Department of Health – Aged Care Senate Estimates

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The Aged Care sector has been receiving a lot of attention lately. We know that while there are many aged carers that do fantastic jobs, the sector has been riddled by bad funding models, problems and blame-gaming between governments for a long time.

I asked the Department of Health, who takes care of this at a federal level, about fixing it at Senate Estimates.

Transcript

[Chair] Thank you. Senator Roberts.

[Malcolm Roberts] Thank you Chair, thank you for being here today. My questions are going to be fairly broad because I’m interested, it’s early days yet since the implementation, since the findings of the Royal Commission. I’m interested in principles that are guiding you and wherever you can, provide specifics, that’d be appreciated. I’m particularly interested in the impact on people in aged care facility who are receiving aged care and also on the budget. Our first question is what is being done to improve the Aged Care Funding Model and to close gaps so that our respected ageing Australians can live well and have certainty that they will not be disadvantaged?

So, Senator part of the, one of the recommendations from the Royal Commission and one that we’ve accepted and incorporated into the budget is the implementation of a new funding model for the Aged Care sector that’s called the AN-ACC System that will replace the current ACFI Funding System that is broadly regarded as no longer fit for purpose. And that new funding model will commence on the 1st of October next year.

[Malcolm Roberts] What is the basic principle behind the new funding model or driving it?

So, the basic principles of that is that it is a model that assesses need for the residents. Mrs. Strapp might be able to give you some more detail and specifics of that, but it was designed through the University of Wollongong through a contract that we put out there, and it is based on the assessed needs of residents. Mrs. Strapp might be able to give you some more specific details.

That’s right, and I’ll invite Mr. Murray to add anything that I’ve missed, but the AN-ACC was developed by the University of Wollongong over a number of years. And the government has put funding towards to it prior to this government to test the model and to develop the system around it, the infrastructure around it. And we’ve started, we’ve commenced shadow assessments. So, if the model replaces the current Aged Care Funding Instrument, that’s in place at the moment which is an instrument which aged care providers assess themselves against categories. Instead of that, we’re sending independent assessors out to look at what are the actual care costs associated with an individual. And the individual is assessed against a number of categories and the cost are then modelled by the University of Wollongong or they’ve tested what are the actual costs associated with care for someone in a residential aged care facility. And it’s supposed to, I guess, reflect what the actual costs are. I don’t know if Mr. Murray, if you want to add anything?

[Malcolm Roberts] So, then the Minister was accurate in saying that, and I wasn’t implying that he was being inaccurate, but implying that it’s based on needs of individual people receiving care rather than broad categories of aged care facilities?

Yeah, yes.

So, to a couple of changes. So, the current ACFI System is assessed by providers themselves so it’s a self assessment process. The new model will have independent assessors that conduct that work on behalf of the government of the residents in residential aged care against, I think it’s 13 categories, is that correct? That’s correct. And the costing of the delivery of those services will be assessed through a process that we’ve spoken to the Committee earlier in the day about. So, we will be establishing an independent hospitals and aged care pricing authority, so, we’re modifying the existing independent hospitals and pricing authority to include aged care skills and capacity to undertake an independent process of actually costing the delivery of service. And then those costs will be recommended back to government to be applied into the new funding model. So, it will be based on an assessment of cost of delivery of services with, of course, some indexes applied to those things to consider, for example, remoteness or special circumstances where we might be delivering services to the homeless, for example, who are recognised as having a higher cost of care or indigenous people in those remote indigenous communities. So, there’ll be a loading that’s applied to those base amounts in a very similar way that we do with the broader health system recommended by the new agency to apply to the AN-ACC funding system.

[Malcolm Roberts] So, that implies you’re seeking better care. Will that cost more? And I’m assuming it will, so if any additional costs, will that be met by efficiencies in this service, it will be better, or at higher costs? So, what’s the impact on the budgets?

So, the whole reform is designed about providing better care, respect, and dignity and high quality care is the whole purpose of the entire reform process that we’ve designed coming out of the Royal Commission. Another part of the AN-ACC model is a staffing matrix which applies staffing levels to the various forms of care within a facility, and we’re mandating as a part of the reform process a minimum number of care minutes per resident as a part of the overall reform process, again, on the recommendation of the Royal Commission. So, the whole system is designed to improve the delivery of care across the sector.

S[Malcolm Roberts] o, rather than standards imposed based on numbers of staff per facility or numbers of staff per resident it would be based on, standards will be based upon needs of residents.

So, one of the things about staffing is that every facility is different because it is made up of individuals with different needs and individual care requirements. And so, the staffing matrix contemplates that. It was also designed by the University of Wollongong. So, it fits within the system, designed by the same people. And so, it also contemplates that because that’s, rather than having a fixed ratio, so to speak, you have care that’s actually tailored based on the assessment of the person by the independent assessment process and then delivered to them in accordance with their care plan that’s developed as a part of their assessment process.

[Malcolm Roberts] So, looking at the NDIS, it’s highly complex, there’s limited accountability, highly variable service given to different people that doesn’t seem equitable at the moment. What’s being done to ensure that this aged care funding is not being wasted and that it’s being spent equitably and with accountability? We know the NDIS started off in a very vague, messy way. How will this start?

So, regular reporting of expenditure is also a feature of the new system, and expenditure against certain benchmarks. We’re also developing a star rating system that will assess against new quality standards which will also be reviewed and developed. So, your issue around quality standards is a part of what we’re working on as well. So, all of these elements including reporting of expenditure, which we’ve already said is a part of even the additional funding that we’re putting into the sector from the 1st of July, though the providers will be required to report against their expenditure of those funds to ensure that they’re going to the areas that we’ve indicated that they should. And that will be reported alongside the star rating system which will incorporate those spending measures as a part of the design of the new star rating system. So, quality standards, quality indicators, also. So, at this point in time we have three quality indicators that are publicly reported that will extend to five as of the 1st of July, and a part of the design of the new system will be determining how many additional quality indicators that are publicly reported and what they will be.

[Malcolm Roberts] What’s being done to ensure that aged care services are delivered to where they’re needed?

Well, at this moment, at this point in time, Senator, we allocate services based on an assessment of the particular areas, particular needs of an area. So, we continue to monitor an assessment of process. One of the things that we have said that we’ll do is that we won’t be allocating aged care beds specifically to providers post 2004. We’ll be changing that system. And we are also looking to see additional or further innovation in the way that services are delivered. The Commission report, for example, contemplates models of smaller scale providers being able to provide more bespoke type care to residents. And we see that there’s a genuine opportunity with the redesign of the system for that innovation to be particularly useful in regional Australia where there may not be the scale capacity or scale needs for residential aged care in the way that we currently know it. It may be, for example, and I canvased this previously with the [indecipherble], might be that a group of people may want to get together in a regional community, a small regional community and pool their capacity in the context of home care packages so that they can live in a small community, remain in their community, living in a service that provides quite bespoke care for their particular needs, but being maintained at a high quality. So, there will be the capacity for providers to become a registered provider under the new reforms and establish aged care capacity in some areas where it might not be existing now or increase capacity where there’s additional demand for it. And of course, all of the visibility elements that we’re building into the system will give consumers and the public more generally much better information on the quality of care that’s being delivered because that information will be demonstrated through the star rating system and the quality indicators.

[Malcolm Roberts] So, what powers do you see the government needing to ensure our ageing Australians get quality care and that issues are identified and addressed promptly? How do you ensure accountability?

Well, so there’s additional resources that will be made available to the Aged Care Quality and Safety Commission and new powers, based on the recommendations of the Royal Commission under a new Aged Care Act. And I’ve already indicated to you that we’ll be reviewing the aged care quality standards to incorporate into those things, recommendations that have come out of the Royal Commission report. So, we’re talking about a completely new Aged Care Act to support the sector, a review and reform of the aged care quality standards, and also additional powers for the Aged Care Quality and Safety Commission and some additional oversights. So, a Council of Elders, which will provide support and advice to the government and the Aged Care Quality and Safety Commission, a new Aged Care Quality Advisory Council, that will take place of some of the existing forums that exist, and a commissioner that will provide oversight as well for the aged care sector.

[Malcolm Roberts] Okay, how do you, how will you ensure that we don’t end up with the complex mess that is delivering very variable services in the NDIS at the moment? I know the NDIS basically started as a way to grab a headline for an election, but this, hopefully, will have a better foundation. How do you make sure that we don’t end up with another NDIS, which is variable care and lack of accountability and huge costs?

Well, Senator, making sure that the regulatory burden is not too high is an important fundamental, but it needs to be at an appropriate level to ensure the quality that you’ve talked about. So, the quality systems that apply to the sector are going to be extremely important in that sense as well. So, we’re having some discussions with the sector about the quality systems that apply

[Malcolm Roberts] So, you’ve involved the providers?

We will be talking to the providers. We will be talking to consumers of aged care, their representative organisations and other parties who have an interest in this. This is a very significant redesign job. We would like to have available for senior Australians, a continuum of aged care from the very simplest of services right to the highest levels of clinical need within residential aged care in a system that is as simple for people to navigate as possible. That’s not necessarily an easy thing to design because there are some things that are currently baked into the way that the system operates that are going to be a challenge to change. But as they’re the tasks that we’ve set ourselves as part of the reform process.

[Malcolm Roberts] Has the government done an analysis or review of the NDIS to understand what’s gone wrong there?

I would say that has being somewhat separate to this process, but we have, of course, just undergone a two-year Royal Commission which has had a pretty forensic look at the aged care sector. They provided us with 148 recommendations. And of course, we’ve responded to those formally, but also with the package that we’ve released in the budget.

[Malcolm Roberts] Now, I understand, I haven’t gone into this, but I understand that you’re deregulating bed licences.

That’s correct. So, that was the process whereby we wouldn’t be any further, post 2004.

[Lady] 2024.

Oh, sorry, 2024. 2024, allocating bed licences. So, it will be a matter for an approved provider to establish services as an approved provider. So, that will be a different process.

[Malcolm Roberts] How is more control and choice created by deregulating bed licences?

Well, we think the opportunity for providers to create aged care in different forms will do that. We see that this creates an opportunity for quite a deal of innovation in the way that services are delivered. We still will have in place the quality standards, the quality indicators, the oversight regulatory bodies, and of course the Act to govern that, but as the sector has clearly changed over the last 30 years we see it changing considerably into the future and giving it the flexibility and the opportunity to do that without some of the restrictions that apply at the moment we think are a good thing. So, there’s an ACAR around that’s currently being considered by the department at the moment for the allocation of 2000 beds along with about $150 million in capital support. The likelihood is that that will be the last ACAR round before the system changes in 2024, noting that the occupancy rate at the sector is somewhere about 90% at the moment. So, there is capacity in the system for growth. And one of the things in our broader package as a part of the budget announcement is $400 million to assist with capital development of new facilities particularly in regional areas where they might not be viable in a sense that you would see in that facility in metropolitan areas.

[Malcolm Roberts] Same that apply to low socioeconomic areas?

Yup.

[Malcolm Roberts] Okay. What are the risks of handing location and development of aged care facilities to developers? That’s what you’re doing essentially, isn’t it?

Not necessarily, Senator. To provide services they will still have to be an approved provider.

[Malcolm Roberts] Okay.

I mean, there is, there is already in the market I think, an element of property development. My view is that the issues that relate to the quality of care go back to the quality indicators, the quality standards, the star rating system, and the financial reporting, all of which provide visibility into the sector, the money, the funds that have been put in, how they’re spent, ensuring that they’re appropriately spent. And those are the elements that I think go towards, and of course, the role of the Quality and Safety Commission, I think they are the things that provide the tools to ensure that people receive high quality care.

[Malcolm Roberts] You mentioned regional centres will get attention, or not be left out. Having been up in North Queensland recently, Richmond and Julia Creek, the Richmond Mayor, John Wharton, has got a wonderful scheme for developing the area agriculturally. Irrigation, he is not getting support from the state government and in terms of allocating their water licences that they need to do that, making their water allocations, but he can see that Richmond could go from being 1,000 people right now to 8,000 people if the scheme is replicated. And it looks very very positive. Julia Creek just down the road has got, just basically had a new hospital built and it’s all but shut down because they can’t get the staff and the funding for the staff. So, that means their aged care facility is also shut down. People moving to other towns for doing that. And after being in Julia Creek all their lives. So, really what I’m saying is that the regions have been neglected and we need to make sure that the regions are given everything they can to continue development. Because we’ve got people in the regions who want to develop, when they have that development, be it agriculture, farming, industry, then they can have more services come there. They have more teachers, they have more doctors, they have more nurses, they have a dentist. So, instead of seeing a collapse of the regions we can see revitalization of the region, but they need that support from federal and state governments and other policies outside aged care because the regions have been neglected.

Senator, as someone who lives in regional Australia I’m very alert to those issues. And some communities have seen a decline and the loss of service because of the requirement for scale. I think the opportunity to generate some innovation in the way the system operates does provide a pathway for some of those small communities particularly. But you’re right in the context of workforce. And one of the things that we’ve looked at in our reform process is how we work with states and territories in relation to provision of services on a shared basis. We have a lot of multi-purpose services around the country at the moment, whether or not there’s the capacity for us to generate more of those in communities where a work force would be better utilised, doing more than just trying to provide a small base hospital and a few aged care beds, if you bring those two things together you create some critical mass. A reason for people to stay in some of those critical workforces. So, we are very open to those conversations as well, so that those services that are required, will be required, can then be established or even built in some of those communities as they may develop such as Julia Creek that you’ve mentioned.

[Malcolm Roberts] Last question, Chair, what I’m getting at, Minister, is that we’ve seen Australia go from being the lowest cost electricity supplier to the highest cost, one of the highest costs. We’ve seen a reluctance of state and federal governments to provide water infrastructure. And we’ve seen state and federal governments colluding to steal farmer’s property rights. These are hindering our country and they’re hindering the regions. When the state and federal governments finally work out that we just need secure property rights, cheap electricity, instead of artificial inflation of the prices due to regulation not needed and also water infrastructure, then we’ll see booms in agriculture and manufacturing at the end.

Senator, I’m not sure that’s necessarily a question, but so much a statement, but–

[Malcolm Roberts] When is your government going to do something about them?

But, well can I say in the context of energy prices, I think that’s something that this government is quite focused on because we do recognise that it’s an important cost, an input cost to business, and it’s a–

[Malcolm Roberts] Minister Taylor has already expressed fears recently about the future, even higher electricity prices, future unreliability and future instability of electricity supply. These are the things that are affecting regional growth.

Look, I understand Senator Taylor expressing those fears and I think he’s quite focused on those in the context of water. I’m a great supporter of water development and my home state of Tasmania has seen about 15 irrigation schemes developed over time. And it has a real opportunity for the development of communities. But I think as Senator Watt quite correctly says it’s a bit off topic.

[Chair] Yeah, that’s right.

[Malcolm Roberts] Thank you.

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ATO Criticised for overly harsh crackdown

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The ATO has been criticised for garnishing alleged tax debts especially from small businesses even while they are still contested.

When you’re a small business, every dollar of cashflow matters and suddenly finding thousands or tens of thousands of dollars missing from your business account can kill your operation. I questioned the ATO about this and also the enforcement of FATCA, a taxation data sharing agreement with the United States.

Transcript

Senator Roberts

[Malcolm Roberts] Thank you. On a number of occasions, the ATO has been asked if it can provide a breakup of small-business tax debt into principal, interest, and penalty. The ADA’s consistent reply is that this breakup cannot be supplied. Is that still the case?

I’m Melinda Smith, Chief Service Delivery Officer. We, in the near future, we will be able to provide more detail around the construct of the debts. We, last year, changed our core operating system across to a system called ASFP. And part of the benefit of that was it gives us these flexibilities to be able to report. For our collection activities, that’s not information that is as critical to us as other information. So it hasn’t been a priority to be able to produce this immediately, but we are working on that. And I have Vivek Chaudhary, who is our Head of Debt, who might be able to give us a little bit more detail, he’s just teleconferencing in from lockdown. We might need to just unmute the cameras.

Mr. Chaudhary, can you hear us?

I can hear you very well, can you hear me?

Yes, no. We can hear you now, go ahead.

Thank you, Senator. Vivek Chaudhary, Deputy Commissioner of Debt and Lodgement. I am able to share with you that for month ending April 2021 the primary tax for all small business tax debt was 81.7%. A further 15.6% makes up interest, general interest primarily, but also short fall interest, and a small proportion, nearly 2% plus some decimal points, off penalties.

[Malcolm Roberts] Okay, thank you. So that’ll be regularly available in future?

Our plan is yes to provide that information in future.

[Malcolm Roberts] Thank you. Commissioner, are you familiar with the ATO’s failed leave to appeal to the High Court on the gold refining case known as ACN 154 520 199 Proprietary Limited in Liquidation versus Commissioner of Taxation?

Yes, I am and I’ll ask my colleague, who is Acting Second Commissioner, Law Design and Practise.

[Malcolm Roberts] So my question specifically on that is, some have said that the ATO’s appeal was a request to enable the ATO to rely on, effectively, email gossip to justify the raising of a tax debt; would the Commissioner view this as a correct interpretation or if not, what is your view?

This is Kirsten Fish, Acting Second Commissioner for Law Design and Practise, Australian Taxation Office. No, we wouldn’t agree with that characterisation. The litigation has been ongoing for quite some time. There was an AAT hearing followed by an appeal to the full federal court. On appeal to the full federal court, the Court found that there was procedural unfairness in the way the AAT had taken into account the evidence presented before the AAT, informing its conclusions on the anti-avoidance rules. The Commissioner’s appeal to the High Court was, well, application for special leave to appeal to the High Court, was in relation to that aspect, and whether there was a procedural unfairness in the way the AAT had approached the case. And whether, if there was, whether that impacted the outcome. So, the Commissioner’s application for special leave related to the way that the AAT conducts, takes into account evidence before it, and approaches its consideration of the issues. It was a matter of legal principle that we applied for special leave. Now, of course, having special leave refused, the matter will be returned to the AAT to be reheard. Again, by a freshly constituted tribunal, to determine whether the anti-avoidance rules apply or not. And that reconstituted AAT will, of course, take into account the evidence put before it.

[Malcolm Roberts] Thank you. In light of Minister Stuart Robert’s statement on Thursday the 13th of May, two days after the budget was delivered, what actions have you taken as the Commissioner, or within the ATO, to implement this government policy that small business will not be penalised until adjudicated on?

So, I can’t comment on announced but un-enacted measures. So, the announcement that you’re talking about was part of the budget measures to give the AAT powers to effectively grant a stay if the Commissioner is taking debt enforcement action while a matter is before the AAT. I can’t comment on the actual measure itself because it’s not yet law. But of course, in practise, we are very conscious And there are very few instances where we take stronger action in terms of garnishees, where a matter is in dispute. So, taxpayers have a lot of opportunities and we, it’s a part of our legal system, that if you disagree with the Commissioner, you have the opportunity to first object and then have your matter heard before the AAT. Where we have a genuine dispute we, in general, will pause debt collection activity, and we’ll only pursue debt collection activity where we see risk of dissipation of assets, or there’s fraud, or evasion, in the small market.

[Malcolm Roberts] It makes it difficult when the system allows the assessor to be the reviewer. And, as I understand it, that is the case within the ATO. And, also, there is enormous power within the ATO, and small businesses have been hurt by this, as I understand it.

Well, of course, in Australia we have multiple layers of review, and we’ve got a very strong independent review of our decisions in the form of the AAT. The AAT is constituted by some federal court judges, and other members of the profession. They are appointed by the Governor General, they are statutory appointments to the AAT. The AAT is completely independent of the tax office and provides a review of our decisions, and will determine, stand in the shoes of the Commissioner, and redetermine the matter. In addition to that completely independent review of our decisions, we have multiple layers of review available within the office. There’s a statutory right of review in terms of objection. And we also now have a small business independent review, conducted before assessment, which happens both independent review and pre-assessment, and objection post-assessment, happen in a completely separate part of the office to where the audits are undertaken. So in my area, in Law Design and Practise, we conduct that independent review, whereas under a Second Commissioner Jeremy Hirschhorn, that’s where we conduct the audit activity that creates assessments.

[Malcolm Roberts] Okay, Let’s move to something that’s out of your control, to some extent, and that, well, to the ATO, that’s FATCA; the Foreign Account Tax Compliance Act. And I understand it’s a difficult issue. And I can see the smile on your face. It’s, you must be tearing your hair out. FATCA, for those who don’t know, is a U.S. law requiring banks around the world to report accounts held by U.S. citizens, who are residents in other countries, including dual citizens. Despite FATCA’s significant and capricious impacts, and they’re truly horrendous on people in this country and around the world, why did Treasury or the ATO decide that individual deposit account holders were not significant stakeholders when preparing the post-implementation review of FATCA?

Senator, Jeremy Hirschhorn Second Commissioner, Client Engagement Group. Senator, in terms of the post implementation review, are you referring? Sorry, I’m afraid I’m not aware of the review.

[Malcolm Roberts] Apparently there is a review of FATCA and you have to make a report on deposit account holders and you have to send that report to significant stakeholders. But, apparently, deposit account holders were not considered significant stakeholders.

[Hirschhorn] I might pass my question…

[Mrakovic] Senator, I think that that issue probably falls with us, but I’ll have to take it on notice.

[Malcolm Roberts] Okay, thank you. And I appreciate the complexity, so. It’s a difficult, and you’re caught in the middle.

Senator, I know that you know, and you’ve just pointed out that FATCA is a unilateral measure. It is a decision by the U.S. to basically expect information. And to some extent, to some extent, we try to basically work with other countries in terms of, obviously, exchange of information. But we are very conscious of the fact that there are certain entities and certain, basically at the end of the day, the regulatory and tax framework in one country is different from another. And a lot of this sometimes involves trying to work with the two. But let me take the specific question on notice, so that we can give you the best answer we can provide.

[Malcolm Roberts] Thank you. It boils down, ultimately, I can’t read your name, Ms Mackenzie, is it?

Mrakovic.

[Malcolm Roberts] Mrakovic, it boils down ultimately to the US blackmailing. So, I’m working within that, that confine. While account holders are notified by their banks that their data will be sent to the ATO, pursuant to the FATCA agreement, neither the bank nor the ATO is required to notify the account holder of the actual data sent to the Internal Revenue Service in America under the FATCA agreement. Would it be possible for the ATO to provide this information automatically through the ATO MyGov portal in the same way that interest and dividend income is reported to recipients?

So, Senator, the information that we provide to the U.S. is a standard set of information that’s around account information. Often there will be an overlap with the information which we already have in our, in people’s pre-fill. So, generally, it will be things like bank interest, which we already pre-fill for people. I would say we have not considered whether there is some sort of separate reporting to individuals of reported data. We’d have to, we’d have to think about that.

[Malcolm Roberts] Would you be willing to listen to some of the people being affected?

So I think we’re, we’re very happy to speak to affected people.

[Malcolm Roberts] That’d be good because they’re very concerned about inaccuracies. They’re not accusing the ATO of any malfeasance, but they’re very concerned, because it impacts them. And I know from context myself, that entails a hell of a lot of money in accounting fees, legal fees, because the IRS is just unaccountable. It’s just the law unto itself. And that puts our citizens in the middle of that firing line.

And Senator, what I would say is if there is an individual who is worried about the quality of the data that has been provided, in the absence of a system based solution, which we would have to really take on notice and think seriously about, individuals should not be afraid to contact the office and we will see what information we can provide them.

[Malcolm Roberts] Okay, thank you, that’s very good. Because of the almost unique US, it’s almost unique, I think there’s one other country, with practising citizenship-based taxation, FATCA reporting includes reporting on the Australian income of Australian residents which is taxable in Australia, and for which the US must grant a foreign income tax offset, foreign tax credit in American terminology. This is not income that is being hidden from the US tax authorities. Has the ATO expressed to their US counterparts their support of a same country exception to FATCA as recommended by the US taxpayer advocate?

[Mrakovic] We’ll take that on notice.

[Malcolm Roberts] Okay. FATCA has some exemptions to reporting that are not included in the similar Common Reporting Standard, CRS. Under FATCA, accounts under $50,000, US dollars, and accounts held at local client-based banks, are exempt from being reported to the IRS. How is the ATO ensuring that these exemptions are being honoured and that data is not being over-reported to the IRS? Because, as I said, slightest mistakes cause Australian citizens, dual citizens, Americans resident in Australia, enormous grief with the IRS, and they’re innocent. The IRS is not innocent, the Australians are innocent.

So, Senator, I will take details of that on notice, but our reporting is, we are very aware of those rules, those exemptions from FATCA. I’ll take on notice, but I would hope to be able to provide comfort to you, Senator, that we do not report unnecessary accounts.

[Malcolm Roberts] Thank you.

[Chair] Last couple of questions Senator Roberts.

[Malcolm Roberts] Yeah, I’ve got two more. Thanks Chair. Will a Privacy Impact Assessment be conducted with regard to FATCA reporting?

[Mrakovic] Senator we will take that on notice?

[Reinhardt] No, I can.

[Mrakovic] Oh, you can?

Sam Reinhardt, First Assistant Secretary for Corporate and International Tax. So privacy, as part of the original RIS that was undertaken for the 2000, 2014 legislation, privacy issues were considered as part of that. And, in the regional legislation, the RIS Explains that and outline what was done in that, in that effect. And that was that the privacy concerns were addressed by creating a domestic regulatory environment. Now I understand, Senator, you’ve raised some issues that the ATO and Treasury have undertaken to get back to you on that, in relation to the current application.

[Malcolm Roberts] Okay, so, they’ve been sent? Because we received a whole flurry of questions, responses to questions on notice, at the end of last week.

So I think the responses to the question on notice, as you say, have been provided. The RIS a publicly available document and that outlines the privacy issues that were addressed as part of the original legislation.

[Malcolm Roberts] Okay. Thank you. What work has been done to verify that FATCA reporting is proportionate, and maybe the Minister can comment on this, is proportionate to the benefits of reporting to the respective governments of Australia and to the United States? I’m thinking of sovereignty issues. The fact that shareholders of banks will lose, because as I understand it, if we don’t bend to the US blackmail, then our banks can be taxed at 30%, was it? So that, that’s essentially blackmail. How much has FATCA increased tax revenues and or decreased tax evasion? And how much has the collection of FATCA data increased the risk of data breaches and or identity theft directed at account holders? These are significant issues affecting our citizens.

Senator, there’s some factual questions you asked towards the end of that, which of us officials have info?

[Mrakovic] So Senator, I’m going to take all of those questions on notice, because we’ll see where we can provide you with information. I just note that some of the questions that you are asking go to cost benefit analysis across two countries, kind of thing. And it will be very difficult for us to obviously provide substantive detail on that. But we’re happy to go away and see what information we can provide.

[Chair] Senator Roberts, we are gonna have to leave…

And more generally, Senator, I will take the more generalist question you asked on notice for any observations that the Treasurer may wish to make himself there.

[Malcolm Roberts] There are sovereignty issues. I’m going to have to finish up. There are sovereignty issues, there’s the cost to Australian taxpayers who are now paying pensions to people who’ve been overtaxed in United States. Questions of unfairness. And other countries are now starting to stand up to this and start fighting it.

[Chair] You made your point, Senator Roberts

[Malcolm Roberts] Thank you very much.

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ACCC aligns with One Nation calls for Murray Darling water register

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I have been calling for a transparent public water register for several years now. There are too many dodgy dealings happening in the Murray Darling Basin including water possibly held by politicians.

Our view on this aligns with the ACCC who have also backed a public water register. It is simply common sense.

Transcript

[Malcolm Roberts] Thank you Chair and thank you for attending tonight. In reference to your report of the Murray-Darling basin water markets inquiry, is it a fair representation of your findings to say, “There is a lack of quality, timely and accessible information for water market participants. The ACCC’s analysis has highlighted the need for significant improvements in the consistency and completeness of Murray-Darling basin water market trading?”

Sounds like what we’ve found Senator, that rings a lot of bells. It’s obviously a very complex market and it’s grown up. I guess it just sort of evolved and water administrators have been much concerned with the allocation of water rather than the trading of water, so, I think, general judgement is, there’s a range of things that need to be done to get the market working really properly and addressing the problems you’ve just correctly summarised ’cause it is such a fundamental market for farmers.

[Malcolm Roberts] I haven’t read your report, but one of my staff who is intimately involved with the Murray-Darling basin says gives you A plus.

Oh, very good Senator, I appreciate that. I should pass it on to the team.

[Malcolm Roberts] We’ve been all over the basin and we’ve listened to a lot of people and it makes total sense.

Thank you.

[Malcolm Roberts] The Water Act 2007, schedule three specifies that all trades should be recorded in a register for water trades, register of water trades. Your report notes the failed attempt by the Murray-Darling basin authority to introduce a national water market following which they just gave up trying. Is implementing this 14 year old law compatible with the findings in your report about the need for improvements in water trading data transparency?

I’m gonna pass to Mr. Betsy, who’s the person most familiar with this, so.

If I understand your question, Senator, you’re asking me whether the recommendations in our report will improve transparency in the water market? And yes, our answer to your question is that’s what they’re intended to do, that’s the big problem that, or one of the big problems that we think need to be addressed. There are some other issues as well, integrity of some of the mechanisms to ensure that people have confidence in the integrity of market and the conduct of the players in the market, making data available more generally in a more consistent way across the whole market so that people can use it for their purposes. There’re whole range of different recommendations that we think will be carefully considered by the implementation panel over the next year or so.

[Malcolm Roberts] I didn’t wanna interrupt because it was music to my ears but specifically what I was after was, is a register of water trades consistent with your report?

Yes, absolutely, well, and either a single register or registers that are compatible and that record data in a consistent way.

But that’s a classic example of what’s missing so there’s no doubt about that. And that again, reflects the way it’s evolved and why it needs very much to improve.

[Malcolm Roberts] From page 182 of the report, “89% of the volume of all large investors spot allocation purchases and 67% of the volume of all large investors bought allocation sales in the Southern connected basin in the 2018 and 19 water year, were attributed to one investor, can you indicate who that investor was?

I don’t think it would be appropriate to do so.

[Malcolm Roberts] Okay, and that’s why we need a register.

Yeah.

[Malcolm Roberts] But we would know the answer if we had a transparent water register, correct?

Yes.

[Malcolm Roberts] And so without, this is just a statement, without a water trading register shady or crooked operators can hide. And I’m not saying that they’re shady or, but someone could.

The difficulty is that we don’t know whether they are shady or crooked operators.

Exactly, but that’s the problem, that’s the problem, we don’t know and if the market was working with all the normal regimes then, that would make bad behaviour much, much, much harder. So we don’t know about the system, opens itself to that.

[Malcolm Roberts] I’ll bring the cupboard, the cockroaches scatter when the light hits them. Page 185 of your report indicates that in 2018 and 19, 63 gigalitres of water was traded from above the Barmah choke to below the choke, is this correct?

There’s only 700.

[Malcolm Roberts] Okay, it is, so.

If it’s in the report, if it’s in the report it’s very likely to be correct is correct.

It’s correct, right, thank you.

[Malcolm Roberts] It’s correct, yeah, okay. Is this figure net or gross? In other words, we know that 63 was traded from above and moved to below the Barma choke. Was there a corresponding trade moving water from below the choke to above the choke?

That’d be taking the water upstream.

[Malcolm Roberts] Yes.

And that’s a very difficult thing to do.

[Malcolm Roberts] it is, but…

I mean, conceptually, there are ways in which trades can occur where that happens.

[Malcolm Roberts] But that figure would be…

Yeah, I expected it’s a gross figure but it would be pretty close to being a net figure but we can take that on notice.

[Malcolm Roberts] Thank you. In senate estimates last Friday, Andrew Reynolds, the chief executive director of the Murray-Darling basin authority testified that there was no transfer of water from above to below the choke since any trade below was matched by a trade back the other way. This is not what your thorough and detailed investigation has found according to my staff, is that correct?

Look, I think it’s best we take it on notice.

[Malcolm Roberts] Yes, okay.

We’ve got the question that we’ll certainly get back to you and we should have the information.

[Malcolm Roberts] Your data came from voluntary information disclosures. So put simply the trades you examined were the trade people wanted you to see. Is there a chance that trades were hidden from the ACCC inquires?

That’s not correct senator, we use compulsory powers to compel the production of a large amount of the data and the information we received. Some of it we did receive voluntarily from state government agencies, but a very large proportion of it we obtained using compulsory powers.

Paint a picture that others couldn’t because we had the information gathering powers. That’s why we were able to put all the data together in the way we did. Without the powers, the study wouldn’t have had the same thoroughness.

[Malcolm Roberts] Thank you. Moving onto a separate topic now, this is to do with market power. The Commonwealth bank has announced that they are investing $30 million in e-commerce startup little birdie, so far so good. Now the bit that concerns, the Commonwealth will add the little birdie e-commerce portal directly into their banking app. Is the Commonwealth bank using its market power to grow a business that it has an interest in?

Look, I think Senator, I don’t know if any of my colleagues have comment, but, I mean the Commonwealth bank is, don’t know, its probably got 25% of the home loan market. It’s obviously the biggest bank but in terms of what they’re doing, there’s a lot of other players in the market. So certainly happy to keep an eye on it. But I think with all else going on in the market it would be a bit early to call that market power. It’s, you know, it’s an interesting development. They’re trying to match a range of other digital players, fintechs offering various services. So I think, we almost see it as an encouraging sign to improve the mix of economic activity But I accept they’re a big player and when big players do things like that we have to monitor it carefully.

Senator, if you don’t mind, it seems we have a dedicated unit within our agency that focuses on financial services, competition issues and actively monitors this sorts of developments and reports to a financial services competition board. And that, I think it’s a very good mechanism for really tracking what’s going on in competition in financial services.

[Malcolm Roberts] Okay, it’s just that the banks, as Mr. Sims pointed out have got enormous power, the four of them have got enormous power. And if they get behind something.

They’ll do the same thing, senator, that’s a different matter, as I understand, it’s the Commonwealth bank on its own, making that move. If they all did it collectively that would a very different matter and that could well bridge competition laws.

[Malcolm Roberts] Okay, so, next question Wespact are now, Westpac is now offering private label banking services after pay, as their first customer. Does Essec have a point at which the banks could be considered to be misusing their market power? You just mentioned one example.

You mentioned Essec, I think you meant ACCC, again, I think fairly early days, I don’t know whether my colleagues have. I think it’s part of all the rich developments that are going on that we’re monitoring very closely.

And there are a number of white label services provided by various banks. Citibank, for example provides white label credit card facilities. And in a sense, what Westpac is doing is a pro-competitive thing entering into an activity that enables after paid provide a full range of services than it currently does. And we see that as a way for them to become a more viable competitor within the financial services market.

[Malcolm Roberts] Okay, how about the last question on ACCC, how about Westpac shutting down banking facilities for cash handling companies so that it can direct their retail customers to use one specific cash handling company that they have a financial arrangement with essentially De banking, where does this slippery slope end if we let banks do this and they will eventually own everything and force companies that don’t own out of business?

I’m not aware of that particular issue, Senator, happy to take that on notice and have a look at that. We certainly are interested in De banking. And we made recommendations about that when we did an inquiry into foreign exchange because we think there’s got to be rules that people can meet so that they can’t be Di banked in an ad hoc way. So we’re very concerned about Di banking but I’m not aware of, I don’t think we’re aware of that particular

Yeah, no, we are, sorry Mr. Sims, we are aware of certain commercial arrangements that have been made that have been having an impact in the cash delivery market. There’s a couple of firms that dominate that market and we’ve had a close look at some of the arrangements there. It’ll be interesting to understand whether your referring to one of the things that we’ve looked at or whether it’s a new issue. And that might be based on by taking on others of you questions.

[Malcolm Roberts]Would you like one of my staff to contact you?

Yes, yes, that would be helpful.

[Malcolm Roberts] Thank you, thank you very much, Chair.

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ASIC keeping banks in line – Government trying to soften them up

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The government is set to try and ram through destructive changes to responsible lending rules. This axing will mean banks can go back to the bad days of over-lending to people who will never pay their loans back. We cannot go back to the bad days of equity theft where banks lent to people who couldn’t afford it just so the bank could later sell their house for a profit.

ASIC and AUSTRAC have been doing a good job in slapping fines on banks after the Royal Commission, racking up just over $2.2 billion in enforcement. Its proof that we need heavy fines for bank wrongdoing and that ASIC can do a very good job keeping banks in line.

The government’s proposed changes take away power from ASIC to do the job they have been doing very well. This can’t be allowed, and I won’t allow this government to use the cover of the pandemic to ram through cushy rule changes for their banking mates.

Transcript

Senator Roberts

[Senator Malcolm Roberts] Thank you. And thank you for attending today. Firstly, to ASIC, congratulations on your recent enforcement action against AMP for fees for no service, and charging fees to dead people. I hope that goes well. I know that’s a comment without a question, but I appreciate that. In your most recent ASIC Enforcement Actions Bulletin to December 2020, you list 11 actions still pending from the Hayne Royal Commission. With AMP now underway, is that now reduced to 10, and can we expect further enforcement actions for bad banking behaviour?

I haven’t got the statistics in front of me. Perhaps, Commissioner Armour, the…

I think, yeah Commissioner Hughes might be the best able to answer that.

Yeah, thanks. Thanks Cathie. Senator, good afternoon. We can take that one on notice. I think your assumption is probably correct because we have been netting down. If I can put it that way the number of matters as we’ve gone through. So if I’m going to make this point we had 13 matters referred to us by the Hayne Royal Commission. And we are, as I say, going through all of those matters, as well as 32 case studies that were examined by the Royal Commission, which we took on. But we will give you a specific answer on your question about it. I think you’re correct but I just want to be crystal clear on that.

[Senator Malcolm Roberts] Thank you. Do you have a dollar figure for the total cost to Australian ADI’s, that’s banks, for bad banking behaviour in the last five years as a result of asset enforcement action?

We don’t have a total cost of the behaviour Senator, what we would be able to provide to you on notice is the total amount of civil penalties and other regulatory outcomes that we’ve achieved over the period since the Royal commission.

[Senator Malcolm Roberts] That, that in fact Mr. Hughes, is what I’m asking for. So thank you. So

So Senator I might just add one other aspect to the cost measurement would be the remediation payments as well which we know collectively now are well above $10 billion.

[Senator Malcolm Roberts] Okay. Thank you. To confirm, you currently have 11 enforcement actions before the courts for credit misconduct. Is that correct?

That’s my understanding Senator.

[Senator Malcolm Roberts] And that’s for breaches of responsible lending laws?

Oh no. Sorry. I thought you meant, Senator, in relation to the matters arising from the Royal Commission. I didn’t hear you correctly.

[Senator Malcolm Roberts] No

Not it’s not physically in relation to credit.

[Senator Malcolm Roberts] It just happens to be the same number, 11 in both cases. This is for credit misconduct. I think you have a total of 11, and that’s before the courts?

I’m going to have to check those numbers. I’m sorry, Senator. I don’t have whatever it is whatever it is you’re referring to in front of me.

[Senator Malcolm Roberts] Okay, I have ASIC enforcement update July to December 2020, page seven. There’s a table there.

Can I take that on notice, Senator?

[Senator Malcolm Roberts] Sure. Thank you. I appreciate you valuing accuracy. Have you changed your enforcement since the Hayne Royal Commission?

I don’t believe that we would say we have changed our enforcement. What we have done is prioritised matters that give rise to significant consumer detriment or hardship or which relates to egregious misconduct including matters that might undermine confidence in the market. So there has been a refocus or a swinging of our prioritisation of matters, specifically to address those strategic enforcement priorities. We obviously receive a vast number of reports of misconduct, which my colleague Mr. Day could talk to you about, but Senator, we couldn’t possibly resource every single matter. So we, we put them through a process by which we identify those matters which meet our strategic priorities. And it would also prioritise enforcement matters that might relate to other priorities or thematic priorities such as misbehaviour in the OCC derivatives market those matters, or matters that involve predatory lending or misconduct involving indigenous or remote communities. So we have a number of filters, which we apply in deciding which matters to take to enforcement.

[Senator Malcolm Roberts] So it sounds like ASIC is doing its job and you’re policing responsible lending provisions, correct?

We’re enforcing the laws as they exist today, Senator. We’re very mindful, of course, as Senator McKim was asking me earlier that there are reforms before this chamber in relation to responsible lending. And we will be interested to see the passage of those reforms, if that is indeed what takes place. But where the law is settled then we will pursue those matters where we identify misconduct and there is an actionable bridge that we can pursue.

[Senator Malcolm Roberts] So in a briefing with Treasury, which didn’t involve me but my staff were involved. As were Senator Hanson’s staff, Treasury advised my staff that the reason for the decision to move Responsible Lending Regulation from ASIC to APRA was based in large part, apparently, on the actions of ASIC in tightening lending regulations. Have you tightened the legislation or regulation in respect of Responsible Lending since the Hayne Royal Commission? If so, how? I got the impression,

No

[Senator Malcolm Roberts] No, you haven’t?

No, Senator, ASIC does not have the power, the legislative basis or any legislative basis to change the law or regulations. Prior to the completion of the Royal Commission, ASIC updated its guidance response, its guidance number two zero nine, regulatory guide two zero nine, in December 2019, which provided further examples of the sorts of conduct and considerations that responsible lenders should take into account when making lending decisions. But as I said to Senator McKim, that guidance does not have the force of law, and we have not changed the rules or imposed any new obligations since the Hayne Royal Commission.

Thank you The only thing that has happened since the Hayne Royal commission Senator – sorry to cut you off is that the full federal court handed down its decision in the Westpac matter.

[Senator Malcolm Roberts] Thank you. Is it true to say that any tightening in bank lending practises is the decision of the banks, not of ASIC?

Well, we don’t make decisions on individual loan applications, Senator. Those are entirely matters for the banks. They will have regard obviously to Prudential Standards, administered by APRA. They will have regard to their obligations under the Consumer Credit Act administered by ASIC. And they’ll also have regard to the decisions of courts and of APRA. But the decision to advance a line to any particular borrower, consumer or business is entirely that of the bank, not its regulators.

[Senator Malcolm Roberts] Minister, could you agree that it would be possible for some people to categorise the stripping of Responsible Lending Regulation from ASIC to be a penalty for your enforcement act, for its enforcement action against the banks?

No, I think that’s an unfair characterisation, Senator Roberts.

[Senator Malcolm Roberts] I just want to go on record saying I appreciate the directness and the quality of the responses from ASIC. So thank you very much.

Thank you, Senator Roberts.

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Small Businesses are the backbone of the country

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Small Business is the largest employer but suffers the most hardship in trying to comply with the weight of so much complex regulation. Small business is the key to getting Australia out of the mess it is in.

Let mum and dad business thrive and so will the country.

Transcript

Thank you. Thank you, Chair.

Senator Roberts.

[Malcolm Roberts] Thank you, Chair. Thank you Mr. Billson and your staff for coming.

Thank you.

[Malcolm Roberts] Small business, we know is Australia’s largest employer. It’s the engine room of our economy. The previous small business ombudsman in a report said, “A tax system that works for small business,” that was the title of the report, in February 2021 at page six, recommendation 21 stated “that the government must undertake tax reform to prohibit the ATO from charging penalties and interest issuing garnishee notices or instigating other recovery action on tax arising from a decision that is disputed”. We support this change as the ATO’s current policy could kill many struggling small businesses and it’s not fair. It’s completely unjust. On May 13th 2021, the Honourable Stuart Robert, MP, Minister for Employment Workforce Skills, Small and Family Business said in parliament that the government too would back small business over the ATO. The message is clear, in your new role as ombudsman, will you be advocating for this tax reform? And if so, what are you doing?

Yes, and yes, we are advocating for a very thoughtful use of the enormous powers the tax office has.

[Malcolm Roberts] They are enormous.

They are very substantial.

[Malcolm Roberts] They make laws basically.

Well, I mean the thing is we’ve been consistent on three fronts, Senator, one is they’ve got quite a lot of discretion about how they use it. So we’ve been trying to put a spotlight on how that discretion is exercised so that it’s consistent and thoughtful. Deputy Commissioner, Deb Jenkins, and I meet regularly about our experience with tax office interactions. I think you might’ve missed my absolutely, gripping opening remarks where I did touch on some of these issues, Senator, where we’ve had punitive penalties of 200% for late payments. Well, sorry, payments of superannuation guaranteed contributions being made in a timely way but not processed in a timely way. And that can trigger a liability. The tax office is saying to us they form a position of these are the rules. We’ve not got a lot of wiggle room with those 200% penalties. They’re now reflecting on that and dialling back that a little bit and putting more discretion that’s less punitive into their decision-making. Secondly, there’s a measure been recently announced that an aggrieved taxpayer can, seeking a decision from the AAT, can actually ask the AAT to direct the tax office to suspend recovery actions. So that you’d know well, if they judged that we were liable for a tax amount they can pursue the recovery of it even though it’s disputed. And in some cases we’ve heard that can limit the aggrieved taxpayer’s capacity to argue their own case. So we think-

[Malcolm Roberts] And to stay in business.

That’s right and so we welcome that announcement, we thought that’s a good step in the right direction. There’s also scope for me to come to our office. So if there’s a dispute a small business has with the tax office our concierge service can do three things. One, if we think it’s really odd, we can suggest to the tax office, they might want ever another look at this because we think they’ve perhaps made an error. Secondly, there is a mechanism to get fresh eyes review within the tax office so that someone else can have a look at the assessment to see where that judgement –

[Malcolm Roberts] That is a fundamental problem because the assessor can sometimes be the reviewer of the assessment.

And we were wary about how effective that measure was going to be. It was trialled initially. But the feedback we got was overwhelmingly positive from the small businesses that used it, even those that didn’t get the outcome that they wanted. So we were very, in that tax report that you’re referring to, we were urging for that to be maintained as a permanent service. So that’s there-

[Malcolm Roberts] So you’re advocating for structural change in that way?

And really a thoughtfulness around the way the tax office uses those awesome powers that it has. We surface case studies and think you know, maybe this could have been handled a bit better. Deputy Commissioner Deb Jenkins is a wonderful ally. I think the Inspector General of Taxation is doing some good work as well around understanding the nature of the tax debt. It’s often said small businesses is a big tax debt problem. Well, in total numbers, it’s a big number, but it’s spread across an awful lot of small businesses. And then there’s an awful lot more that are paying, that are fulfilling their obligations in a very timely way and that should be celebrated as well. The last one Senator is the idea of this AAT review. So we offer as part of that service and it was touched on earlier that $1.4 million administered funds we can have an aggrieved small business tax payer come to us, say they’re not happy. Say why they’re not happy. We will collate relevant material, suggest to them, maybe they might be misreading the tea leaves or we might suggest to the tax office they might’ve misread their obligations, see if we can get an outcome. That doesn’t happen, we may support and arrange a review by a tax expert, there’s about 20 around the country that we might refer, or refer that small business tax payer to where they can give an assessment of their prospects of success at the AAT. And then we may also provide a role in assisting that small business tax payer at the AAT, if they decide to proceed to that point of challenge.

[Malcolm Roberts] Thank you. That’s a comprehensive reply. And I know one expert who’s dealt with tax and small business for many, many years, and also the next topic I’m gonna get onto, he estimates that the $25 billion that small business owes to the ATO comprises 60% penalty and 40% principal and interest. And of course the penalty builds on that interest. So it’s huge.

And I think there’s an Inspector General report coming out on that very matter to break up the client group tax debt and then there’s some interest in what the components are like what you described. So I’d encourage you to keep an eye out for that report, Senator, that is also a gripping read.

[Malcolm Roberts] Thank you. I just mentioned the topic of my second, my second question is, what can be done to reduce industrial relations complexity for small business? The tax, sorry, the Fair Work Act is about that thick, when it’s printed out on piecec of paper, that’s horrendous for any small business employee any small business employer to get their head around it. And we need to restore the employer-employee relationship, surely.

Yeah, it’s difficult for many small businesses who want to do the right thing to know precisely what that is. I did point earlier to Senator O’Neill’s question around small business measures in the budget. One of the reg tech measures is to actually try and help small businesses navigate the award system. There’s also an advice line for small businesses that aren’t a member of an industry association. They’re not of a size where they’ve got an HR professional that they can get some advice. Our agency has also put out a report about simplification and for the purposes of full disclosure, Senator, I actually authored a report for the Fair Work Commissioner judge, his Honour Justice Ian Ross, about practical steps I thought could be taken within the current law as it is to make the system work better for smaller employers.

[Malcolm Roberts] Could we get a copy of that?

Yeah, That also is a good read,

[Malcolm Roberts] If you could send that on notice.

and I will make sure you receive that.

[Malcolm Roberts] Send that on notice? That addresses my next question, which is that, what better ways are there for small business that are not limited just to simply developing a small business award? That’d be one thing on the list, I’m sure. But are they contained in your list?

Yeah, there was, yes, it didn’t actually advocate for small business award.

[Malcolm Roberts] What are the measures?

It actually advocated for a small business annexure to each award. That was basically the essential elements that a smaller employer needed to turn their mind to. And it made some recommendations around the effectiveness of the fair dismissal code. It did speak to the formation of a small business division within the Fair Work Commission so that their procedures are right sized and relevant to small employers. It also called out the impact of the club. Dare I say, industry associations, the legal profession and unions that actually revel in the complexity, it makes their insights and expertise very valuable.

[Malcolm Roberts] And the employer industry groups? You’ve got the people who benefit from problems and no solutions.

Well, it did point out that they probably are less concerned about complexity whereas a small business owner and leader, he or she can create a great innovation and change the very nature of society and then needs to get help to understand what their workplace obligations are because it’s so complex, it’s so nuanced, it was putting the point forward that very intelligent small business owners shouldn’t need to rely on external advice to be surefooted in their compliance with their employment obligations.

[Malcolm Roberts] Well, let’s take care of my next question. Are there still gaps between your office and the Fair Work Ombudsman that need to be improved? For example, small business support?

Well, they’re doing more and I’ve met with the Fair Work Ombudsman. We had a panel of regulators, Senator, was a cold night in Canberra and I’m sure we took an enormous amount of the audience away from Home and Away when we were talking about regulatory challenge, it was just a real cahoot, Senator, but we were working quite collaboratively. They’ve got some good resources. One of the things we can do is amplify and give higher visibility to those resources and also work carefully with them. They have their own small business helpline. I actually launched it in a former life. So I’m quite familiar with the need for good advice but we also thought there was some structural opportunities at the Fair Work Commission that could work alongside the Fair Work Ombudsman and make the system work better for smaller employers.

[Malcolm Roberts] Okay, next one is a specific around some of the broader areas you’ve been talking about. Do you get feedback from small business that the Fair Work system is too expensive for small businesses? For example, not just the complexity and the cost that entails and the distraction out of the business but paying “go away” money because they’re too busy to defend claims. For example, those kinds of things?

Yeah-

[Malcolm Roberts] And employees on the same note?

They tend not to come directly to us, but when we’re out on the road, Senator, it is a vivid topic for those that have been through it.

[Malcolm Roberts] And applies to employees, not just small business employers.

That’s correct, and one of the things that we were highlighting in our work is that the award system and the power imbalance assumes that the employer has got enormous resources and capability and the employee hasn’t. In many small businesses, it actually can be the reverse, say an employee with the support of an advisor or a representative, perhaps a union that can take cases and to appeal over and over again, probably has more horsepower and resources than the small business will ever have. And that was one of the recommendations we sought to address in my report, not the agency’s, but the report I provided his Honour Justice Ian Ross.

[Malcolm Roberts] Could you just recap, I think Senator Brockman asked this similar question, what are the main issues facing small business and what are you doing to sort these out? I know you mentioned bank loans, some find it difficult to get insurance?

Well, access to finance remains a big issue, Insurance remains a big issue as Senator Hume was alluding to, the focus on digital engagement is very important that we see a spotty level of engagement. I would hazard a guess that a significant minority are less open to the delicious possibilities that deeper digital engagement can offer. They may have been of my vintage, sir, where there were vendors promising the world when I had more hair that tech would change my business and it didn’t. And we often hear about that and those people now at a more mature age still in the economy might be hesitant to take up some of the digital engagement opportunities that are there. So that’s a big issue. For us, we still think government procurement offers great potential for greater small business engagement. And we think that’s a key priority for us. Women’s entrepreneurship, it’s also an area where we’re quite interested in and I’m also quite evangelical about alternative dispute resolution. It’s interesting in Australia a lot of small businesses turn to the regulator to defend their own economic interest because they’re frightened of cost order gorillas if they pursue legal recourse, they’re just worried. So they turn to the regulator. This is quite unusual in other comparable jurisdictions the people whose economic interest has been infringed upon are very up and about defending their own interests and are less reliant on the regulator. We think there might be something in that where the way the court system operates power imbalances may well be amplified throughout the legal process, me as a small business, you as a behemoth business owner, you’ve got five QCs, I’ve got my solicitor and we’re having a discussion and you’re reminding me that if I lose I get to pay for your crew. That can be a real disincentive to engage in that court based process. We think we can probably come up with some better avenues. That’s a priority for us as well.

[Malcolm Roberts] What about tax? Not just personal tax, but business tax and especially the complexity of the tax system?

We put a report out, when was that? May I consult the Deputy’s Ombudsman who was here when I wasn’t, sir?

February.

February, that just rolled off. It’s quite fresh, Senator. I can make sure we refer that inquiry report to you as well. And your winter reading list in Canberra will be abundant, sir.

[Malcolm Roberts] Thank you. Based upon your experience, although it’s only limited for a few months, should the role or powers of the Small Business Ombudsman be enhanced and if so, in what regard?

Yeah, we think there’s some scope for having more nudge ability to get disputing parties around a mediation table and potentially into arbitration to get matters sorted out quickly so that businesses can get back to business-

[Malcolm Roberts] What sort of power would that look like?

Well, at the moment, whilst we carry the title of Ombudsman we have no determinative power. We can’t decide anything. All we can do is facilitate and enable a process and put the parties together and give them wise advice, we hope, that they see it’s in everyone’s interest to sort it out quickly. Where there’s some few areas where we think a little bit of nudge potential might encourage those parties to engage in good faith and get those disputes resolved quickly, affordably and get business back to business.

[Malcolm Roberts] Since the last round of Senate estimates, which is what three months ago? Has there been any work done to identify opportunities for small business including red tape reduction and other initiatives, business codes, would it like to be reviewed and updated to ensure fairness for employers and employees?

Yes, we’ve engaged on a couple of reviews that other portfolios are doing. We’ve also been active on mutual skills recognition across jurisdictions, which was a measure included in the budget, so that if you’re a trades person in one state, you could readily apply your trade in another and have your qualifications carried over. We’ve also had some discussions with industry associations about their pain points, particularly where they might be multi-jurisdictional. Some examples, sir, may include, well you’ve seen we’ve been active in the Australia post area, where they felt complex and diferring state regulation was the reason for them to announce that they intended to discontinue perishable goods delivery. And we said, well, don’t discontinue it, let’s work out what these regulatory challenges are that you speak of. And so we’re engaged in that process as well. Areas of-

[Malcolm Roberts] A review of the business Fair Dismissal Code from both an employer and employee perspective to make it fairer for both?

That was a recommendation in our report.

[Malcolm Roberts] Okay, thank you

Actually, to make it function as it was intended, might be a more accurate description.

[Malcolm Roberts] Which protects both parties?

Yes.

[Malcolm Roberts] Employers and employees. Has the Small Business Ombudsman had the opportunity to engage in the development and review of regulation and information guidelines for small business in relation to casual conversion? That’s the conversion of casual employees to permanent employment?

No sir, we haven’t.

[Malcolm Roberts] Are you aware of the casual conversion guidelines?

Vividly so sir.

[Malcolm Roberts] Are they fit for purpose?

Well, there’s some positive response from small businesses that there’s now clarity around that, there was some chagrin that other reforms could perhaps have been included in that legislation that works. That’s the feedback we’ve had.

[Malcolm Roberts] So you’re passing that on?

Well, anyone who asks us, we’re not shy, Senator, we will pass on our feedback.

[Malcolm Roberts] To the Fair Work Commission?

Yeah, at that stage we haven’t engaged with them on that topic. The last discussion we had with the Fair Work Commission was at an officer level just on things they’re doing to streamline their processes, to make them more accessible for small businesses.

[Malcolm Roberts] They’re responsible, no it’s the Fair Work Ombudsman that’s responsible for the casual conversion guidelines-

The commission set the rules and the ombudsmans make sure that they’re being implemented.

[Malcolm Roberts] You had discussions with the Fair Work Ombudsman,

Only in terms of their guidance material they make available. Yeah, but not on that particular topic you asked, to be very specifically about

[Malcolm Roberts] Will you be having that?

casual conversion. I can add that to my list, ’cause I catch, We, I think I even chair a federal regulator agency group meeting where we all get together and work out who’s doing what?

[Malcolm Roberts] So you’re the Ombudsman’s Ombudsman.

I am, I think I’m the passionate but neutral chair amongst powerful regulators, sir.

[Malcolm Roberts] Okay. One final question, Chair, we’ve now got the term circuit breaker instead of lockdown.

[Mr. Billson] Yes.

[Malcolm Roberts] Which to me and others seems to be an attempt to bypass the growing resentment towards lockdowns. And they’ve belted small business now for about one of the quarter years. Not for the whole time, but intermittently along that time. A taxi operator, a taxi driver in Sydney on Friday, when I went home from Canberra, said to me that it’s not only belted his business on Friday the sudden shutdown in Victoria but it’s affected coffee shops, restaurant owners, hotels motels, a whole swath of businesses all with no advanced warning

I talked about this in my opening remarks, Senator, that they’re not-

No, they were there and it did point to the fact that that was a circuit breaker lockdown which created probably some expectation to be short but now the discussion is it might be longer. My point to the committee was it, in my view, it highlighted the need for greater certainty and predictability for business about what different types of lockdowns would trigger in terms of support and other measures that business could count on. Because at the moment there’s not a clear menu, there’s not a clear set of trigger points where people go, okay we’re now having one of those lockdowns, call it what you will, but we know the suite of measures that accompany that, that would give small businesses good clarity and it would also identify who’s expected to do what when these events occur, and that’s not just government, I mean, at what point does the conversation move to what’s the finance sector doing to accommodate these businesses, all the issues around leasing, that was all part of it and I’m from Victoria, Senator, and to be here in person, I didn’t go home, because I wouldn’t be allowed back but that’s the sort of thing that we think would be most helpful.

[Malcolm Roberts] And then we see, just listening driving home one evening, listening to Talkback Radio, which in Brisbane sometimes carries the feed from Sydney, And there was a Sydney sider saying, okay we get the hundred dollar voucher for travel to Cairns, stay in Cairns, but why the hell would I go to Cairns and risk two weeks in a lockdown afterwards at 3000 bucks just to save a hundred dollars. I mean those kinds of things and WA, Queensland and Victoria in particular have been capricious with these lockdowns and are you getting much resentment from the small business on that?

Yeah, absolutely, we are. I mean, they’re infuriated and bewildered by what is sensed to be inconsistencies across jurisdictions, proportionality to responses, why some jurisdictions treat certain events that look to a small business owner’s eyes as very similar as somewhere else, and that’s treated differently. That’s not surefooted conditions for a business owner to navigate and that’s why some improved predictability about trigger points and what sort of support they can count on would be, I think, a very positive step as we learn to live with COVID.

[Malcolm Roberts] The Chair is giving me the signal to wind up so-

I think he’s giving me the signal Senator, so I will.

It’s a general signal,

In my general direction.

[Malcolm Roberts] United Nations… Just a final comment, The United Nations World Health Organisation which I happen to think is a dishonest, corrupt and incompetent organisation –

Can I take that as a comment, Senator?

[Malcolm Roberts] Yes, even, and you don’t have to give your opinion. Even the world Health Organisation has said that lock downs are meant to be used as a last resort initially only just to get control of the virus. Does small business look upon the use of lock downs as an inability of the states to get control of the virus, so the virus is essentially managing the state economy rather than the state managing the virus?

Senator you’re leading me, and I might let that one just go through to the keeper okay?

[Chair] I think we need to treat that one as a comment. Thank you, Senator Roberts.

Chair, can I just use that though cheekily to flag that the United Nations Micro, Small and Medium Enterprise Day of Recognition is coming up in June. So that would be a great opportunity to say thank you to the small businesses and family enterprises you count on. That would be a good thing coming out of the UN. And I might hand back to you, Chair.

Mr. Billson, I don’t think anyone would be left with any doubt about your passion for the small business sector and your suitability for the role. Thank you very much for appearing for the first time, I’m sure it’s not the last, we will see you again in a few months very likely.

Thank you, Chair, thank you Senators.

And thank you very much for your time, and I wish you all safe travels back to wherever you are heading. Thank you.

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Government cosying up to their bank mates – APRA

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The government is set to try and ram through destructive changes to responsible lending rules. This axing will mean banks can go back to the bad days of over-lending to people who will never pay their loans back. We cannot go back to the bad days of equity theft where banks lent to people who couldn’t afford it just so the bank could later sell their house for a profit.

The government’s proposed axing includes giving APRA more bank-policing responsibility. I’m sorry to say but APRA has been weak and ineffective when it comes to policing the banks. They’ve managed to hand out just a $1.5 million dollar fine compared to ASIC and AUSTRAC’s impressive $2.2 billion in banking fines.

I won’t allow this government to use the cover of the pandemic to ram through cushy rule changes for their banking mates.

Transcript

Thank you very much Senator small. Senator Roberts, please take us home

[Malcolm Roberts] Thank you Chair and thank you for appearing here

As promptly as possible.

[Malcolm Roberts] Okay. If I can reference a December 2020 headline ‘Westpac hit with a second bank regulator penalty.’ Westpac broke key capital ratios and the consequence APRA levied was to make Westpac keep more money in the bank. In other words, to comply with the law this has the effect of reducing the bank’s ability to lend by reducing their available capital. Is that a fair analysis?

Thanks Senator, for the, for the question. So just to be clear you’re referring to the press release of March 21. Did I hear that correctly?

[Malcolm Roberts] No.

Which one?

[Malcolm Roberts] The headline of December 1st 2020 in Reuters.

December 1st, 2020.

[Malcolm Roberts] Yep.

So at that time, Senator, there were a range of AML issues for Westpac,

[Malcolm Roberts] AML?

Anti money laundering issues. APRA announced at that time, just before Christmas that it was taking action on three issues, there was an additional capital overlay, which I think is the point you’re making, of an additional 500 million on top of the 500 million they’d already applied, a BEAR investigation and some supervisory work. And I’m happy to talk about that. In terms of the capital impost, Westpac is a bank as per other majors who are very well capitalised. They’re running CT1 in the twelves at the moment and they have plenty of capital to lend for worthwhile projects and housing.

[Malcolm Roberts] Okay, thank you. Another headline, April 2021, APRA takes action against Macquarie Bank over multiple breaches of prudential and reporting standards. The penalty there was to keep more money in the bank, that also has the result of reducing the bank’s liability- ability to lend money. Correct?

Senator that’s another example where a bank breached a number of reporting issues on capital and liquidity and also on stable funding. We took action on the bank and part of that action was the capital impost. And I think the same answer applies that you have a bank with considerable capital and considerable ability to lend commercially. And in fact, in the case of Macquarie, they have been lending very significantly into housing.

[Malcolm Roberts] A third example, APRA takes, this is the headline from October 20th. APRA takes action against Bendigo and Adelaide Bank for breaching prudential standard on liquidity, their penalty, well their consequence, was not a penalty. Their consequence was to keep more money in the bank, that also reduces their ability to lend.

Senator, I think all three examples that you give go to breaches of standards that APRA has and as we’ve explained to the Committee previously we have an enforcement approach. The adoption and compliance with prudential standards is critically important to safety and system, safety for depositors in particular. And so we need to and have taken appropriate action, enforcement action on each one of those cases. And so that’s what we’ve done.

Can I just clarify one thing, Senator? So you keep referring about our actions reduce the capacity to lend and that’s not, not quite right, what we do when we’re adding more capital to the bank effectively we’re changing the mix in which it uses either its shareholders money or depositors’ money to fund loans. And the actions we take mean effectively that a bank has to use more shareholders’ money and less depositors’ money to fund a loan, but it doesn’t actually stop the bank from or reduce the bank’s ability to lend. It just says, use more of your shareholders money, put- get your shareholders to put more on the table and use less depositors’ money.

[Malcolm Roberts] Doesn’t it make the bank, reduces the bank’s ability to lend in that it makes

Only if they don’t have enough capital to meet their regulatory requirements and then they have to stop. But as John has said, these banks are running well above their minimum regulatory requirements. So the issue is really, it changes their, because capital is more expensive than funding from depositors it makes their funding costs slightly higher.

[Malcolm Roberts] So the headline in the Reuters that, well, the first paragraph, the Australian bank regulator, APRA, said on Tuesday it was forcing Westpac Banking Corp to raise its cash reserves after it fell short of prudential standards its second enforcement action in a year against the country’s number three lender.

So the effect of what we did was to increase the minimum amount of shareholders’ money that we required Westpac to have.

[Malcolm Roberts] Okay.

But they use that money still to lend.

[Malcolm Roberts] I ask because in a meeting of the Responsible Lending legislation with my staff, between my staff and Treasury, Treasury indicated that a substantial reason behind moving responsible lending regulation from ASIC to APRA was because ASIC was imposing restrictions on the bank’s ability to lend. But you’ll argue with this, then that is exactly what we see that APRA doing, is it not, because it’s altering the liquidity?

Well, I think we’ve already answered that question Senator.

[Malcolm Roberts] So since the Royal Commission, has APRA ever launched an action against an ADI or bank that resulted in a fine, a real penalty, not just complying with the law?

Yes we have Senator. And an example of that would be Westpac again, for a breach of reporting standards, a small fine but it was the maximum fund that could be levied under the FSCODA Act.

[Malcolm Roberts] What was the fine?

It was from memory, 1.5 million.

[Malcolm Roberts] Isn’t it amazing how 1.5 million is a small fine these days but anyway

Well we’re talking about a major

[Malcolm Roberts] It is all relative Does the National Consumer Credit Protection Amendment Supporting Economic Recovery Bill 2020 allow APRA to fine a bank that engages in systemic breaches of the Responsible Lending Guidelines.

So no, no Senator.

[Malcolm Roberts] Thank you. What action is open to APRA to regulate low doc home loans which are provided for in that legislation.

Well that, that is not something within our responsibility Senator.

[Malcolm Roberts] Well, we could find none

Senator Roberts we will need to wind up soon.

[Malcolm Roberts] Yep, I’m almost done. What about all the people who lose their homes their savings, their marriages, their mental health. Is there no consideration for the human cost of bad bank behaviour in this legislation?

Senator, is that a question?

[Malcolm Roberts] Yes.

If it is it’s not a piece of legislation that APRA has responsibility for Senator

[Malcolm Roberts] But you will have, or for Responsible Lending.

No, that’s not correct Senator.

[Malcolm Roberts] I thought you were getting, going to have responsibility for Responsible Lending.

What we have, as explained earlier, is we have a standard, Prudential Standard, APS220 there are some very minor changes to that and APRA’s current stance in relation to how it assesses credit will be pretty much the way it has been for many years. So no change

[Malcolm Roberts] Under the new legislation,

Well correct Senator.

[Malcolm Roberts] Thank you. APRA runs the Bank Executive Accountability Regime – BEAR scheme which fines bank executives for bad banking behaviour. You have taken action against the banks for bad behaviour, ASIC and AUSTRAC have fined, have caused fines on the banks of over $2 billion in the last three years. How many of the executives in charge of the banks have been personally fined through BEAR?

I was going to say the BEAR doesn’t give us capacity to impose fines on individuals.

[Malcolm Roberts] None at all?

That’s not part of the legislative framework.

[Malcolm Roberts] Okay. Well last question Chair. Westpac are moving night safe wallets and advising their business customers to not accept cash. Isn’t that rule number one for a bank, accept the Queen’s currency. On what basis are APRA allowing the banks to make such fundamental and illegal decisions without reference to APRA.

Senator, APRA does not have particular standards in place in terms of what commercial activities banks undertake and services that they provide. So, so they are commercial issues for the banks. Thank you Chair. Thank you. Thank you.

Just on your last point though I do think it is a little bit of an issue if banks do, and I’m not saying that Senator Roberts is necessarily correct, but banks refuse to accept legal tender, but I will leave that part there. Thank you very much for your time.

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Is the RSPCA really about saving animals from cruelty?

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Imagine that you’re a succ­essful breeder and your animals sell for thousands of dollars. Then imagine that the RSPCA seizes your animals under questionable circumstances and on sells them for thousands of dollars in profit to the RSPCA.

This is what I’ve heard from concerned constituents. If it’s true I don’t think the RSPCA deserves to hold its tax-exempt status as a charity. I want to get to the bottom of if this is happening, what else the RSPCA is doing and what the government is doing about it.

Transcript

[Female Speaker] Okay, thank you.

[Male Speaker] Senator Roberts.

[Senator Malcolm Roberts] Thank you. Thank you for being here, Dr. Johns. Thank you. My questions are to do with the RSPCA Australia and Queensland. They’re two separate bodies. What body oversees the activities of the RSPCA Australia at either state or federal government level?

I’m sorry, I’d have to take that on notice. We’d have to look up the register and look at its details.

[Senator Malcolm Roberts] And, you’ll be excused if you have to take up a lot of these on notice. It surprised me when I learned about this. Why, in Queensland are RSPCA state inspectors who laid charges, also the prosecutors in the same cases? Shouldn’t they be merely a witness?

I will take that on notice, thank you.

[Senator Malcolm Roberts] Why are RSPCA Australia staff referring owners to particular vets and refusing to recognise the expertise of others?

I’ll take that on notice, thanks. Sorry, and I’ll just interrupt at this extent, we will have a look at any charity’s fitness for registration. We don’t go beyond that remit, but nevertheless, please.

[Senator Malcolm Roberts] Why would this RSPCA Australia be the recipient of fines levelled at an owner of an animal when prosecuted by a state RSPCA staff member?

I’ll take that on notice.

[Senator Malcolm Roberts] Aren’t RSPCA Queensland and RSPCA Australia separate bodies?

[ Dr. Johns] I’ll take that on notice.

[Senator Malcolm Roberts] If an RSPCA Queensland inspector tells an owner of an animal to pay a large sum of money in order to get their unreasonably seized animal returned, and if not paid the animal will be killed, doesn’t that sound like extortion?

I don’t know, but I’ll take it on notice.

[Senator Malcolm Roberts] How many animals are put down by the Queensland RSPCA in a year?

I’ll take that on notice.

[Senator Malcolm Roberts] Is it true that animals held by the Queensland RSPCA are given to organisations for laboratory experimental purposes?

I’ll take that on notice.

[Senator Malcolm Roberts] Are the RSPCA Queensland and the RSPCA Australia genuine charity or nonprofit organisations and worthy of receiving Commonwealth grants?

I’ll take that on notice.

[Senator Malcolm Roberts] How can the Queensland RSPCA seize valuable animals from registered breeders and then on-sell them for thousands of dollars in profit for the RSPCA?

I’ll take that on notice, thank you.

[Senator Malcolm Roberts] How much money does the RSPCA Australia and RSPCA Queensland receive from the Commonwealth in grants?

I’ll take that on notice. I’m sure it’s on the register, but yes.

[Senator Malcolm Roberts] Yeah. No, I don’t expect you to know these. It surprised me when we found out what we found out. Not at all surprised that you’re taking them on notice, and I appreciate that. Why would anyone donate to the RSPCA Australia and RSPCA Queensland when its practises are not very charitable? Is it time for the RSPCA Australia and RSPCA Queensland to be investigated as to its offensive practises?

I’ll take all of those matters on notice, thank you.

[Senator Malcolm Roberts] Thank you.

Reply.

[Senator Malcolm Roberts] Thank you, Chair.

[Male Speaker] Thank you.

/2 Comments/by

Fair Work Commission – Award Modernisation & Small Business

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The one thing we here again and again from small businesses is that Industrial Relations in this country is simply too confusing. You just about have to be a specialised lawyer to simply employ someone and be across all of the applicable legislation. The awards and language need to be made much simpler if small business has a hope of surviving. A fair day’s wage for a fair day’s work, and a way to punish dodgy employers who dishonestly try to break the rules: that should be the simple basics of industrial relations but we’ve complicated it far too much

Transcript

Senator Roberts.

[Roberts] Thank you Chair.

Thank you again for being here today. My questions cover a broad range. In the Fair Work Commission statement, dated 9th of April, 2021, regarding the Casual Terms Award reviewed 2021. This review must be completed by 27th of September, 2021. Are you on target for this date? And what has been identified as going over that date so far?

[Luby] Uh…

[Furlong] Ms. Luby

Thanks Mr. Furlong, I’ll take this one as well. Thanks Senator. Yes, the Fair Work Commission is definitely on target for that. That’s a date that was set in the statute and where we’re working towards that. So the Commission has issued a number of information papers outlining the range of casual terms that are found in Modern Awards. A full bench has been listed for hearing to consider a small group of Awards that cover either a large range of employees or have sort of quirky casual terms. And so that’ll be some, I guess some principles or precedent will be set by that full bench and then that will be applied to the remaining Modern Awards. So we’re working through that.

[Roberts] Okay.

With respect.

[Roberts] Thank you. Now from the Casual Terms Award Review 2021, at 12 and 13 of the Fair Work Commission Statement, I note that the Black Coal Mining Industry Award, MA000001, has not been included in the initial review. Yet, the background of that is that there’s a lot of confusion and uncertainty, in the black coal mining industry, because there was no provision in the award for casuals on production. But nonetheless, the Hunter Valley CFMEU did a deal to get that into the Enterprise Agreements. So that meant because there was no award provision, there was no, basically anybody under that EA was locked into permanent casual rort and they couldn’t get out. Now with the legislation that the government introduced in March, there is a pathway to permanent work for all casuals, but I think it needs to be clarified as quickly as possible. Many everyday Australians think it should have priority, the Black Coal Mining Award should have priority for definition of a casual mine production worker, given the harm it’s done to so many casual black coal miners, the lack of that definition. Can you ensure that this Award is reviewed promptly, please?

Senator, well, obviously it’s not for me to determine what order that the Awards are looked at. That’s a matter for the President and full bench presiding over that. I’d just like to clarify that the purpose of these proceedings are to determine whether the casual terms in the Awards are compliant or not contradictory with the terms that were introduced in the Supporting Employment Bill. It doesn’t go to whether there are entitlements to casual work in a particular Award. The issue of whether there should be the possibility of casual engagement under the Black Coal Award, was considered as part of the Four Yearly Review. And I think Mr. Furlong spoke into that previous estimates and it’s been covered in some of our Questions on Notice. That’s perhaps a different issue that could be raised at, and it could be raised at any time, if the parties were to seek to include a casual term for those production employees under the Black Coal Award.

[Roberts] Okay, so there’s nothing to stop a casual worker, who’s on permanent casual rort at the moment, thanks to Enterprise Agreements, from actually casual conversion, if they’re offered that conversion now?

No, I’m sorry Senator. There is no provision for casual employment for a production employee under the Black Coal Award.

So if I might. My understanding of the legislation it covers, because it’s been placed into National Employment Standards, it applies broader than all the Awards. So if someone is a casual, whether there’s an Award term for casuals or not, then the provisions within the Act will apply. So yes, there is a pathway to conversion because it’s been put into the National Employment Standards.

[Roberts] Okay, so thank you. So it overall

[Luby] Thank you, Mr. Hehir. Sorry.

[Roberts] It overrides the Award. So, people

[Luby] I apologise I apologise Senator for not getting that.

[Roberts] Yeah. So just to be clear Mr. Hehir, the people who are working as casuals, when the changes were made in March, will now have access to conversion once they’re offered?

So that’s my understanding because it’s been placed into the National Employment Standards. It expands beyond the award system and does apply more broadly.

[Roberts] Thank you. Because there are a lot of people cursing Enterprise Agreements that basically locked them into permanent casuals. How long after this review

[O’Neill] If I could get your attention Mr. Roberts. We asked a couple questions yesterday about these matters with the conversion. Under 15 employees, there will be a different

[Hehir] Thank you Senator

[O’Neill] situation.

[Hehir] O’Neill.

[O’Neill] But I guess one of the things that we got yesterday that’s important was it’s a test of reasonableness about whether those coal miners will actually be able to

[Roberts] Oh that test is

[O’Neill] Get

[Roberts] Yeah.

[O’Neill] the reasonableness

[Hehir] I think

[O’Neill] Test. Yep, yep.

[Hehir] reasonableness is the goal Senator O’Neill.

Yep.

[Hehir] Well I’m sure…

[O’Neill] Well it’s it’s gonna matter

[Hehir] Council, Senator Roberts.

[Roberts] In the Fair Work Commission Statement, dated 9th of April, 2021 regarding the Casual Terms Award Review 2021 at 12, I note the hesitancy regarding the definition of simple terms. Can you advise if your concerns over language will hold up the review process or have they been resolved?

No Senator. I think that we’re still on track to meet that deadline of the 27th of September.

[Roberts] Thank you. So we’ve been advocating for a fair go for Australian workers for a while now. Since the last Senate estimates round, can you tell me what due diligence has been put in place for Fair Work Commissioners to use to ensure that the boot analysis improves and that we do not see any more failures like the Chandler MacLeod Northern District of New South Wales Black Coal Mining Agreement of 2015? My understanding is that there was no Enterprise Agreement. The Chandler MacLeod initially employed miners under the Award, where there was no provision for casuals. Then they came up with the Enterprise Agreement and that breached the boot test from what we can work out. So we need to make sure that miners are protected in future with Enterprise Agreements that comply with the boot test. Can you tell me what’s being done like that to make sure there’s no more failures?

Just a couple of things on this, Senator. It’s actually been on notice and to a reasonable sort of extent, in relation to the decision about the Chandler MacLeod Agreement, it was approved by Senior Deputy President Harrison. And while the decision was short, she did go to the boot, the analysis of the boot. Ms. Luby can provide further and better detail on it. But every agreement application that is made to the Commission undergoes a very comprehensive, administrative checklist and was performed by specially skilled staff to ensure that the statutory requirements and pre-lodgement provisions are satisfied. And in terms of Ms. Luby saying that 95% of those applications are made and provided to members within five days, that is the process that is undertaking that first step.

[Roberts]Okay, I’m having a lot of trouble hearing you or understanding. Could you just explain, perhaps you could explain. I understand that you’ve given us a reassurance that the process is going to be followed. Could you please explain the boot analysis process? What are the main steps that the commission now undertakes and is it applied appropriately to each case?

The answer to that question is easy, yes. There’s a legislative checklist that is completed by as I said specially trained staff at the Commission. The template of that checklist is available on our website as well. If you’d like to have a look at it, we can certainly table it for you to have a look at. Bit it is a consistent checklist that is performed for every Enterprise Agreement application that is made.

[Roberts] Okay, thank you. I heard it clearly that time, so we’ll check that checklist ourself. We’ve heard that some union bosses are saying that it is the worker’s responsibility not the unions for what is put to the Commission in relation to Enterprise Agreements. Can you tell me then how you ensure that the workers themselves are happy with the Agreement? And what checks do you have to make sure that you’re satisfied that it’s the workers that are happy with the Enterprise Agreement?

Ms. Luby might want to add to this. Effectively there’s an access period, a statutory access period, Senator. That all, every employee who’s to be covered by that Enterprise Agreement has got access to that Agreement and that the employer has gone to reasonable lengths to explain the terms of the impact of that Enterprise Agreement. Ms. Luby would you like to add anything to that?

Sure, Mr. Furlong. So I guess there’s a few strands to it that the member who assesses the application will look at whether the terms and the effect of the terms of the Agreement were effectively explained to the employees. That’s an important test that’s been the subject of a number of federal court decisions and quite clearly laid out, in terms of the level of detail that must be explained to the employees to give them an opportunity to vote in an informed way. And then clearly there is the vote itself, so that there must be a majority of employees who vote for the agreement, who vote in favour of it. So they’re the primary tests.

[Roberts] Thank you.

We’re also quite transparent about the fact that an application has been made. So an employee will have an opportunity to make a submission to the Commission if they choose to do so.

[Roberts] So what recourse do workers have through the Commission or anywhere else, where a union boss fails to do what they promise to bargain for or where they might ignore workers’ needs in favour of their own interests? How do we make sure union bosses’ held accountable in this process for approving an EA, Enterprise Agreement?

I think Senator, the Commission, as I said, we are quite transparent in terms of when an application is lodged. It’s always published on our website immediately. So it’s available for the employees to see before the application is approved. And during that time it’s not uncommon for an employee to contact the Commission and their email or letter that they put in will be sent directly to the member who’s dealing with the application. So if they’ve raised any concerns that will be brought to the member’s attention.

[Roberts] So what you’re saying is, it seems reasonable to me. What you’re saying is that if an employee has concerns about the employer, or the union bosses, that they need to go and check themselves and take responsibility for the Enterprise Agreement themselves before they vote.

Um..

[Roberts] Vote, inform themselves

[Luby] I guess

[Roberts] So they vote in an informed way.

Yes, definitely and it’s the employer’s responsibility to inform them of the effect of the Agreement.

[Roberts] Thank you.

[Luby] So that’s an quite a proactive step that the employer needs to take.

[Roberts] Okay. Have they been

[Furlong] Senator may I also, sorry. I may also be of assistance. If an Agreement is reached, or past its normal expiry date, a party of the employees covered by that Enterprise Agreement, that is past its normal expiry date, can make an application for that Agreement to be terminated.

[Roberts] Okay, so it gets fairly complicated, doesn’t it, quickly? Have there been any cases regarding casual conversion put to the Commission for determination since the changes to the Fair Work Act earlier this year? And if so, how many And what have been the issues and the results?

Senator, I can take that one. There’s been one application so far, under the new section 66M, that application was an employee in the social and community services sector. It was only recently received and it’s been allocated to a member for hearing.

[Roberts] Okay, so one application for an appeal to conversion. Correct?

Yes.

[Roberts] Thank you.

That’s correct.

[Roberts] Now moving onto another topic. Have wage theft cases increased or decreased in the last 12 months?

That’s a matter for the Fair Work Ombudsman. I understand that they’re giving evidence later this evening.

[Roberts] Yes, we’ve got some questions for them. Thank you. Small business owners frequently find that the cost of being away from work to defend a sometimes spurious, unfair dismissal case or other complaint is too much and they end up paying “go away” money, which everyone knows about, to the employee. What is the Fair Work Commission doing, or what could you do, to help small businesses and small business employees, especially given that they’ve done the heavy lifting during the COVID restrictions and downturn? And many are finding it hard now, both employees and small businesses.

I’m not too sure. I understand that the notes of the term “go away” money, Senator. I can’t say that I necessarily agree with it. There are, we receive approximately 15,000 unfair dismissal applications every year. About 80% of those applications are resolved through agreement, through reconciliation process.

[Roberts] What percentage, sir? I’m sorry.

About 80%.

[Roberts] Thank you.

For those that and the vast majority of them are conducted online, so on the telephone, at a time that hopefully suits both of the parties through that process. And there is no obligation, for the parties, the small business that you’re talking about employers to the employees, and to the applicants to settle but if they arrive at a settlement through that process, then the matter is finalised. They can obviously decide not to settle at that point and have the matter dealt with by a member through arbitration.

[Roberts] Okay.

Ms. Carruthers, anything else you’d like to add to that?

Thank you, Mr. Furlong. Senator I might just add as a useful bit of context, that in about 2/3 of cases where money is paid, it’s for less than $6,000. So they are modest amounts of money that are paid when payments are made. And payments are made in around 80% of matters that are settled.

[Roberts] Yeah, my point is that the Fair Work Act, when it’s printed out is about that thick, laid on its side, it’s that thick. It is so damn complex that employees and employers, don’t know what, small business employers and employees, don’t know where they stand. Many employees right across industry, all sizes of companies, don’t know where they stand and that’s not good enough. So with that, there comes, it’s much easier for one to rort the other, employer to rort the employee, and also for people to avoid accountability. So the complexity of the Fair Work Act is really hindering employment and hindering the employer-employee relationship, which is the fundamental relationship on a workplace. So that’s why I’m asking that question because we know talking to small businesses, listening to them, that they are not hiring people at times because of the complexity and their fear of what will happen. And we’ve got to remove that.

Senator there is a part of your question that we didn’t get to is about what we can do or what we are doing. There are a couple of very large projects that are underway at the moment to improve the services of the Commission. One of them, and it’s a very large project, is the redevelopment of our website. And at the moment, the language used on our website is, it’s technical. One of the major change, one of the major improvements, is there’s going to be, the new website is going to be written in very accessible, plain language. We’re aiming for someone with a year level literacy of eight to 10. We’ve also just kicked off a forms redevelopment project that applies or that will be applying data and behavioural insights, so behavioural economic insights. To ensure that the regulatory burden associated with making these applications and that people are informed, as best as they possibly can be, are a part of the process. So we are looking at ways that we can improve our service delivery and we’re acting on them at the moment.

[Roberts] Well, thank you. That’s encouraging. Fundamentally though, the Fair Work Act is highly complex and it doesn’t matter how we dress it up in practical language, it’s still going to be complex. That makes it difficult for both employees and employers to know what they’re accountable for and what their entitlements are. I appreciate you raising that. Thank you. Last questions on just another topic here. Can you please undertake to inform on the status of the Award Modernisation process that you’re undertaking?

You’re referring to the Four Yearly Review of Modern Award are you Senator?

[Roberts] Yes.

Okay. Do you have any questions in particular about the review? It’s a very, very large piece of work.

[Roberts] Is it progressing on schedule?

It is. It’s very close to being finalised. There are a number of common issues and Ms. Luby can talk to that for today’s, but one of the major initiatives that’s still being progressed is the plain language writing or rewriting of a number of Awards that’ve got high, high world reliance. So those Awards that have got a lot of employees covered by them or relying on them to set out their terms and conditions.

[Roberts] So…

Ms. Luby, do you have anything else to add to that?

Certainly. Thanks, Mr. Furlong. Thanks Senator. So the Four Yearly Review has, as you know been going on for a number of years. In terms of the Award specific reviews, there’s only seven Awards that are outstanding of the 122 that we started with. There are five of those Awards that are undergoing what we’re referring to as a plain language review, which goes to the point you were just making, and Mr. Furlong was making, about trying to make the terminology less complex. The others are the Nurse’s Award which is probably, it’s very close to completion. We’re hoping it will be completed by the end of July. A final draught has been published of that Award. And it’s just out for comment to ensure that there are no technical or drafting issues that have been incorporated in it. And the final other Award is the Black Coal Mining Award, where there’s one issue in relation to the interaction between shift work and weekend work penalties and the casual loading for staff employees. There was a conference about that yesterday but I understand the parties couldn’t come to an agreed position, so there’s a further conference scheduled in a couple of weeks.

[Roberts] Okay

So they’re the Award specific issues and then there are a number of common issues across the Awards that have progressed. But again, there’s only a small number of those that are left of the vast number of reviews that were undertaken over the last six years.

[Roberts] So while I see it as tinkering, it is a good step for having modernisation and simplification of the language in particular. So everyone knows where they stand.

Certainly. Senator. We agree.

[Roberts] Thank you. Thank you, Chair.

[Chair] Thank you, Senator Ro…

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Cost of climate policies – Productivity Commission Senate Estimates

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WILL ANYONE TELL ME THEY’VE CALCULATED HOW MUCH CLIMATE POLICY COSTS?

Our commissioned report by economist Dr Alan Moran estimates that climate policies cost Australians $13 billion every year. You would think on such a costly policy area the government would have made its own estimates. Well they haven’t, not even the Productivity Commission could give me a figure or tell me where the proof that human CO2 affects climate and needs to be cut is.

Transcript

Senator Roberts, you have the call.

[Malcolm Roberts] Thank you, Chair. And thank you for being here tonight. I understand the Productivity Commission does analysis of policy sometimes; impacts, so on. Good policy in my view would be based on specifically, particularly in terms of climate change and energy policies, would be based upon specified, quantified impacts of carbon dioxide. In other words, for a given amount of carbon dioxide output from humans, it would have a quantified effect on climate factors, such as temperature. Now you’ve written reports on climate change, I believe. Have you ever identified any specified quantified link between human carbon dioxide and any climate factor? Whether it be temperature, rainfall, droughts, storms, whatever. Specific quantified impact.

So Senator, sorry, Michael Brennan the Chair of the Productivity Commission. I would have to check, it’s a while since we’ve done work that went specifically to climate change or other related policies like energy policy. For the most part, the scientific basis for the work, I think has been based on findings from organisations like the IPCC. So it hasn’t been the practise of the commission to second guess the scientific assessment made by other entities. But possibly to make a judgement about the economic policy response and how best the economic policy response might sit with that science. But as I say, it’s some time, I would have to take on notice the last bit of work we have done that was specifically on climate or a related policy and confirm that response.

[Malcolm Roberts] So you’ve not been able to identify specific, quantified impacts between human carbon dioxide and temp and climate factors.

Well, I’m really saying that it wasn’t necessarily we would not have seen that as part of our…

[Malcolm Roberts] Yes. But you have to, yes. Okay. So I’m not finding you wrong for doing that, but you haven’t seen that. Have you assessed the, you have assessed the costs and benefits of policies?

I’m going to have to take that on notice because it’s a while. And I might even turn to Mr. Latimer because his history with the commission is longer than mine. It’s certainly in recent years, we haven’t done work in this area going back 10 to 15 years, possibly.

2012, we did some work on barriers to effective climate change adaptation, but we haven’t done a lot of work in this arena.

[Malcolm Roberts] Wouldn’t it be difficult to assess a policy if there’s no specified quantified link between the cause, the claimed cause carbon dioxide from human activity, and the impact supposedly?

Well, it could be potentially, but it would be, if we were to undertake work of that nature we would be taking the science as given by what we would take to be the expert scientific community.

Okay.

[Malcolm Roberts] We’ve had policies now going on at least 25, sorry, not in ’96, 25 years that are impacting energy, generation, agriculture, industry, transport, personal as well as business. And these had billions of dollars of impact throttling us back in our economy, especially relative to our competitors. Could you tell me, on notice, what advice you have given to governments? Not you, but the Productivity commission, has given to governments and MPs and ministers since 1996. Please, just the type of communication, the date, the type of communication, who it was sent to, and what the advice was, please?

You said it all. We can certainly take that on notice. It’ll be predominantly in the form of written reports that we will have published. That that’s our primary end for the most part, the overwhelming bulk of our communications with government.

[Malcolm Roberts] And if you could note the specific advice in there. Just a summary of that advice, please?

We’ll see what we can do. Yeah.

[Malcolm Roberts] Thank you very much. Thanks. Thanks Chair. That’s all.

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Will the Inspector General of Water Compliance have real teeth?

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There are many allegations of criminal activity and water stealing in the Murray Darling Basin. The Inspector General of Water is intended to be the cop on the beat and stamp out a lot of this non-compliance. I’ve travelled extensively across the Murray Darling Basin and spoken to locals on the ground.

I wanted to see if many of the issues I’d been told of had been brought to his attention.

Transcript

[Malcolm Roberts] Have you made contact with the New South Wales Natural Resources Access Regulator specifically in connection with unapproved water storages in New South Wales, including the Northern Basin?

I’ve had a number of contacts with Grant Barnes, the CEO of the Natural Resource Access Regulator and the Chairman Craig Knowles, not on that specific issue, more on general issues about our establishment and about metering and yeah, metering and a little bit about the water sharing plan on our last meeting.

[Malcolm Roberts] Are you aware, I’m not having a criticism of you, but are you aware of how much concern there is about water theft in the Northern Basin from people in other areas of the Murray-Darling Basin?

Oh, without question.

[Malcolm Roberts] Yeah. Okay. Thank you. That’s very reassuring.

Yes.

[Malcolm Roberts] So is there a timeframe for getting to the bottom of the question of how much water is being extracted in the Northern Basin as against the amount allowed by the plan?

Our work plan will, once we are legislated enact a number of assurance checks, auditing processes to get to answer a lot of those questions and then hopefully be able to work off a benchmark so that we can then answer those questions specifically.

[Malcolm Roberts] So I understand the legislation that enables your position is in the Lower House now?

That’s correct.

[Malcolm Roberts] And, so once that’s passed, how long do you think it’ll be before you have a good handle of that, three months, six months?

I can’t speculate on the parliamentary process or the ascension into from the Governor General.

[Malcolm Roberts] Once your position is created, legislated, how long will it take you to get a good handle on the Northern basin and the water?

We’ve already got a handle, we’ve made preparations with the scoping of a number of bodies of work that will be part of our work plan to start day one.

[Malcolm Roberts] And to get to the bottom of the issues and come up with some conclusions. How long roughly, do you think?

Well, there’s different timelines for different projects within that work plan, but they will all be transparently published on our website. So everyone will understand the work that we’re doing and the projects that we’re doing and the timeframes.

[Malcolm Roberts] That’s wonderful. When will that be available? I know it’s subject to the passage of the legislation.

The day we are enacted, it will be published.

[Malcolm Roberts] There’ll be a lot of people pleased to hear that. So we’ll be looking forward to it. If the enabling legislation passes as presented what tools do you have at your disposal to decide who is and who is not cheating on the basin plan? And what strategies would you be following?

It’s a difficult question to answer cause it’s case by case, or there’s holistic views, so, I guess if you’re talking about, if it’s a regional issue, like you referenced the Northern Basin, the legislation would allow us to potentially conduct an inquiry to get through some potential broader systematic issues that may be there. We have the ability through audit and compelling of information to inform potential river operation arrangements and how that’s measured and modelled and things like that. So there’s a number of different mechanisms depending on what the scope of the actual inquiry is. So your questions are very large, broad.

[Malcolm Roberts] So you can work at that level, but you can also work at the property level?

Exactly. Right. The property level would be less regular, we’re a regulator of last resort in that instance but there would be circumstances where we would do that and the legislation allows us to have authorised officers to conduct that work. But yes, it’s a tiered ability from an inquiry through to audit and assurance, checking and through to individual investigations.

[Malcolm Roberts] And you will also have the authority to appoint people to do that work for you?

Yes.

[Malcolm Roberts] So you’re going to have foot soldiers for you?

Yes. I will have under the statute the ability to, not sure of the exact word but to create the authorised officer or officers.

[Malcolm Roberts] So you’ll have all that’s needed to enforce the Murray-Darling Basin Plan, make sure there’s no favouritism to any area.

Yes, and part of the MoG arrangements is making sure that each of those authorised officers have the appropriate training, skill sets and to allow me to approve them as Commonwealth investigators as an authorised officer.

[Malcolm Roberts] Okay. ‘Cause there’s a lot of concern about cheating on the plan.

I’ve heard that loud and clear Senator.

[Malcolm Roberts] What other matters are you investigating right now?

We don’t have the powers to formally investigate.

[Malcolm Roberts] Sorry. Yeah. Okay. What are you evaluating right now? What will you be investigating

We’re scoping and canvassing everything from standards, trying to understand benchmark of standards because the inconsistency from valley to valley, state to state, north to south basin is significant. So we’re canvassing that and have a body of work prepared for that, river operations, metering, trade, which there’s specific legislation in relation to trade. There’s specific legislation that allows me to create standards and benchmarks. Now that’s done in cooperation with the basin states obviously because a lot of the state legislation may need adjustment depending on what agreed standards and benchmarks that are created as well, so it’s a variant scale of work.

[Malcolm Roberts] I’m very pleased to hear that you’ve used the word variation because there is enormous variation, particularly between the north and south, that makes it very difficult for people in those areas to understand the other areas. But what specific topics are on your radar? What issues?

Senator, all of them to be frank and because a lot of them are interrelated, there’s a lot of misinformation out there as well. So we have a role to be a myth buster and independent communicator of truth and make sure that the data that people rely on and the modelling that’s relied on has an independent validation as well. There’s a componentry role that we’ll play there. It’s a very broad role, but metering measurement through to water operations through to environmental water and outcomes. It’s everything.

[Malcolm Roberts] So trading?

I have, yes, I have powers under the act in relation to trading, but limited resources and mindful of of the recent ACCC’s work and recommendations which is currently under consideration by all states and the federal government.

[Malcolm Roberts] And what about making recommendations and changing systems to enable you to better oversee the trading in any breaches of trading regulations?

Yes.

[Malcolm Roberts] You’ve got the ability and the support to be able to make changes?

I won’t have the power to be the– up through the Basin Official Committee into MinCO for those.

[Malcolm Roberts] Because it seems at the moment trading is something that is difficult to enforce for a variety of reasons, but you’ll be able to get through that.

Well, I’ll be able to assist the Ministerial Council and Basin Officials Committee.

[Malcolm Roberts] Okay. Thank you Chair, that’s all I have.

[Chair] Thank you Senator Roberts.

[Malcolm Roberts] And I appreciate your direct answers. Thank you.

No, you’re welcome, Senator.

Chair could I just add to those answers by saying that, of course the relevant bill was introduced to The House of Representatives this week, through the explanatory materials, the minister’s second reading speech and the explanatory memorandum outlines many of the issues that the Inspector General has just been talking about and I’ve just reacquainted myself with the explanatory memorandum. It’s written in a very good style and it outlines the proposed powers of the Inspector General, the offence provisions and the various other issues that have been outlined here. So I would commend that to the attention of the committee.

[Malcolm Roberts] Thank you chair. Mr. Metcalf, Mr. Grant will then have the ability for things that are not defined in the regulations or in the legislation to actually go and talk to someone to make sure that they’re covered somehow?

Well, Mr. Grant, or the Inspector General, once appointed, would certainly be charged with the administration of those aspects of compliance and Mr. Grant’s interim Inspector General has indicated the work that’s underway at the moment, but also the preparations, the very detailed preparations that have been put in place to ensure that when the legislation and if the legislation is passed, the Inspector General will be able to hit the ground running.

[Malcolm Roberts] Apart from variation, another word that keeps cropping up is complexity in the Murray-Darling Basin Plan and the work of the Authority. So, Mr. Grant is human and he’s already had some input into the legislation, as I understand it, is that correct?

[Mr. Grant] Yes.

[Malcolm Roberts] You mentioned that at the last Estimates I think, but he’s human so he won’t be able to understand everything quickly. So there’ll be need for changes of his approach or maybe changes that he couldn’t foresee a few months ago.

Well, certainly the Inspector General and Mr. Grant has outlined the fact that the Inspector General and the staff of the Inspector General will be a cop on the beat, that they will have staff, quite a significant resourcing out there in the Basin, working on a daily basis on these issues. And of course, if there are views that arrangements are not working properly, as Mr. Grant has explained, there’s a loop back through the Basin Officials Committee, given that this is a shared space between the Commonwealth and the states and the ACT to consider whether adjustments need to be made. So, the fact that there will be an on the ground presence will be a particularly powerful way of ensuring that things are actually working and if they need improvements then things can be done about it.

[Malcolm Roberts] Thank you.

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