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

I table a supplementary explanatory memorandum relating to the government amendments and requests for amendments to be moved to the Business Services Wage Assessment Tool Payment Scheme Bill 2014. I seek leave to move together the amendments and requests for amendments circulated by the government, in my name, on sheet EH127.

Leave granted.

I move:

(1) Clause 3, page 2 (line 10), omit "1 May 2015", substitute "1 July 2015".

(2) Page 3 (after line 6), after clause 3, insert:

3A Constitutional basis

     Without limitation, this Act relies on:

  (a) the Commonwealth's legislative powers under paragraphs 51(xxiiiA) and (xxxix) of the Constitution; and

  (b) any implied legislative powers of the Commonwealth.

(3) Clause 4, page 4 (line 8), omit "subsection 6(2)", substitute "subsections 6(2) and (2A)".

(4) Clause 6, page 6 (line 19), omit "28 May 2014", substitute "31 January 2015".

(5) Clause 6, page 7 (after line 5), after subclause (2), insert:

  (2A) Despite subsection (2), a person does not meet the condition in that subsection, and there is no eligible day for the person, if the day that (apart from this subsection) would have been the earliest eligible day for the person is later than 28 May 2014.

(6) Clause 12, page 11 (line 7), omit "1 May 2015", substitute "1 July 2015".

(7) Clause 13, page 13 (line 5), omit "1 May 2015", substitute "1 July 2015".

(8) Clause 13, page 13 (line 15), omit "1 May 2015", substitute "1 July 2015".

(9) Clause 14, page 13 (line 21), omit "1 May 2015", substitute "1 July 2015".

(10) Clause 16, page 14 (line 11), omit "1 May 2015", substitute "1 July 2015".

(11) Clause 37, page 30 (line 1), omit "or by", substitute ", the person or".

(12) That the House of Representatives be requested to make the following amendment:

  Page 64 (after line 23), after clause 98, insert:

98A Certain administrative matters

(1) The Commonwealth may do any or all of the following:

  (a) inform people about the BSWAT payment scheme;

  (b) engage one or more persons to undertake activities (whether or not on behalf of the Commonwealth) in relation to informing people about the BSWAT payment scheme and make payments for services provided under such engagements;

  (c) publish contact details and background information on behalf of legal practitioners who have indicated their availability to provide services in relation to legal advice certificates referred to in section 36;

  (d) publish contact details and background information on behalf of financial counsellors who have indicated their availability to provide services in relation to financial counselling certificates referred to in section 37;

  (e) make payments, in accordance with the rules, in discharge of costs, expenses or other obligations incurred by a person in connection with obtaining a legal advice certificate that complies with section 36 or a financial counselling certificate that complies with section 37 or otherwise in connection with a person's participation in the BSWAT payment scheme.

(2) A power conferred on the Commonwealth by subsection (1) may be exercised on behalf of the Commonwealth by the Secretary.

(3) This section does not, by implication, limit the executive power of the Commonwealth.

(13) That the House of Representatives be requested to make the following amendment:

  Clause 99, page 64 (line 25), before "The", insert "(1)".

(14) That the House of Representatives be requested to make the following amendment:

  Clause 99, page 65 (line 3), at the end of the clause, add:

  ; and (c) payments under subsection 98A(1).

(2) Paragraph (1)(c) does not extend to payments in relation to the employment of APS employees in the Department.

_______________

The statement of reasons accompanying the request read as follows—

Parliamentary Counsel

Business Services Wage Assessment Tool Payment Scheme Bill 2014

EH127

Statement of reasons: why certain amendments should be moved as requests

Section 53 of the Constitution is as follows:

Powers of the Houses in respect of legislation

53. Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services under the proposed law.

The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.

The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.

The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications.

Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

Amendment (14)

The effect of this amendment is to expand the purposes for which payments may be made out of the standing appropriation of the Consolidated Revenue Fund in clause 99 of the Bill. It is covered by section 53 because expanding the purposes for which payments may be made out of the standing appropriation may increase the amount of expenditure out of the Consolidated Revenue Fund under that standing appropriation.

Consequential amendments

Amendments (12) and (13) are consequential on the amendment mentioned above.

_______________

Business Services Wage Assessment Tool Payment Scheme Bill 2014

SHEET EH217

Statement by the Clerk of the Senate pursuant to the order of the Senate of 26 June 2000

Amendment (14)

The stated effect of paragraph 99(c) contained in this amendment is to provide for payments to be made, for actions or activities specified in new clause 98A, from the Consolidated Revenue Fund. The increased expenditure would be met directly from the standing appropriation contained in clause 99 of the bill.

The Senate has long followed the practice that it should treat as requests amendments which would clearly, necessarily and directly result in increased expenditure under a standing appropriation. If, as stated, this amendment would result in increased expenditure under the standing appropriation in clause 99 of the bill, it is in accordance with the precedents of the Senate that this amendment be moved as a request.

Amendments (12) and (13)

Amendments (12) and (13) are consequential on the request. It is the practice of the Senate that amendments purely consequential on amendments framed as requests may also be framed as requests.

Question agreed to.

Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Link to this | Hansard source

By leave, I move opposition amendments (1), (9), (16), (21) to (24); and requests (2) to (8), (10), (11), (13) to (15), (17) to (19), and (25) on sheet 7544 together:

(1) Clause 3, page 2 (lines 23 to 24), omit "by force of this Act, the person will cease to have certain legal rights", substitute "if the person receives compensation in relation to the use of the Business Services Wage Assessment Tool, some or all of that compensation may be recoverable by the Commonwealth".

(2) Clause 4, page 3 (line 14), omit "matter referred to in subsection 10(2)", substitute "possible ground for compensation".

(3) Clause 4, page 3 (line 17), omit "matter referred to in subsection 10(2)", substitute "possible ground for compensation".

(4) Clause 4, page 4 (lines 14 and 15), omit the definition of group member.

(5) Clause 4, page 5 (after line 1), after the definition of payment amount, insert:

  possible ground for compensation has the meaning given by section 10.

(6) Clause 4, page 5 (lines 9 and 10), omit the definition of relevant representative proceeding.

(7) Clause 4, page 5 (lines 11 and 12), omit the definition of representative party.

(8) Clause 4, page 5 (lines 13 and 14), omit the definition of representative proceeding.

(9) Page 5 (after line 16), at the end of Part 1, add:

4A General principles guiding actions under this Act

(1) People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.

(2) People with disability have the same right as other members of Australian society to pursue any grievance.

(3) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.

(4) People with disability should be supported in all their dealings and communications with the Department so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.

(5) People with disability should have their privacy and dignity respected.

(6) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.

(7) It is the intention of the Parliament that the Minister, the Secretary and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles.

4B General principles guiding actions of people who may do acts or things on behalf of others

     It is the intention of the Parliament that, if this Act requires or permits an act or thing to be done by or in relation to a person with disability by another person, the act or thing is to be done, so far as practicable, in accordance with both the general principles set out in section 4A and the following principles:

  (a) people with disability should be involved in decision making processes that affect them, and where possible make decisions for themselves;

  (b) the judgements and decisions that people with disability would have made for themselves should be taken into account;

(c) the cultural and linguistic circumstances, and the gender, of people with disability should be taken into account;

  (d) the supportive relationships, friendships and connections with others of people with disability should be recognised.

(10) Clause 5, page 6 (line 7), omit "person;", substitute "person.".

(11) Clause 5, page 6 (line 8), omit paragraph (c).

(12) Clause 9, page 8 (line 23) to page 9 (line 23), to be opposed.

(13) Heading to clause 10, page 9 (line 24), omit the heading, substitute:

10 Possible ground for compensation

(14) Clause 10, page 9 (lines 25 to 34), omit subclause (1).

(15) Clause 10, page 10 (lines 1 to 3), omit "(2) The matters are the following, to the extent to which they relate to the use of a BSWAT assessment to work out a minimum wage payable to a person", substitute "Each of the following matters is a possible ground for compensation for a person, to the extent to which it relates to the use of a BSWAT assessment to work out a minimum wage payable to the person".

(16) Clause 19, page 17 (line 9), omit "sections 9 and 10", substitute "section 41A".

(17) Clause 38, page 30 (line 16), omit "person; and", substitute "person.".

(18) Clause 38, page 30 (lines 17 and 18), omit subparagraph (c)(iii).

(19) Clause 38, page 30 (lines 19 to 21), omit the note.

(20) Clause 39, page 30 (line 22) to page 31 (line 3), to be opposed.

(21) Page 31 (after line 19), at the end of Part 3, add:

Division 8—Recovery of payments from alternative amounts

41A Recovering payments from alternative amounts

(1) This section applies if:

  (a) a payment amount for a person has been paid under this Act; and

  (b) there is an alternative amount for the person.

(2) An amount (the recoverable amount) is payable by the person to the Commonwealth. The recoverable amount is equal to the smaller of the following amounts:

  (a) the alternative amount;

  (b) the payment amount.

Note: For debt recovery, see Division 4 of Part 5.

(3) If the Commonwealth is liable to pay an amount of compensation referred to in paragraph (1)(a), the Commonwealth may set off the recoverable amount against the amount of compensation.

41B Secretary may send preliminary notice

(1) If:

  (a) a payment amount for a person (the payment recipient) has been paid under this Act; and

  (b) the payment recipient makes a claim against another person (the potential compensation payer) for compensation; and

(c) the compensation would, if paid or payable, result in there being an alternative amount for the payment recipient;

the Secretary may give written notice to the potential compensation payer that the Secretary may wish to recover an amount from the potential compensation payer.

(2) A notice under subsection (1) must contain:

  (a) a statement of the potential compensation payer's obligation under section 41C; and

  (b) a statement of the effect of section 41D.

41C Offence—potential compensation payer

     A person (the potential compensationpayer) commits an offence if:

  (a) the potential compensation payer is given a notice under section 41B in relation to a person (the payment recipient); and

  (b) before or after receiving the notice, the potential compensation payer agrees, or becomes liable, to pay compensation to the payment recipient; and

(c) the compensation resulted, or would result, in there being an alternative amount for the payment recipient; and

  (d) the potential compensation payer does not give written notice to the Secretary of the agreement or the liability within 7 days after forming the agreement or becoming liable, or receiving the notice, whichever is later.

Penalty:   Imprisonment for 12 months or 60 penalty units, or both.

41D Secretary may send recovery notice

(1) If:

  (a) a payment amount for a person (the payment recipient) has been paid under this Act; and

  (b) another person (the compensation payer) is liable to pay compensation to the person; and

(c) the compensation would, if paid, result in there being an alternative amount for the payment recipient;

the Secretary may give written notice to the compensation payer that the Secretary proposes to recover from the compensation payer the amount specified in the notice.

(2) If a compensation payer is given a notice under this section, the amount specified in the notice is payable by the compensation payer to the Commonwealth.

Note: For debt recovery, see Division 4 of Part 5.

(3) The amount to be specified in the notice is the lesser of the following:

  (a) the payment amount;

  (b) the amount of the compensation.

(4) A notice under this section must contain a statement of the effect of section 41G so far as it relates to such a notice.

(5) This section applies to an amount payable by way of compensation in spite of any law of the Commonwealth, a State or Territory (however expressed) under which the compensation is inalienable.

41E Preliminary notice or recovery notice suspends liability to pay compensation

     If a person (the compensation payer) has been given a notice under section 41B or 41D in relation to the compensation payer's liability, or possible liability, to pay compensation, the compensation payer is not liable to pay that compensation while the notice has effect.

41F Compensation payer ' s payment to Commonwealth discharges liability to participant

     Payment to the Commonwealth of an amount that a person (the compensation payer) is liable to pay under section 41D in relation to another person (the payment recipient) operates, to the extent of the payment, as a discharge of:

  (a) the compensation payer's liability to pay compensation to the person; and

  (b) the payment recipient's liability to pay the Commonwealth.

41G Offence—making compensation payments after receiving preliminary notice or recovery notice

(1) A person (the potential compensation payer) commits an offence if:

  (a) the potential compensation payer has been given a notice under section 41B or 41D in relation to the payment of compensation to a person; and

  (b) the potential compensation payer makes the compensation payment to the person.

Penalty:   Imprisonment for 12 months or 60 penalty units, or both.

(2) Subsection (1) does not apply if:

  (a) in the case of a notice under section 41B—the Secretary has given the potential compensation payer written notice that the notice is revoked; or

  (b) in the case of a notice under section 41D—the potential compensation payer has paid to the Commonwealth the amount specified in the notice; or

(c) the Secretary has given the potential compensation payer written permission to pay the amount.

41H Liability to pay the Commonwealth if there is a contravention of section 41G

(1) A person who contravenes section 41G is, in addition to being liable under that section, liable to pay to the Commonwealth:

  (a) if the contravention relates to a notice under section 41B—an amount determined by the Secretary; or

  (b) if the contravention relates to a notice under section 41D—the amount specified in the notice.

(2) The amount determined by the Secretary under paragraph (1)(a) must not be more than the amount that would have been specified in a notice under section 41D if one had been given.

(3) This section applies in relation to a payment by way of compensation in spite of any law of the Commonwealth, a State or Territory (however expressed) under which the compensation is inalienable.

(4) The amount determined by the Secretary under paragraph (1)(a) or specified in the notice under section 41D is payable by the person to the Commonwealth.

(22) Clause 67, page 47 (line 12), omit "where an amount is wrongly paid to a person".

(23) Clause 67, page 47 (line 15), omit "the person", substitute "a person".

(24) Clause 84, page 56 (after line 28), after subclause (3), insert:

  (3A) An amount payable by a person to the Commonwealth under subsection 41A(2), 41B(2), 41D(2) or 41H(4) is a debt due to the Commonwealth by the person.

(25) Clause 98, page 64 (lines 19 and 20), omit "matter referred to in subsection 10(2)", substitute "possible ground for compensation".

7544-EM

Business Services Wage Assessment Tool Payment Scheme Bill 2014

(Amendments and requests for amendments to be moved by Senator Moore on behalf of the Opposition in committee of the whole)

Statement pursuant to the order of

the Senate of 26 June 2000

Amendments (12), (14) and (18)

The effect of these amendments will enable a person to receive payment under the Bill without losing his or her rights to seek compensation in relation to the use of a Business Services Wage Assessment Tool assessment to work out a minimum wage payable to the person. This will allow those who intend to seek such compensation to also receive payments under the Bill, resulting in an increase in expenditure under the standing appropriation in clause 99 of the Bill.

Amendments (12), (14) and (18) should therefore be moved as requests.

Amendments (2) to (8), (10), (11), (13), (15), (17), (19), (20) and (25)

These amendments are consequential on amendments (12), (14) and (18).

Amendments (2) to (8), (10), (11), (13), (15), (17), (19), (20) and (25) should therefore be moved as requests.

Statement by the Clerk of the Senate pursuant

to the order of the Senate of 26 June 2000

Amendments (12), (14) and (18)

The stated effect of amendments (12), (14) and (18) is that it would allow an increase in expenditure to be met from the standing appropriation contained in clause 99 of the Bill.

The Senate has long followed the practice that it should treat as requests amendments which would clearly, necessarily and directly result in increased expenditure under an appropriation clause in a bill.

If, as stated, amendments (12), (14) and (18) would result in increased expenditure under the standing appropriation in clause 99 of the Bill, it is in accordance with the precedents of the Senate that those amendments be moved as requests.

Amendments (2) to (8), (10), (11), (13), (15), (17), (19), (20) and (25)

These amendments are consequential on the requests. It is the practice of the Senate that amendments purely consequential on amendments framed as requests may also be framed as requests.

These amendments relate to the issue of preserving the right to legal redress, as we have discussed in the contributions we made earlier and also as responded to by the minister in his closing of the original debate. They relate particularly to the issue of whether in this case it is better for people to have the option to retain their right to go through the legal process at the same time as maintaining the process to receive immediate payment.

I take the minister's point in terms of what would be less intrusive or less difficult, but I draw the attention of the minister to the discussions that we had at the Community Affairs Committee, one being the importance of having appropriate legal support and reassurances from the department that there would be that ability. I continue to have the doubts that I raised at the committee in terms of ensuring that every single person would be able to get the detailed legal and financial support that is available in this legislation on the basis of just having that availability in the community to have practitioners who can do that. I am concerned about forcing the issue of people with disabilities, in some cases quite significant intellectual disabilities, having to make such a significant opt-in or opt-out decision on something that is so important to them. That came up consistently in the discussions that we had in the committee about ensuring that people knew what their rights were and ensuring that there were able to make the clear decision that was best for them.

The proposal of the opposition has put forward for consideration is a model that works already in other parts of government process, where the protection is there that people are not having to make an original decision which automatically concludes their options. They are allowed to continue to get some form of payment and then, should there be a different decision, the overpayment that is then created is then created formally as an overpayment and a repayment schedule created for that person. That operates already in a number of areas—in particular, compensation process and Department of Social Services processes.

I take the minister's concerns about whichever way you actually are working with people you want to ensure that they have the least stress in this process. We believe that this option maintains opportunities, maintains the choice that they are able to take up their legal options if they choose to and then be able to see which way they would be best protected or their futures secured. We strongly believe that this in fact is an appropriate option to offer for people; we believe there are protections of the system to allow it to occur; and we also believe that, should the legal and financial advice—which is already in this bill saying that people have to have that—that same legal and financial advice would be able to adequately talk about the impact of any overpayment. That should already be covered in the processes that are there.

We commend the amendments before you and we actually believe that it supports the process rather than in any way making it more complex.

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

The Greens outlined our strong concerns with this whole bill during the second reading debate. These changes, while they go to address some of our concerns, do not address all our concerns. We still have deep concerns that this bill does not adequately address the issues that face people with disability who were paid under the BSWAT scheme. While we can agree with them in principle, they do not fix the bill and by agreeing to these in principle, we still do not support the bill.

Sue Lines (WA, Australian Labor Party) Share this | Link to this | Hansard source

The question is that amendments (1), (9), (16), (21) to (24); and requests (2) to (8), (10), (11), (13) to (15), (17) to (19), and (25) on sheet 7544, by leave together, be agreed to.

The TEMPORARY CHAIRMAN (13:58): I now put the question that clauses 9 and 39 stand as printed.

Question agreed to.

Progress reported.