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

The Greens won't be moving amendment (3) on sheet 8882, but I will just clarify some of the issues around the period of employment. I will just remind people about some of the issues that we had about that particular matter. We had concerns around the fact that, as it reads, it's unclear whether 'employment period' refers to the number of days in a person's pay cycle or the period during which a person worked, and this could lead to people misreporting their employment period and being penalised for using the wrong period. The reason why we were trying to move the amendment was to better explain what 'employment period' actually means. I did listen carefully to the point that the minister was making in terms of when the income was earned and the point about the amount, so what we're seeking therefore is that, as the minister touched on before, the pay period will be addressed in the Social security guide. I'm seeking a commitment that the guide will outline what the term 'employment period' means for people who work weekly, monthly or in work of an unpredictable nature, with irregular hours. We're also seeking that the guide will provide working examples or scenarios of how 'employment period' should be interpreted for people working weekly, monthly or with irregular hours—in other words, point it out but also provide worked examples, because we are very concerned this is going to be confusing. We think it's important to clarify this so that people know what 'employment period' means and what they need to provide to Centrelink when they are reporting their employment income. We're concerned that confusion around what is meant by 'employment period' could cause people to provide the wrong period and misreport their income. That's why we want to make sure that both the explanation and case examples are there, because that often helps people interpret it. Can the minister guarantee that that will be in the guide?

Anne Ruston (SA, Liberal Party, Minister for Families and Social Services) Share this | Link to this | Hansard source

In answer to your last question: yes, I can. Certainly the definitions will be clearly outlined in the Social security guide. There will also be working examples that people can use. Particularly in the early stages, as people are transitioning to this different way of reporting, we will make sure there are adequate resources if people wish to speak to somebody about what their pay period is. To be clear, it's not the number of days worked; it's the period of employment on the payslip. All of the detail around the definitions around these will be included in the guide. In doing so, the reason we want it in the guide as opposed to the primary legislation is to give that flexibility, because we do understand there will be special circumstances along the lines that you've just mentioned—irregularity of work, people who may be paid on an ad hoc basis, people who may not be paid until the end of the month, et cetera. We're very keen to make sure we've got the flexibility to deal with those issues.

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

I appreciate the minister guaranteeing commitment on that issue. As I said, we won't be moving that amendment. I will just flag that I suspect this is something that is going to come up during the review over the first 12 months to see how easily it is understood and whether it has caused problems.

I move Greens amendment (1) on sheet 8885, which relates to the secretary's discretion:

  (1) Schedule 1, item 37, page 10 (after line 32), after subsection 1073BA(2), insert:

  (2A) For the purposes of subsection (2), when determining such period a person is taken to have received employment income over, the Secretary must consider the following:

  (a) the nature of the person's remunerative work;

  (b) the nature of the person's employment income, including the matters in subsections 8(1A)-(1C);

  (c) any hardship which may be caused to the person by attributing employment income over such period;

  (d) whether the employment income relates to remunerative work that was undertaken at a time when the person was not receiving a social security pension or a social security benefit.

I indicated in my second reading contribution that we had some concerns around this, in making sure we articulate what the secretary's discretion is to attribute employment income that does not have a corresponding time frame, such as a Christmas bonus over a certain period. There are currently no guidelines or limitations on how the secretary should exercise their discretion, which we are concerned about. We think there need to be some parameters or an outline around that. The way income is assessed has consequences for how people manage their budgets, eligibility for income support payments and whether the secretary attributes a bonus; for example, a Christmas bonus and any other bonus over two or 52 weeks has potential real-life implications. We think this amendment will significantly help to clarify that and will put some guidance around the form of the secretary's discretion.

Anne Ruston (SA, Liberal Party, Minister for Families and Social Services) Share this | Link to this | Hansard source

Senator Siewert, we believe this isn't the appropriate place to describe that discretion. Therefore we think the amendment is not necessary. I can confirm that, when we determine payments that are paid in respect of a particular period, consideration can be given to a number of factors, including the recipient's employment, the payment frequency, individual circumstances, hardship, et cetera. In drafting the legislation we quite purposefully avoided defining some terms in order to give the flexibility to enable us to deal with unique circumstances. As we all know, whilst the majority of people are paid in a reasonably uniform way there are a number of people who aren't. Employment often changes; we've seen significant changes in the nature of work over recent times. So we wanted to make sure we had the maximum flexibility built into that discretion. For that reason we thought it best to make sure that the issues and the details were set out in the guide as opposed to the primary legislation. So we don't support this amendment, because we believe that it will have a negative impact on our ability to have greater flexibility in what we do.

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

I hear what the minister is saying. I understand flexibility, but there is flexibility not to do the right thing as well, so we have concerns about that. I took on board what the minister said around the employment period, but on this one we are very concerned about the fact that it isn't better defined in the legislation. Things can go two ways. I'm not casting aspersions on the secretary and the department, but into the future the lack of interpretation in the legislation could in fact be interpreted in a different way, a way that perhaps was never intended in the first place. We think putting this in place in legislation that actually provides for the secretary to exercise discretion is a better approach. We think the way this is drafted still enables the flexibility to which the minister refers but provides much better bounds around that discretion.

Patrick Dodson (WA, Australian Labor Party, Shadow Assistant Minister for Reconciliation) Share this | Link to this | Hansard source

This amendment by the Greens fundamentally addresses concerns that have been raised by the principal stakeholders and is similar to a Labor amendment, so we don't have any problem with it.

The CHAIR: The question is that amendment (1) on sheet 8885, as moved by Senator Siewert, be agreed to.

Patrick Dodson (WA, Australian Labor Party, Shadow Assistant Minister for Reconciliation) Share this | Link to this | Hansard source

I move Labor's amendment (1) on sheet 8889:

(1) Schedule 1, item 37, page 10 (after line 32), at the end of subsection 1073BA(2), add:

Note 1: When determining the period, the Secretary might take in to consideration the following:

(a) the nature of the person's remunerative work;

(b) the nature of the person's employment income;

(c) the person's financial interests;

(d) any financial hardship which may be caused to the person;

(e) whether the employment income relates to remunerative work that was undertaken at a time when the person was not receiving a social security pension or a social security benefit.

Note 2: The period determined by the Secretary should be fair and reasonably beneficial, taking into account the financial interests of the person receiving the social security pension or social security benefit.

There is a slight amendment to the text of the substantive amendment, which I understand has the concurrence of the minister. I thank the minister for that indication.

During the inquiry into this bill, a number of stakeholders raised issues with the lack of clarity around how irregular income would be treated. Concerns were that the bill could be implemented in a way that could leave people worse off if the government deliberately averaged income to minimise social security payments. The government said that this will not be the case, and we take the minister at her word. However, the amendment will insert an interpretive note to make it clear into the future. If a case ends up before the AAT, the note will help clarify the matter in terms of the commitment and intention. We have chosen an interpretive note over a substantive amendment to the bill because this area of law is incredibly complex and we realise some flexibility in implementation is necessary.

This amendment is designed to ensure that income is averaged in a way that is fair and that the reasonable financial interest of the social security recipients is reasonable. For example, if a person was a victim of a wage theft which occurred when they were employed and that is back paid when they are on a benefit, that payment should not be used to reduce the person's current benefit. Or, if a person is paid on a four to six week cycle but only actually worked in one week of the cycle, this will ensure the income is not averaged across a longer period in such a way as to unfairly reduce the income support that person would receive over time.

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

The Greens will be supporting this amendment. As I articulated before, we would prefer such instructions and requirements to be in the legislation. We still believe it would enable some degree of flexibility but also make sure that this is taken into account. This is a very important issue. Providing notes at least will guide the secretary in terms of what the secretary needs to take into account to determine the period, so we will be supporting this. We think it is a significant improvement to the way that the secretary can exercise their discretion.

Anne Ruston (SA, Liberal Party, Minister for Families and Social Services) Share this | Link to this | Hansard source

As per my previous comments on the previous amendment that was moved by the Greens that had a similar intent as this amendment that's been moved by the Labor Party, we believe it is unnecessary. We take on board the comments made by both senators in relation to the certainty and surety that they're seeking by this, but I would once again reiterate that, in trying to embed that level of certainty, you actually create a level of rigidity into the legislative instrument, removing the flexibility that we were so clearly trying to have with this to make sure that the secretary has the flexibility to be able to move when particular circumstances of people are outside the normal circumstances that most people find themselves in when they're paid either weekly or fortnightly. It's always been a longstanding position of the government, and we believe that it's consistent with best practice by making sure that we use the appropriate instruments to embed the particular issues in. In this instance, we once again believe that the social services guide is the appropriate place for the definitions to be included because it does allow that flexibility for unanticipated issues when they arise. Whilst we certainly acknowledge the intent of this, we believe that it would be far better delivered with that information contained in the social services guide, so we don't support this amendment.

Question agreed to.

Patrick Dodson (WA, Australian Labor Party, Shadow Assistant Minister for Reconciliation) Share this | Link to this | Hansard source

I stand to speak in relation to the Labor Party's amendment on sheet 8883. This amendment seeks to stop the unfair robodebt disaster that this government has presided over from ever happening again. Labor's amendment will prevent another robodebt by preventing social security debts being raised based solely on the income averaging of the Australian tax office data, making it clear that there is a statutory duty of care on the government to ensure debts are accurate, ensuring human oversight before debts are issued and requiring the government to use all available powers, resources and data across government to verify the accuracy of alleged debts before they are issued.

The Morrison government has admitted, in its defence to the robodebt class action filed in the Federal Court, that it had no basis in social security law to lawfully collect robodebts calculated using income averaging alone. This amendment seeks to make that crystal clear. However, the government is also claiming in the Federal Court that it does not owe a duty of care to social security recipients. This is a brazen attempt to shrug off the liability it has to thousands of people who have been harassed, worried and hurt by the robodebt scandal. The government says it has stopped the robodebt scheme. If this is true, it should be supporting this amendment.

I move opposition amendment (1) on sheet 8883:

(1) Page 31 (after line 16), at the end of the Bill, add:

Schedule 2 — Amendments relating to debts due to the Commonwealth

A New Tax System (Family Assistance) (Administration) Act 1999

1 After subsection 77(1)

Insert:

(1A) The Secretary must not give a person a notice under subsection (1) unless the Secretary is satisfied that:

(a) employment income averaging based on data obtained from a taxation officer was not the only information relied on to determine whether the debt was due to the Commonwealth; and

(b) information gathering powers in Division 1 of Part 6 were used to verify that the debt is due to the Commonwealth; and

(c) the existence and quantum of the debt owed has been verified by an officer.

Note: The duties of officials under the Public Governance, Performance and Accountability Act 2013 include the duty of care and diligence; and the duty to act honestly, in good faith and for a proper purpose.

Social Security Act 1991

2 After subsection 1229(1)

Insert:

(1A) The Secretary must not give a person a notice under subsection (1) unless the Secretary is satisfied that:

(a) employment income averaging based on data obtained from a taxation officer was not the only information relied on to determine whether the debt was due to the Commonwealth; and

(b) information gathering powers in Division 1 of Part 5 of the Administration Act were used to verify that the debt is due to the Commonwealth; and

(c) the existence and quantum of the debt owed has been verified by an officer.

Note: The duties of officials under the Public Governance, Performance and Accountability Act 2013 include the duty of care and diligence; and the duty to act honestly, in good faith and for a proper purpose.

Student Assistance Act 1973

3 After subsection 40(1)

Insert:

(1A) The Secretary must not give a person a notice under subsection (1) unless the Secretary is satisfied that:

(a) employment income averaging based on data obtained from a taxation officer (within the meaning of Division 3 of Part 10) was not the only information relied on to determine whether the debt was due to the Commonwealth; and

(b) information gathering powers in Division 2 of Part 10 were used to verify that the debt is due to the Commonwealth; and

(c) the existence and quantum of the debt owed has been verified by an officer.

Note: The duties of officials under the Public Governance, Performance and Accountability Act 2013 include the duty of care and diligence; and the duty to act honestly, in good faith and for a proper purpose.

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

The Greens will be supporting this amendment. This basically puts into legislation what the court found and makes it crystal clear that it shouldn't be done. The court has already said this is illegal. The government are trying to argue in court that they don't have a duty of care to people, which quite plainly is absolutely ridiculous given we're talking about social security payments. This makes it crystal clear that you can't use solely income averaging to levy a debt against people. When we look at the hundreds of thousands of notices that have gone out and the distress that has been caused to our community, this is sensible in absolutely clarifying that you cannot use that very simplistic process to raise debt. In particular, it means that, when people have no idea and have never received the notice, notices won't be going to the ATO for their tax returns to be garnished so that the first time anybody knows about it is when their tax return is garnished. At the moment, those notices are solely based on income averaging under the current robodebt processes. This amendment will stop a lot of hurt to our fellow Australians.

Anne Ruston (SA, Liberal Party, Minister for Families and Social Services) Share this | Link to this | Hansard source

The government will not be supporting this amendment, because we believe the amendment has absolutely nothing to do with the bill. The bill which is before us at the moment is legislation to change the way people report income. This is not an income compliance bill. So we will not be supporting the amendment.

The CHAIR: The question is that amendment (1) on sheet 8883, as moved by Senator Dodson, be agreed to.