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Friday, 19 November 1993
Page: 3246


Senator REID (9.55 a.m.) —A number of the remarks Senator Bell made about the provisions in proposed section 114B highlight the point I made. In fact, they support what I said in that the provisions he referred to about the administrator relate to the protection of the superannuation fund, not the person who is entitled to receive under it.

  When a Commonwealth employee retires and notification is given to the superannuation authority, it may well be months before the superannuation is freed up and the employee receives any benefits under it. The employee could not even go to Social Security. As I see it, he would be left absolutely destitute from the time he retired from the Commonwealth, when his Comcare payments would cease, and the superannuation would be tied up. A reading of the proposed sections just referred to by Senator Bell actually confirms that that interpretation would be totally reasonable. Goodness knows what would happen to the person from the time the notice is given to the superannuation fund until it is finally resolved. Proposed section 114B(1)(c)—I do not see how one can explain away these words—states:

Comcare or a licensed authority is of the opinion that it may pay, or may have paid,—

moneys—

. . . in excess of the amount or amounts that he or she was entitled . . .

There can be no ambiguity about those words: `where Comcare is of the opinion that it may have paid moneys in excess of the entitlement to a retired employee'. I would say to Senator Bell that there is no ambiguity whatsoever about what those words mean. It is not an amount that has been determined. The same words are used in subsection (2) of proposed section 114B:

Comcare or the authority, as the case may be, may give written notice to the administrator of the scheme:—

not to the employee—

(a) stating that Comcare or the authority may make, or may have made, an overpayment of compensation to the retired employee;

There is absolutely no protection whatever for the employee. There is no possibility of the employee having the opportunity to argue that, the payment having been made, he was entitled to keep it. It was nothing he could have known about. If one receives money that is known to be an overpayment or to have been a mistake, it can then be argued that the person making the payment is entitled to ask for it back and to take fairly direct steps to do so.

  Anyone who has any comprehension about the way Comcare goes about making its determinations as to what will be paid would know that the injured Commonwealth employee has absolutely no capacity on earth to determine whether the amount he is receiving is the correct amount or not. He would have to be an Einstein even to get close to challenging it with Comcare and saying, `I should be entitled to 3c a week more than you are paying me'. There is no possibility that Commonwealth employees would have the capacity to work that out and be certain of it. If he is sent $349.87 a fortnight, he will accept that, bank it and use it, thinking it is the correct amount Comcare should be paying him. There is no reason for him to think that he should challenge that amount and wonder whether it includes an overpayment or rack his brains to work out whether it is correct or not.

  Comcare cannot always get it right. This provision would not be in here at all if Comcare never made a mistake. It does make mistakes, and they are probably honest mistakes. But the government cannot use this draconian means to recover the money from someone out of the superannuation fund when we know what impact that has on a person's future life. The government cannot put it forward in this fashion.

  There is no protection for the employee. The employee in this situation, having given loyal service to the Commonwealth and having been injured in the course of his employment, is now being treated in this fashion. I cannot believe that the minister seriously comes to the Senate with this proposition. Certainly it protects the administrator. From the proposed sections Senator Bell read out, the bill sets up certain relationships between Comcare and the administrator of the superannuation fund, but there is no protection for the former employee of the Commonwealth.

  I urge the government to withdraw this amendment. As I said earlier, it should have a look at this matter and give proper drafting instructions so that it achieves what it really means. If somebody wilfully refuses to repay something that it has been established is properly owing, Comcare may well go to the superannuation fund to get it, but at least it should do a little of what I have described first.