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Friday, 19 November 1993
Page: 3244


Senator REID (9.43 a.m.) —by leave—I move:

1.Clause 52, page 15, proposed paragraph 114B(1)(c), lines 29 and 30, omit "is of the opinion that it may pay, or may have paid", substitute "determines that it has paid".

2.Clause 52, page 15, proposed paragraph 114B(2)(a), line 36, omit "may make, or may have made", substitute "has made".

3.Clause 52, page 16, proposed paragraph 114B(5)(a), omit the paragraph.

4.Clause 52, page 16, proposed subparagraph 114B(5)(b)(i), lines 33 and 34, omit the subparagraph.

5.Clause 52, page 16, proposed subparagraph 114B(5)(b)(ii), line 35, omit "otherwise".

6.Clause 52, page 18 after proposed section 114B, add the following new section:

  Correspondence to overpaid retiree

"114C. Section 114B has no effect unless and until Comcare or the authority takes reasonable steps, through correspondence to the retired employee, to obtain reimbursement of an overpayment of compensation. Such correspondence must include an explanation of how section 114B and this section work.".

The amendments are all to clause 52 and they should all be dealt with at once. It is all or nothing. There is no point in my putting them separately. I will speak to them as one proposition.

  I understand Senator Bell's concern about being in two or three places at once this morning and I share his criticism of the government's management of the program that it has been necessary to add this day as a Senate sitting day when there are so many committee matters to be dealt with. I know that Senator Bell is on a committee and he should be at it. I also recognise that, as a result of that, he would not have had the opportunity to hear my remarks when I spoke to this group of amendments in the second reading debate .

   The amendments relate to the fact that Comcare will be able to take from a person's superannuation moneys which, in its opinion, may be owed to it by that person as a consequence of Comcare's own mistake in making an overpayment. There is no suggestion in this bill that it is because the employee of the Commonwealth has done anything to cause the overpayment or has done anything to mislead Comcare into having made an overpayment. It is because of a mistake within Comcare that it has overpaid somebody. Comcare will now, under this section, be given the right to rip into that person's superannuation fund and take it.

  There is no question of going to a court to determine whether it is fair and just, no question of determining whether in fact there has been an overpayment—merely that Comcare determines that it made a mistake, it overpaid the employee, and it will get the money back no matter what, and from the superannuation fund of that person. There will be no question of writing to the person and saying, `We have bungled. We have made a mistake. We have overpaid you. We believe that morally you should refund to us a certain sum of money'. There will be none of that. It will just be taken out of the superannuation fund.

  I hope that Senator Bell will consider the injustice of this. I am not suggesting for a minute that Comcare is not entitled to get the money back. It may be, but surely there must be some process whereby it is determined that it is entitled to get it back without this high-handed, absolutely unreasonable attitude of merely being able to say to the superannuation fund, `We want $49,000 for this fellow as over the past 20 years we have overpaid him'. All senators know what happens when someone turns 65. They drop out of Comcare. It is not as it used to be. They rely on their own superannuation. Bother me; it has already gone because they overpaid me during the previous 10 years!

  I do not think anybody has thought through the actual implications to the former Commonwealth employee that we are talking about here when we allow, or even contemplate allowing a provision like this to be passed by the Senate. I hope that the Democrats and the Greens will give serious consideration to the absolute unfairness of this provision. There is no question of going to a court to determine whether or not the overpayment was a mistake, whether it was something that ought not to have occurred, whether Comcare ought to wear the consequences of its mistake—and there have been a number of cases that I have known over the years where there has been a mistake made but it is absolutely unfair to demand the money back and the minister has made a determination not to proceed with it.

  Here there is no question of that sort of thing. Comcare will go straight to the superannuation fund and rip the money out without even telling the person that an overpayment was made in the first place. It is incomprehensible to me that any minister in an Australian parliament would give instructions to his department and to the drafting authorities to pursue anything as unreasonable and as unfair as this provision.

   I do not believe that the minister would condone a provision of this kind and I would ask him to withdraw it. I certainly ask the Democrats and the Greens to vote down anything as outrageous as this. The government introduces these omnibus bills frequently. I ask it to withdraw this unfair provision and to come back with a provision which includes in it the right to tell the victim—the former Commonwealth employee—that Comcare has made a mistake and it wants some money back, to perhaps negotiate.

  The employee may be quite happy to pay the money back. He may have a little nest egg somewhere that he would prefer to pay it back from, rather than have his superannuation eroded in this fashion. The erosion of the superannuation in this fashion has extremely serious consequences, not only for him during the time that he is alive and receiving it. The minister will recall that, when he dies, his wife only gets a small proportion of that superannuation. That will have been eroded too. He may have a wife in employment who would agree to pay the money back for him to preserve the superannuation.

   How dare the government attack superannuation in this fashion and regard it as merely a sum of money to rip into when the government has made a mistake in this way! There will be no attempt to determine through normal judicial process that the money is properly owing, no attempt to negotiate a refund of the money which a person may agree to repay. I suggest that this provision be redrawn and redrafted to express the sort of things that I have suggested it ought to encompass and that we get an opportunity to deal with it again on some other occasion. I appeal to Senator Bell to take the view that there should be a little bit of fairness in the legislation that this chamber puts into practice.