National Disability
Insurance Scheme Legislation Amendment Bill 2013 and DisabilityCare Australia
Fund Bill 2013 and eleven related bills
Portfolio:
Social Services
Introduced: House of
Representatives, 15 May 2013
Purpose
2.1
The National Disability Insurance Scheme Legislation Amendment Bill 2013
sought to amend the National Disability Insurance Scheme Act 2013 (NDIS
Act) to:
-
clarify the range of matters relating to the National Disability
Insurance Scheme (NDIS) that can be prescribed by rules made under the NDIS Act;
-
strengthen the governance and financial framework of the NDIS
Scheme Launch Transition Agency (DisabilityCare Australia); and
-
clarify the intended operation of provisions relating to
compensation claims.
2.2
The DisabilityCare Australia Fund Bill 2013 (DisabilityCare bill) and
eleven related bills sought to establish a special fund, the DisabilityCare
Australia Fund, to house the revenue raised by the increase in the Medicare
levy. The DisabilityCare bill set out the arrangements for the administration
of the Fund, and made consequential amendments to other tax rates linked to the
top marginal rate and Medicare levy.
Background
2.3
The committee initially commented on the bills in its Seventh Report
of 2013. The committee made subsequent comments in its First Report of
the 44th Parliament and Third Report of the 44th Parliament.
2.4
The National Disability Insurance Scheme Legislation Amendment Bill 2013
and the DisabilityCare bill were passed by both Houses on 16 May 2013 and
received Royal Assent on 28 May 2013.
Committee view on compatibility
Right of equality and
non-discrimination
Exemption from the Age
Discrimination Act 2004
2.5
The committee's view was that general exemptions to the provisions of
the anti-discrimination statutes are in general to be avoided, unless there is
a compelling case that such an exemption is needed. The committee noted that
partial or temporary exemptions may be necessary and accepted that this may be
so in relation to the establishment of trial sites for the NDIS. However, the
committee considered that the legitimate goal of ensuring that the NDIS can be
phased in could be achieved without adopting the general exemption which the
legislation contains.
2.6
The committee noted its concern at the use of a general exemption,
unlimited as to time, to advance a goal which is limited and temporary in
nature, without any substantive engagement with the committee's views on the
issue of whether a more limited exemption or exclusion would serve those goals
equally well.
Assistant Minister's response
The Australian Government supports the protections provided
by the federal anti-discrimination legislation and understands the concern of
the Parliamentary Joint Committee in relation to the breadth of a general
exemption from the Age Discrimination Act 2004. As the Government has
previously advised the Committee, a number of alternatives, including limited
exemptions, were considered but it was concluded that these alternatives were
not able to adequately achieve the necessary policy objectives.
As the Government advised, without a general exemption from
the Age Discrimination Act [2004], any new temporary age-based
restrictions in trial sites could constitute unlawful age discrimination. New
trial sites have been negotiated since the commencement of the trials and the
flexibility created by the legislation has allowed those negotiations to take
place. The Government will continue to require this flexibility in the context
of continuing negotiations with State and Territory governments about trials
leading to transition and full implementation.
The decision to seek a general exemption was a decision of
the previous Government. The operation of the National Disability Insurance
Scheme Act 2013 must be reviewed independently after two years of
operation. Subject to the agreement of the Disability Reform Council, the
exemption from the Age Discrimination Act 2004 may form part of that
review. This would provide further information that could assist the Government
in reassessing whether a more restricted exemption could fulfil the necessary
policy objectives outlined above.
As previously advised, the Australian Government does not
envisage undertaking any additional acts which would fall within the exemption
in the Age Discrimination Act, except those analogous to the existing
exemptions in establishing trial sites. The Government notes that the general
exemption from the Age Discrimination Act only applies to acts done in direct
compliance with the NDIS Act. Any other acts of unlawful discrimination carried
out through the course of administering the scheme and Act, and which are not
in direct compliance with the Act itself, are still prohibited under the Age
Discrimination Act 2004.[1]
Committee response
2.7
The committee thanks the Assistant Minister for Social Services
for his response and has concluded its examination of this matter.
2.8
However, in light of the potential inconsistency of the general
exemption to the Age Discrimination Act 2004 with the right to equality
and non-discrimination[2],
the committee recommends that the Disability Reform Council consider this issue
in its review of the NDIS Act.
Concerns about the cut-off age of
65 and the supports offered by the aged care system
2.9
In its First Report of the 44th Parliament the committee
recommended that the cut-off eligibility age of 65 for the NDIS be evaluated
when the NDIS Act is reviewed after two years in accordance with section 208 of
that Act.
2.10
In its Third Report of the 44th Parliament the committee noted
that the Assistant Minister's response of 3 February 2014 had not responded to
that recommendation and requested a response.
Assistant Minister's response
Subject to the agreement of the Disability Reform Council,
the age restrictions on eligibility could be part of the review into the
operation of the National Disability Insurance Scheme Act 2013 that is required
under section 208 of the Act.[3]
Committee response
2.11
The committee thanks the Assistant Minister for Social Services
for his response and has concluded its examination of this matter.
2.12
However, noting the assistant minister's advice, the committee recommends
that the Disability Reform Council consider this issue in its review of the
NDIS Act.
The position of New Zealand
citizens who are non-protected SCV holders
2.13
The committee sought further information from the Assistant Minister for
Social Services in regards to whether the exclusion of non-protected SCV
holders from the NDIS is differential treatment amounting to discrimination
under the ICCPR, ICESCR and ICERD, or whether the exclusion is based on
objective and reasonable justification in pursuit of a legitimate goal. In
particular, the committee would appreciate the following specific information:
-
In relation to the claim that exclusion is a reasonable and
proportionate measure to ensure the financial sustainability of the NDIS,
details of the additional costs that would be involved if access to the NDIS
were extended to non-protected SCV holders and the amount of revenue that their
contributions by way of the NDIS levy would raise;
-
Whether there is a disparity in the numbers of Australian
citizens receiving welfare and other benefits in New Zealand compared with the
number of New Zealand citizens receiving such benefits in Australia; what the
net cost to Australia is; and whether there is any transfer of funds between
the two governments to reflect this; and
-
Whether all non-protected SCV holders are eligible to apply for
Australian permanent residence or citizenship, or whether age requirements or
other conditions may prevent some of those, in particular those affected
adversely by the 2001 changes, from doing so, and whether the number of those
who might be ineligible is known.
Assistant Minister's response
New Zealanders on a special category visa (SCV) have a temporary
visa which provides a mechanism for the free movement of New Zealanders and
Australians between the two countries. It is difficult to quantify how many
visa holders will be in Australia at any time. This capacity for fluctuation
means that it is difficult to determine the additional costs that would be
caused by extending coverage of the NDIS to New Zealanders on special category
visas, or the amount of revenue that may be generated by these individuals
through the NDIS levy.
The transfer of funds between the Australian and New Zealand
government in relation to welfare benefits is largely the legacy of previous
agreements and not a major part of the current arrangements. Prior to the
revised Social Security Agreement that commenced in 2001, New Zealand would
provide Australia funds in relation to payments made by the Australian
Government to its citizens. After the revised Social Security Agreement was
concluded individuals receive payments directly from the relevant governments.
Under the Agreement, Australia and New Zealand share responsibility for paying
certain benefits, broadly according to the period people have lived in both
Australia and New Zealand (between 20 and 65 years of age). A person will
generally be entitled to two pensions - one from New Zealand and one from
Australia. Generally the two pensions, when added together, would equal the
amount of pension an individual would have received had they lived all their
life in one country. The revised Agreement does not cover working age payments such
as Parenting Payment (single or partnered), Newstart allowance, sickness
allowance or special benefit. Transfers between the governments are only in the
form of legacy payments that account for the previous agreement.
Like the nationals of other countries, New Zealand citizens
seeking an option to apply for a permanent visa are encouraged to explore the
range of visa options available under the Family and Skill streams.
Alternatively, people who spent time in Australia as a New Zealand citizen
prior to 1 September 1994 may be considered former permanent residents and can
be eligible for the Subclass 155 Resident Return visa.
While there is a diverse range of permanent visas available,
the Australian Government does acknowledge that there will be some temporary
visa holders, including Special Category Visa holders, who will not be able to
meet the requirements for a permanent visa, despite having lived in Australia
for many years. All permanent visas have a health requirement that takes into
account the cost to the Australian community or the impact on the access to
services of the person becoming a permanent visa holder. In some visa
categories there is a health waiver available, where a person's individual
circumstances can be considered, which in the case of New Zealand citizens
includes their existing access to Medicare and existing support to disability
benefits and services under the bi-lateral agreement.
Based on analysis of passenger card data, the Department of
Immigration and Border Protection estimates that around 40 per cent of New
Zealand citizens living in Australia would appear to have a permanent visa
pathway available.[4]
Committee response
2.14
The committee thanks the Assistant Minister for Social Services
for his response and has concluded its examination of this matter.
2.15
However, the committee notes that under the International
Covenant on Civil and Political Rights (ICCPR) and the International Covenant
on Economic Social and Cultural Rights (ICESCR), non-citizens are entitled to
the enjoyment of the human rights guaranteed by the covenants without
discrimination.[5]
The Convention on the Rights of Persons with Disabilities (CPRD) also
guarantees persons with disabilities the equal enjoyment of human rights
without discrimination.[6]
Exclusion from access to certain benefits, such as the NDIS, on the grounds of
immigration status may therefore amount to discrimination, unless the
distinction can be shown to be based on reasonable and objective criteria in pursuit
of a legitimate objective.
2.16
Therefore, the committee recommends that the Disability Reform
Council consider this issue in its review of the NDIS Act.
Response to the Joint Report of the
Productivity Commissions
2.17
The committee sought further advice from the Assistant Minister for
Social Services in regards to whether the Australian government has adopted a
position in relation to the recommendations of the two Productivity Commissions
addressed to the Australian government relating to SCV visa holders, and how those
recommendations will be progressed, as indicated in the joint statement of 7 February
2014 by the prime ministers of Australia and New Zealand.
Minister's response
The Australian Government is considering the recommendations
of the joint report Strengthening trans-Tasman economic relations. As
the Committee notes, both Prime Ministers are committed to review the progress
on implementing the report's recommendations at the next Leaders' meeting in
2015.[7]
Committee response
2.18
The committee thanks the Assistant Minister for Social Services
for his response and has concluded its examination of this matter.
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