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senate vote 2020-02-27#2
Edited by
mackay staff
on
2020-04-03 11:30:30
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Title
Bills — Social Services and Other Legislation Amendment (Simplifying Income Reporting and Other Measures) Bill 2020; in Committee- Social Services and Other Legislation Amendment (Simplifying Income Reporting and Other Measures) Bill 2020 - in Committee - Robodebt
Description
<p class="speaker">Patrick Dodson</p><p>I move Labor's amendment (1) on sheet 8889:</p><p class="italic">(1) Schedule 1, item 37, page 10 (after line 32), at the end of subsection 1073BA(2), add:</p>- The same number of senators voted for and against an [amendment](https://www.openaustralia.org.au/senate/?gid=2020-02-27.14.1), which means it failed. The amendment was introduced by WA Senator [Patrick Dodson](https://theyvoteforyou.org.au/people/senate/wa/patrick_dodson) (Labor), [who explained that](https://www.openaustralia.org.au/senate/?gid=2020-02-27.14.1):
- > *This amendment seeks to stop the unfair robodebt disaster that this government has presided over from ever happening again. Labor's amendment will prevent another robodebt by preventing social security debts being raised based solely on the income averaging of the Australian tax office data, making it clear that there is a statutory duty of care on the government to ensure debts are accurate, ensuring human oversight before debts are issued and requiring the government to use all available powers, resources and data across government to verify the accuracy of alleged debts before they are issued.*
- ### What does the bill do?
- According to the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1920a/20bd085), the bill was introduced in order to:
- * *change the way employment income is assessed for the purposes of the social security income test so that rather than assessing income ‘earned, derived or received’ during the assessment period, the income test will assess employment income that is paid during the assessment period and*
- * *allow for data collected by the Australian Tax Office, particularly employment income reported through the Single Touch Payroll (STP) system, to be shared with Services Australia for the purposes of administering social security, family assistance and student payments.*
- ### Motion text
- > *(1) Page 31 (after line 16), at the end of the Bill, add:*
- >
- > *Schedule 2 — Amendments relating to debts due to the Commonwealth*
- >
- > *A New Tax System (Family Assistance) (Administration) Act 1999*
- >
- > *1 After subsection 77(1)*
- >
- > *Insert:*
- >
- > *(1A) The Secretary must not give a person a notice under subsection (1) unless the Secretary is satisfied that:*
- >
- >> *(a) employment income averaging based on data obtained from a taxation officer was not the only information relied on to determine whether the debt was due to the Commonwealth; and*
- >>
- >> *(b) information gathering powers in Division 1 of Part 6 were used to verify that the debt is due to the Commonwealth; and*
- >>
- >> *(c) the existence and quantum of the debt owed has been verified by an officer.*
- >
- > *Note: The duties of officials under the Public Governance, Performance and Accountability Act 2013 include the duty of care and diligence; and the duty to act honestly, in good faith and for a proper purpose.*
- >
- > *Social Security Act 1991*
- >
- > *2 After subsection 1229(1)*
- >
- > *Insert:*
- >
- > *(1A) The Secretary must not give a person a notice under subsection (1) unless the Secretary is satisfied that:*
- >
- >> *(a) employment income averaging based on data obtained from a taxation officer was not the only information relied on to determine whether the debt was due to the Commonwealth; and*
- >>
- >> *(b) information gathering powers in Division 1 of Part 5 of the Administration Act were used to verify that the debt is due to the Commonwealth; and*
- >>
- >> *(c) the existence and quantum of the debt owed has been verified by an officer.*
- >
- > *Note: The duties of officials under the Public Governance, Performance and Accountability Act 2013 include the duty of care and diligence; and the duty to act honestly, in good faith and for a proper purpose.*
- >
- > *Student Assistance Act 1973*
- >
- > *3 After subsection 40(1)*
- >
- > *Insert:*
- >
- > *(1A) The Secretary must not give a person a notice under subsection (1) unless the Secretary is satisfied that:*
- >
- >> *(a) employment income averaging based on data obtained from a taxation officer (within the meaning of Division 3 of Part 10) was not the only information relied on to determine whether the debt was due to the Commonwealth; and*
- >>
- >> *(b) information gathering powers in Division 2 of Part 10 were used to verify that the debt is due to the Commonwealth; and*
- >>
- >> *(c) the existence and quantum of the debt owed has been verified by an officer.*
- >
- > *Note: The duties of officials under the Public Governance, Performance and Accountability Act 2013 include the duty of care and diligence; and the duty to act honestly, in good faith and for a proper purpose.*
<p class="italic">Note 1: When determining the period, the Secretary might take in to consideration the following:</p><p class="italic">(a) the nature of the person's remunerative work;</p><p class="italic">(b) the nature of the person's employment income;</p><p class="italic">(c) the person's financial interests;</p><p class="italic">(d) any financial hardship which may be caused to the person;</p><p class="italic">(e) whether the employment income relates to remunerative work that was undertaken at a time when the person was not receiving a social security pension or a social security benefit.</p><p class="italic">Note 2: The period determined by the Secretary should be fair and reasonably beneficial, taking into account the financial interests of the person receiving the social security pension or social security benefit.</p><p>There is a slight amendment to the text of the substantive amendment, which I understand has the concurrence of the minister. I thank the minister for that indication.</p><p>During the inquiry into this bill, a number of stakeholders raised issues with the lack of clarity around how irregular income would be treated. Concerns were that the bill could be implemented in a way that could leave people worse off if the government deliberately averaged income to minimise social security payments. The government said that this will not be the case, and we take the minister at her word. However, the amendment will insert an interpretive note to make it clear into the future. If a case ends up before the AAT, the note will help clarify the matter in terms of the commitment and intention. We have chosen an interpretive note over a substantive amendment to the bill because this area of law is incredibly complex and we realise some flexibility in implementation is necessary.</p><p>This amendment is designed to ensure that income is averaged in a way that is fair and that the reasonable financial interest of the social security recipients is reasonable. For example, if a person was a victim of a wage theft which occurred when they were employed and that is back paid when they are on a benefit, that payment should not be used to reduce the person's current benefit. Or, if a person is paid on a four to six week cycle but only actually worked in one week of the cycle, this will ensure the income is not averaged across a longer period in such a way as to unfairly reduce the income support that person would receive over time.</p> <p class="speaker">Rachel Siewert</p><p>The Greens will be supporting this amendment. As I articulated before, we would prefer such instructions and requirements to be in the legislation. We still believe it would enable some degree of flexibility but also make sure that this is taken into account. This is a very important issue. Providing notes at least will guide the secretary in terms of what the secretary needs to take into account to determine the period, so we will be supporting this. We think it is a significant improvement to the way that the secretary can exercise their discretion.</p> <p class="speaker">Anne Ruston</p><p>As per my previous comments on the previous amendment that was moved by the Greens that had a similar intent as this amendment that's been moved by the Labor Party, we believe it is unnecessary. We take on board the comments made by both senators in relation to the certainty and surety that they're seeking by this, but I would once again reiterate that, in trying to embed that level of certainty, you actually create a level of rigidity into the legislative instrument, removing the flexibility that we were so clearly trying to have with this to make sure that the secretary has the flexibility to be able to move when particular circumstances of people are outside the normal circumstances that most people find themselves in when they're paid either weekly or fortnightly. It's always been a longstanding position of the government, and we believe that it's consistent with best practice by making sure that we use the appropriate instruments to embed the particular issues in. In this instance, we once again believe that the social services guide is the appropriate place for the definitions to be included because it does allow that flexibility for unanticipated issues when they arise. Whilst we certainly acknowledge the intent of this, we believe that it would be far better delivered with that information contained in the social services guide, so we don't support this amendment.</p><p>Question agreed to.</p> <p class="speaker">Patrick Dodson</p><p>I stand to speak in relation to the Labor Party's amendment on sheet 8883. This amendment seeks to stop the unfair robodebt disaster that this government has presided over from ever happening again. Labor's amendment will prevent another robodebt by preventing social security debts being raised based solely on the income averaging of the Australian tax office data, making it clear that there is a statutory duty of care on the government to ensure debts are accurate, ensuring human oversight before debts are issued and requiring the government to use all available powers, resources and data across government to verify the accuracy of alleged debts before they are issued.</p><p>The Morrison government has admitted, in its defence to the robodebt class action filed in the Federal Court, that it had no basis in social security law to lawfully collect robodebts calculated using income averaging alone. This amendment seeks to make that crystal clear. However, the government is also claiming in the Federal Court that it does not owe a duty of care to social security recipients. This is a brazen attempt to shrug off the liability it has to thousands of people who have been harassed, worried and hurt by the robodebt scandal. The government says it has stopped the robodebt scheme. If this is true, it should be supporting this amendment.</p><p>I move opposition amendment (1) on sheet 8883:</p><p class="italic">(1) Page 31 (after line 16), at the end of the Bill, add:</p><p class="italic">Schedule 2 — Amendments relating to debts due to the Commonwealth</p><p class="italic"> <i>A New Tax System (Family Assistance) (Administration) Act 1999</i></p><p class="italic">1 After subsection 77(1)</p><p class="italic">Insert:</p><p class="italic">(1A) The Secretary must not give a person a notice under subsection (1) unless the Secretary is satisfied that:</p><p class="italic">(a) employment income averaging based on data obtained from a taxation officer was not the only information relied on to determine whether the debt was due to the Commonwealth; and</p><p class="italic">(b) information gathering powers in Division 1 of Part 6 were used to verify that the debt is due to the Commonwealth; and</p><p class="italic">(c) the existence and quantum of the debt owed has been verified by an officer.</p><p class="italic">Note: The duties of officials under the <i>Public Governance, Performance and Accountability Act 2013</i> include the duty of care and diligence; and the duty to act honestly, in good faith and for a proper purpose.</p><p class="italic"> <i>Social Security Act 1991 </i></p><p class="italic">2 After subsection 1229(1)</p><p class="italic">Insert:</p><p class="italic">(1A) The Secretary must not give a person a notice under subsection (1) unless the Secretary is satisfied that:</p><p class="italic">(a) employment income averaging based on data obtained from a taxation officer was not the only information relied on to determine whether the debt was due to the Commonwealth; and</p><p class="italic">(b) information gathering powers in Division 1 of Part 5 of the Administration Act were used to verify that the debt is due to the Commonwealth; and</p><p class="italic">(c) the existence and quantum of the debt owed has been verified by an officer.</p><p class="italic">Note: The duties of officials under the <i>Public Governance, Performance and Accountability Act 2013</i> include the duty of care and diligence; and the duty to act honestly, in good faith and for a proper purpose.</p><p class="italic"> <i>Student Assistance Act 1973</i></p><p class="italic">3 After subsection 40(1)</p><p class="italic">Insert:</p><p class="italic">(1A) The Secretary must not give a person a notice under subsection (1) unless the Secretary is satisfied that:</p><p class="italic">(a) employment income averaging based on data obtained from a taxation officer (within the meaning of Division 3 of Part 10) was not the only information relied on to determine whether the debt was due to the Commonwealth; and</p><p class="italic">(b) information gathering powers in Division 2 of Part 10 were used to verify that the debt is due to the Commonwealth; and</p><p class="italic">(c) the existence and quantum of the debt owed has been verified by an officer.</p><p class="italic">Note: The duties of officials under the <i>Public Governance, Performance and Accountability Act 2013</i> include the duty of care and diligence; and the duty to act honestly, in good faith and for a proper purpose.</p> <p class="speaker">Rachel Siewert</p><p>The Greens will be supporting this amendment. This basically puts into legislation what the court found and makes it crystal clear that it shouldn't be done. The court has already said this is illegal. The government are trying to argue in court that they don't have a duty of care to people, which quite plainly is absolutely ridiculous given we're talking about social security payments. This makes it crystal clear that you can't use solely income averaging to levy a debt against people. When we look at the hundreds of thousands of notices that have gone out and the distress that has been caused to our community, this is sensible in absolutely clarifying that you cannot use that very simplistic process to raise debt. In particular, it means that, when people have no idea and have never received the notice, notices won't be going to the ATO for their tax returns to be garnished so that the first time anybody knows about it is when their tax return is garnished. At the moment, those notices are solely based on income averaging under the current robodebt processes. This amendment will stop a lot of hurt to our fellow Australians.</p> <p class="speaker">Anne Ruston</p><p>The government will not be supporting this amendment, because we believe the amendment has absolutely nothing to do with the bill. The bill which is before us at the moment is legislation to change the way people report income. This is not an income compliance bill. So we will not be supporting the amendment.</p><p class="italic">The CHAIR: The question is that amendment (1) on sheet 8883, as moved by Senator Dodson, be agreed to.</p>
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