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

Thank you, Chair, and Senator Moore for the contribution. The principles for nominees, which are in our amendments, are the finalised principles of the Australian Law Reform Commission, which occurred about the time that the legislation was last before the Senate. Given that the opposition amendments have only just been circulated, I have not been able to compare word for word, but it may be that the opposition's wording is taken from the NDIS legislation. I think the Australian Law Reform Commission's finalised principles postdate what is in the NDIS update. I should indicate, again, that it was at Senator Madigan's request that this be put into the bill itself rather than be a part of the regulations.

Senator Moore also asked about the development of a new wage assessment tool. We are fundamentally in the hands of Fair Work Australia, who are auspicing, oversighting, the development of that process, and currently the parties are in conciliation—Fair Work is undertaking a conciliation process in relation to that.

Moving to other elements of the opposition's amendments, I recognise that the opposition are no longer pursuing what was in their amendment the last time these matters were before the chamber, which was that an individual could take part in both the payment scheme and the representative action and that, if the representative action subsequently was successful and someone had taken part in the payment scheme and were receiving both amounts, there would be a mechanism for the government to seek to recoup the difference between the two. At that time, I indicated that I did not think any government would ultimately seek to pursue individuals with intellectual impairment, maybe many years down the track. Putting aside the practical difficulties, I did not think any government would seek to do that.

So I recognise that the opposition is no longer pursuing that, but the opposition amendment still fundamentally lands in the same place as its earlier amendments, which is that it would allow people to take part in both actions and is, I assume, relying on the fact that a court making a determination about any moneys related to the representative action might, if someone had received payment in the BSWAT Payment Scheme, take account of that when determining what they may pay or what they may direct that someone is owing or is owed. The courts may; the courts may not. Ultimately, the courts decide what the courts decide. I note the opposition amendment is not seeking to bind the courts or ensure that the courts act in a particular way. If the opposition amendment were seeking to do that, it would be traversing some unusual ground, and I recognise the opposition is not seeking to do that. But what the opposition amendment is assuming is that courts might take into account, in determining payment under a representative action, what someone had already received through the payment scheme. Now, we do not know. It is something we do not know.

I am not comfortable, and the government is not comfortable, about bringing together, meshing together, two completely different mechanisms. One is a legislated mechanism, the legislated payment scheme which we have before us; and the other is the free operation of the courts, of our judicial system. I think it is appropriate that we seek to keep those two processes separate and, in so doing, provide a choice. It is untidy to seek to mesh in some way a legislative payment scheme and court action that is afoot.

What the legislation before us seeks to do, as I have said before, is give an option that does not exist at the moment. What I cannot conceive is how giving an additional option which does not currently exist in any way, shape or form can take something away from someone—because, in the absence of this legislation, there is only one option, the representative action. This legislation gives a choice. In the absence of this legislation, there is any one option; if this legislation passes, there are two options. There is a choice for an individual and their family to make, a choice which is informed by independent legal advice and independent financial advice paid for by the Commonwealth.

So I have great difficulty in accepting any contention that by legislating to establish another option we are in any way, shape or form denying people choice. In the absence of this legislation, there is only one option; if this legislation passes, there are two options. And I think it is a good thing that people have that choice: the choice between a payment scheme which is straightforward, with a guaranteed outcome, and, if they so elect, their rights at law. The choice is theirs, and this legislation establishes an option that will not be there in the absence of this legislation.