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Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 and four related bills concerning the Northern Territory national emergency response

CHAIR —Welcome back. Thank you very much for your patience and for listening in during the day. Your service to the committee is most appreciated. If you could, Dr Harmer, please pass the thanks of the committee back to the representatives of the various departments.

Dr Harmer —Thank you very much. I will do that.

CHAIR —Could you now respond in whatever way you can to the questions that were put to you during the course of the day.

Dr Harmer —In total it looks like we have got about 100 questions now. I have got people working on them. We are planning to have them available by 10 o’clock. As we normally do, we will need to clear them through the minister. That will happen over the weekend. Given that there are so many and that there are a number of staff working on them, I am not planning to do anything with the answers now. I will give them to the committee at 10 o’clock on Monday.

CHAIR —Is there anything you can advise the committee now that may assist us before 10 o’clock on Monday?

Dr Harmer —A lot of the questions do require more time to answer. For example, even the staffing question, which was relatively simple for us, was about all of the staffing—how many are going to be in the Northern Territory, how many elsewhere et cetera—and, when you consider the number of departments involved, it is actually quite a complex coordination exercise.

CHAIR —Did any of your legal team look at the issue of compensation on just terms and the issues raised by the Law Council of Australia?

Mr Gibbons —We are still having a look at that submission, but I repeat what I said this morning: the bill provides for compensation on just terms in accordance with the provisions of the Constitution. That will involve a process of negotiating with the relevant land council on behalf of the relevant land trust and anyone else who has a claim, with a view to reaching an agreement. If there is no agreement then the matter will proceed to court for adjudication by the court.

CHAIR —One of the representatives of the Law Council—I think it was Ms Webb QC—indicated that, in her view, because it was section 122 of the Constitution regarding a territory then the just terms provisions under the Constitution for compensation did not apply. I may have misinterpreted that but I thought that was her view, so I was wondering if you have given that point any consideration.

Mr Gibbons —My advice is that because it involves an acquisition of property and there is a constitutional provision covering the acquisition of property, through legislation we cannot exclude that.

CHAIR —Thank you.

Dr Harmer —Chair, I am advised that the Law Council’s submission is not yet available on the web. We have tried to access it and have not yet been able to. If the committee has it to make it available we would be interested to see it.

CHAIR —We certainly have it and we will provide to you. Senator Payne has a follow-up question on that matter.

Senator PAYNE —One of the problems we have been trying to grapple with on this matter today is some confusion in the terminology used between the bill, the minister’s language in the second reading and some interpretations around that. In the process of addressing the concerns that have been raised, I think if we can get some clarity in that it would help enormously.

Mr Gibbons —I will take that on notice.

Senator PAYNE —I did not expect an answer immediately.

Mr Gibbons —I would just say the minister’s comments about paying just compensation have been translated into draft legislation, and that is the issue that we should focus on. That provides for just compensation in the terms provided for in the Constitution.

Senator PAYNE —Yes, but compensation on ‘just terms’ and ‘just compensation’ are not necessarily the same thing, and I think that is where the problem arises. That is merely the point I was trying to make to assist in where the department was looking at the issue.

CHAIR —I apologise if I missed that little bit—I was talking to the secretary—but did you refer to section 60(2), which was specifically referred to? Senator Ludwig put that point.

Senator PAYNE —That is where we go from ‘just terms’ to ‘just compensation’ to ‘reasonable amount of compensation’, and it does become a little confusing.

Mr Gibbons —We will come back with a written answer. I would just say that the bottom line here is that the constitutional provision that provides for compensation will prevail. The legislation, I am advised, is drafted to ensure that there is a process to follow through with that. That legislation cannot take away the right that is provided in the Constitution.

CHAIR —Another matter I specifically raised this morning that I wondered whether you had an answer to was the ACOSS submission with regard to the definition of a ‘satisfactory’ school attendance. Was there a definition that you can provide to the committee?

Mr Sandison —Basically, the intent is to follow state legislation and look at their definitions of explained and unexplained absences. From there, there would be discretion for Centrelink officers to look at reasonable excuses for individuals. It is following state rules and state legislation.

CHAIR —Can we assume that means the Northern Territory rules and legislation in this regard?

Mr Sandison —The government decision was to have consultations with states, so I cannot guarantee that, but the discussions would be around what is in the existing rules run by each of the jurisdictions.

CHAIR —Thank you. If you wish to clarify that any further we would welcome any clarity.

Mr Sandison —Certainly.

CHAIR —Are there any last-minute questions for the department?

Senator SIEWERT —I would like a clarification because I may have something confused about the income management provisions. It applies to income support and FTB, as I understand it. Is that correct?

Dr Harmer —Yes. I will just ask Mr Hazlehurst to clarify that.

Mr Hazlehurst —Yes, that is correct. The income that will be managed will be income support payments and family assistance payments.

Senator ADAMS —I have a question that comes from evidence by ACOSS this morning on ATSIC and their programs. It was actually about a decision by ATSIC to not continue with their women’s programs—they had been running a number of women’s programs—and the comment was made that if they had not made this decision and had continued the programs maybe we would not have the problems we have today. I am wondering if the department was aware that ATSIC made that decision.

Dr Harmer —Senator, I am not sure which of the particular programs that ATSIC previously ran she was referring to. I did not hear the ACOSS evidence.

Senator PAYNE —It was not ACOSS.

Senator ADAMS —Wasn’t it?

Senator PAYNE —It was the Combined Aboriginal Organisations of the NT.

Senator ADAMS —Right; I thought it was ACOSS.

Senator PAYNE —It was Ms Havnew talking about which programs had been continued and which had not been.

Dr Harmer —Nothing that I have heard about the background to the sexual abuse of and violence against children in the Northern Territory would indicate that this is a failing because of what any of the Commonwealth departments have funded or not funded.

Senator ADAMS —It was that ATSIC had their funding reduced so they decided they had to take programs out. It was they who were doing it. I just wondered if the department was aware that there were programs that were associated with women and children and domestic violence and aware of the comment she made about things if those programs had continued. It was actually ATSIC’s decision. It was not a decision of the department. I was just asking if you perhaps knew what they were.

Dr Harmer —That is the first time I have heard of that. I do not think anyone else at the table has. I do not think we have heard that explanation before.

CHAIR —Thank you very much for your advice, Dr Harmer. If there is any opportunity for an interim response, that would be good; otherwise we look forward to the responses in due course by 10 o’clock on Monday morning.

Dr Harmer —Thank you very much, Chair.

CHAIR —May I take this opportunity, on behalf of the committee, to specifically thank all witnesses who have given evidence to the committee today. We appreciate that. We know the constraints that they were under to deliver the evidence and to prepare for the hearing, and we want to say thank you. I now declare this meeting of the Senate Standing Committee on Legal and Constitutional Affairs closed.

Committee adjourned at 4.22 pm