‘Imagine that he’s really well. How has his rheumatism developed and how would that prevent him re-entering the workforce?’ Ultimately, it was accepted that his rheumatism had developed to such a degree—and it had; he was incapable of work—that at that age effectively he was incapable of undergoing a retraining regime and that he was simply bedridden. So this imagination that he was an otherwise well person but suffering from an accepted disability, while ignoring the fact that he also suffered from cancer and had been a victim of heart attacks, created an unrealistic framework as to the disposition of his application.

I would urge the government to have a bit of a look at these things. I know that every member of this House, on both sides, had those circumstances been brought to their attention, would have done exactly as I did and tried to find an individual solution for that individual case. I do not think any officer of the Commonwealth who was on the other side of these particular matters acted other than honourably. They did everything they could within the framework of the regulations and the laws to find a solution. Ultimately, a solution was found, but it took a great deal of time and it was difficult. The reason it was difficult was the unrealistic and harsh way in which the framework is established so that it does not look at all the needs of a person in those circumstances and instead looks at the artifice that is the way the regulations are written and are required to be applied.

Those are some of the concerns that I wanted to put on record about this legislation. There was the general concern about the outsourcing of community programs and the risk of residualisation. I concede that, in this area, we will have to suck it and see. The measures will proceed, and I hope that they do achieve the government’s intended effect of making it more convenient for those who have suffered disabilities to find a vocational rehabilitation service of their choice that suits them, but I have some hesitation about the general thrust of the way in which the Commonwealth disposes of core responsibilities these days to the private sector. We need to think through how we make certain that we do not leave great holes in the safety net that those programs are meant to provide because there is no commercial return for certain clients or because those clients do not have the financial resources to pay for services themselves. With those remarks, I am happy to approach this matter in the same manner as the shadow minister.

See this speech in context