Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Hansard source

by leave—I move government amendments (1) to (6) on sheet EH170:

(1) Amendment (1), omit "1 July 2015", substitute "1 May 2016".

(2) Amendment (6), omit "1 July 2015", substitute "1 May 2016".

(3) Amendment (7), omit "1 July 2015", substitute "1 May 2016".

(4) Amendment (8), omit "1 July 2015", substitute "1 May 2016".

(5) Amendment (9), omit "1 July 2015", substitute "1 May 2016".

(6) Amendment (10), omit "1 July 2015", substitute "1 May 2016".

I also seek leave to move government amendments (1) to (22) on sheet HK115 together.

Leave granted.

I move government amendments (1) to (22) on sheet HK115:

(1) Clause 3, page 2 (line 8), omit "1 December 2015", substitute "1 December 2016".

(2) Clause 3, page 3 (line 1), omit "1 September 2016", substitute "1 September 2017".

(3) Clause 3, page 3 (line 3), omit "31 December 2016", substitute "31 December 2017".

(4) Page 3 (before line 7), before clause 4, insert:

3B Principles for nominees

     This Act and the rules are intended to reflect, in relation to nominees, the following principles:

  (a) all adults have an equal right to make decisions that affect their lives and to have those decisions respected;

  (b) persons who require support in decision-making must be provided with access to the support necessary for them to make, communicate and participate in decisions that affect their lives;

  (c) the will, preferences and rights of persons who may require decision-making support must direct decisions that affect their lives;

  (d) laws and legal frameworks must contain appropriate and effective safeguards in relation to interventions for persons who may require decision-making support, including to prevent abuse and undue influence.

Note: The safeguards referred to in paragraph (d) are provided in this Act (see for example section 54) and the rules.

(5) Clause 12, page 11 (line 6), omit "1 December 2015", substitute "1 December 2016".

(6) Clause 12, page 11 (line 9), omit "1 December 2015", substitute "1 December 2016".

(7) Clause 12, page 12 (line 3), omit "2016", substitute "2017".

(8) Clause 12, page 12 (line 4), omit "1 September 2016", substitute "1 September 2017".

(9) Clause 12, page 12 (line 6), omit "1 December 2016", substitute "1 December 2017".

(10) Clause 12, page 12 (lines 7 and 8), omit "31 December 2016", substitute "31 December 2017".

(11) Clause 15, page 13 (line 26), omit "1 July 2014", substitute "1 July 2015".

(12) Clause 15, page 13 (line 27), omit "30 November 2015", substitute "30 November 2016".

(13) Clause 15, page 14 (line 4), omit "1 December 2015", substitute "1 December 2016".

(14) Clause 16, page 14 (line 12), omit "1 December 2015", substitute "1 December 2016".

(15) Clause 18, page 15 (line 27), omit "1 December 2015", substitute "1 December 2016".

(16) Clause 21, page 18 (line 27), omit "1 September 2016", substitute "1 September 2017".

(17) Clause 21, page 18 (line 30), omit "1 December 2016", substitute "1 December 2017".

(18) Clause 22, page 19 (line 13), omit "31 December 2016", substitute "31 December 2017".

(19) Clause 22, page 19 (line 15), omit "30 November 2016", substitute "30 November 2017".

(20) Clause 38, page 30 (line 11), omit "1 January 2017", substitute "1 January 2018".

(21) Clause 102, page 65 (line 14), before "The", insert "(1)".

(22) Clause 102, page 65 (after line 19), at the end of the clause, add:

(2) To avoid doubt, the rules may not do the following:

  (a) create an offence or civil penalty;

  (b) provide powers of:

     (i) arrest or detention; or

     (ii) entry, search or seizure;

  (c) impose a tax;

  (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

  (e) amend this Act.

(3) However, to avoid doubt, rules that make provision in relation to:

  (a) the payment amount for a person; or

  (b) amounts of remuneration or allowances for the purposes of subsection 27(4); or

  (c) amounts of costs, expenses or other obligations for the purposes of paragraph 98A(1)(e);

are not to be taken to set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act for the purposes of paragraph (2)(d) of this section.

These are minor but important amendments that support the intended operation of the new payment scheme. I should indicate that, at the request of Senator Madigan, there are amendments that insert principles for nominees and supported decision making into the primary legislation. The principles were originally intended to be included in regulation, but this amendment highlights the importance of the provisions to ensure that the rights of people with intellectual disability are protected in line with current best practice, as identified by the Australian Law Reform Commission.

The amendments also adjust the dates for the operation of the scheme to reflect that the scheme will be starting later than originally intended. Former and current eligible employees will have to register to participate in the payment scheme if it is indeed legislated. The registration deadline will be moved from 1 July 2015 to 1 May 2016. This means that a person will have to take action to register before 1 May 2016. In addition, the Scrutiny of Bills Committee raised concerns about the extent of the minister's powers to make rules. The amendments clarify the extent of the minister's powers to make rules by setting out, to avoid doubt, certain matters that may not be addressed by the rules.

While I am on my feet, since it has been a little while since this bill has been before the chamber, I will just briefly recap as to the necessity of this bill. Colleagues will be aware of the fact that the Federal Court found in relation to two individuals that there had been indirect discrimination as to how the business services wage assessment tool—the BSWAT—had been applied in those particular circumstances. The Federal Court decision related to the circumstances of those two individuals. It was not something that related more broadly.

Nevertheless, the government recognised that there were some issues in various parts of the community in relation to the business services wage assessment tool. The government sought to do three things to help create a more certain environment for Australian disability enterprises and also for supported employees. The first of those was the Department of Social Services, during the caretaker period before the last election, made application to the Human Rights Commission for a temporary exemption of the operation of the Disability Discrimination Act as applied to the BSWAT. The purpose of seeking that temporary exemption was to ensure that disability enterprises who had used the BSWAT did not have concerns that they could potentially be operating outside of the law.

A temporary exemption was sought for three years. The Human Rights Commission granted it for one year. The reason why a three-year exemption was sought was to allow time for a new wage assessment tool to be developed that enjoyed broader confidence and support. As colleagues are probably aware, that one year exemption recently expired and the Department of Social Services made application for both an interim exemption and, also, for a further 12 month exemption. The purpose of the interim exemption being to allow the commission time to consider the request for a 12 month exemption. The interim exemption was granted.

That was the first thing—to seek a temporary exemption from the DDA applying to the BSWAT. That was intended to deal with the present at that time; to provide a certain operating environment for disability enterprises. We as a government also sought to do something to address the future. I announced over a year ago, I guess, that we would set aside $173 million to do a few things to help support consultations in the development of a new wage assessment tool, but, also, importantly, to assist disability enterprises with the transition to the likely higher costs of a new wage assessment tool. So that was something to deal with the present, in terms of the application for a temporary exemption from the DDA, and something to deal with the future in terms of the $173 million to develop a new wage assessment tool and help with transition costs. Also, through this piece of legislation we have sought to do something to address the past. We have sought to provide an opportunity and a choice for supported employees who have been assessed under the Business Services Wage Assessment Tool.

Colleagues will be aware that there is a representative action afoot under the auspices of Maurice Blackburn, and what this legislation seeks to do is to provide supported employees with an option. At the moment, the only option is the representative action and, as we all know, with legal action there is no certainty as to what might ultimately result. The purpose of this legislation is to seek to give some certainty to disability enterprises and to supported employees. The intention of the payment scheme that we have before us is: that individuals would have the opportunity to take part in a payment scheme that would take into account the length of service that they have given in a disability enterprise; that there would be a formula to determine that the payments that individuals would have; and that that would be a quick process with a certain outcome and a definite amount of money. It is important when we are talking about individuals, particularly those who have intellectual impairment, that there be important safeguards built in. There are important safeguards here. For someone to be eligible to take part in the BSWAT payment scheme, they would be required to furnish evidence that they had received independent legal advice and independent financial advice. Under the payment scheme, the federal government would pay for that independent legal advice and that independent financial advice. People would be required to demonstrate, before taking part in the payment scheme, that they had received that independent advice. Again, I emphasise that the Commonwealth would pay for it.

Also, we have some other important elements under the payment scheme legislation. Receiving a payment under the payment scheme would not affect an individual's social security entitlements that they may be in receipt of. I think that is an important comfort for people, as well. In addition, there would be a lump sum in arrears tax offset where that was relevant. We want to make clear that, basically, receiving a payment in the payment scheme will not affect someone's tax situation or their social security payments. They are also important protections.

Colleagues may also recall that an amendment was moved by some of my crossbench colleagues in this place—I think by Senator Lazarus with the support of Senator Wang and other crossbench colleagues—to introduce an indexation arrangement in relation to the BSWAT payment scheme. The indexation would be the CPI rate for each relevant year in the period relating to payment amounts, from 2003-04 to 2013-14, and the CPI rate would be applied to individual years to give a compounding effect. The effect of that amendment would be to increase individual amounts paid to claimants in the scheme. The original legislation has been enhanced by an amendment from the crossbench, which the government supported, but the most important point here is that this legislation does not seek to take rights away from individuals and it does not seek to take choice away. Yes, the legislation does state that an individual has to choose whether they want to take part in the BSWAT payment scheme or the representative action. Some have contended that the legislation removes legal rights. It does not do that. It is completely and absolutely open to an individual to say, 'We want to pursue our rights at law; we want to take part in the representative action.' Nothing in this legislation prevents an individual from doing that if that is their choice. But if that is the path that is chosen the payment scheme is not an option for them. On the other hand, someone can elect, after receiving the independent legal and financial advice, which the Commonwealth will pay for, to take part in the payment scheme, and in so doing that is the option that they have chosen.

What is incontestable is that if this legislation does not pass there will be a choice and an option that is not available to supported employees who have been assessed under the BSWAT. If this legislation is not passed, the only avenue available for an individual will be the representative action. If this legislation is passed, there is another option which is presented for supported employees who had been assessed under the BSWAT. They will have the option of the representative action, or they will have the option of the payment scheme. But the choice is that of the individual. So this legislation seeks to give a choice that is not currently there. If this legislation is not passed, then there will be an option which is denied to supported employees.

These matters, I think, have been well-canvassed over an extended period of time. They have been well canvassed by the government, well canvassed by the opposition, well canvassed by the crossbench, well canvassed in this chamber, well canvassed in disability enterprises and well canvassed in a number of public forums. So I think that the choices are fairly clear. This legislation seeks to give an option that is not currently there. Importantly, there are safeguards in this legislation to ensure that people who are examining the option of the payment scheme get legal and financial advice and that that financial advice is funded. The intent is that people can make a good, sound and informed assessment of the options that are before them. We want people to make choices that they believe are in their best interests. That is what we want. We want to provide a choice for that. More than that, we are providing financial support for independent legal advice and independent financial advice.

Given the time that had elapsed since this matter was last before the chamber, I thought it might be useful for colleagues for me to recap on the history of this matter: what the government sought to do to deal with the present, what the government is seeking to do to deal with the future, and what the government is seeking to do to deal with the past.

The CHAIRMAN: I advise you, Senator Moore, that I have now received 24 amendments circulated by you. There is also an explanatory memorandum. If you would like to seek leave to table that, I think this would be an appropriate time to do so.