Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

by leave—On behalf of my colleague Senator Bartlett, I move Democrat amendments (1) and (2) on sheet 4957, circulated in his name:

(1)    Schedule 8, item 9, page 62 (after line 19), at the end of section 114D, add:

        (3)    In making an appointment in accordance with subsection (1), the Minister is to have regard to the merit selection processes described in section 114DA.

(2)   Schedule 8, item 9, page 62 (after line 19) after section 114D, insert:

114DA  Procedures for merit selection of Director

        (1)    The Minister must, within 9 months of the commencement of this section, determine a code of practice for selecting and appointing the Director that must include the following general principles:

             (a)    merit, including but not limited to appropriate subject, research and management experience; and

             (b)    appointment on the recommendation of an independent selection panel established by the Minister; and

             (c)    probity; and

             (d)    openness and transparency, including where the Minister appoints a person not nominated by the selection panel, the requirement for a statement to be tabled in both Houses of Parliament setting out:

                   (i)    the reason for not accepting the recommendations made in accordance with paragraph (b); and

                  (ii)    the reasons for the Ministers decision.

        (2)    The Minister must cause to be tabled in both Houses of the Parliament a copy of the code of practice within 15 sitting days after determining the code in accordance with subsection (1).

        (3)    The Minister must cause to be tabled in both Houses of the Parliament an amendment to the code of practice within 15 sitting days after the amendment is made.

114DB  Audit of Procedures

        (1)    The operation of section 114DA must be audited by the Public Service Commissioner each financial year.

        (2)    The result of an audit conducted in accordance with this section is to be included in the annual report of the Public Service Commissioner.

        (3)    An audit conducted pursuant to subsection (1) must examine the code of practice as determined and any appointments made in accordance with the code of practice.

These are standard Democrats amendments to legislation, requiring that appointments to, in this case, the Institute of Family Studies be made on the basis of merit.

Ursula Stephens (NSW, Australian Labor Party, Shadow Parliamentary Secretary for Science and Water) Share this | Link to this | Hansard source

I indicate that Labor is supporting the amendments.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

The government has given careful consideration to these amendments, as it always does to amendments that are put before the Senate. With respect to the proposers and the contents of the amendments, the government regards the changes as cumbersome and unnecessary. The legislation clarifies accountability between the Australian Institute of Family Studies and the minister. The changes to the AIFS legislation are part of the whole-of-government reform process concerning the governance of statutory authorities and the review of the corporate governance of statutory authorities and office holdersthe 2003 Uhrig review. Under the Uhrig review, all statutory authorities are being assessed and their governance arrangements reviewed and standardised as appropriate. This legislation updates and refines existing governance arrangements in the AIFS. It bring the AIFS into line with other statutory authorities that have been assessed under the Uhrig review, including Austrade and the Future Fund, and with newly established agencies, such as Cancer Australia.

The changes to the AIFS legislation will provide increased efficiency in the operations and activities of the AIFS and clarify roles and responsibilities. The intention of the legislation is to streamline arrangements and avoid unnecessary regulation. These amendments will not assist in achieving these objectives as they build an enormous amount of bureaucracy into the process. The intention is for the AIFS and its director to be accountable to the minister. The minister, with cabinet agreement, will be responsible for making the appointment and for the overall performance of the AIFS. It is not appropriate to diffuse responsibility for the appointment, as this proposal does. The AIFS is a statutory agency and the director is a statutory office holder. As such, the director is not an employee for the purposes of the Public Service Act. Senator Bartlett’s suggestions that have been moved by Senator Allison suggest that the ministers table a statement setting out details of rejected candidates. That is entirely inappropriate, as it would be unfair to those candidates not selected for their names to be discussed in parliament. The Public Service Commissioner generally does not play a role in or assist ministers with such statutory appointments.

The requirement for the Public Service Commissioner to do an annual audit and report in the commission’s annual report would be a very unusual and narrow function to add to the commissioner’s responsibility and probably, in any event, one which would be able to be exercised no more frequently than one year in five. The commissioner’s functions are set out in the Public Service Act, and this proposal for the AIFS director is not generally consistent with those functions, which generally deal with systemic issues affecting the Australian Public Service and its employees. For the abovementioned reasons, the government will not be accepting or supporting the amendments.

Question negatived.

Kay Patterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I have a number of questions for the minister. The first one is to do with the special disability trusts applied to people on disability support pension. Those people will age and move to the age pension. I would like the minister to give me an assurance and also to indicate where in the legislation it says that people will be able to take their trust from disability pension to age pension and they will not be disadvantaged when they move from one to the other.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

I have been specifically advised that it is not mentioned in the legislation because age is not a factor to be included. The means test concessions are dependent on the beneficiary trust and reporting requirements and not on age.

Kay Patterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

If I have a person who is 60 with parents who have provided for them and they move to the age pension, where in the legislation am I guaranteed that I can actually maintain the trust and go to the age pension? If I go to age pension I am going to get the utilities allowance. If the person moves to the age pension, how am I and their parents going to be assured that they will actually be able to keep these trusts when they are of age pension age? The answer you have given me does not give me that sort of surety. If it is not there I am happy that we come back and look at it in August. I know we have to get this ready for people to start in September, but I did actually tell the minister that I was going to ask this question because I still was not sure where it was in the legislation that there was a guarantee that, when I move to age pension, I will be able to take the trust with me and not have my income affected.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

I have just been advised that once the trust is established its administration and function does not cease until the beneficiary dies. The advice that I have is that that should satisfy the concerns of Senator Patterson.

Kay Patterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I am sorry, Minister, it does not satisfy me. I want to know where in the legislation it deals with the trust that is set up. If I move to the age pension, there is no legislation that says that I can have this trust without it affecting my income and assets test arrangements. If the minister has legal advice and wants to table it, that is fine. But it is a thing that concerns me. I do not want to have us being told, ‘We didn’t really understand this and we didn’t anticipate this.’ Those people will get to be over 65 and they will go onto the age pension. If a financial adviser were to be advising them, they would want to know where to go to in the law where it that says that the trust can still be held when they are on the age pension.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

Obviously, this is an area of legislation that I am not intimately familiar with. I am acting for another acting minister. Senator Patterson may have other questions that perhaps I might be able to more immediately assist with. The officers, Senator Patterson, will delve deeper into your question with the hope that we might be able to provide you with an answer before the end of this committee stage debate.

Kay Patterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

Thank you, Minister. I did not want to embarrass you in any way, but I did actually indicate some time ago that I was going to ask these questions. I am not satisfied, and it is the sort of thing that we would have in the committee stage for a bill which did not go to a committee. This is how we used to do it before 1988. We did not have committees on legislation. We would take maybe sometimes four days to do a family law bill. I am not being difficult; I am just wanting to make sure. All I want is to be assured that I can tell somebody who asks me this question that they are not going to suddenly find that, when the person goes onto the age pension, the trust set up as it is becomes an asset. I had not been assured of that.

My other question concerns the criteria for being eligible to have one of these trusts. I do not know which page it is, but it is clause 1209M, ‘Beneficiary requirements’, subclause (2). It says:

(2) If the principal beneficiary has reached 16 years of age—

and it goes through a number of things; the first one is that you have to be eligible for a disability pension—

(ii) be receiving invalidity service pension under Part III of the Veterans’ Entitlements Act; or

(iii) be receiving income support supplement granted on the ground set out in subparagraph 45A(1)(b)(iii) of the Veterans’ Entitlements Act ...

That is fine. It then says:

(c) the beneficiary must have a disability as a result of which he or she is not working, and has no likelihood of working, for a wage that is at or above the relevant minimum wage.

I think that is fine. A parent of a disabled son said to me that he has a friend with a disabled son who is working in a business where they have taken on the role of making sure that that person is being looked after. They are paying him a minimum wage but with supervision from some of his coworkers as a community business partnership. I just want to make sure that, if that is happening and the person is genuinely not able to manage their own affairs yet able to do a menial task to attract a minimum wage, they are not excluded.

I think the important thing with these is that we do not want people to be able to drive a truck through them. We also do not want people to have to go through extensive assessment to get in. That has been the challenge that the advisory committee had. I think we need to look at clause 1209M(2)(c) because, if there are people working in firms where their coworkers are assisting them to actually get up to a minimum wage and they would not be able to get that anywhere else, we do not want to see them cut off. If they have been in a special school and have gone into open employment, they would miss out. The minister has indicated that he will look at this very carefully and this is not the end of the story. I do not think it should be the end of the story. But I do not think we should have it so broad that we have people getting in and being able to have this trust when they really are not the sorts of people for whom this is designed. This is designed for people who have limited testamentary capacity or no testamentary capacity at all. I have some concerns about (b), which states:

(b)

the beneficiary must:

(i)

have a disability that would, if the person had a sole carer, qualify the carer for carer payment or carer allowance; or

(ii)

be living in an institution ... or group home in which care is provided for people with disabilities, and for which funding is provided (wholly or partly) under an agreement, between the Commonwealth, the States and the Territories, nominated by the Secretary under subsection (3) ...

Some of the parents want to provide privately. So their children may be in a group home for which they have contributed money out of their son or daughter’s trust. The children may be in an institution or a group home not funded by CSTDA. We might be able to get around this by giving them a couple of dollars funding and make it fit the bill. That is not the way I would like to see it happen, but that might be a way of doing it. There is always another way to skin a cat.

Qualifying for carer payment or carer allowance is an issue for the following reason. You may have a moderate disability—you may have Down syndrome, for example—and you can undertake activities of daily living, such as getting up, having a shower, feeding yourself, getting yourself to the business service and maybe even getting to the footy with your mates, but you cannot manage more than $10 and your parents may get the ticket so you can go. The carer allowance assessment indicates that you have to have one-on-one care for 20 hours a week. Those carers do not give one-on-one care for 20 hours a week. They cook dinner and the young person eats it, but that is not counted as caring for the person in that sense. They are part of the family; they have done it for 20 or 30 years.

I had one case just recently where somebody knew this was coming up, saw the legislation and tried three times to get the carer allowance. Their son was in a special school and is now working in a business service, but they did not qualify for carers allowance, with all the help from Centrelink. On the third occasion—after three visits to the doctor and three visits to Centrelink—they qualified for the carer allowance. This parent is relatively young—in his 50s or 60s—and he said: ‘What happens when I’m 83? I can’t go to the doctor three times and I can’t get down to Centrelink three times.’ I pointed this out to the minister when I saw the legislation and we looked at how we could amend this. We all know it is not easy because, with anything you do, people will try to drive a truck through it. I have said that we need to look at a cluster of other things that you have to do that would qualify you. If you have been in a special school and you are in a business service, you are not high functioning and you would qualify for this with the intent that the cabinet had and with the intent in the legislation.

So rather than trying to draft an amendment that may mean that people could drive a truck through it, I raised with the Minister for Families, Community Services and Indigenous Affairs that it may not allow some disabled people, for whom we have really aimed this, to benefit from the trust proposal. As a result, the minister has given me an undertaking to review these particular provisions and, if necessary, to introduce an amendment when the parliament resumes in August. I am conscious of the need for families to start preparing. They are very keen about this and they want the bill to be in by 1 September. I do not want them to think that this is the end.

All of us in this chamber could say: ‘Yes, you’re in. You’re in. You’re in. You’re out. You’re in,’ and we would be 99 per cent right, but to try and work out how you do that in a way that is not complicated, that is fair and that does not put onerous burdens on people to get into the system is quite challenging. I know that the advisory committee thought about it long and hard. I would ask that senators listen and talk to families who are planning to use this to see if they have any hurdles that are too high for them to jump. It behoves us to make sure that the hurdles are not so high that they get eliminated.

I know that a lot of parents whose sons and daughters are in business services or are being supported through an open employment program will read this Hansard, because it will be circulated. I want to tell them that my office will be available if they want to raise any concerns that they have and I will bring them to the minister’s attention. We need to see this as a work in progress. It is very new, but it is better to go slowly than to have people misuse it. That is the aim of it: to make it relatively easy for those who should get it but not easy for people who should not get it. I want to note on the public record that the minister has made that commitment.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

Obviously Senator Patterson, with her very detailed knowledge of specific applications of the legislation, is asking some very detailed and pertinent questions. On her most recent contribution, I have been advised that the minister has spoken with Senator Patterson and provided some assurances prior to the commencement of this debate. For the purposes of Senator Patterson going on the record with her concerns, if she indicates to me that she is satisfied with the assurances of the minister, I think that that is probably—

Kay Patterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I’ll be watching closely.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

I will take the interjection from Senator Patterson so that it can go on the record: she will be watching closely. I am sure that she will be true to her commitment.

On her first question, I have received some further advice which will hopefully clarify the senator’s concern. I have been advised that we are talking about section 1209Y, which is about the attribution of assets. The relevant clause is 1209Y(1), which states:

For the purposes of this Act, the assets of a special disability trust are not to be included in the assets of the principal beneficiary of the trust.

I have been advised that the particular clause applies regardless of the kind of payment being considered—in fact, regardless of the kind of payment in place—that the particular subsection is not linked to any form of payment and that it therefore applies irrespective. That is the advice that I have just been provided with. I wonder whether that, in fact, satisfies Senator Patterson’s query.

Kay Patterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

Only just. I would like the minister to give an undertaking that we will go back and have a look at this to see if we need to spell it out in more detail. I am not convinced. I will not try and do an amendment on the run, but I do not know how binding the minister’s undertaking is if I move from a disability pension to an age pension. If we are amending the bill further, maybe the next explanatory memorandum could outline that—there should be somewhere where it clearly states that. One of the problems is that, if it is not clear to the people at Centrelink, customers will go to a Centrelink office and get half-baked advice. We have to make it very clear, and I do not have a lot of comfort that it is very clearly spelt out. If I could see legal advice to that effect, I would be happier. I will not pursue it at the moment because it is not going to affect many people as I do not think there would be many who are on the cusp of moving from disability pension to age pension—but there may be. I would not like to see this tested. If I could have written legal advice, that would most probably satisfy me, so I will be seeking that.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

I think I understand Senator Patterson’s contribution correctly. I will personally brief Minister Brough in relation to the concerns and the issues that you have raised. I will ask him to consult with you further with a view to providing you with the assurances that you have sought. I assure Senator Patterson that, if there are unintended consequences from this amending bill as a result of the lack of clarity that she has brought to the attention of the Senate, I am of the view that Minister Brough, the relevant minister, would be more than happy to discuss the matter further with her with a view to clarifying it, either through the provision of what legal advice he may have available to him now or through some other consequential and minor amendment—if that is required. I hope that assists you and assures you somewhat, Senator Patterson. It certainly would be of assistance to us here in terms of considering and progressing this legislation.

Kay Patterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I have one other thing, and I will put a question at the end to legitimise it. One of the other measures in this bill is about family tax benefit overpayments and looks at the situation in which a person, when they received lump sums of child support in arrears, was penalised because they lost the income free benefit level—they only got it for one year instead of three years because the person paid the lump sum three years in arrears. I want to say that we as members of parliament need to always have our ears open to suggestions. The suggestion for this change came from a journalist who had a friend that this happened to. Suddenly, she received an overpayment. The journalist was Alex Kirk. I told her that this was the Kirk amendment. She said to me that this did not seem fair, and I did not think it seemed fair, either, and so it is here in legislation. Somebody listened to what somebody else said and told me, and we were able to change it.

One of the things we have done is bring in a whole suite of measures to reduce overpayments. This is part of those measures. There are two more to come in on 1 July which will further reduce the chance of people receiving overpayments. I do not think the minister needs to reply; I can give him the answer. This is a measure that will reduce overpayments and prevent people from having an overpayment when they have no control over someone paying them their child support in arrears.

Bill agreed to.

Bill reported without amendment; report adopted.