New Stolen Wages: Update
Following the article written on the 8th November quite a bit has happened. Firstly, written refusal was sought from the trustee as to exactly why the claim under severe financial hardship (SFH) was refused. This was identified as being because the "Q230 form was not produced". It was again stated that the Q230 could not be produced by Centrelink not because Abstudy wasn't a "Commonwealth Income Support Payment" but because it is financed by DEEWR not by DSS and therefore administratively Centrelink cannot produce a Q230. However, again it was pointed out that, according to the 1994 Regulations, Centrelink the "Commonwealth body responsible for administering that class of payment" had already supplied "written evidence" but the trustee still refused release of the Super as they were "bound by the legislation".
The Issue was then brought before the Superannuation Complaint Tribunal who after initial inspection were going to take the case to tribunal but then when pressured for an opinion withdrew their support claiming initially that "the regulations definition of Commonwealth Income Support Payment does not include Abstudy". When this was questioned and their decision appealed the Tribunal responded by reiterating that the 1994 Regulations did not define Abstudy as an "income support payment" (note the absent Commonwealth this time) that "Q230 was merely a code" and moreover that, "neither the Tribunal nor the Trustee have any discretion to order or allow the release of funds under SFH unless the applicant had been in receipt of the CISP for 26 weeks or more". Any further appeal of the Superannuation Complaints Tribunal decision would require applying to the Federal Court.
I have written back to the SCT expresing my views on their response and lodged a complaint with the Australian Human Rights Commission challenging the 1994 Regulations as unconstitutional as it violates the Racial Discrimination Act 1975. As I have exemplified the Regulations neither clearly "include" or "exclude" Abstudy and that not only is Q230 not stated in the legislation but all that it requires is for "written evidence" (This is not further defined by the regulations). Moreover, that Abstudy, Centrelink, DEEWR, and the Commonwealth Ombudsman all define Abstudy as a CISP. That the person had been receiving this payment for more than 26 weeks and that written evidence from the Commonwealth body administering the payment had already been supplied stating exactly that; which is all the regulations actually ask for. Furthermore, it was also pointed out that Centrelink considered that not to release the benefit would go against the intention of the Abstudy policy entirely.
So far the Commonwealth Ombudsman has responded stating that whilst it is not in their jurisdiction to respond they agree with the crux of this issue, that is:
That not only should Abstudy students be allowed to access their Super in this manner when facing SFH but so should other Australian students (such as Youth Allowance and Austudy). Also that, the min. age of release for Super for Indigenous Australians should be reduced from 55 given that on average Indigenous Australians live 12-18 years less then Non-Indigenous Australians, to do otherwise would be discriminatory. Moreover, that whilst morgatees can receive release of Super via the Australian Prudential Regulation Authority (APRA) to avoid losing their house that those renting a house cannot release their Super as they are not covered by the act as unfair and discriminatory since the end result is still the same - loss of housing. Not an ideal way to increase retention of Indigenous or non-Indigenous students by removing their housing.
Pending response from Australian Human Rights this issue will be promoted further maybe for appeal to the Federal Court.
New Stolen Wages: Superannuation and Indigenous Australians
The Human Rights Watchgroup of Australia has been closely involved with an Indigenous family who have been trying to release some of their Superannuation funds under the Severe Financial Hardship clause of the Superannuation Industry (Supervision) Regulations 1994. For some 4 months now this Indigenous family have been forced to follow up this issue by themselves with both Federal Government bodies and the Superannuation Industry in order to save their housing. What follows is an Update on the legal status of Indigenous Australian's and their rights to reclaim their superannuation money and the actions of the Superannuation Industry to try and block it. These actions are not only illegal and breach Federal Government Legislation they also allow for the families Human Rights and those of other Indigenous Australians to be further violated in an action that can only be seen as deliberate, discriminatory and unjust. As per usual Indigenous Australians have to fight claw and tooth just to gain what every other Australian expects.
The New Stolen Wages: Update
In order to exemplify the issue we need to firstly review what the Commonwealth Department of Social Security (DSS) under their 1991 act defines as Severe Financial Hardship. This is the Government "standard" for the definition - please imagine how this applies to your own financial situation.
"(3) A person who is a member of a couple is in severe financial hardship for the purposes of qualifying for a crisis payment if the value of the person's liquid assets (within the meaning of subsections 14A(1) and (2)) is less than twice the fortnightly amount at the maximum payment rate of the social security pension or the social security benefit that is payable to the person."
SOCIAL SECURITY ACT 1991 - SECT 19D Severe financial hardship--crisis payment definition
Liquid assets is defined as "liquid assets" we take this to have the meaning of liquid or available assets freely on hand such as cash, money in savings accounts and items that are easily transferable into available cash. The family in question, as would be most Indigenous families, are clearly suffering from Severe Financial Hardship and have been for some time.
In order to stop rental proceedings from evicting them from their privately rented dwelling the family looked towards the Superannuation as a way to immediately resolve their situation. Under Superannuation legislation there are limited conditions as to having grounds to release super funds. The Australian Prudential Regulatory Authority (APRA) outlines these on their website and they are quite specific. If you are renting a property through either the housing departments or privately APRA cannot assist you to release funds unless they are required to immediately pay your Medical treatment, medical transport or funeral expenses under certain conditions. So if you are just in debt or owe back rent they are not able to assist the release of Superannuation funds in anyway. The Superannuation company involved "UniSuper" however, state clearly on their brochure entitled "Super Options when you leave your job" dated 17th September 2008 p.17, that you can release part of you super under Severe Financial Hardships grounds. Moreover, under the Superannuation Industry (Supervision) Regulation 1994 which is the governing legislation under which ALL superannuation companies operate, and therefore must adhere to, there is a clause for Severe Financial Hardship release (Part 6, Division 6.1, Subdivision 6.1.1, Clause 5).
The clause states that:
"(5) For the purposes of Schedule 1, a person is taken to be in severe financial hardship if:
(a) the trustee of a superannuation entity is satisfied:
(i) based on written evidence provided by at least one Commonwealth department or agency responsible for administering a class of Commonwealth income support payments, that:
(A) the person has received Commonwealth income support payments for a continuous period of 26 weeks; and
(B) the person was in receipt of payments of that kind on the date of the written evidence; and
(ii) that the person is unable to meet reasonable and immediate family living expenses."
As the person concerned had been forced to resign from her employment and was being paid Abstudy to continue her PhD studies, and had been for a period of 26 weeks and was also continuing to be paid Abstudy it appeared a straight forward operation. In fact when one considers the plight of Indigenous Australians to even get to this level of study on Abstudy is quite a major achievement and the thought of two months from completing a PhD having to uproot and move, with no additional funds or support, was a ridiculous ask. With this in mind we endeavoured to release the funds. Initially, UniSuper informed us that this should not be a problem, you could release up to $10,000 of Super, and that we would require a Q230 form from Centrelink to state that the correct payments and entitlements were being received when the 26 week mark was met. The family then waited for the payments to meet the 26 week requirement by minimising on every expense they could until the 6 month point was reached.
When the point was reached Centerlink was asked to produce a Q230 form and the family were immediately rejected being informed by Centrelink that they cannot produce a Q230 letter on Abstudy. Turning back to the Superannuation legislation point 5 above it states "a Commonwealth income support payment (CISP)" so we began by defining what Abstudy is? The Super legislation defines CISP as:
"Commonwealth income support payment means:
(a) an income support supplement, service pension or social security pension as defined in subsection 23 (1) of the Social Security Act 1991; or
(b) a social security benefit as defined in that subsection, other than:
(i) an austudy payment; or
(ii) a youth allowance paid to a person who is undertaking full-time study; or
(c) a drought relief payment under the Farm Household Support Act 1992 as in force immediately before the commencement of the Farm Household Support Amendment (Restart and Exceptional Circumstances) Act 1997; or
(d) an exceptional circumstances relief payment under the Farm Household Support Act 1992; or
(e) a payment of salary or wages made under the employment scheme of the Commonwealth that is known as the Community Development Employment Projects Scheme."
Under the clause mentioned above and under subsection 23 (1) this does not exclude or include Abstudy - a failing of the legislation? No, the reason why Centrelink cannot provide a Q230 is not because Abstudy does not apply, but because all the other payments are financed by DSS but not Abstudy which is financed by the Department of Education, Employment and Workplace Relations (DEEWR). Therefore, the administration system of Centrelink will not let them input let alone produce a Q230 letter and this is purely an administrative problem. However, Centrelink are authorised and did produce "written evidence" under section 196 of the Social Security (Administration) Act 1999 that the customer had been on Abstudy for 26 weeks and that she was currently and would continue to be on those payments. As the Office for the Minister for DEEWR clarified - whilst they do finance Abstudy, Centrelink is actually the "administering Commonwealth Government Body" and they are the correct body to be writing the letter under the terms of the legislation. This letter was then sent to UniSuper with an expectation that the super would be released. Furthermore, four Commonwealth government departments including Centrelink, Abstudy, DEEWR and the Commonwealth Ombudsman all viewed that Abstudy was a Commonwealth Income Support Payment. Moreover, that in fact Centrelink and DSS stated that to consider it anything else would be "contrary to Abstudy provisions" and "not meet the intention of Abstudy policy" which is defined in the Abstudy manual as:
"The purpose of the ABSTUDY scheme is to address the particular educational disadvantages faced by Aboriginal and Torres Strait Islander people by improving educational outcomes to a level commensurate with the Australian population in general. ABSTUDY policy aims to encourage eligible Indigenous students to take full advantage of available educational opportunities and improve their employment opportunities."
Moreover, that the objective of Abstudy is to:
- encourage Aboriginal and Torres Strait Islander people to take full advantage of the educational opportunities available;
- promote equity of educational opportunity; and
- improve educational outcomes.
Two weeks later UniSuper has again denied the application stating that they "require a Q230 form" to release any funds. It was pointed out that this is not correct and that the legislation clearly states that "based on written evidence provided by at least one Commonwealth department or agency responsible for administering a class of Commonwealth income support payments". Which does not mention Q230 and clearly indicates "written evidence" from Centrelink stating so which UniSuper already had in their possession for three weeks. In fact, there is virtually no difference between a Q230 letter and the letter Centrelink generated and it has no other additional information other than the words Q230 stamped on it.
UniSuper's legal department then changed their story stating that it "wasn't a CISP" until they were given the definition and the supporting comments mentioned above. They then changed their tack again, stating this time that under the act they "are not obliged" and it is at their "discretion" to release funds and basically refused. It was pointed out to them that to do so would be in breach of the legislation set out to control Superannuation companies in Australia and as such was breaking Commonwealth law however, they continue to refuse.
The issue is now back before the Commonwealth Ombudsman office as a complaint. Additionally, the Victorian Legal Services Commissioner has received a complaint from the family in regards to the actions and conduct of the Legal counsels at Unisuper and has also been forwarded to the Commonwealth Minister for Superannuation for his urgent attention. Furthermore, the family will tomorrow have to go to the Rental Tenancy Tribunal and explain why they have failed to pay the back rent they owe, to avoid being de-housed. I am sure the Tribunal will not view the actions of the Superannuation industry and the lack of adherence to Australian Law to highly.
Further Updates will be given on this issue as they become available.
So much for "Closing the Gap" it seems that it is only a policy term and not an actual action - So much for "Sorry" - Well at least for Superannuation anyway, what's worse is the Indigenous community themselves are left to drive and investigate this themselves on their own budget as usual - whilst others who should be administering and enforcing these issues do very little - if anything - to enforce the Law of Australia. Negligence is certainly high on the list of comments I would have in regards to these issues. If however the family had not been studying and instead were sitting on the Dole receiving social security pension for doing nothing they would have been fully entitled to these funds with a Q230 - So please take note and check your superannuation policies - you may be able to release some funds and some severe financial hardship that you may NOT have to endure.
Simon Charles Dorante-Day BA, BEng, M.R.G.C.
(c) Human Rights Watchgroup of Australia 2010.
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