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Tuesday, 10 May 2011
Page: 2050

Senator BOYCE (Queensland) (13:10): 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.