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Farm Household Support Amendment Bill 2017



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ISSN 1328-8091

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BILLS DIGEST NO. 79, 2016-17 27 MARCH 2017

Farm Household Support Amendment Bill 2017 Michael Klapdor Social Policy Section

Contents

The Bills Digest at a glance ................................................... 3

Purpose of the Bill ............................................................... 4

Background ......................................................................... 4

Eligibility .................................................................................. 4

Income test ............................................................................ 5

Assets test ............................................................................. 5

Mutual obligation requirements ........................................... 5

Waiting periods ..................................................................... 6

Committee consideration .................................................... 6

Senate Selection of Bills Committee........................................ 6

Senate Standing Committee for the Scrutiny of Bills .............. 7

Policy position of non-government parties/independents ..... 7

Position of major interest groups ......................................... 7

Financial implications .......................................................... 7

Statement of Compatibility with Human Rights .................... 7

Parliamentary Joint Committee on Human Rights .................. 7

Key issues and provisions..................................................... 7

Schedule 1—removal of waiting periods................................. 7

Rationale ............................................................................... 8

Impact of the measure .......................................................... 8

Key provisions........................................................................ 8

Farm Household Support Act 2014 ...................................... 8

Schedule 2—farm assets ......................................................... 9

Minister’s rule exemptions.................................................... 9

Impact of the measure .......................................................... 9

Key provisions...................................................................... 10

Date introduced: 9 February 2017

House: House of Representatives

Portfolio: Agriculture and Water Resources

Commencement: The later of the day after Royal Assent and 1 April 2017.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

March 2017.

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Farm Household Support Act 2014 .................................... 10

Concluding comments ....................................................... 10

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The Bills Digest at a glance • The Farm Household Support Amendment Bill 2017 (the Bill) proposes amendments to the Farm Household Support Act 2014 to:

- remove the one-week ordinary waiting period and the liquid assets test waiting period that applies to the Farm Household Allowance (FHA) and - expand the definition of farm assets used in the FHA assets test and include water rights as farm assets. • The FHA is an income support payment which supports eligible farmers and their partners who are

experiencing financial hardship.

• Removing the two different waiting periods will allow for quicker access to the FHA for some farmers and partners, particularly those with large amounts of cash savings. Farmers have raised issues with the time it takes to process their claims for the FHA. While the Bill does not address claims processing, it will allow some farmers quicker access to the FHA once their claim is approved.

• The assets test for the FHA has two parts: one assesses non-farm and liquid assets and is similar to the assets test for Newstart Allowance; the other assesses farm assets and has a relatively high cut-off threshold of $2.55 million.

• The current definition of ‘farm assets’ specifies types of assets that are used in farm enterprises. The Bill proposes to expand the definition to cover these same assets as well as any other assets that are used in farm enterprises, and to only specify assets that should not be treated as farm assets. Water rights will be added to the list of specific farm assets.

• Currently, water rights are treated as non-farm assets but a 2016 Minister’s rule provides for up to $1.1 million in water rights to be considered exempt from the non-farm assets test. The amendments in the Bill will include the full-value of these rights in the farm assets test but the farm assets test threshold of $2.55 million will not be modified.

• Overall, the measures will be beneficial to FHA claimants though some farmers with water rights and other substantial farm assets may be affected by the inclusion of these water rights in the farm assets test.

• The Bill is expected to have minimal impact on the budget.

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Purpose of the Bill The purpose of the Farm Household Support Amendment Bill 2017 (the Bill) is to amend the Farm Household Support Act 2014 (the FHS Act)1 to:

• remove the one-week ordinary waiting period and the liquid assets test waiting period provisions applicable to the Farm Household Allowance (FHA) and

• expand the definition of ‘farm assets’ for the purposes of the assets test to include water rights and shares in marketing cooperatives where they are used substantially for the purposes of farm operations.

The measures will commence from the later of the day after Royal Assent or 1 April 2017.

Background The Farm Household Allowance (FHA) is an income support payment which supports eligible farmers and their partners who are experiencing financial hardship. It is paid at the same rate as the social security payment Newstart Allowance (or the same rate as Youth Allowance if the recipient is aged under 22 years).2 Eligible farmers and their partners can receive the FHA for up to three years.3 Recipients also receive a Health Care Card (which enables access to discounted medicines under the Pharmaceutical Benefits Scheme and other concessions), some supplementary benefits as well a case manager who will assist recipients to assess their financial circumstances and plan for the future.

The FHA was introduced in 2014 and replaced a number of financial supports offered to farmers during times of drought, in particular, the Exceptional Circumstances Relief Payment.4 The FHA was designed to support farmers in financial difficulty regardless of the specific cause or whether they were located within a specific drought-declared area:

Following the national review of drought policy, in 2010 the Australian Government, in partnership with the Western Australian government, conducted a two year pilot of drought reform measures in regions of Western Australia. The pilot tested a range of programs to inform the design of a new national approach to drought support. The pilot was reviewed in 2011 by an independent panel, which reported strong support for an income support payment for farm families in hardship that is based on demonstrated individual need rather than a climatic trigger. Furthermore, the panel emphasised the requirement for reciprocal obligations to help farm families realistically assess their financial position and take steps to become more self-reliant.

FHA was developed in response to the national review of drought policy and WA drought pilot review. 5

As at 24 February 2017, there had been 7,133 recipients of the FHA since it was introduced in 2014.6

Eligibility To be eligible for the FHA, an individual must be a farmer or partner of a farmer and meet residency requirements, income and assets tests as well as mutual obligation requirements. The income and assets tests and mutual obligation requirements are different from those that apply to Newstart Allowance and are designed to allow farmers to remain on their farm (rather than being forced to sell off all of their farm assets in order to qualify for support). Certain waiting periods may also apply before an eligible recipient can start receiving the FHA.7

1. Farm Household Support Act 2014 (Cth). 2. Department of Human Services (DHS), ‘Farm Household Allowance’, DHS website, 20 March 2017. 3. This in total and the cumulative period does not need to be consecutive. Department of Agriculture and Water Resources (DAWR), ‘FHA fact sheet’, DAWR website, 27 January 2017.

4. Explanatory Memorandum, Farm Household Support Bill 2014, p. 3. 5. Ibid., p. 4.

6. M McCormack, ‘Second reading speech: Farm Household Support Amendment Bill 2017’, House of Representatives, Debates, (proof), 1 March 2017, p. 95. 7. DHS, ‘Farm Household Allowance’, op. cit.

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Income test To meet the FHA income test, a claimant must have income below the cut-off point for Newstart Allowance or Youth Allowance, whichever applies (the cut-off point is the point at which a person’s Newstart Allowance rate is reduced to zero under the Newstart Allowance income test).8 The current income test cut-off for a single Newstart Allowance recipient is $1,036.34 per fortnight and for a partnered recipient it is $948.17 (each).9

Some off-farm income may be deducted when calculating total income. Off-farm income is any amount earned, derived or received that was not produced by an activity of the farm enterprise (such as agistment payments, interest payments and rental income). The deduction can only be used where the ordinary farm income from the farm enterprise is less than zero and the off-farm income is being used to pay interest on a loan related to the farm enterprise. A maximum of $80,000 of off-farm income can be deducted from assessable income under the income test in this way, if the FHA claimant meets all the applicable requirements for this deduction.10

Assets test There are two parts of the assets test: one applies to non-farm assets and the other to farm assets.

The non-farm and liquid assets test assesses liquid assets, such cash held in bank accounts, term deposits and shares; and non-farm assets such as jewellery, furniture, investment properties, businesses and vehicles. The family home and up to two hectares of land surrounding it (on a single title and used only for domestic purposes) is exempt from the non-farm assets test.11 Currently, water assets are considered non-farm assets but only the net value of water assets that exceeds $1.1 million is assessed.12 Some shares in marketing or processing entities that a farmer requires to sell their product can also be exempt from the assets test.13

The combined value of assessable assets must not exceed the asset limits for Newstart Allowance. The current asset test limits are:

• single homeowner: $250,000

• single non-homeowner: $450,000

• couple homeowner combined: $375,000

• couple non-homeowner combined: $575,000.14

The farm assets test assesses the net value of the farm’s assets. To be eligible for the FHA, the total must not exceed $2.55 million.15

In some cases, hardship provisions can apply which allow for some assets to be made exempt from the assets test. This can occur where a person is unable to rearrange their financial affairs, is in severe financial hardship and is unable to sell or borrow against an asset.16

Mutual obligation requirements The mutual obligation requirements for the FHA require a recipient to complete a Farm Financial Assessment and enter into a Financial Improvement Agreement.17

The Farm Financial Assessment considers the financial position of the farmer, their partner and the farm. Up to $1,500 can be provided to help cover the cost of consulting a prescribed advisor to complete the assessment.18

8. DAWR, ‘FHA fact sheet’, op. cit. 9. DHS, ‘Income test for Newstart Allowance, Partner Allowance, Sickness Allowance and Widow Allowance’, DHS website, 20 March 2017. 10. See DAWR, Farm Household Allowance: guidelines, DAWR, Canberra, November 2014, pp. 29-31. 11. DHS, ‘Farm Household Allowance’, op. cit. 12. DAWR, ‘FHA fact sheet’, op. cit. 13. Ibid.

14. Ibid.

15. Ibid.

16. DAWR, Farm Household Allowance: guidelines, op. cit., p. 21. 17. DAWR, ‘FHA fact sheet’, op. cit. 18. Ibid.

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The Financial Improvement Agreement is a plan for working towards financial self-reliance and sets out activities to be undertaken to improve the farmer’s financial situation. Activities can include undertaking training or study, obtaining professional advice, seeking or being willing to undertake paid work or any other activities approved by the Department of Agriculture and Water Resources.19

Waiting periods As with other social security income support payments, a range of different waiting periods can apply to recipients of the FHA which mean that the payment is not immediately payable. Waiting periods can be served concurrently. Waiting periods currently include:

• the ordinary waiting period—one week, applies to all recipients

• the liquid assets test waiting period—varying length, applies to those whose liquid assets exceed a certain threshold amount

• the Newly Arrived Residents Waiting Period—two years, applies to new permanent residents (exceptions apply for some migrants)

• the Seasonal Worker Preclusion Period—varying length, applies to those with income from seasonal or intermittent work in the six months prior to claiming the FHA (does not include work on the farm enterprise the person has a right or interest in)

• the Income Maintenance Period—varying length, applies to those who have received termination or leave payment (treats these payments as ordinary income over a set period).20

Some of these waiting periods can be waived in part or in full where a person is experiencing severe financial hardship and recipients can be exempt in certain circumstances.21

The waiting periods of relevance to the Bill are the ordinary waiting period and the liquid assets test waiting period.

The ordinary waiting period applies for one week from the date payment is granted. It can be waived in full if the person is in severe financial hardship or where they have been receiving another income support payment within the last 13 weeks.22

A liquid assets test waiting period can apply if a couple or single with dependants has liquid assets of $11,000 or more. The threshold for singles is $5,500.23 Liquid assets are cash and any readily realisable assets. The liquid assets test waiting period is worked out using the following calculation:

• for a member of a couple or single with a dependent child: one week for every $1,000 over the $11,000 threshold

• for a single person with no dependent children: one week for every $500 over the $5,500 threshold.24

The liquid assets test waiting period is separate from the assets test for the FHA. The liquid assets test waiting period determines when a claimant may be able to start receiving their payment, not whether or not they qualify for a payment. Liquid assets assessed for the waiting period are included in the first part of the assets test that determines eligibility for the FHA.

Committee consideration Senate Selection of Bills Committee The Senate Selection of Bills Committee did not refer the Bill to a committee for inquiry and report.25

19. DAWR, Farm Household Allowance: guidelines, op. cit., p. 34. 20. DHS, ‘Waiting periods’, DHS website, 25 November 2016. 21. See Department of Social Services (DSS), Guide to social security law, version 1.230, ‘3.1.2.70 Exemptions from waiting periods’, DSS website, 20 March 2017.

22. DHS, ‘Ordinary waiting period ‘, DHS website, 12 September 2016. 23. DHS, ‘Liquid assets waiting period’, DHS website, 12 September 2016. 24. Farm Household Support Act 2014, section 45. 25. Senate Selection of Bills Committee, Report, 3, 2017, The Senate, Canberra, 23 March 2017.

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Senate Standing Committee for the Scrutiny of Bills The Senate Scrutiny of Bills Committee had no comment on the Bill.26

Policy position of non-government parties/independents The Labor Opposition has stated that it supports the Bill but raised administrative issues farmers have had in accessing the payment—primarily concerns with the complexity of the application process and difficulties in contacting the Department of Human Services (which administers the payment on behalf of the Department of Agriculture and Water Resources).27

Nick Xenophon Team MP Rebekha Sharkie also supports the Bill, stating it ‘begins to address the issues that have plagued the farm household allowance program’.28

Independent MP Cathy McGowan also raised issues with the Farm Household Allowance but appeared to be supportive of the measures in the Bill:

I say to the minister: thank you for what you have done, but it is not nearly enough. I pick up the point that the member for Murray made about Senator McKenzie's visit. It is true; it is absolutely true that the senator came to Indi, to Murray, to Gippsland and to Corangamite. She did listen, that is true; however, where we have a massive failure is with the action taken from the listening. It is really fantastic the government comes and listens, but if it fails to take action on what our farmers are saying it is for nought. I have Senator McKenzie's report here, which I acknowledge. There are nine recommendations and areas for action; however, in this particular piece of legislation—which is great to see—before the House only two get addressed. So there is a long, long way to go. I have to say to the minister: consultation is important, but if you fail to act you lose the trust of the people you have been consulting with.

29

Position of major interest groups It is unclear what the position of major interest groups is on the measures proposed in the Bill.

Financial implications According to the Explanatory Memorandum to the Bill, the measures will have ‘minimal impact’ on the Budget.30

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.31

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights found that the Bill did not raise human rights concerns.32

Key issues and provisions Schedule 1—removal of waiting periods Schedule 1 will remove the ordinary waiting period and the liquid assets test waiting period for the FHA. This will mean that all applicants will no longer have to serve the one-week ordinary waiting period, and those with significant liquid assets will not need to draw down on these assets and can start receiving the FHA immediately (unless one of the other waiting or preclusion periods applies).

26. Senate Scrutiny of Bills Committee, Scrutiny digest, 2, 2017, The Senate, 15 February 2017, p. 16. 27. J Fitzgibbon, ‘Second reading speech: Farm Household Support Amendment Bill 2017’, House of Representatives, Debates, 1 March 2017, p. 32. 28. R Sharkie, ‘Second reading speech: Farm Household Support Amendment Bill 2017’, House of Representatives, Debates, 1 March 2017, p. 43. 29. C McGowan, ‘Second reading speech: Farm Household Support Amendment Bill 2017’, House of Representatives, Debates, 1 March 2017,

p. 38.

30. Explanatory Memorandum, Farm Household Support Bill 2017, p. 4. 31. Ibid. The Statement of Compatibility with Human Rights can be found at pages 5-9 of the Explanatory Memorandum to the Bill. 32. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 1, 2017, The Senate, 16 February 2017, p. 32.

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Rationale The rationale for the measure is to provide the FHA to eligible farmers and their partners in a shorter timeframe. Deputy Prime Minister and Minister for Agriculture and Water Resources Barnaby Joyce stated that requiring eligible farmers and partners to wait additional time ‘could lead to additional hardship which risks a reduction in their capacity to operate the farm enterprise’.33

Senator Bridget McKenzie has stated that the proposed amendments were part of a response to a report following a series of roundtables held between the Senator, departmental officials and Victorian dairy farmers in December 2016.34 The report stated that one of the key themes that arose in the roundtables were issues with the processing times for FHA applications.35 The report noted:

The treatment of liquid assets and waiting periods was also questioned, particularly in relation to the sale of assets generating a ‘false’ income. It was also suggested that where a farmer is on FHA any employees of the related farm business should be automatically eligible for Newstart (or Youth) Allowance. 36

Impact of the measure It is unclear whether the removal of these waiting periods will address the issues raised by farmers regarding the time it takes to start receiving FHA assistance.

During the Victorian dairy farmer roundtables, the main concern raised with the timeliness of assistance was in regards to administrative processing times—that is, the time taken to actually process applications for FHA and determine eligibility. Minister for Human Services Alan Tudge stated in his second reading speech on the Bill that in many cases it was taking up to four months for FHA applications to be assessed.37 Minister Tudge has stated that the Government is piloting measures to reduce the time taken to process FHA applications to four weeks for simple claims and six weeks for more complex ones.38

Dairy farmer concerns with the liquid assets test waiting period appeared to be in relation to the treatment of certain asset sales as liquid assets rather than the waiting period itself.39

The proposed measures will address any issues with the liquid assets test waiting period by abolishing it. This is a significant change given that Australia’s social welfare system generally only provides assistance to those with insufficient resources to support themselves. As Minister Joyce stated: ‘These [waiting periods] are generally applied to ensure that social welfare applicants use their own readily available resources before drawing on public monies, and have incentives to continue to seek work’.40 Removing the liquid assets test waiting period will mean that farmers with large sums of cash, savings or readily realisable assets will not need to make use of these liquid assets before receiving assistance (provided those liquid assets are still below the assets test thresholds).

Key provisions

Farm Household Support Act 2014 Item 1 of Schedule 1 repeals the definitions of liquid assets test waiting period, ordinary waiting period and waiting period from subsection 5(1) of the FHS Act.

Section 39 of the FHS Act currently provides that FHA is not payable to a person while the person is subject to an ordinary waiting period, a liquid assets test waiting period or a newly arrived resident’s waiting period. Item 3 repeals and substitutes a new section 39, which only refers to the Newly Arrived Residents Waiting Period. The other two waiting periods will be removed from the FHS Act by items 4 and 6 of Schedule 1 to the Bill.

33. B Joyce, ‘Second reading speech: Farm Household Support Amendment Bill 2017’, House of Representatives, Debates, 9 February 2017, p. 460. 34. B McKenzie, Quick action on dairy roundtables report, media release, 9 February 2017. 35. DAWR, Victorian dairy roundtables December 2016, DAWR, Canberra, 2017, [p. 6]. 36. Ibid., [p. 7]. 37. A Tudge, ‘Second reading speech: Farm Household Support Amendment Bill 2017’, House of Representatives, Debates, (proof), 1 March 2017,

p. 85.

38. Ibid., p. 86. 39. DAWR, Victorian dairy roundtables December 2016, op. cit., [p. 7]. 40. B Joyce, op. cit.

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Item 4 repeals sections 40 and 41 which provide for the ordinary waiting period.

Item 6 repeals sections 44 to 47 which provide for the liquid assets test waiting period, the waiver of the liquid assets test or ordinary waiting periods, and the clarification that FHA is not payable to a person until all relevant waiting periods they are subject to have been served.

Item 8 is an application provision which states that the amendments apply to claims for FHA made on or after commencement, as well as claims made prior to commencement where a decision has not been made before commencement.

Schedule 2—farm assets Schedule 2 will change the treatment of certain assets so that they can be assessed as farm assets under the FHA assets test rather than non-farm assets. The specific purpose of the proposed amendments is to make the definition of farm assets less restrictive and to specifically include water entitlement rights as farm assets.

As described above, there are two parts to the FHA assets test with different asset value limits applicable to farm assets and non-farm assets. Currently, farm assets are defined as:

• a right or interest in land used wholly or mainly for the purposes of a farm enterprise or

• a right or interest in livestock, crop, plant or equipment that:

- is produce of a farm enterprise or - is used wholly or mainly for the purposes of a farm enterprise; other than livestock, crop, plant or equipment leased out by the farm enterprise or • certain loans used to purchase a right or interest in one of the above which remain unpaid.41

Water entitlement rights and shares in marketing cooperatives currently fall outside this definition and are assessed as non-farm assets. The Explanatory Memorandum to the Bill states that this is ‘contrary to the policy intent of the FHA programme’.42

Minister’s rule exemptions In May 2016, the Minister made the Farm Household Support (Non-farm Assets) Minister’s Rule 2016 under section 92 of the FHS Act.43 The rule modified the effect of section 1118 of the Social Security Act 1991 so that certain assets would not be included in the non-farm assets test for the FHA.44 Under the rule, assets that were not farm assets (as defined in the FHS Act) but which were held for the purpose of carrying out a farm enterprise, and could not be held for any other purpose, could be exempt from the non-farm asset test (excluding cash, bank deposits or loans from a bank or financial institution). The Explanatory Statement to the rule gave the example of shares in a company or cooperative that are required for the purpose of carrying out a farm enterprise.45

In December 2016, the rule was amended so that up $1.1 million of the value of water rights held for the purpose of the farm enterprise could be exempt from the non-farm assets test.46 The Explanatory Statement to the amending rule states that ‘this is a provisional rule and may be superseded in the fullness of time’.47

Impact of the measure The proposed amendments will supersede the Minister’s rule. However, rather than replicating the Minister’s rule in the statute, the amendments will have a different impact. The provisions in the rule exclude the value of certain assets from the non-farm assets test. The amendments will include these assets in the farm assets test. This will mean that farmers with substantial water entitlement rights, or farmers with shares in marketing cooperatives (for example) will only be eligible for the FHA if the value of these assets, together with other farm assets, are below $2.55 million. Under the Minister’s rule provisions, a farmer could have up to $1.1 million in

41. Farm Household Support Act 2014, section 35. 42. Explanatory Memorandum, op. cit., p. 3. 43. Farm Household Support (Non-farm Assets) Minister’s Rule 2016. 44. Social Security Act 1991, section 1118. 45. Explanatory Statement, Farm Household Support (Non-farm Assets) Minister’s Rule 2016. 46. Farm Household Support (Non-farm Assets) Amendment Rule 2016. 47. Explanatory Statement, Farm Household Support (Non-farm Assets) Amendment Rule 2016.

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exempt water right assets and up to $2.55 million in farm assets. Under the proposed changes, the full value of those water rights will be assessed as farm assets alongside any other farm assets.

The Government expects there will be no effect on the budget from these changes, suggesting that very few people will be affected by the proposed changes.48 However, there are only a small number of claims for the FHA, meaning that it is difficult to assess the possible impact of the measure relative to its size.

Key provisions

Farm Household Support Act 2014 Item 2 inserts definitions of water access entitlement, water allocation, water entitlement right and water resource into the list of definitions at subsection 5(1) of the FHS Act.

Item 3 repeals and substitutes subsections 35(1) and 35(2). These subsections define what are considered farm assets. Rather than setting out specifically what is considered a farm asset, proposed subsection 35(1) sets out a definition of farm asset as any asset used or held wholly or mainly for the purposes of a farm enterprise and then sets out what are not to be considered farm assets. Proposed paragraph 35(1)(d) also allows for the Minister’s rules to prescribe an asset that is not a farm asset. Proposed subsection 35(2) replicates the list of specific farm assets in the definition currently at subsection 35(1) but specifies that this does not limit the expansive definition at proposed subsection 35(1). It also adds water entitlement rights to the list of specified farm assets.

Item 4 inserts new section 35A which defines water entitlement rights. Water entitlement rights include rights under state and territory law to hold or take water from a water resource, irrigation rights, water delivery rights, contractual rights and rights of a kind specified in the Minister’s rule.

Concluding comments Overall, the measures will be beneficial to FHA claimants though some farmers with water rights and other substantial farm assets may be affected by the inclusion of these water rights in the farm assets test.

The removal of the liquid assets test waiting period is a significant diversion from the principle underlying Australia’s welfare system that people should draw on their own resources before seeking public assistance. It will mean that farmers and their partners do not have to draw down on their cash savings or other readily realisable assets before receiving income support.

The waiting period measures do not specifically address concerns around claim processing times but the Government has stated that it is trialling other measures to speed up the administrative process.

48. B Joyce, op. cit.

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