Footnotes

Chapter 1 - Introduction

[1]        Journals of the Senate, No. 33—19 June 2014, pp 914–916.

[2]        Journals of the Senate, No. 46­—26 August 2014, p. 1289.

[3]        Department of Social Services, 'Australian Disability Enterprises', available at: http://www.dss.gov.au/our-responsibilities/disability-and-carers/program-services/for-service-providers/australian-disability-enterprises (accessed 24 July 2014).

[4]        The employee is graded with reference to Schedule B–Classifications of the Supported Employment Services Award 2010 (MA000103) (Federal Award): clause 14.1.

[5]        Clauses 14.2 and 14.4 of the Federal Award.

[6]        Clause 14.4(b) of the Federal Award.

[7]        Department of Social Services, 'Wage assessments in Australian Disability Enterprises', available at: http://www.dss.gov.au/our-responsibilities/disability-and-carers/program-services/for-people-with-disability/wage-assessments-in-australian-disability-enterprises (accessed 24 July 2014).

[8]        Nojin v Commonwealth of Australia [2012] FCAFC 192 at para 1 per Buchanan J.

[9]        Nojin v Commonwealth of Australia [2012] FCAFC 192.

[10]      Nojin v Commonwealth of Australia [2012] FCAFC 192 at para 142 per Buchanan J.

[11]      Commonwealth of Australia and Anor v Prior; Commonwealth of Australia v Nojin and Anor [2013] HCATrans 101 (10 May 2013) per Crennan J.

[12]      On behalf of the Commonwealth, the application sought exemption from section 29 (administration of Commonwealth laws and programs) of the Disability Discrimination Act 1992 (Disability Discrimination Act); on behalf of Australian Disability Enterprises, the application sought exemption from sections 15 (discrimination in employment) and 24 (goods, services and facilities) of the Disability Discrimination Act.

[13]      Department of Social Security, 'Application for Temporary Exemption under Section 55 of the Disability Discrimination Act 1992', 5 September 2013, p. 1, available at: https://www.humanrights.gov.au/sites/default/files/FaHCSIA%20-%20DDA%20Exemption%20Application.pdf (accessed 24 July 2014).

[14]      The consultations included a call for submissions and requests for further information. Over 100 submissions and four responses to requests for further information were received by the Australian Human Rights Commission (AHRC).

[15]      AHRC, 'Disability Discrimination Act 1992 (CTH), s 55(1), Notice of Grant of a Temporary Exemption', p. 1, available at: https://www.humanrights.gov.au/sites/default/files/20140429_Notice_of_Exemption_BSWAT.pdf (accessed 24 July 2014). The Supported Wage System is the second 'approved wage assessment tool' owned by the Australian Government and used in mainstream employment.

[16]      The Hon. Kevin Andrews MP, Minister for Social Services (Minister), and Senator the Hon. Mitch Fifield, Assistant Minister for Social Services, 'Payment scheme for workers assessed under the Business Services Wage Assessment Tool', Joint Media Release, 15 January 2014.

[17]      The Minister, House Hansard, 5 June 2014, p. 1.

[18]      Explanatory Memorandum (EM), p. 1. The bills refer to 'intellectual impairment' rather than 'intellectual disability' however this report uses the more common terminology.

[19]      Part 5 of the Business Services Wage Assessment Tool Payment Scheme Bill 2014 (Bill) outlines various administrative matters associated with the payment scheme; Part 6 of the Bill deals with miscellaneous matters.

[20]      These Commonwealth Acts are: the Income Tax Assessment Act 1936; the Social Security Act 1991; the Social Security (Administration) Act 1999; the Veterans' Entitlements Act 1986.

[21]      Clauses 1–2 of the Business Services Wage Assessment Tool (Consequential Amendments) Bill 2014 (Consequential Bill).

[22]      Clauses 3 and 6 of the Consequential Bill.

[23]      Clauses 4–5 of the Consequential Bill.

[24]      EM, p. 2.

[25]      Clause 99 of the Bill.

[26]      Alert Digest 6/14, 18 June 2014, pp 9–16. Further information was sought from the Minister on a number of matters: provisions relating to external review; delegation of legislative power in clause 56 of the Bill; reversal of onus of proof in sub-clause 73(2) of the Bill; disclosure of 'protected information' in clause 81 of the Bill; broad delegation of administrative powers in clause 100 of the Bill; appropriateness of the delegation of legislative power in clause 102 of the Bill.

[27]      Parliamentary Joint Committee on Human Rights, Examination of legislation in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, Bills introduced 23-26 June 2014, Legislative Instruments received 7-20 June 2014, Ninth Report of the 44^th Parliament, 15 July 2014, pp 2–12.

[28]      Parliamentary Joint Committee on Human Rights, Examination of legislation in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, Bills introduced 23-26 June 2014, Legislative Instruments received 7-20 June 2014, Ninth Report of the 44^th Parliament, 15 July 2014, p. 2.

[29]      For example: calculation of the 'payment amount' in clause 8 of the Bill; release and indemnity provisions in clauses 9–10 of the Bill; nominee provisions in Part 4 of the Bill; timeframes set out in the Bill.

[30]      See: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs.

Chapter 2 - Key issues

[1]        The terms 'productivity-scored wage' and 'actual wage' are defined in sub-clause 8(5) of the Bill.

[2]        Some submitters questioned the individual assessment of applications, arguing that supported employees with intellectual disability previously assessed using the BSWAT should be automatically eligible for the BSWAT Payment Scheme: AED Legal Centre, Submission 9, p. 9; JobWatch Inc., Submission 15, p. 9.

[3]        AED Legal Centre noted that the 'payment amount' will cover a specific period only (1 January 2004 – 28 May 2014), notwithstanding the use of completed BSWAT assessments pending replacement of the BSWAT: Submission 9, p. 2. Also see: Australian Centre for Disability Law, Submission 22, p. 2; Mr Herman Borenstein QC, Counsel, Maurice Blackburn, Lawyers, Committee Hansard, 24 July 2014, p. 34; sub-clause 6(2) of the Bill.

[4]        Submission 18, p. 1.

[5]        Submission 14, p. 8.

[6]        Committee Hansard, 24 July 2014 p. 11. Also see: Mr David Barbagallo, Chief Executive Officer, Endeavour Foundation, Committee Hansard, 24 July 2014, p. 12.

[7]        Ms Laura Angus, Branch Manager, BSWAT Employment Response Unit, Committee Hansard, 24 July 2014, p. 42.

[8]        For example: AED Legal Centre, Submission 9, p. 9.

[9]        For example: JobWatch Inc., Submission 15, p. 8.

[10]      Submission 15, p. 8.

[11]      'Participant' is defined in clause 43 of the Bill.

[12]      'Relevant representative proceedings' is defined in sub-clause 9(4) of the Bill.

[13]      The release and indemnity from liability extends also to ADEs.

[14]      For example: AED Legal Centre, Submission 9, p. 4; Inclusion Australia, Submission 10, p. 6; Disability Advocacy NSW, Submission 16, p. 2; Australian Centre for Disability Law, Submission 22, p. 1.

[15]      For example: Grampians disAbility Advocacy, Submission 8, p. 2; AED Legal Centre, Submission 9, p. 12.

[16]      For example: Australian Lawyers Alliance, Submission 14, p. 5.

[17]      Submission 10, pp 12 and 14.

[18]      Section 33J of the Federal Court of Australia Act 1976.

[19]      Clause 4, sub-clauses 14(1), 16(1) and 18(1) of the Bill.

[20]      Submission 9, p. 1.

[21]      Submission 3, pp 1-2.

[22]      Department of Social Services, Submission 11, p. 3.

[23]      Ms Laura Angus, Committee Hansard, 24 July 2014, p. 42.

[24]      Answer to question on notice No. 9, 24 July 2014 (received 20 August 2014).

[25]      Sub-clause 15(1) of the Bill.

[26]      Clause 13 and sub-clause 16(2) of the Bill.

[27]      Paragraph 19(2)(e) of the Bill.

[28]      For example: AED Legal Centre, Submission 9, p. 11.

[29]      For example: JobWatch Inc., Submission 15, p. 5.

[30]      Submission 9, p. 6. Also see: JobWatch Inc., Submission 15, pp 4 and 9.

[31]      Submission 23, p. 3.

[32]      House Hansard, 5 June 2014, p. 2.

[33]      Clause 38 of the Bill.

[34]      For example: JobWatch Inc., Submission 15, p. 7.

[35]      House Hansard, 5 June 2014, p. 2.

[36]      For example: Australian Council of Trade Unions, Submission 23, p. 3.

[37]      Answer to question on notice No. 3, 24 July 2014 (received 20 August 2014).

[38]      Answer to question on notice No. 1, 24 July 2014 (received 20 August 2014).

[39]      Submission 20, p. 1.

[40]      Submission 9, p. 7.

[41]      Submission 21, p. 5. Also see: Mr David Barbagallo, Endeavour Foundation, Committee Hansard, 24 July 2014, p. 14, who stated that 'it certainly should not be anyone from our organisations [appointed as nominee]'.

[42]      Submission 20, p. 1.

[43]      Answer to question on notice No. 1, 24 July 2014 (received 20 August 2014).

[44]      United Nations, Convention on the Rights of Persons with Disabilities, available at: http://www.un.org/disabilities/convention/conventionfull.shtml (accessed 31 July 2014). Article 12 requires States Parties to recognise the legal capacity of persons with disabilities and to take appropriate measures to provide these persons with access to the supports they require in order to exercise their legal capacity.

[45]      Submission 21, p. 5. Also see: Australian Centre for Disability Law, Submission 22, p. 2.

[46]      Committee Hansard, 24 July 2014, p. 2. Also see Letter from Maurice Blackburn, Lawyers (received 8 August 2014), p. 1, which noted that the proposed nominee provisions also contrast with the National Disability Insurance Scheme.

[47]      Submission 9, p. 5.

[48]      Submission 9, p. 7.

[49]      Parliamentary Joint Committee on Human Rights, Examination of legislation in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, Bills introduced 23–26 June 2014, Legislative Instruments received 7–20 June 2014, July 2014, p. 10.

[50]      Sub-clauses 50(3)(4) of the Bill.

[51]      Submission 20, p. 2.

[52]      Committee Hansard, 24 July 2014, p.14.

[53]      Submission 9, p. 2.

[54]      Submission 17, p. 1. The Disability Discrimination Legal Service stated also that, without such advisors, the review processes in the Bill are 'insufficient to safeguard the rights of employees'.

[55]      Ms Laura Angus, Committee Hansard, 24 July 2014, p. 36.

[56]      Mr Steven Francis, Principal Legal Officer, Committee Hansard, 24 July 2014, p. 36.

[57]      Mr Steven Francis, Committee Hansard, 24 July 2014, p. 36.

[58]      Answer to question on notice No. 1, 24 July 2014 (received 20 August 2014).

[59]      Minister, House Hansard, 5 June 2014, p. 2.

[60]      Answer to question on notice No. 1, 24 July 2014 (received 20 August 2014).

Australian Greens’ Dissenting Report

[1]        Inclusion Australia, Submission 10, p. 2.

[2]        Inclusion Australia, Submission 10, p. 2.

[3]        Ngila Bevan, Manager, People with Disability Australia, Committee Hansard, 24th July 2014, p. 1.

[4]        National Disability Services, Submission 5, p. 2.

[5]        Ngila Bevan, Manager, People with Disability Australia, Committee Hansard, 24^th July 2014, p. 1.

[6]        AED Legal Centre, Submission 9, p. 7.

[7]        Kairsty Wilson, Legal Manager, Principal Legal Practitioner, AED Legal Centre, Committee Hansard, p. 3.

[8]        Therese Sands, Co-Chief Executive Officer, People with Disability Australia, Committee Hansard, p.  4.

[9]        Kairsty Wilson, Legal Manager, Principal Legal Practitioner, AED Legal Centre, Committee Hansard, p. 5.

[10]      People with Disability Australia, Submission 21, p. 4.

[11]      Elizabeth Nojin, Submission 3, p. 1.

[12]      Ngila Bevan, Manager, People with Disability Australia, Committee Hansard, 24^th July 2014, p. 2.