Rachel Siewert (WA, Australian Greens) Share this | Hansard source

These two bills, the Social Security Amendment (2007 Measures No. 1) Bill 2007 and the Social Security Amendment (2007 Measures No. 2) Bill 2007, represent a mix of measures, some of which are broadly beneficial to specific groups and others that have attracted considerable criticism, particularly from organisations representing people with disabilities. These bills must be considered within the context of the laws that they seek to amend—that is, the government’s Welfare to Work laws which specifically introduced harsher measures for single parents, people with disabilities and other Australians. These are laws which end up punishing the very people whom we believe our welfare system should be helping the most.

The Australian Greens welcome the beneficial aspects of these two bills. These include the amendments to recognise kinship care and extended participation exemptions to principal carers who are relatives but not parents of children to extend the mobility allowance, to extend benefits to partnered parenting payment recipients and to extend the entitlement to dependent child maximum rate of payment where a person provides at least 14 per cent of care. The fact that the government has belatedly recognised these amendments demonstrates the flaws in the government’s approach which are inherent in the Welfare to Work laws.

Having implemented such a punitive regime, and having rushed the laws through parliament without sufficient time to adequately assess their impact or time for community consultation, the government now find themselves in the position of needing to make these sorts of amendments. This seems to have been done on an ad hoc basis. They have realised the depth of concern and the problems with their legislation and that they needed to act to rectify some of the extreme harshness of the impacts of these laws and their knock-on effects on particular groups of people. The Social Security Amendments (2007 Measures No. 1) Bill 2007 is, broadly speaking, beneficial to the extent that it mostly fixes holes in the Welfare to Work laws. The exception to this is the amendments to the Youth Allowance provisions, where once again we believe the government is taking a very punitive approach to welfare. I will be moving amendments to this bill to amend the definition of a family law order to make it consistent with amendments I will be moving to the Social Security Amendments (2007 Measures No. 2) Bill 2007.

The primary focus of my comments today will be the Social Security Amendments (2007 Measures No. 2) Bill and its amendments regarding principal carers, changes to the disability support pension provisions and amendments to section 12 of the Social Security Act. I turn now to the issue of principal carers. As the Senate is very well aware, the issue of the definition of principal carers is one that I have had concerns about from the very beginning—since the introduction of the Welfare to Work laws. As I have said in this place on numerous occasions, I will keep raising this issue until it is fixed by the government. This bill does not fix the problem, although it does make a welcome amendment. It does address one issue which I have been raising since the introduction of these laws; it does not fix some of the more in-depth concerns that we have about principal carers. The bill provides for an extension of participation exemptions to principal carers who are relatives, but not parents, of children where the principal carer is providing care for a child as a result of a family law order as defined in the act. These amendments would allow the person in this new category of a relative who is a principal carer but not a parent to access the higher PPS rate of Newstart or youth allowance.

The Australian Greens are pleased that the government is finally recognising the role of kinship care through these amendments. However, while we welcome the intent of these amendments, we are concerned that they do not go far enough to effectively address the reality of kinship carers’ circumstances. For example, there is a need to recognise less formal arrangements than those that fall under the definition of a family law order. The National Welfare Rights Network commented in their submission to the inquiry:

There exist many circumstances where a relative of a child may become a principal carer without court orders being made. The narrow scope of the definition as detailed in this item undermines the utility and appeal of parenting plans that include non-parents, and stands in direct contrast to the current policy and legislative drive towards parenting plans and family relationship centres as alternatives to the Family Courts.

In many kinship care arrangements family members who care for a child but do not have a family law order—or in circumstances where there are protracted family law processes ongoing—still face exactly the same demands as those with a formal order. Yet they can be subject to the onerous activity requirements under these amendments. There is no justification for this discrepancy, particularly when the government is encouraging less formal arrangements through the establishment of family relationship centres. These informal care arrangements are also particularly important in Aboriginal communities. It is less likely in Aboriginal communities that care arrangements by relatives will be formalised through family court orders or even the less formal parenting plans. It is much more usual for grandparents or other family members to take care of children on an informal yet ongoing basis. These amendments from the government do not address this situation and continue to leave people disadvantaged while caring for children.

With this in mind I will be moving an amendment to the definition of family law order to widen its scope to recognise less formal care arrangements. This, I might add, will mean that they are then consistent with other requirements under FaCSIA for childcare benefits and for family tax benefits. We are very disappointed that the government has not taken this opportunity to fix the broader problems with principal carers. The Australian Greens also believe that the government should use this opportunity to address the broader principal carer inequities—that is, the contradiction between the presumption of equal shared care within the Family Law Act and the definition of a single principal carer within the Social Security Act. While I risk boring the chamber yet again with my argument, obviously I have to repeat it because the government has not got it yet. We have outlined this inequity in the past—ad nauseam, I believe—and will continue to draw it to the attention of the Senate until it is fixed. For the purposes of income support, the government says that there can be only one principal carer and that person is responsible for the care of the child. If you are the nominated principal carer then you receive certain benefits under the Welfare to Work laws whereas if you are the other parent in a shared parenting arrangement then you receive exactly the same entitlements as someone with no parenting responsibilities.

The problem is that at virtually the same time as introducing the Welfare to Work laws the government made changes to family law which moved to a model of equal shared care as the preferred social model. This is resulting in an increasing number of parents with fifty-fifty shared caring arrangements within an income support system under which only one parent in a fifty-fifty shared care agreement can be determined to be the principal carer. This is manifestly unjust—and the biggest losers are the children, who are caught in the middle. We are now seeing an increasing number of people coming forward who nominally have fifty-fifty shared care arrangements but who in reality are shouldering an unequal part of the parental care burden because their shared care has not been recognised through the principal carer provisions of Welfare to Work. They are suffering and their children are suffering as a result of the government not recognising that the move to a presumption of shared care within the family law system must also be properly recognised within the income support system.

The current situation is leading to disadvantage in the lives of many Australian children. I will once again be moving amendments to the definition of principal carer so that it is aligned with the intent of the family law changes and so that it reflects the concept of shared parenting such that, where parents who are sharing the care of children each receive income support and the difference in percentage of shared caring responsibility is 12 per cent or less, both parents are deemed to be principal carers. I will keep bringing forward this amendment until this inequity is fixed.

I would like to move on to the changes to the disability support pension. There are two key issues with the proposed changes to the disability support pension: firstly, the power given to the minister to make guidelines by legislative instrument relating to the determination of a person’s continuing inability to work, the application of impairment ratings, partial capacity to work and incapacity exemptions; and, secondly, the changes to allow impairment ratings to be made by non-medically qualified assessors. The Senate inquiry received a number of submissions from disability groups expressing concern over both of these changes. First I would like to address the ministerial guidelines.

The main concern expressed by disability groups on the issue of the minister setting guidelines by legislative instrument is the fear that such a change will restrict the discretion of the initial job capacity assessments and the Social Security Appeals Tribunal, or SSAT, and Administrative Appeals Tribunal, or AAT, in reviewing the merits of assessments. The Australian Greens share these concerns. Given that the proposed amendments provide that the secretary must comply with the guidelines determined by the minister, we believe and are concerned that the ability of the secretary or a job capacity assessor to take particular individual circumstances into account may be reduced. Discretion would necessarily be circumscribed by the fact of a legislative instrument setting out the guidelines.

The issues to be addressed in capacity assessments are highly complex, and accurate assessments require a high degree of discretion. Job capacity assessors are required to make distinctions between a person’s ability to work less than eight, 15 or 30 hours per week. The discretion to take into account individual circumstances outside prescriptive legislative guidelines is vital for accurate and credible assessments. The Australian Greens are opposed to the idea of the minister unilaterally creating guidelines for work capacity assessments. We believe that the creation of guidelines of this nature needs to involve a public consultation process to ensure that any such guidelines are both credible and transparent.

Given the great variation in individual circumstances and the corresponding complexities of the impacts and interactions of various disabilities on an individual’s capacity to work, we believe it is important that capacity assessment guidelines recognise that the experience and expertise of the assessor are crucial factors, that they do not seek to be too prescriptive and that they recognise the importance of expert discretion in capacity assessment. The Greens will be moving amendments to oppose these provisions of the bill.

I now move to the second main issue, with respect to the changes to the disability support program, which relates to the replacement of ‘medical officers’ with ‘assessors’ in the context of the impairment tables. The key concern with this amendment is that it will make it even less likely that the job capacity assessment process will result in accurate assessments. This is likely to have significant consequences for persons accessing DSP. The Greens are very concerned about the consequences of these amendments. We do not believe it is appropriate to remove the presumption that medical officers should conduct certain assessments of a person’s impairment rating.

The Australian Council of Social Services submission to the, as previously noted, short Senate inquiry provides examples of where there should still be a presumption of a medical officer undertaking the assessments, because non-medically qualified professionals would be unlikely to make the expert assessments required. These examples include assessing the likely effects of medical treatment and assessing pain or fatigue in terms of the underlying medical condition which causes the pain or fatigue. These amendments are particularly likely to have a detrimental impact on people with mental illness. Professionally trained medical officers are best placed to make a decision about the impact of mental illness on a person’s capacity to work. This is particularly the case because many people with a mental illness may have a fluctuating capacity to work.

The Mental Health Council of Australia commented to the Senate inquiry:

Determining the ability of a person with mental illness to work can be a very complex process, and is not as simple as referring to a table and applying points. A person may present well on the day of the assessment but then experience a relapse in their condition. This will not be picked up in the assessment if the assessor does not have the necessary medical information or an understanding of the mental illness.

The Australian Greens are not suggesting that there is no role for non-medical job capacity assessors and we recognise that job capacity assessors come from a wide range of allied health professions. However, we believe that there is no good reason for these amendments and we are concerned about their direct consequences on the quality and consistency of impairment assessments. We will be moving amendments to oppose the provisions replacing the term ‘medical officer’ with ‘assessor’.

I now turn to amendments to section 12. Section 12 allows the secretary to deem a person to have made a claim for a different income support payment when a person becomes qualified for it. The amendments to section 12 provide that there can be no claims resulting from that section more than 13 weeks prior to a determination under that section. The Greens can see no good reason why the 13-week restriction is necessary. We agree with the National Welfare Rights Network that the application of section 12 as a means of relieving debt is reasonable, particularly given the unfairness of many Centrelink debts and the limitations on their waiver. We will be moving an amendment to omit the 13-week restriction on the application of section 12.

The Greens remain steadfastly opposed to the government’s Welfare to Work legislation. We believe it is unnecessarily harsh, is badly targeted and will ultimately prove ineffective in helping people move from welfare into the workforce. The laws focus on reducing income support and rely on coercive measures and unduly harsh penalties to force people into the workforce rather than providing incentives, training and support. The majority of people affected by these measures face substantial barriers to work that are not being addressed. Many lack the skills necessary to meet current job market demands and there are not sufficient training programs to help them. There are not enough employment assistance programs to support them, or they are poorly targeted, and there are definitely not enough accessible childcare places available to look after their kids.

I have repeatedly raised examples—in this place, for instance—of the impact of the changes to the JET system to single mothers accessing training and education and the fact that that has now been limited to a 12-month period. Women are now dropping out of university because they cannot afford to keep their kids in child care. We believe that fixing these things should be the priority. The measures in these two bills are an acknowledgement that the government recognises there are holes in these laws that people are falling through—the very people who should be supported to help them to find work and to cope. We believe that these laws unfairly penalise those who the community and society should be helping the most.

We know there are many more problems with this legislation and gaps in the safety net and we will continue to work to establish an income support system that is based on empowerment rather than coercion as part of the whole-of-government approach that we believe needs to be taken to invest in the future of the people of our community.