Sue Boyce (Queensland, Liberal Party) Share this | Link to this | Hansard source

I am pleased to have the opportunity to speak on the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Bill 2010, although I must note that, in the explanatory memorandum circulated by Minister Macklin some time ago, she suggests that the financial impact of this bill in the year 2010-11 will be $0.4 million, with other financial impacts decreas­ing as the years go on. That is $0.4 million the government has saved by delaying the introduction of this bill until now. In 2008, the then Senate Standing Committee on Community Affairs inquired into this bill, and in May 2009 the government came back with its response to the bill. So, two years on, we are now looking at putting into effect the government's reaction to the committee's recommendations.

I must disclose that I was a member of the ministerial advisory group that was set up by former senator the Hon. Dr Kay Patterson to establish the legislative framework around the special disability trusts some years ago. It was thought then that about 5,000 special disability trusts would be set up over the next four years, and the budget for it was predicated on that fact. The majority of the members of that ministerial advisory group were parents of people with disabilities. While there was great enthusiasm for this development, there was also concern put to us by departmental and other groups that we needed to be sure that we did not break the budget with what was at the time a very revolutionary idea: providing extra funds to assist with the long-term care and support of people with disabilities. So, in the end, the legislation that went through erred on the side of caution. Unfortunately, as a result, only 119 special disability trusts had been taken up as at the end of last financial year, I think. Clearly, the bar had been set far too high and there were too many hoops to jump through.

This bill—the government's response to the community affairs committee inquiry—does change some of those criteria. It allows a lighter work test. It actually encourages people with disabilities to work, whether that is in the mainstream system or on a sup­ported wage, whereas under the previous criteria, if you were capable of working, you probably could not have a speciality disability trust.

My thinking on the specialty disability trust had always been that it was in a way analogous to superannuation. We provide pensions for older people who cannot provide for themselves. We have never had a system that allowed people with a disability to do anything other than be on a pension. This system allows those with the capacity to do so to set up trusts for the long-term care and support of their relative with a disability—normally a child or grandchild. It means that these people, hopefully, have the chance to live the life of their choice, supported by their relatives. This has not happened in the past. We are talking about people with very little earning capacity of their own, with wages of perhaps $3 or $4 an hour, which never allows anyone the opportunity to develop superannuation. This would be a way to allow those people to proceed in an environment that protected their assets. So some of the moves that are in this bill well and truly relating to special disability trusts are very, very welcome. There are one or perhaps two that I found particularly disappointing, and one was the government's response to the committee's recommendations on home ownership. A special disability trust will continue to be able to own a residence which is the residence of the person who the trust is established for and just over an indexed half a million dollars of other assets. What the committee suggested was that the home owner's grant should be available for these houses within the trust. We also suggested that if the house was sold it should be exempt from capital gains tax. If you look at the position of any Australian citizen, they are entitled, when they buy their first house, to get the first home owners grant. They are entitled when they sell that primary residence to have it exempt from capital gains tax.

The reason that people with disabilities do not buy and sell their own homes is that they have impaired decision-making capacity. That is the whole reason that you set up a special disability trust—so that that person's income and assets are protected and looked after by people who can help them to make the decisions that need to be made. So, if you have a disability and impaired decision-making capacity as a result of that, you cannot take advantage of the same benefits that are available to any other Australian. The government refused our recommen­dation that the first home owners grant be available for a house bought by a special disability trust. On the same basis, the government did not accede to our recom­mendation that that house be exempt from capital gains tax when it is sold.

I realise that what we have here is the butting up of trust legislation against disability legislation. Nevertheless, it would seem to me to be grossly unfair to say that, because a person has a disability, that means they cannot own a home in their own right, are subjected to extra capital gains tax and are not eligible for a grant that is available to any other Australian when they buy their first home. So I would urge the government to go on looking at ways to improve this legislation.

We did also recommend that if the changes that were proposed by the com­munity affairs committee inquiry into this bill did not see a larger uptake of special disability trusts then we review, yet again, what was wrong with our legislation that is preventing people from doing this. There were two recommendations that I would like the government to follow. The government agreed that, again, it should be reviewed if it does not lead to a bigger take-up of special disability trusts. We are two years down the track and, obviously, this has not yet happened, so it will have to be 2013 or so before we can even decide whether we need to change these regulations further.

Our other recommendation was that Centrelink be used to promote the existence of special disability trusts, and on that basis I was extremely disappointed to hear Queensland's Public Trustee on radio in Brisbane last week, when asked about what was available for providing for the future of people with disabilities, not actually mention special disability trusts. What he did mention was that there are some arrangements that the federal government is sort of working on now. What he meant was this piece of legislation that will assist in making it easier for parents and other relatives to come up with a system to support and look after the future of children with disabilities. But I would urge the government to very much use Centrelink and other groups to push for and promote these schemes. They are known about in some areas of the disability community. Unfortunately, what has happened is that people who have looked at the trust scheme, under the previous legislation, and found that it was not wide enough to allow them to establish trusts, have told others that the trusts are useless. So the changes that happen here must be promoted and promoted well.

I noticed that Minister McLucas smiled there. I did say earlier that there was a balance of caution, when this legislation was first introduced, between the cost of it and the useability of it. And clearly—and I do not think anyone would resile from the fact—we did not get the balance right. But it was a revolutionary change and it needs to be supported and continue to be supported.

The other point I would like to make is that this is just one of the building blocks that this government needs to look at in terms of the long-term care for and support of people with disabilities. We now have the draft of the national disability insurance scheme. In some ways, it overtakes some of the concerns that parents who could not afford to set up a special disability trust had, because one hopes we are going to get to a needs-based disability system that is actually a fair, well-funded system.

However, it is not just about the money. The money is only a very small part of what people need. I had a man with an acquired brain injury and a friend of his family and an advocate for disability services come to see me last week. This man lives alone in a flat with other tenants living around him. It is low rental. His money and his food are often stolen by other tenants because he simply does not have the ability to stop this happening. He has frequent falls because his leg muscles sometimes do not react as he would want them to because of the brain injury. He often ends up in hospital because of these frequent falls.

The current response of our disability service system to this man is to give him three hours of assistance a day. Someone comes to cook his meals in the evening. He does not eat unless prompted to eat. This is part of his condition. He had lost a huge amount of weight—in fact, he was possibly going to starve himself to death—yet it was not until a family friend and the advocate brought this to the attention of the Queensland Department of Communities that anything was done to assist him to make sure that he got meals.

The family friend tells me that once he fell and broke his collarbone. He was taken by ambulance eventually to the local hospital and stayed there all day waiting for surgery on the broken collarbone. The surgery was cancelled at 6 pm and the hospital said to the family friend, who has no responsibility for this man whatsoever except that she appears to be one of the few people who cares about him, to take him home. She refused to do that. My point is that our system is not in any way conducive to helping people in those positions.

It is not about money. It would not matter how much money this man had in the bank. He could probably live in a better flat, but without people who care about him around him to see whether the services he is getting are good services, poor services or adequate services his life is going to continue to be unhappy and frustrating. So it is not just about the money. I think we need to consider further not just this piece of legislation—which assists by establishing trustees who will have a stronger interest than a state public trustee, for example, in the quality of life of the person—but also the need for a system that incorporates developing planning options and planning services for people with disabilities so that when they no longer have family members or others who can care for them they are not left to the mercies of the disabilities system.

When we do all of this we have to take into account the need to have caring people and adequate services and services that are being advocated for by groups outside government—disability service groups such as the one involved in this case, which is SUFY, a Queensland organisation called Speaking Up For You. We need that sort of support behind people to make sure that what is being provided is not only adequate, which in many cases it is not, but also meeting the real needs of people. I think it is about time we realised that by doing this we do not just save $0.4 million, which is what has happened here by delaying the introduction of this by over a year, but also all the on-costs of people becoming sick, mentally unwell, because they did not have a small input of support when they needed it.

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

The Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Bill 2010 is a bit of a grab bag of miscel­laneous measures with certain schedules in and then out, in and then out. However, I will limit my comments to those schedules that we are debating. The Greens particularly welcome the amendments to the special disability trusts, believing that this is a very important mechanism that enables parents of children with a disability to put in place pro­visions to make them feel more comfortable that their children will be looked after when they are no longer there. I have been particularly supportive of and continue to support special disability trusts. I was an active participant in the Senate Standing Committee on Community Affairs inquiry that took place several years ago looking into them. Having said that, I am also aware that trusts are available only to a certain number of people and that we need to be putting in place, as Senator Boyce has just said, a range of other measures to ensure that those living with a disability are supported.

We will be supporting the amendments the government has put in place. They were raised very substantially through the committee inquiry and I think they will make the trusts much more usable for those that have established them and for those that intend to establish them. As Senator Boyce also highlighted, because of some of the barriers in the current legislation, people have not been setting up special disability trusts and we hope that these provisions will enable people to use that mechanism much more effectively and efficiently.

Having said that, the government is aware that there is unfinished business on the trusts and more needs to be done. I know that in many states, particularly in my home state of Western Australia, there are people that are deeply concerned that they have already established accommodation for their son or daughter and are not able then to transfer that accommodation, those homes, into the trusts. I understand the government's nervousness about that and the belief that this would open up areas for other trusts. However, these people need our support. These people are trying to do the right thing and set up provisions to look after their son or daughter and we need to find a way to facilitate that. I for one will keep pushing until we do find a mechanism to transfer those homes—because they are people's homes—into the trusts. In Western Australia, parents are very worried that they are going to start hitting issues around asset tests et cetera. We believe more work needs to be done, so the government has a pass but 'can improve'. We look forward to the government's looking at some of those other issues to enable the special disability trust provisions to be as effective as possible. The Greens joined with many people, including the coalition, to express our concerns with the government's original provisions under schedule 2 of this legislation. We were concerned that the provisions that dealt with the issues of change in the portability of the DSP payments would adversely affect a number of people where carers have to travel overseas for work purposes, so we are pleased that the government has now circulated amendments to this. We had serious concerns about the ramifications of the changes to the portability arrangements for recipients, particularly of course for those who are caring for somebody with severe disability who is dependent on a family carer. We had submissions from carers who are required to reside overseas for long periods. As we know, that schedule was referred to the Senate Standing Committees on Community Affairs and there was a report tabled on it.

As I said, I am glad to see that the issues arising from that have been dealt with by the government. However, we do still have some concerns that there will be people whose carers need to travel overseas for other, very legitimate reasons and not necessarily just for paid work. For example, they may already be caring for somebody in Australia but have to travel overseas for extended periods to look after sick or elderly parents or to pursue higher education. We are glad to see that the amendments now refer to carers who are family members. We believe this has brought them into the definition of the guardianship orders and better recognises family care arrangements that can be complex and often fragile.

I just referred to the fact that some carers have to travel overseas for what we believe are other legitimate reasons and that they need to take the person who they care for with them. We understand that the government has acknowledged that they will review the operation of the new portability arrangements, starting no later than one year after the commencement of this section, and will include a report as to whether granting special consideration for work purposes is too restrictive and whether it would be appropriate to extend the qualifying circum­stances to cover other extended absences from Australia for non-work related purposes such as caring for other family members. We thought this was a better approach than seeking to amend the government's amendment, because we want to see how that amendment operates, but we do think that there may be other legitimate circum­stances that may penalise those caring for a family member with a disability.

One of the other issues that came up during the committee inquiry was the sensitive issue of the definition around severe disability as it relates to working age provisions. This is a very touchy subject and a very important issue. One of the issues that people constantly raise with me—and it was raised again in the inquiry—is that of carers who are caring for someone with a lifelong, severe disability who receive forms every two years and have to continue to say, 'Yes, my son or daughter or the person I care for still has a severe disability.' I have described before how the system works in WA. There are adopt-a-pollie schemes, where politicians are 'adopted' by a family with a child living with disability. The family that I have been adopted by was sent a letter when the child attained driving age asking, 'Has he got his driver's licence?' This is about somebody with a severe and lifelong disability. That sort of letter can be seen to be very insensitive by families, as their child will never have any hope of being able to live unsupported, they need 24-hour care and they will never have any hope of obtaining a driver's licence. I think we can do better than that in Australia. Yes, we need to have checks and balances, but that sort of thing should not be happening and it has been raised with me a number of times and was raised during the committee inquiry.

The Greens will also be supporting schedule 2, subject to the government's amendment, and we are pleased that the government was responsive to the committee inquiry. It again shows the usefulness of committee inquiries in reviewing legislation. I have circulated amendments to schedule 4. Schedule 4 is no longer part of this particular bill. I just need to highlight that I will, of course, not be moving those previously circulated amendments to schedule 4.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

I thank the various senators who have made contributions on this legislation. This bill introduces one 2010 budget measure and some other measures. As Senator Siewert indicated, it is an omnibus bill. The budget measure is to enhance the existing arrangements for special disability trusts. This is part of the government's ongoing commitment to people with disability and their families and carers.

Special disability trusts were established in 2006 under the former coalition government. Their purpose is to help families and carers provide for the care and accommodation needs of a family member with a severe disability. Special disability trusts are different from other types of trusts in that they have generous concessions from social security means testing arrangements for the beneficiary and eligible contributors. The effect for a person with a disability who is a beneficiary of a special disability trust is that the person will not lose any of their disability support pension unless their assets exceed a generous assets test threshold.

The Senate Standing Committee on Community Affairs found, in its 2008 inquiry, that the take-up of these arrange­ments has been lower than expected. The arrangements were simply not working for people with disability, their families or their carers. The government responded to the committee's report through the 2010-11 budget with a number of changes to special disability trusts. More flexibility for trust beneficiaries will be provided to make special disability trusts more attractive to families. At present, if a person with a disability works for as little as one hour for the relevant minimum wage or above, they are not eligible to be a beneficiary of a special disability trust.

The changes in this bill address that incentive for people with disability to participate in work and in the community. The changes will allow eligible people with a disability to work up to seven hours a week at or above the relevant minimum wage and still qualify as a beneficiary of a special disability trust. There will also be a significant expansion in the purposes that trust funds can be used for, such as all medical expenses, including membership costs for private health insurance funds and maintenance expenses of special disability trust properties. The trust will also be able to make up to $10,000 a year of discretionary spending for the beneficiary's wellbeing, recreation and independence. This change modifies the restrictive rules presently in place that trust funds can be used only for specified care and accommodation expenses and will increase the social participation of beneficiaries.

The changes contained in this bill build on the taxation concessions the government announced in the 2009-10 budget in response to the Senate Community Affairs Legislation Committee report. In a separate measure, the bill closes a loophole in qualification for disability support pension. This loophole has meant that disability support pension has continued to be paid to people who live permanently overseas but who return to Australia every 13 weeks to retain their pension. Under this bill, except under limited and specific circumstances, only disability support pensioners currently residing in Australia will continue to get the pension. Closing the loophole will bring disability support pension into line with other workforce age payments. It will also keep the disability support pension payment system fair and effective. If a pensioner has a need to travel overseas for short periods, he or she will still have access to the 13-week temporary absence rule.

Government amendments to this measure will include a delay of the commencement from 1 January to 1 July 2011 so there will be no retrospective adverse effect on those affected. The government amendments will also introduce from 1 July 2011 an extended portability period for severely disabled disability support pensioners to address concerns raised by the Senate Community Affairs Legislation Committee. The extended portability will apply if the person accom­modates a supporting family member who has been posted or seconded by their employer to work overseas for a period. Senator Siewert in her contribution raised other circumstances where a person with caring responsibilities may need to travel for reasons other than work. We undertake to conduct a review of the operations of the DSP portability measure after one year of operation to ascertain if there are circum­stances which may need to be considered.

The eligibility for family tax benefit part A of some families with FTB children who are studying overseas full time will be clarified by this bill. If the courses these young people are undertaking do not link to an Australian qualification, it is not clear under the current legislation that they should attract family tax benefit part A. This bill puts that beneficial policy intention beyond doubt. It makes sure that young people studying overseas full time are treated for family tax benefit purposes in the same way as full-time students undertaking Australian study.

Further amendments in the bill are minor matters. In particular they address two minor anomalies arising from the pension reform legislation enacted in 2009. Both amend­ments are to make sure people get the benefit of the new provisions that they were inten­ded to have. Amendments made in the House withdrew from the bill the two schedules relating to the Indigenous Land Corporation and the scheduling of land. This withdrawal was purely for timing reasons: to allow a particular land measurement to be clarified and an inquiry into the Indigenous Land Corporation measure by the Senate Legal and Constitutional Affairs Legislation Committee to proceed without delaying the bill unduly. Those measures will be intro­duced in a future bill, and this current bill should proceed without them. I commend the bill to the chamber.

Question agreed to.

Bill read a second time.