Andrew McLachlan

I will now deal with the amendments to the Help to Buy Bill 2023 circulated by Senator Thorpe. The question is that the amendments on sheet 2902 circulated by Senator Thorpe be agreed to.

Senator Thorpe's circulated amendments—

(1) Clause 24, page 16 (after line 27), at the end of the clause, add:

(5) The first instrument made under subsection (1) must include a direction about the matter covered by subsection 25(2A).

Note: The instrument may also include directions about other matters.

(2) Clause 25, page 17 (after line 21), after subclause (2), insert:

Priority Help to Buy arrangements

(2A) The matter covered by this subsection is the prioritisation by Housing Australia of Help to Buy arrangements that are for the benefit of persons who are one or more of the following:

(a) a person with disability;

(b) a First Nations person;

(c) an older woman;

so that the following occurs:

(d) 10% of Help to Buy arrangements entered into (not including the arrangements covered by paragraph (e) or (f)) are for the benefit of persons with disability;

(e) 10% of Help to Buy arrangements entered into (not including the arrangements covered by paragraph (d) or (f)) are for the benefit of First Nations persons;

(f) 10% of Help to Buy arrangements entered into (not including the arrangements covered by paragraph (d) or (e)) are for the benefit of older women.

(2B) A direction about the matter covered by subsection (2A) must set out the criteria for prioritising Help to Buy arrangements as outlined in that subsection.

Andrew McLachlan

The question is that the amendments on sheets 2850 and 2851, as circulated by Senators David Pocock, Lambie and Van, be agreed to.

Senator David Pocock 's , the Jacqui Lambie Network 's and Senator Van's circulated amendments

SHEET 2850

(1) Clause 45, page 33 (after line 22), after subclause (1), insert:

(1A) Without limiting subsection (1), the review must consider the extent to which the operation of the Help to Buy program has:

(a) assisted in enabling access to home ownership for those otherwise likely to have been permanently excluded from home ownership; and

(b) assisted in enabling access to home ownership more quickly than likely to have been achieved without the Help to Buy program; and

(c) effectively integrated with other Commonwealth, state and territory first home buyer assistance programs, as envisaged in the National Housing and Homelessness Plan.

_____

SHEET 2851

(1) Clause 3, page 2 (lines 13 to 18), omit the clause, substitute:

3 Object of this Act

The object of this Act is to give Housing Australia the function of entering into shared equity arrangements on behalf of the Commonwealth in relation to residential property to improve housing outcomes for as many Australians as possible by assisting low-income and middle-income individuals to buy homes, with a particular focus on improving housing outcomes for historically disadvantaged Australians including older women and First Nations peoples, and to enable individuals facing mortgage repossession and possible homelessness to remain in home ownership.

(2) Clause 25, page 17 (lines 14 to 17), omit paragraphs (2)(a) and (b).

(3) Clause 25, page 17 (after line 21), after subclause 25(2), insert:

(2A) Without limiting subsection (1), the Help to Buy Program Directions must include directions about the following matters relating to Help to Buy arrangements:

(a) a requirement for Housing Australia to enter into, as far as practicable, a minimum of 30,000 Help to Buy arrangements in each financial year;

(b) a requirement for Housing Australia to ensure, as far as practicable, that at least one third of the total number of Help to Buy arrangements in each financial year are entered into with older women or First Nations peoples.

(4) Clause 26, page 18 (after line 14), at the end of the clause, add:

(3) The Minister must not give a direction under paragraph 24(1)(a) that has the purpose, or has or is likely to have the effect, of directly or indirectly limiting:

(a) the period during which Housing Australia may enter into Help to Buy arrangements; or

(b) the total number of residential properties in relation to which Housing Australia may enter into Help to Buy arrangements.

Tim Ayres

I table a supplementary explanatory memorandum relating to the government amendments to be moved to the Help to Buy Bill 2023.

Mehreen Faruqi

by leave—In respect of the Help to Buy Bill 2023, I move Greens amendments (1) and (2) on sheet 3160 together:

(1) Clause 25, page 17 (after line 21), after subclause (2), insert:

(2A) Directions in the Help to Buy Program Directions about the matter mentioned in paragraph (2)(c) must require housing Australia to prioritise entering into Help to Buy arrangements in relation to priority residential properties.

(2B) Directions in the Help to Buy Program Directions about the matter mentioned in paragraph (2)(d) must provide that the Commonwealth's maximum contribution under a Help to Buy arrangement in relation to a residential property is:

(a) if the property is a priority residential property—40% of the cost of acquiring the property; and

(b) otherwise—30% of the cost of acquiring the property.

(2C) For the purposes of subsections (2A) and (2B), a priority residential property is a residential property that:

(a) will be, is being or has been built; and

(b) has not been previously occupied; and

(c) is or will be a Class 2 building (within the meaning of the National Construction Code); and

(d) is or will be located within 800 metres of a train or light rail station, a tram, bus or ferry stop, or any other public transport service that is frequently available for use by the public.

(2) Clause 26, page 18 (after line 14), at the end of the clause, add:

(3) The Minister must not give a direction under paragraph 24(1)(a) that has, or is likely to have, the effect of:

(a) requiring a party to a Help to Buy arrangement to repay an amount to the Commonwealth if the party's income exceeds a specified threshold; or

(b) requiring the Board or Housing Australia to terminate a Help to Buy arrangement if the income of a party to the arrangement exceeds a specified threshold.

Despite months of keeping our doors open and despite months of offers to compromise and negotiate on securing some housing policies that will actually impact people's lives, Labor have refused to budge and made it clear that they don't care about the depth and the extent of the housing crisis. Last year, the Greens secured $3 billion in new investments for social housing, which is six times more than what the government has proposed to spend. This year, despite the need being even greater, the government has snubbed every opportunity to work together with the Greens again, and we are—we have to admit this—bitterly disappointed that Labor has turned down an opportunity to house up to 60,000 people currently on the brink of homelessness. The government's build-to-rent and Help to Buy schemes sound nice, but they really are just tinkering around the edges.

The Greens will, however, pass the government's bills, both build to rent and Help to Buy, because we're now just months away from an election and we want to focus on keeping Mr Dutton and his fearmongering and politics-of-division coalition out of the Lodge. That is going to be our focus. There does come a point in every negotiation where you've pushed as far as you can, and we have reached that point. We have tried so hard to get Labor to shift on soaring rents and negative gearing, but we couldn't get there this time around.

So we'll wave these housing bills through and take the fight to the next election, where we will keep Peter Dutton out and we will fight even harder for renters and first home buyers. We will wave through Labor's Help to Buy Bill and also Labor's build-to-rent bill after accepting that Labor doesn't care enough about first home buyers to do anything really meaningful for them, like scrapping the unfair tax handouts to property investors that drive up house prices or establishing a public developer to build and sell homes cheaply to save first home buyers up to $249,000.

The bill we're debating is deeply inadequate for the—really, you can call it monstrous—affordability crisis facing first home buyers, because, for the average family, the typical home costs eight times their income. It now takes 10 years to save for a deposit. If they've managed to save one, mortgage repayments could take up to 60 per cent of their income. How is that fair? Help to Buy tinkers around the edges, helping, at most, 0.2 per cent of renters every year and leaving the other 99.8 per cent behind to face a brutal housing system and doing nothing to address the out-of-control house price rises, which have really made it impossible to buy a house in most cities around the country.

We've also tried our best to work with Labor to secure changes to investor tax concessions that could see up to 770,000 renters become homeowners, but, like I said earlier, we have come to a point where Labor doesn't want to do anything more than just tinker around the edges. So here we are. But we will make one more attempt to make this bill better. That's what these amendments are about.

Through amendment (1) on sheet 3160 we are trying to secure changes that would encourage the affordable well-located medium-density housing our cities need that isn't being delivered. It is not being delivered by profit focused developers. We want to do that, rather than simply having an inflationary effect on the cost of existing housing and new-build suburban sprawl. This amendment would require Housing Australia to prioritise properties for the Help to Buy program that support the delivery of new affordable homes in medium- and high-density locations that are close to public housing. This would ensure that this bill delivers the housing that we need, rather than simply driving up the prices of existing homes. If the government were serious about delivering on the housing crisis and ensuring that the bill is fit for purpose, then they would support this amendment.

The second amendment prohibits the minister from directing that a participant in the Help to Buy program must repay the government share of their homes if they exceed the income threshold, following their successful entry into the program. The income thresholds are already so low. If the bill passes as is, participants may be penalised for changed circumstances, even after they have been able to buy a property. This income trap is really unfair. This amendment would ensure that Help to Buy homes remain affordable throughout the buyer's lifetime, without penalties for people going through any changing circumstances. I commend both the amendments to the Senate.

Andrew Bragg

I indicate that we will not be supporting this bill or these amendments. The reason for that is that we believe that the government, having presided over a massive collapse in housing construction—from as high as 220,000 houses in 2018 down to 160,000 houses this year, the same amount of houses that we had in 1989 when the population was just 17 million—has created a terrible situation for so many, particularly younger, Australians—millennials, gen Z—who feel that the Australian dream is out of reach for them. A large part of that is because of the collapse in housing construction. It's very hard to solve this problem of housing—we all care about housing—unless you get the houses built. Ultimately, the numbers don't lie. We're down to 160,000 houses this year. So we are in a terrible position in this country on the supply side. The government, seemingly having given up on supply, now wants us to consider a demand-side bill for which no modelling has been done by the government on its impact and which is very clearly only going to work at the absolute margins for very few people.

These shared-equity schemes have been massively unpopular for cultural reasons. Australians do not want to co-own their house with any government, and the reason that these schemes have been so unpopular at the state and territory level is all the problems that that proposes. The Australian dream is not about co-owning your house with Mr Albanese or any government.

These shared-equity schemes have been undersubscribed at the state level, and so the idea that the Commonwealth would come in now and seek to put in place a shared-equity scheme as their only demand-side measure, without any other consideration of other demand-side policies that they may be able to deploy to support what is ultimately a supply challenge, is very regrettable. So we are opposed to the Help to Buy Bill for cultural reasons. But we are also opposed to it because it is not very imaginative. There are other things that the government could have done to help people with a deposit. They could have opened up superannuation, but they don't want to do that because that doesn't suit their vested interests. They could have looked at the lending laws. It's pretty hard to get a first house without a mortgage, but they haven't bothered to look at the mortgage rules. This is their only policy.

As we traversed this at Senate estimates with Senator Gallagher, the Minister for Finance, she made it very clear that this is the government's only demand-side policy. This is it—a friendless shared-equity scheme, one that will cost the Commonwealth $5.5 billion and offer a maximum of 40,000 places. To give you an idea of the scale of the problem, we need to be building about a quarter of a million houses a year in this country. This is a tiny but very expensive scheme which has already proven to be very unpopular.

I indicate that we will be opposing this bill. We will be opposing all of the amendments in this debate, and I look forward to asking some questions now we're in committee of the whole. I might see if others want to make a contribution before I do that.

Malcolm Roberts

I have questions. I asked three questions in my speech in the second reading debate. My first question goes to the minister. It seems that the government will essentially become the second mortgagor to a bank on a home loan. In the event of a default or price fall, is a bank entitled to recover all of its losses before the government recovers any money, due to this priority? Secondly, what is the priority of security the government holds compared to the bank mortgage?

Glenn Sterle

We will go back to Senator Faruqi's amendments and then come back to open and broad debate.

Tim Ayres

The government will not be supporting either of the amendments from the Greens. I'll go into further detail if required, but the basis for this is that the legislation must match the legislation in the states and the territories for it to be properly founded. That makes the referral of powers valid and ensures that the legislation is constitutional. The legislation already passed in Queensland earlier this year. So, as a matter of process, that means that the government is unable to support that amendment. However, on the substance, we believe that Australians should have housing choices. If Australians want to live next to a train station close to the city or on a farm in the bush, that's their choice. It's not a choice for government.

In relation to the second amendment, we have the same objection—that is, the legislation has already been passed in Queensland, and the government wants to ensure that the referral of powers is valid and constitutional.

However, on the substance of the proposition that sits behind the amendment, it is a matter for ministerial program directions, not the legislation before the Senate right now. The program directions make it very clear that, if a participant earns above the income caps and cannot pay the government's share, they won't be required to. But, if someone can—for example, if someone earns a million dollars—we should expect them to start to pay back the taxpayer and expect this money to be recycled through the scheme to support other low- and middle-income Australians. Section 36(11) of the program directions notes that 'Housing Australia may not seek payment in certain circumstances' after considering 'the participant's personal circumstance and financial capacity'.

Glenn Sterle

The question is that Australian Greens' amendments (1) and (2) on sheet 3160 be agreed to.

Question negatived.

Tim Ayres

Shall I respond to Senator Roberts's question?

The TEMPORARY CHAIR: That would be helpful.

There are two questions, I think, sitting in Senator Roberts's question. Will the government own people's homes or will the government be on the title? The answer to that is very straightforward. Contrary to Senator Bragg's political assertion, the government will not be a co-owner of scheme properties and will not be on the title; rather, the government's contribution in participants' homes will be secured through a second mortgage. The government's interest is more akin to a private mortgage holder. Help to Buy applicants will need to be approved for a mortgage with a lender participating in the scheme. That is the role that lenders will have in the Help to Buy scheme. Lenders will manage those mortgages just as they typically do with other home loans.

Malcolm Roberts

Thank you, Minister. Just to confirm, the bank or the lender would be the first mortgagor and the government would be the second?

Tim Ayres

Yes, that's exactly right, and there are, of course, other arrangements that people have in the private sector that that will look very similar—that is, for the participant, the relationship with the approved lender and the second mortgage will be exactly the same as other Australians have, but there will be a lower mortgage threshold and lower repayments for that group of Australians who satisfy the criteria.

Malcolm Roberts

In the event of a default or price fall, is the bank entitled to recover its losses before the government does? That would seem to be the case.

Tim Ayres

Yes. Just like in an arrangement that you might have or any other Queenslander might have with their lender, there are shared risks and shared benefits.

Andrew Bragg

Minister, can I take you to the price caps. What is the price cap in Sydney?

Long debate text truncated.

Lidia Thorpe

I move:

(1) That there be laid on the table by the Minister representing the Attorney-General statements which detail the expenditure by the Commonwealth on:

(a) funding for Aboriginal and Torres Strait Islander Legal Services by state and territory, including funding allocations made by states and territories; and

(b) funding for National Family Violence Prevention Legal Service providers including funding allocations made by states and territories.

(2) That the statements are due not later than the tenth day after the end of the preceding three month period commencing 1 January, 1 April, 1 July, and 1 October.

(3) That each statement is to include:

(a) details of how this expenditure addresses any funding shortfalls predicted by the Aboriginal and Torres Strait Islander Legal Services and National Family Violence Prevention Legal Service providers, by state and territory; and

(b) an explanation of the purpose of the expenditure and the outcomes it is expected to deliver.

(4) That this order is of continuing effect.

Katy Gallagher

I seek leave to make a short statement.

Andrew McLachlan

Leave is granted for one minute.

Katy Gallagher

The government will not be supporting this motion. The Prime Minister's significant announcement following National Cabinet in September demonstrates our government's commitment to access to justice. First ministers have signed a heads of agreement for a new National Access to Justice Partnership. This partnership will commence on 1 July 2025 and will deliver vital supports to all parts of the legal assistance sector, including Aboriginal and Torres Strait Islander legal services and family violence prevention legal services. The new $3.9 billion agreement is due to be finalised by the end of this month. It's the biggest Commonwealth commitment to legal assistance ever. The allocation of this new money will be finalised through the Standing Council of Attorneys-General very shortly. All of the information Senator Thorpe seeks through this motion can be accessed through Senate estimates, which renders this motion unnecessary.

Andrew McLachlan

The question is that the motion moved by Senator Thorpe be agreed to.

Sue Lines

We are doing the second reading on the Universities Accord (Student Support and Other Measures) Bill 2024, but there are a number of deferred motions; that's what we're dealing with at the moment. The first deferred motion is in the name of Senator Henderson. The question is that the motion as moved by Senator Henderson be agreed to.

Lidia Thorpe

I move:

That—

(a) the Senate notes that:

(i) on 3 October 2024, questions on notice nos 3633 to 3679 were submitted, requesting that ministers of all portfolios provide specific information relating to the use of non-disclosure agreements (NDAs) in this term of Parliament,

(ii) a number of ministers responded to questions with identical answers stating that 'governments of all persuasions have used non­-disclosure agreements (NDAs) from time to time to assist in the development of policies and legislative proposals' and multiple others responded that they did not keep 'centralised records', and

(iii) the answers to the questions provided by the ministers did not provide the information sought by the questions;

(b) there be laid on the table by the ministers to which the questions were directed, by midday on 27 November 2024, revised answers to questions on notice nos 3633 to 3679 (excluding questions on notice nos 3634, 3635, 3643, 3645, 3646, 3648, 3649, 3652, 3660, 3661, 3663, 3668 and 3672), placed on notice on 3 October 2024, that provide the information sought by the questions; and

(c) if this order has not been complied with by midday on 27 November 2024 the Senate requires the Minister representing the Prime Minister to attend the Senate at the conclusion of motions to take note of answers to provide an explanation, of no more than 5 minutes, of why the answers have not been provided, and that:

(i) any senator may move to take note of the explanation, and

(ii) the motion may be debated for no longer than 30 minutes, shall have precedence over all other business until determined, and senators may speak to the motion for not more than 5 minutes each.

Jonathon Duniam

Deputy President, could I ask that paragraphs (a) and (b) be put separately to paragraph (c) for this motion?

Andrew McLachlan

At the request of the opposition, I'm going to split the question, so there will be two questions. The first question is that paragraphs (a) and (b) of the motion moved by Senator Thorpe be agreed to.

Question agreed to.

The question now is that paragraph (c) of the motion moved by Senator Thorpe be agreed to.

The Senate divided. [16:21]

(The Deputy President—Senator McLachlan)

Question negatived.

Katy Gallagher

I move:

That this bill be now read a third time.

Matt O'Sullivan

The question is that the bill be read a third time.

Anne Ruston

I move the opposition amendment on sheet 3080:

(1) Clause 23, page 49 (after line 34), at the end of the clause, add:

(13) An individual has a right to access, at any time the individual chooses, a person designated by the individual, or a person designated by an appropriate authority.

This amendment seeks to make sure that no person in aged care can, in the future, ever be denied access to see the person that they designate, or the person that is designated under the appropriate authority. We need to make sure that, if we're going to embed choice, control and rights for older Australians into this act, one of the most fundamental rights of anybody is to be able to get access to the people they love.

We know we have to ensure the safety of everybody in a workplace, but you have to remember that the workplace we're talking about when we refer to residential aged-care homes is the home of the person. We believe that it is absolutely essential that never again older Australians are denied access to their loved ones for any reason whatsoever. We believe that every home in Australia should be able to provide for a situation where, no matter what the circumstances, an older Australian can always get access to their loved one. To be denied access to see somebody that you care for or love, in the final days of your life, is, we think, completely unacceptable. Therefore, we are moving this amendment to make sure an individual always has the right to access, at any time, the person that they choose, a person designated by them, or a person designated by an appropriate authority, if that individual is unable to make that decision for themselves. I would highly commend this particular amendment to the chamber.

It was certainly something that came up during the inquiry, and it really related to older Australians being able to have the dignity of risk. If older an Australian makes the decision that it is their preferred situation to see a loved one, even if that loved one has got the flu or something that potentially may be harmful to that individual, they should have the dignity of risk to in choosing whether they see them. I would absolutely commend this particular amendment to the house.

I want to put on the record a piece of evidence that was received from Margaret. Margaret was one of our lived-experience witnesses during the inquiry, and she made a comment that really struck home to me. And if we are really, really serious about making sure that we are giving choice and control back to older Australians—and that's the fundamental premise of why we're standing here all day today talking about the details of this bill; it's about making sure that older Australians and their rights, their choice and their control are at the centre of the framework that delivers aged care in Australia going forward—then I think the words of Margaret are really important. Margaret is 76 years old, and this is what she had to say:

The ongoing elephant in the room is the perceived dichotomy between duty of care and dignity of risk. If people were encouraged to spend their whole lives, from babyhood, cocooned in their own homes, never opening the door and venturing into the outside, they might be physically safer; however, we know that would mean they would miss out on most, if not all, of the joys and challenges that risk brings, that life brings—the mental and psychological health that we all aspire to… We want to have the option to choose the right to take risks according to our own priority, not to be wrapped up irrespective of our own. Too often, as people age, they are perceived as having higher and higher needs for priority to go to care rather than to activities and options that give them some entertainment or even joy.

We believe part of that fundamental right and that dignity of risk is for them to see the people they love when they want to.

Katy Gallagher

The government will not be supporting the amendment. The Aged Care Bill already addresses the issue raised by Senator Ruston. Part 4 of chapter 1 establishes the role of supporters in the context of decision-making. Chapter 3, part 4, division 1, clause 156(1)(a) and 156(1)(b) establish, as a condition of registration, a registered provider must allow and facilitate access to persons including supporters, advocates and aged-care volunteer visitors in accordance with any requirements prescribed by the rules. Chapter 1, part 3, division 1, clause 23(12) also provides:

(12) An individual has a right to opportunities, and assistance, to stay 24 connected … with:

(a) significant persons in the individual's life and pets, including through safe visitation by family members, friends, volunteers or other visitors where the individual lives and visits to family members or friends …

The rules pertaining to clause 156(1)(a) and 156(1)(b) are under development, and requirements for access for the stipulated persons will be considered through that.

Anne Ruston

Minister, you make the comment that you believe this is contained already. We don't believe that it's already contained in there. There are a whole heap of conditional words that are used within the various sections that you talk about. Also, we have yet to see the specific rules. Are they available?

Katy Gallagher

No, they are not available yet.

Anne Ruston

My question to the government is: what is the harm in putting something into the legislation that is really concrete and underpins the absolutely fundamental basis of what we're trying to achieve here in terms of the rights of older Australians? We haven't seen the rules, so we don't know what's in them, but, if you say that everything that we are trying to achieve by this very simple amendment—all the amendment says is to add a clause saying:

(13) An individual has a right to access, at any time the individual chooses, a person designated by the individual, or a person designated by an appropriate authority.

It is not a convoluted amendment that has a whole heap of potential unintended consequences. It's pretty straightforward. I'm really keen to understand: what is the basis on which the government would not be allowing older Australians this basic human right?

Katy Gallagher

Senator Ruston, I acknowledge your right to move the amendment. We agree to disagree on this. We think it is already contained in the bill and will subsequently be further provided for in the rules. So we are opposed to the amendment but accept that you have moved the amendment.

Andrew McLachlan

The question before the committee is that the amendment on sheet 3080 as moved by Senator Ruston be agreed to.

Larissa Waters

With the Senate failing to support our amendment to insert criminal penalties and the amendment you just voted down to remove chapter 4 from the bill, the Greens can no longer support the passage of this legislation. We are deeply concerned that the parliament is conceding the opportunity for once-in-a-generation reform to the self-interest of for-profit providers at the expense of participants. With the rejection of our amendment to put criminal penalties back into the bill, we have significant concerns about the enforceability of the rights based framework. We've long supported the shift to the rights based framework, but older people, their advocates and their loved ones have been clear that those rights must be unequivocal, clear and enforceable. Aspirational rights do not go anywhere near the heart of the problem in aged care. The operation of Australia's aged-care system as a market means the incentive for providers to profit always trumps the provision of high-quality care. Further, we're worried the bill will usher in a permanent state of expanded means testing and user pays. Instead of treating aged care as health care, we'll turn it into a marketplace. Participants and the government will continue to subsidise for-profit aged-care providers. We cannot risk a two-tiered system that bakes in equality. The elderly are not commodities; they're people. First and foremost, aged care must be universal, and for these reasons we cannot support the passage of the bill. I'll now seek leave to move the last lot of Greens amendments to the bill.

Leave granted.

I move amendments (1) to (5) on sheet 3101 as well as amendments on sheet 3102 to sheet 3104 altogether:

SHEET 3101

(1) Clause 547, page 508 (before line 4), insert:

Internal disclosures

(2) Clause 547, page 508 (line 4), omit "A disclosure", substitute "(1) A disclosure".

(3) Clause 547, page 508 (lines 17 to 19), omit paragraph 547(c), substitute:

(c) the discloser has reasonable grounds to suspect that the information:

(i) indicates that an entity may have contravened a provision of this Act; or

(ii) indicates that an entity may have engaged in conduct covered by subsection (2); or

(iii) if an entity is a body corporate—indicates that a related body corporate of the entity may have engaged in conduct covered by subsection (2); or

(iv) concerns misconduct, or an improper state of affairs or circumstances, in relation to an entity.

(4) Clause 547, page 508 (after line 19), at the end of clause 547, add:

(2) This subsection covers the following conduct:

(a) conduct that constitutes an offence against a law of the Commonwealth that is punishable by imprisonment for a period of 12 months or more;

(b) conduct that represents a danger to the public or an individual who accesses the aged care system;

(c) conduct that is prescribed by the rules.

(3) A disclosure covered by subsection (1) is an internal disclosure.

(4) Subsection (1) does not apply to a disclosure of information to the extent the information disclosed concerns a personal work-related grievance of the discloser.

External disclosures

(5) A disclosure of information (an external disclosure) by an individual (the discloser) qualifies for protection under this section if:

(a) the discloser has previously made an internal disclosure of the information; and

(b) the person to whom the internal disclosure was made:

(i) took no action in relation to the internal disclosure; or

(ii) did not complete an investigation in relation to the internal disclosure before the end of the period of 90 days beginning on the day the internal disclosure was made; or

(iii) completed an investigation in relation to the internal disclosure that resulted in no further action being taken; and

(c) the external disclosure is made to one or more of the following:

(i) a member (however described) of the Parliament of the Commonwealth or a State, or of the legislature of a Territory;

(ii) a person who works in a professional capacity as a journalist; and

(d) the discloser reasonably believes that the external disclosure is in the public interest.

Disclosures to support persons

(6) A disclosure of information by an individual (the discloser) qualifies for protection under this section if:

(a) the disclosure is made to one or more of the following:

(i) an officer or employee of a trade union;

(ii) an independent aged care advocate;

(iii) a legal practitioner; and

(b) the disclosure is made for the purposes of seeking support or advice in relation to the information, or another disclosure relating to the information.

(7) A disclosure of information by an individual (the discloser) qualifies for protection under this section if:

(a) the disclosure is made to a medical practitioner or psychologist; and

(b) the disclosure is made for the purposes of seeking or obtaining medical or psychiatric care, treatment or counselling (including psychological counselling).

(5) Clause 550, page 511 (line 3), omit "paragraph 547(c)" substitute "paragraph 547(1)(c)".

_____

SHEET 3102

(1) Page 509 (after line 3), after clause 548, insert:

548A Claims for protection

(1) If, in civil or criminal proceedings (the primary proceedings) instituted against an individual in a court, the individual makes a claim (relevant to the proceedings) that, because of section 548, the individual is not subject to any civil, criminal or administrative liability for making a disclosure that qualifies for protection under section 547:

(a) the individual bears the onus of adducing or pointing to evidence that suggests a reasonable possibility that the claim is made out; and

(b) if the individual discharges that onus—the party instituting the primary proceedings against the individual bears the onus of proving that the claim is not made out; and

(c) the court must deal with the claim in separate proceedings; and

(d) the court must adjourn the primary proceedings until the claim has been dealt with; and

(e) none of the following:

(i) any admission made by the individual in the separate proceedings;

(ii) any information given by the individual in the separate proceedings;

(iii) any other evidence adduced by the individual in the separate proceedings;

is admissible in evidence against the individual except in proceedings in respect of the falsity of the admission, information or evidence; and

(f) if the individual or another person gives evidence in the separate proceedings in support of the claim—giving that evidence does not amount to a waiver of privilege for the purposes of the primary proceedings or any other proceedings.

(2) To avoid doubt, a right under section 126K of the Evidence Act 1995 not to be compelled to give evidence is a privilege for the purposes of paragraph (1)(f) of this section.

_____

SHEET 3103

(1) Clause 551, page 511 (after line 24), after subclause (2), insert:

(2A) In proceedings for a civil penalty order against an entity for a contravention of subsection (1):

(a) the person seeking the order bears the onus of adducing or pointing to evidence that suggests a reasonable possibility of the matters in paragraphs (1)(a) and (b); and

(b) if that onus is discharged—the entity bears the onus of proving that the claim is not made out.

(2) Clause 551, page 512 (after line 19), after subclause (5), insert:

(5A) In proceedings for a civil penalty order against an entity for a contravention of subsection (3):

(a) the person seeking the order bears the onus of adducing or pointing to evidence that suggests a reasonable possibility of the matters in paragraphs (3)(a) and (b); and

(b) if that onus is discharged—the entity bears the onus of proving that the claim is not made out.

_____

SHEET 3104

(1) Page 509 (after line 22), after clause 549, insert:

549A Certain recipients to take steps to protect disclosers

If:

(a) an individual makes a disclosure that qualifies for protection under section 547 to an entity (the recipient); and

(b) the recipient is:

(i) a registered provider; or

(ii) a responsible person of a registered provider;

the recipient must take such steps as are reasonable in the circumstances to protect the individual against any reprisals that have been, or may be, taken in relation to the disclosure.

The Greens are concerned about the strength of the whistleblower provisions contained in the bill. In the absence of a worker voice, it's critical that participants and workers are protected from adverse consequences for whistleblowing. The royal commission shows that people must feel safe to speak up when something is wrong, particularly in a sector like aged care, where it can be a matter of life or death. These amendments go towards strengthening the protections for whistleblowers, and we strongly encourage the Senate to support them.

Katy Gallagher

The government will not be supporting these amendments. The Aged Care Bill introduces a new expanded whistleblower framework to ensure that anyone is protected if they make a whistleblower disclosure about aged care. Whistleblowers will be protected from any civil, criminal or administrative liability, including disciplinary action. No contractual or other right or remedy may be exercised against a whistleblower on the basis of a disclosure.

The identity of whistleblowers will be also protected and not be disclosed except in limited circumstances, or with the consent of the whistleblower. An example of a circumstance in which their identity may be disclosed includes, where necessary, to lessen or prevent a serious threat to safety, health or wellbeing. Neither a whistleblower nor any individual who employs or is associated with them may be victimised or threatened by any entity as a result of making a protected disclosure or for intending to make such a disclosure. For example, if a family member or staff member makes a disclosure on behalf of an older person, the older person must also not be victimised under the bill.

David Pocock

Given where we are at with whistleblowers in this country—and the government is currently prosecuting Richard Boyle—it seems to me that taking on expert advice and beefing up whistleblower protections is a very good thing, so I certainly will be supporting the Greens' effort to do that.

Andrew McLachlan

The question before the committee is that amendments on sheets 3101, 3102, 3103 and 3104, standing in the name of the Australian Greens, be agreed to.

Andrew McLachlan

The committee is considering the Aged Care Bill 2024. The question before the committee is that the bill, as amended, be agreed to.

Larissa Waters

by leave—On behalf of Senator Allman-Payne, I move amendments (1) to (10) on sheet 3110 together:

(1) Heading to subclause 179(3), page 186 (line 23), omit "Serious", substitute "Civil penalty provision__serious".

(2) Clause 179, page 187 (after line 4), after subclause 179(3), insert:

Strict liability offence serious failures

(3A) A registered provider commits an offence of strict liability if:

(a) the provider has a duty under subsection (1); and

(b) the provider engages in conduct that does not comply with the duty; and

(c) the conduct amounts to a serious failure by the provider to comply with the duty.

Penalty:

(a) in the case of an offence committed by a registered provider that is an individual—150 penalty units; or

(b) in the case of an offence committed by a registered provider other than an individual—1,000 penalty units.

(3) Heading to subclause 179(5), page 187 (line 12), omit "Death", substitute "Civil penalty provision__death".

(4) Clause 179, page 187 (after line 25), at the end of clause 179, add:

Strict liability offence death or serious injury or illness

(6) A registered provider commits an offence of strict liability if:

(a) the provider has a duty under subsection (1); and

(b) the provider engages in conduct; and

(c) the conduct amounts to a serious failure by the provider to comply with the duty; and

(d) the conduct results in the death of, or serious injury to, or illness of, an individual to whom the duty is owed.

Penalty:

(a) in the case of an offence committed by a registered provider that is an individual—500 penalty units; or

(b) in the case of an offence committed by a registered provider other than an individual—4,800 penalty units.

Fault-based offence death or serious injury or illness

(7) A registered provider commits an offence if:

(a) the provider has a duty under subsection (1); and

(b) the provider engages in conduct; and

(c) the conduct amounts to a serious failure by the provider to comply with the duty; and

(d) the conduct results in the death of, or serious injury to, or illness of, an individual to whom the duty is owed.

Penalty:

(a) in the case of an offence committed by a registered provider that is an individual—1,000 penalty units or 5 years imprisonment or both; or

(b) in the case of an offence committed by a registered provider other than an individual—9,500 penalty units.

General defence of reasonable excuse

(8) Subsection (3A), (6) or (7) does not apply if the registered provider has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

(5) Clause 180, page 188 (lines 19 to 22), omit subclause 180(3), substitute:

(3) A person may be found liable to pay a civil penalty under this Act, or be convicted or found guilty of an offence against a provision of this Act, relating to a duty under this section whether or not the registered provider has been found liable to pay a civil penalty under section 179, or been convicted or found guilty of an offence against section 179.

(6) Heading to subclause 180(4), page 188 (line 23), omit "Serious", substitute "Civil penalty provision__serious".

(7) Clause 180, page 188 (after line 30), after subclause 180(4), insert:

Strict liability offence serious failures

(4A) A person commits an offence of strict liability if:

(a) the person has a duty under subsection (1); and

(b) the person engages in conduct that does not comply with the duty; and

(c) the conduct amounts to a serious failure by the provider to comply with the duty.

Penalty: 150 penalty units.

(8) Heading to subclause 189(6), page 189 (line 4), omit "Death", substitute "Civil penalty provision__death".

(9) Clause 180, page 189 (after line 15), at the end of clause 180, add:

Strict liability offence death or serious injury or illness

(7) A person commits an offence of strict liability if:

(a) the person has a duty under subsection (1); and

(b) the person engages in conduct; and

(c) the conduct amounts to a serious failure by the person to comply with the duty; and

(d) the conduct results in the death of, or serious injury to, or illness of, an individual to whom the duty in section 179 is owed by the registered provider.

Penalty: 500 penalty units.

Fault-based offence death or serious injury or illness

(8) A person commits an offence if:

(a) the person has a duty under subsection (1); and

(b) the person engages in conduct; and

(c) the conduct amounts to a serious failure by the person to comply with the duty; and

(d) the conduct results in the death of, or serious injury to, or illness of, an individual to whom the duty in section 179 is owed by the registered provider.

Penalty: 1,000 penalty units or 5 years imprisonment or both.

General defence of reasonable excuse

(9) Subsection (4A), (7) or (8) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).

(10) Clause 186, page 191 (line 7), after "subsection 179(3) or (5)", insert "or is found guilty of an offence against subsection 179(3A), (6) or (7)".

The Greens have long called for and supported a shift to a rights based framework. Advocates and older people have made clear that older people must have rights that are not only unequivocally clear but also enforceable. It is a key concern for the Greens and many others that the rights within this bill remain aspirational for providers. The removal of the criminal penalties has been a significant problem for many participants and advocates. This has been bitterly disappointing for participants and their loved ones seeking justice, and we strongly urge the government to support the inclusion of criminal penalties in the bill to signal to participants that their rights are enforceable and that they can seek justice.

It is a wonderful move that we are moving to a rights based framework but it makes a mockery of that move if those rights are not enforceable. We understand that the reason that part was taken out was to please the Liberals, and what an appalling outcome.

Question negatived.

Linda Reynolds

Minister, I wanted to pick up with a line of questioning from Senator Ruston this morning. As I understand it, if I heard correctly, you talked about the enabling ICT changes that need to occur to implement this system to have it operational. Can you just confirm that you said that it would be delivered by 1 July next year and that the implementation is critical for this scheme to take effect?

Katy Gallagher

Sorry, Senator Reynolds. What was the second part of your question?

Linda Reynolds

REYNOLDS () (): The first one was about the criticality of the IT system to the effective implementation of these reforms, and the second one was about your having said that all the system changes will be implemented by 1 July next year.

Katy Gallagher

I don't have the budget papers in front of me, but I believe that it was phased over the forward estimates in terms of expenditure. But the ICT changes that will need to be in place for 1 July 2025 will be in place.

Linda Reynolds

Thank you, Minister. So they will be in place by 1 July. Is that the changes required by the My Aged Care system—that is, Health and Services Australia—or is that also all of the providers, because obviously the providers need to have their systems updated as well?

Katy Gallagher

We did cover this this morning at some length. That is just for the government's internal systems. In terms of the providers, there is a small grant round of $10 million, providing grants of $10,000 for those providers in the Support at Home program, who are going to face the majority of the most significant changes. For many of the other providers, including in residential care, we don't believe that there will be significant change, although I know that there are some providers who disagree with that. This is a matter that the transition taskforce no doubt will be considering. It has its first meeting next Thursday, so I imagine things like this will be on the agenda. But, for providers who aren't directly involved with the new Support at Home program, we expect the ICT needs to be minimal. In fact, it's more of a reporting into the system that the government has than requiring a new system for themselves.

Linda Reynolds

Thank you, Minister. Would it be safe to say that these reforms that are in the current legislation can't be implemented until the IT system is in place?

Katy Gallagher

Not all of it will be dependent on the IT system. Elements of it will, but not all of it, because there are a whole range of other changes in the legislation that wouldn't be dependent on the IT program being in place. But we are conscious that, for some elements of it, we do need that in place, including for the Support at Home program, and that needs to be in place by 1 July 2025.

Linda Reynolds

Minister, can you describe, then, what elements will be impacted and won't be able to be delivered if the IT system reforms are not in place?

Katy Gallagher

The government's program will be to enable registered provider operation under the new act through reforms, including Support at Home, places to people, worker screening and registration, and some of the regulatory framework subsidies and payments. It will also streamline interactions with government through the existing GPMS, service referrals, payments and reporting. So, if we're going to the hypothetical of what would be affected if the system were not in place, I would say that those would be the key areas.

Linda Reynolds

So, essentially, they're the key elements to be delivered under this policy change. Can I just clarify something that I may have misheard. I have the budget papers here and had a look. In the budget papers for 2024-25 it does say that it was $1.2 billion over five years from 2023-24—last financial year. Did I correctly hear you say that it was $1.5 billion now?

Katy Gallagher

No, it's $1.2 billion.

Linda Reynolds

It is $1.2 billion? Thank you. That's helpful. Also in the budget measures for improving aged-care ICT support, which are, as we know, going to be delivered by Services Australia, the actual delivery is over five years. Can the minister explain why it's over five years, what things are going to be delivered over the next seven months to get it operational by 1 July, and what is the remainder of funding for the forward estimates?

Katy Gallagher

I am again advised that all of the features needed to start on 1 July 2025 will be done. I think from memory—I just don't have the budget papers in front of me—that it is frontloaded across the forward estimates. So we expect that upfront build, but then there will be continuing costs—maintenance and otherwise—of the system that you would expect with any large IT program. I'll see if there's any further information. Of the $1.2 billion, $589 million was provided as sustainment funding critical to maintain core ICT systems which are central to the continued operation of the aged-care system. Core ICT includes Aged Care Gateway and the Government Provider Management System, as well as associated business to government, B2G, and the aged-care data warehouse systems. Costs include platform hosting, software licensing, cybersecurity, general operating costs and digital contractors once the current funding expires on 30 June 2024.

Linda Reynolds

So that is $589 million of the $1.2 billion. If I understand it correctly, that's to maintain and upgrade the core ICT systems. Is that correct? If that's correct, what's the rest of the $1.2 billion being spent on, and when?

Katy Gallagher

The rest has been allocated for new or enhanced funding for foundational reform, including the new Aged Care Act, GPMS, B2G and the integration of My Health Record and My Aged Care.

Linda Reynolds

Thank you very much, Minister. That's very interesting. So $600,000 is for systems integration and to provide some of those essential services. You mentioned the integration with My Health Record. Is that correct?

Katy Gallagher

Yes.

Long debate text truncated.