Anne Urquhart (Tasmania, Australian Labor Party) Share this | Hansard source

In recent years Australia has come a long way toward providing dignity, respect and individual support for people with a disability. We have come a long way in moving the national conversation from the frame of charity to talking about empowerment and the legitimate contribution that people with a disability can make to local communities and to the nation as a whole. I am proud to have been part of the previous Labor government which guided the NDIS from being a dream to a fully-funded reality. Labor also introduced the National Disability Strategy, introduced 'the vision'—the inclusive employment framework for 2012 to 2022—and delivered historic increases to the disability support pension. Clearly we have come a long way. But, sadly, with Business Services Wage Assessment Tool Payment Scheme Bill 2014 and the related bill, the government is taking us backwards—and that is why Labor have proposed the amendments that we have—and in doing so it is not only taking advantage of the some of the most vulnerable in our community but violating their legal and human rights in the process.

Since 2003 a large number of people with a disability who have been employed by Australian disability enterprises have had their salaries determined by the business services wage assessment tool, or BSWAT. BSWAT comprises two tests. The first component is the productivity test, which benchmarks wages based on how long it takes the employee to do their work based on the average worker. The second component is the competency test, which puts the employee through a series of abstract questions about general knowledge that are not directly related to their work. If they get a single question wrong in any category, they receive a score of zero for the entire category. If they have difficulties in understanding or responding to verbal questions, they are very likely to fail the competency test and could end up with a salary as low as 33c an hour. Last year the validity of this mechanism was put to the Federal Court through the case of the Nojin v Commonwealth of Australia. The court agreed with the plaintiffs that BSWAT was discriminatory, with Justice Buchanan saying that criticisms of the scheme were 'compelling'. On the matter he said:

I can see no answer to the proposition that an assessment which commences with an entry level wage, set at the absolute minimum, and then discounts that wage further by reference to the competency aspects built into BSWAT, is theoretical and artificial. In practice, on the evidence, those elements of BSWAT have the effect of discounting even more severely, than would otherwise be the case, the remuneration of intellectually disabled workers to whom the tool is applied.

This means that these Australian workers, who are amongst the most vulnerable in our community, have been paid less than they should have been.

The legislation before us today is the government's response to the court's finding, and it is very disappointing. Instead of offering compensation through a fair process, this government is putting on the table what amounts to a pay-off in return for extinguishing employees' legal rights. The offer for affected workers is that they will receive half of the money they are entitled to, and in return they must agree to forego their right to pursue compensation through the courts for any further compensation. Quite simply, this bill proposes thoroughly shabby treatment of those who already have enough challenges to face in their lives. Labor has serious concerns about it, and that is why we are proposing amendments to this bill.

But it is not just Labor that has concerns. When the Senate Community Affairs Legislation Committee held an inquiry into this bill, the vast majority of participants were scathing in their response. Disability groups, carers, legal representatives and people with a disability were almost unanimous in their contention that the bill represents an unfair attack on the most vulnerable people in our community. Mr Neville Ramaker describes his hurt at the actions of this government very poignantly in his submission, and I quote:

As a person with a disability, I am incredibly ashamed to be an Australian citizen.

The Federal Government and this appalling Bill, is another reminder that through the eyes of the politicians and the Government, I am nothing more than a hindrance that deserves to be further discriminated against for being born with impairments.

I find it very hard to fathom, how the politicians behind this bill sleep at night.

If this is not a clear message that the Federal Government places a higher value in its citizens that are fortunate enough to be brought into this world without any impairments! The highest courts in our land have made determinations that my fellow citizens with impairments are being discriminated against, but the Government refuses to accept those rulings, because it has an unlimited amount of tax payers dollars to spend on passing bills and legislation that send that clear message that 'People with disabilities are second rate citizens without any rights.'

It is very wrong that people like Mr Ramaker should feel this way about their own country and their place within it, but it is not surprising in light of the way this government has been behaving.

When introducing the bill in the other place, Minister Andrews said the bill was 'about providing certainty and reassurance to employees, their families and carers'. Unfortunately, the only thing that is certain here is that intellectually disabled people are getting a raw deal. If the government wanted to reassure workers, it would not be disregarding their basic right to legal recourse. In fact, when the bill was assessed by the Joint Parliamentary Committee on Human Rights it contended that, 'The scheme does not contain the requisite elements of an effective remedy to the unlawful discrimination found to have taken place.'

The right to effective remedy is enshrined under the International Covenant on Civil and Political Rights, which Australia ratified in 1980, and it is the responsibility of this government to ensure that it is adhered to. Josh Bernstein from Maurice Blackburn reiterated this injustice when he recently described the scheme as, 'a blatant attempt to coerce some of our most vulnerable workers into signing away their legal rights, for a sum of money that is just half what they should be paid'.

The second concerning aspect of the bill is the provision which allows the departmental secretary to appoint nominees to act on behalf of individuals without their consent. This removes the authority of the applicant to make decisions relating to their own situation and denies them the ability to appoint someone of their choice as they nominee. When this bill was referred to the Parliamentary Committee on Human Rights, this particular provision was found to be problematic. The committee asserted that there must be provisions to ensure that the autonomy, will and preferences of the individual are respected. It also said the bill should support, rather than substitute, the decision making of represented persons. Again and again, this government seems intent on attacking the most vulnerable in the community—those who are least able to argue their case in the public arena and those who are least equipped to fight back.

The truth is that this is not a small-scale, isolated situation. National Disability Services estimates that up to 12,000 current and former employees may have been underpaid as a result of the BSWAT competence test. But, so far, the Abbott government has done nothing to rectify the discrimination which is inherent in this test. The Human Rights Commission granted a year's extension to the current scheme in April in order to allow this to happen. And here we are in November and, as far as I am are aware, the government has provided no further information or progress reports. The government needs to sit down immediately with disabled people, with employers, with carers and with unions to come up with a solution that removes discrimination and ends the limbo for intellectually disabled workers. It needs to ensure that all disabled people have the right to access a fair day's pay for a fair day's work as a matter of urgency.

Labor understands the importance of Australian Disability Enterprises and the great job they do in providing jobs and support for people with a disability. In principle, we support the government's plan to make a payment as an interim measure while it puts in place an appropriate non-discriminatory means of determining wages that ensures fair pay; however, this should never conflict with basic human rights. Workers' legal rights should be protected. Workers should be entitled to government compensation, but should not be prevented from pursuing further compensation in court; however, we also recommend a provision to ensure there is no double dipping from court-awarded compensation and the government compensation to garner more than what is actually owed. These are sensible changes that would restore dignity and fairness.

Labor would also aim to rectify serious concerns with the nominees' rules that I mentioned earlier to ensure that they are used to support, rather than substitute, the decision making of a represented person. To achieve this, Labor believes that the BSWAT rules should more closely reflect the nomination provisions in the NDIS Act 2013. These rules are underpinned by principles of supported decision making and by the UN Convention of the Rights of Persons with Disabilities. I urge all senators to support Labor's amendments to create a fairer approach that respects the basic rights of these individuals.