National Disability Insurance Scheme Legislation Amendment Bill 2013 and DisabilityCare Australia Fund Bill 2013 and eleven related bills

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:

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:

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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