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Wednesday, 29 November 2000
Page: 20086


Senator BARTLETT (10:46 AM) —Although we are willing to hear further arguments from the minister, the Democrats are inclined to support this, unless Senator Evans explains things so badly that it switches my mind the other way. I understand what the minister is saying—that this will swap certainty for uncertainty. From my point of view, there is certainty in how the provision is being interpreted and operated. Whether the certainty reflects the intent of the Senate at that time, I do not know—I was not here. I have not read the speeches from that period, but I would say two things: any time you make a change to law, you are adding a bit of uncertainty because sometimes it can be interpreted by a tribunal or a court down the track. Until that happens, you will not be 100 per cent certain how that will be interpreted, particularly when you look at areas of discretion in the administration of the law. By definition, making any amendment can generate uncertainty. If you applied that principle completely, you would never change anything, which at least would mean we would not have to spend so much time here.

The other point is about how it operates at the moment. I do not know what the intent was when it was put in, but the Democrats certainly have concerns about how it operates at the moment. Just to make it clear to people following the debate, the amendment goes to the issue of waiving the right to recover the proportion of a debt that is attributable to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt. So it is basically subject to the other subsection in the act which requires the secretary to waive the right to recover the proportion of a debt if it was administrative error and was received in good faith.

My understanding of how things are interpreted as the act stands now is that, because of the court cases—probably the ones the minister was referring to; the one I am particularly aware of is the case in relation to Prince—the test of good faith is now interpreted very stringently. This amendment should allow waiver of those debts where the customer is deemed to have had some unintentional degree of liability, changing it from the current provision of sole administrative error—absolutely no error at all on the part of the person involved—to a slightly more generous definition of administrative error in general rather than `sole administrative error'. It should allow for people who did not know that they were being overpaid—where that overpayment arose from an administrative error on the department's side of things—to have that waiver of the debt come into force.

Because of the way things have been interpreted in court cases, it is now very hard to have that test of good faith acknowledged. It has been made very stringent by court cases. Whether that was the intent of the amendment when it was made back in 1995 I do not know, but that is how it is operating. Even if it was the intent back then, the Democrats' point of view is that we are not sure it was a good intent, and we have an opportunity to change our intent. As I see it, this amendment does that, and so the Democrats at this stage are still inclined to lend our support to it.