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Wednesday, 23 March 2011
Page: 1665


Senator FIFIELD (6:29 PM) —I rise to speak on the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Bill 2010. Before I turn to the specifics of the bill, I do want to say that I am disappointed that the government did not bring this legislation on last year. Senators will recall that it was listed for debate at the end of last year. This bill was time sensitive because it contained provisions that were meant to be commencing from 1 January this year, including changes to special disability trusts. Obviously because the bill was not brought on by the government it could not be voted on and those provisions were not able to begin by their scheduled starting date. Senator McLucas at that time sought to blame the opposition for the government’s own failure to present this bill at the end of last year, and I will talk about that a little later.

Before I do, I would like to go to the substance of the bill. The bill does contain a number of non-controversial measures. Schedule 1 of the bill seeks to relax the purpose and work capacity tests in relation to special disability trusts and gives trustees greater flexibility. Special disability trusts seek to assist families to make financial provision for the current and future care of a family member with a severe disability. Special disability trusts were an initiative of the coalition and in particular a former minister, the Hon. Dr Kay Patterson. They were announced by former Prime Minister Howard in 2005 and following a consultation phase the legislation was passed in September 2006. Kay Patterson’s commitment to helping people with a disability was strong and genuine and continues today. That her reform has stood the test of time and is being embraced by this government and further improved by these amendments before us today is a great tribute to her work as a minister.

These amendments are in response to the report of the inquiry of the Senate Standing Committee on Community Affairs entitled Building trust: supporting families through disability trusts, tabled in October 2008. The committee made a number of recommendations to make special disability trusts more attractive. When special disability trusts were announced it was thought that over four years there would be around 5,000 trusts established. Unfortunately, the uptake of the trusts has not been as strong as expected. As at 30 September last year only 119 trusts had been set up.

This bill deals with only a small number of the recommendations of that inquiry, in particular the relaxation of the work capacity and trust purpose requirements. Schedule 2 of the bill creates an ongoing requirement for residence in Australia for the disability support pension, bringing the pension into line with other workforce age payments. The 13-week portability provision in the Social Security Act is designed to allow DSP recipients to travel overseas for personal matters. Some DSP recipients have used this provision and the absence of a residency requirement to effectively live permanently overseas. The bill amends the Social Security Act to require that a person must be an Australian resident to receive DSP. The bill include some grandfather provisions and maintains the exemption allowing DSP recipients who are severely disabled and terminally ill to go overseas to be with a family member or return to their country of origin. The opposition sought an inquiry into an issue related to schedule 2, namely the portability of disability support pension for recipients in particular circumstances, which I will return to later in my remarks.

The original schedules 3 and 4 of the bill were removed in the House after the opposition flagged some concerns and these have been subject to a Senate inquiry and are no longer part of this bill. The opposition had indicated last year its willingness to cooperate with the government to pass the time-critical measures contained within this bill and thank the government for its cooperation in removing schedules 3 and 4 so that they could be properly inquired into without further delaying the rest of the bill.

Schedule 5 of the bill deals with a matter relating to family tax benefit and Australian students studying overseas. The Family Assistance Legislation Amendment (Participation Requirement) Act 2009 introduced an activity test for the first time for children aged 16 to 20. The act effectively excluded those children who were studying overseas full-time. The proposed amendments eliminate this exclusion. The bill allows the students studying overseas full-time to be treated for family tax benefit purposes in the same way as full-time students undertaking study within Australia.

Schedule 6 of the bill makes amendments to address some anomalies arising from the pension reform legislation enacted in 2009, and schedule 7 makes some minor technical corrections.

I would now like to take the opportunity to address an issue which is related to schedule 2 of this bill. As senators would be aware, the Social Security Act 1991 is the key piece of legislation dealing with the disability support pension. The act allows DSP recipients to travel overseas for up to 13 weeks without losing their entitlement. The act also sets out extremely limited circumstances under which a person’s portability period will be extended or unlimited. Examples of such circumstances currently include a recipient who is terminally ill and travels overseas to be with a family member or return to their country of origin and a recipient who is involved in a serious accident overseas and is unable to return within the 13-week period.

It is right and proper that there be limits on the portability of the disability support pension. The main purpose of the DSP was described by former Senator Kay Patterson in her second reading speech to the 2003 FaHCSIA (Budget and Other Measures) Bill in November of that year as being to engage people of workforce age in activities in Australia that will lead to greater levels of economic and social participation. The coalition still supports that principle and it is why we have a 13-week portability limit applying to the DSP. However, whilst limits on portability of the DSP are necessary, those limits are proving punitive to a small class of recipients due to circumstances beyond their control, in particular recipients with a severe disability who have impaired decision-making capacity. Such recipients, who by virtue of their disability are unable to make their own decisions, can find themselves travelling overseas due to the decision of their guardian or carer. As a consequence, if the recipient travels to a country without a social security treaty they forfeit their pension after 13 weeks.

During its inquiry into the bill, the Community Affairs Committee heard how such circumstances can affect a family. The committee heard evidence from Mr Hugh Borrowman, who together with his partner is the legal guardian of their severely intellectually disabled adult son. Mr Borrowman appeared in a private capacity, but he is employed by the Department of Foreign Affairs and Trade. Those opposite might recall that in 2009 Mr Borrowman was nominated by the then Minister for Foreign Affairs to be Australia’s ambassador to Germany. However, in an unprecedented intervention, the then Prime Minister, Mr Rudd, blocked Mr Borrowman’s appointment on dubious grounds in what was an entirely unsatisfactory episode. Mr Borrowman was then nominated for appointment as Australia’s ambassador to Sweden, but turned down the appointment as Australia does not have a social security treaty with Sweden, and his son would therefore have lost his DSP entitlement after 13 weeks. Australia does have a social security treaty with Germany and Mr Borrowman’s son would have been covered had that appointment continued.

Mr Borrowman is a carer—quite clearly. Late last year, with much fanfare, the government passed into law the Carer Recognition Bill 2010. The Minister for Families, Housing, Community Services and Indigenous Affairs, Ms Macklin, and her colleagues celebrated its passage in a press release on 28 October, stating that the legislation:

… delivers on our commitment to provide better support for carers so they have the same opportunities as other Australians to live healthy, happy lives and reach their full potential.

The bill itself contains a ‘Statement for Australia’s carers’, whose very first item states:

All carers should have the same rights, choices and opportunities as other Australians …

That is a fine statement, but carers like Mr Borrowman are not currently enjoying the same rights, choices and opportunities as other Australians. Mr Borrowman put it eloquently at the inquiry’s public hearing, when he stated:

I would like to invite you to consider what the alternatives are for people in our situation. Is it to give up our son’s care to the state? Clearly, that is not a possibility, but I would invite you to consider the economic and social cost of actually doing that. Is it not to follow the career option that I have chosen? I do not know how that squares with modern sentiments about carers in our community … Should DFAT, the defence forces, BHP, anybody operating in an international environment add a rider to their job ads saying, ‘Carers need not apply’?

When a carer is caring for a person with a severe intellectual disability, such that they have impaired decision-making capacity, the person with a disability must accompany their carer if their carer needs to travel overseas for a significant period—for example, on a diplomatic posting. Carers then have to make the difficult decision whether to pursue such opportunities, in the full knowledge that doing so may mean a loss of DSP entitlement for the person for whom they are caring. Not only that, but on their return to Australia carers then face enduring the re-application process to have re-instated the entitlements of the person for whom they are caring. This is an unfair burden to place on carers. Clearly, carers ought not to be excluded from career opportunities due to their caring role. That the current DSP portability arrangements are preventing quality individuals from serving overseas is clearly an issue that needs to be addressed.

The current arrangements are also unfair for DSP recipients themselves, who lose their entitlements through no choice or decision of their own. As Mr Borrowman put it at the inquiry:

The social security system deems my son as making a choice to go and live somewhere else. He cannot make that choice. The law recognises that. He has no concept of that choice. It is just not a meaningful concept and yet he is being penalised for it because in pursuit of our lives, which are all bound up, we would need to take him with us or not go.

The fundamental principle at stake here is this: should a person with a disability entitlement lose that entitlement when a choice is made for them to travel overseas? The opposition contends they should not. Finding a solution to this issue was the main reason why the opposition sought to refer this issue to a Senate inquiry. The response of FaHCSIA was disappointing: the department seemed unwilling to discuss possible solutions to the situation that I have described. This is despite the fact that the government had already conceded that the current situation was an issue, as it offered a special deal for Mr Borrowman to encourage him to accept the posting to Sweden. Offering a solution to an individual is acknowledgement of a problem. But full credit to the principled stand that Mr Borrowman took in rejecting this deal because he believed it to be inappropriate. Furthermore, he did not want to accept a solution that only catered to his situation and did not resolve the issue for all carers who might find themselves in the same circumstances.

The matter was raised with the government by Mr Borrowman and me more than 18 months ago. The then Parliamentary Secretary for Disabilities and Children’s Services, Mr Shorten, assured us it was being examined, but 18 months is more than enough time to find a solution. We can only conclude that finding a way to help carers and people with a disability in this sort of situation was buried in a rather large ‘too hard basket’ somewhere in the ministerial wing. For government senators to recommend in their committee report that FaHCSIA and the minister discuss ways to resolve these issues was just more delay. The coalition senators recommended in a minority report:

  • That the Bill be supported with an amendment to address the portability issue affecting DSP recipients with a severe disability and impaired decision-making capacity and whose carers are travelling overseas for work purposes.
  • It is time to solve the situation and it is time for real action. To that end, at the end of last year I foreshadowed that the opposition would seek to move an amendment to the bill during its committee stage to make provision to allow the Secretary to grant unlimited DSP portability to recipients who were severely disabled and travelling overseas to reside with their carer who was outside Australia for work purposes. At that time the government decided not to bring this bill before the parliament. I was extremely disappointed at the time that Senator McLucas issued a press release entitled ‘Coalition playing politics with people with disability’, in which she quoted me saying that we:

    … would do whatever was required to facilitate the passage of this legislation.

    That is true; we would have. She went on to say:

    … the Opposition are refusing to support the passage of this bill without further amendment or delay …

    We were not threatening the bill; what we were proposing was indeed the very amendment which the government are moving today. Our amendment would not have delayed the bill. We undertook that, even if the amendment had failed, we would not have delayed the bill. We would have hoped that the government would have seen fit to bring the bill into the chamber and let us move the amendment. So I was extremely disappointed that that release was issued, being inaccurate as it was, particularly given that the government found time for the National Measurement Amendment Bill 2010 at the end of last year but not for this piece of legislation.

    The amendment that we were looking at would have ensured that DSP recipients, such as the Borrowmans’ son, would not unfairly lose their entitlements due to their carer travelling overseas for work purposes. It would have represented a step forward for carers at that time and it would have put into action the principle espoused in the government’s own carer recognition legislation.

    Last year, Mr Borrowman advised that he approved of the amendment we proposed. Also last year, my office was contacted by the Defence Special Needs Support Group, an organisation which supports families of ADF personnel who have dependents with special needs. They advised that they too would have supported our proposed amendment. It is now very much belatedly that the government, having had the best part of 18 months to conceive this sort of amendment, are now seeking to amend their own legislation. That is all we were proposing to do at the end of last year—to make a very similar amendment to this legislation—but the government did not put—


    Senator McLucas —An amendment I had not seen until this day.


    Senator FIFIELD —We did have it drafted. We were waiting for this bill to actually come into this chamber so we could circulate it. But the bill did not come into this chamber, into a position where it could be debated and where we could have a committee stage. What we were intending to do—


    Senator McLucas interjecting—


    Senator FIFIELD —In fact, Senator McLucas, we had a conversation about this at the time, so do not misrepresent the situation. We were prepared to move an amendment and we had the amendment drafted. All that was needed was for the bill to be listed so it could actually be dealt with. But the government ensured that the bill was not in a position where it could be dealt with and they sought to blame us. Why? Because we sought to move the very amendment that the government is moving today. We on this side of the chamber will not cop the blame for your decision not to put the bill into the chamber for debate at the end of last year, which would have allowed the amendment to be moved. Having said that, we are now extremely pleased that the government is seeking to move that amendment and we look forward to it being passed.

    But the credit here today goes to Mr Hugh Borrowman, who has been tenacious, who has been principled and who has been dedicated not only to the interests of his son but to the interests of all Australians with disability. He was not prepared to accept a special arrangement for his circumstance. He wanted to fight through. He deserves great credit. I am pleased that the government is seeking to amend their legislation, but Senator McLucas will recall that we had a conversation at the end of last year and that that conversation revolved around the fact that we were intending to move an amendment to this legislation. But of course the legislation was not presented, so we could not debate this and we could not circulate our amendment. So I will not accept that misrepresentation for one minute.

    I think today—or tomorrow, as it looks like we will run out of time—will be a good day for Australians with disability. This is a small victory for Australians with disability and a small victory for carers. It is due to Mr Borrowman’s efforts that it looks like this legislation will have a clause which addresses their needs.

    Debate interrupted.