Concluded matters
2.1
This chapter considers the responses of legislation proponents to
matters raised previously by the committee. The committee has concluded its
examination of these matters on the basis of the responses received.
2.2
Correspondence relating to these matters is included at Appendix 3.
Social Services Legislation Amendment (Transition Mobility Allowance to the
National Disability Insurance Scheme) Bill 2016
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Purpose
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Proposes to amend the Social
Security Act 1991 and the Social Security (Administration) Act 1999 to restrict the eligibility criteria for mobility allowance, to provide that
the allowance will no longer be payable to individuals who transition to the
National Disability Insurance Scheme and to close the mobility allowance
program from 1 July 2020
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Portfolio
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Social Services
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Introduced
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House of Representatives,
13 October 2016
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Right
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Equality and
non-discrimination (see Appendix 2)
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Previous reports
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8 of 2016
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Background
2.3
The committee first reported on the Social Services Legislation
Amendment (Transition Mobility Allowance to the National Disability Insurance
Scheme) Bill 2016 (the bill) in its Report 8 of 2016, and
requested a response from the Minister for Social Services by 18 November 2016.[1]
2.4
The minister's response to the committee's inquiries was received on 18 November
2016. The response is discussed below and is reproduced in full at Appendix 3.
Discontinuing the mobility allowance program
2.5
Schedule 1 of the bill seeks to amend the Social Security Act 1991 to replace the current definitions which determine who is qualified to receive
mobility allowance. Mobility allowance is a payment designed to assist with
transport costs for persons with a disability who participate in work and
certain approved activities and who are unable to use public transport without
substantial assistance.
2.6
The amendments will provide that the mobility allowance provisions only
apply to persons aged between 16 and 65 (the current age requirement is only
that the person be over 16). This eligibility criterion would apply to new
claimants from 1 January 2017. The bill also provides that the mobility
allowance will cease on 1 July 2020 consistent with the transition
from the mobility allowance to the National Disability Insurance Scheme (NDIS).
2.7
The initial human rights analysis acknowledged that the transition to
the NDIS generally promotes the rights of persons with disabilities and may
involve the reallocation of resources. However, limiting access to the mobility
allowance so that those aged over 65 would no longer quality for this
additional allowance engages and limits the right to equality and
non-discrimination on the basis of age.[2]
2.8
The initial human rights analysis noted that the statement of
compatibility addresses the issue of age discrimination. The statement of
compatibility explains that the amendment is intended to provide consistency
with the access requirements for the NDIS, which applies to persons under the
age of 65, and that the NDIS:
...is part of a broader system of support available in
Australia and persons over the age of 65 who are not eligible for assistance
through the National Disability Insurance Scheme can access support through the
aged care system. This limitation is reasonable and necessary because it supports
the broader intent of an integrated system of support operating nationally and
providing seamless transition through different phases of life.[3]
2.9
The statement of compatibility also addresses transitional arrangements
for those recipients of the mobility allowance who turn 65 prior to the
discontinuation of the mobility allowance program in 2020. These recipients
will not be affected by the change, and can continue to be paid the mobility
allowance. The statement of compatibility then states:
Once the mobility allowance program is
closed, any remaining recipients will either transition to the National
Disability Insurance Scheme or be supported under continuity of support
arrangements. Funding for continuity of support arrangements includes current
recipients aged 65 or over who will be ineligible to transition to the National
Disability Insurance Scheme.[4]
2.10
The initial human rights analysis observed that it was not clear from
the statement of compatibility what the 'continuity of support arrangements'
for those over 65 years will be once the mobility allowance program is closed.
It was also not explained whether those aged 65 and older who are not receiving
mobility allowance when the program is closed (but who would qualify for
support under the existing law) will be eligible to receive comparable support
through the aged care system.
2.11
Accordingly, the committee sought the minister's advice as to whether
the continuity of support arrangements for existing recipients of mobility
allowance will provide for the same level of support as that existing under the
current allowance.
2.12
The committee also sought the minister's advice as to whether there is
comparable assistance under the aged care system for persons aged 65 and older who
participate in work and other approved activities (given there may be persons
who are not currently receiving the allowance and who, if the program were not
closed, would otherwise be eligible to receive mobility allowance).
Minister's response
2.13
In relation to continuity of support arrangements for existing recipients
of mobility allowance, the minister's response states that continuity of
support will provide support for existing Commonwealth disability support
program recipients who are assessed as ineligible for the NDIS to achieve similar
outcomes, in accordance with the NDIS bilateral agreements, even if the
arrangements for doing that change over time. In the short term, continuity of
support will be provided through existing programs. However, the minister's
response indicates that long term continuity of support arrangements have yet
to be finalised.
2.14
In relation to whether there is comparable assistance under the aged
care system for persons aged 65 and older to participate in work and other
approved activities, the minister's response states that the Australian
Government subsidises many different types of aged care services to help people
stay as independent as they can, including support for living in their own home
and transport services. Under aged care arrangements there are two types of
transport services available. A person can be picked up by a transport service
or they can receive vouchers or subsidies, such as for taxi services. Given
that the purpose of mobility allowance is to assist the recipient with the cost
of transportation while they are undertaking approved activities, the minister
advises that transport services within the aged care system achieve the same
outcomes without the need for ongoing monetary payments. Additionally, affected
individuals aged 65 and over will continue to be supported by other services
that address mobility issues. Two of these services appear to relate to
mobility, being GST exempt purchase of cars for work use, where the individual
has a disability affecting them to the extent they cannot use public transport,
and state and territory transport, vehicle modification and parking subsidies.
2.15
As noted in the previous human rights analysis of the bill, the
transition to the NDIS generally promotes the rights of persons with
disabilities and may involve the reallocation of resources. The information
provided by the minister indicates that there are a range of programs in place,
including transitional arrangements to support people over 65 years of age in
relation to transport and mobility. Such programs will assist to provide
ongoing support to people over the age of 65 even after the mobility allowance
is discontinued. On the basis of the information provided by the minister and
the range of ongoing support for persons over 65 years of age, it appears that
discontinuing the mobility allowance program is likely to be compatible with
the right to equality and non-discrimination on the basis of age.
Committee response
2.16 The committee thanks the minister for his response and has concluded
its examination of this issue.
2.17 Noting the preceding legal analysis and the advice of the minister,
the committee considers that the measure is likely to be compatible with the
right to equality and non-discrimination on the basis of age.
Australian Public Service Commissioner's Directions 2016 [F2016L01430]
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Purpose
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Prescribes standards which
Agency Heads and Australian Public Service (APS) employees must comply with
to meet their obligations under the Public Service Act 1999
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Portfolio
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Prime Minister and Cabinet
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Authorising legislation
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Public Service Act 1999
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Last day to disallow
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30 November 2016
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Right
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Privacy (see Appendix 2)
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Previous report
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8 of 2016
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Background
2.18
The committee first reported on the Australian Public Service
Commissioner's Directions 2016 (the directions) in its Report 8 of 2016,
and requested further information from the Australian Public Service
Commissioner (the Commissioner).[5]
2.19
The Commissioner's response to the committee's inquiries was received
on 22 November 2016. The response is discussed below and is reproduced in full
at Appendix 3.
Publishing termination decision for breach of the Code of Conduct
2.20
Paragraph 34(1)(e) of the directions provides that decisions to
terminate the employment of an ongoing APS employee for breach of the Code of
Conduct must be published in the Public Service Gazette (the Gazette). The
requirement to publish details of an APS employee when their employment has
been terminated on the grounds of breach of the Code of Conduct in the Gazette
engages and limits the right to privacy.
2.21
The committee reported on previous similar directions in its Sixth
Report of 2013, Eighteenth Report of the 44th Parliament and Twenty-first Report of the 44th Parliament.[6] This previous analysis raised concerns about the compatibility of measures
relating to the notification in the Gazette of certain employment decisions,
particularly in relation to the publication of decisions to terminate
employment and the grounds for termination, with the right to privacy and the
rights under the Convention on the Rights of Persons with Disabilities (CRPD).
2.22
In response to these previous concerns, the Commissioner conducted a
review of the Australian Public Service Commissioner's Directions 2013 [F2013L00448]
(the 2013 directions). As a result, the 2013 directions were amended by the Australian Public Service Commissioner's Amendment
(Notification of Decisions and Other Measures) Direction 2014 [F2014L01426]
(the amendment direction) to remove most of the requirements to publish
termination decisions. However, the requirement to notify termination on the
grounds of the breach of the Code of Conduct in the Gazette was retained.
2.23
In its Twenty-first Report of the 44th Parliament,[7] the committee acknowledged that the amendment direction addressed the
committee's concerns in relation to the compatibility of the 2013 directions
with the CRPD, and largely addressed the committee's concerns in relation to
their compatibility with the right to privacy. However, the committee
considered that the retained measure to publish details of an APS employee when
their employment has been terminated on Code of Conduct grounds limited the
right to privacy.
2.24
The statement of compatibility to the directions states that the
notification of certain employment decisions in the Gazette promotes APS
employees' right to privacy insofar as there is an option for agency heads to
decide that a name should not be included in the Gazette because of the
person's work-related or personal circumstances.
2.25
The initial human rights analysis of the directions clarified that
rather than promoting the right to privacy, the requirement arising from
paragraph 34(1)(e) of the directions is a limit on the right to privacy,
albeit one that may be justified as reasonable and proportionate to a
legitimate objective.[8]
2.26
As noted with respect to the amendment direction, the committee accepts
that maintaining public confidence in the good management and integrity of the
APS is likely to be a legitimate objective for the purposes of international
human rights law. However, the statement of compatibility provides no
assessment of why the requirement arising from paragraph 34(1)(e) of the
directions is a reasonable and proportionate limit on the right to privacy in
pursuit of this objective.
2.27
The initial human rights analysis noted that neither the statement of
compatibility, nor the Commissioner's response to the committee's previous
inquiries, provide significant evidence as to how publishing personal information
would achieve the apparent objective of showing that the APS deals properly
with serious misconduct.
2.28
In relation to whether there are other, less restrictive, ways to
achieve the same aim, the initial human rights analysis observed that there are
other methods by which an employer could determine whether a person has been
dismissed from the APS for breach of the Code of Conduct rather than publishing
an employee's personal details in the Gazette. For example, it would be
possible for the APS to maintain a centralised, internal record of dismissed
employees, or to use references to ensure that a previously dismissed APS
employee is not rehired by the APS. These measures may be more likely to be of
use in the hiring process than an employer searching past editions of the
Gazette. Further, it would be possible to publish information in relation to
the termination of employment for breaches of the Code of Conduct without the
need to name the affected employee.
2.29
As these matters were not addressed by the statement of compatibility,
the committee sought the advice of the Commissioner as to whether the
limitation on the right to privacy is a reasonable and proportionate measure
for the achievement of the apparent objective of the directions, and in particular,
whether there are other less rights restrictive means available.
Australian Public Service Commissioner's response
2.30
The Commissioner's response recognises that the requirement to publish
details of an APS employee when their employment has been terminated on the
grounds of breach of the Code of Conduct in the Gazette engages and limits the
right to privacy, and acknowledges that this limitation was not identified in
the statement of compatibility.
2.31
The Commissioner notes that the committee has raised valid questions
about whether the limitation is a reasonable or proportionate measure in
upholding integrity in the APS, and agrees that further investigation into the
requirement is warranted. The Commissioner's response notes that, as the
provisions relating to the publication of details of employment termination
decisions were last reviewed in 2014, it is timely to consider the continued
publication of terminations of employment and whether there may be a less
rights restrictive means of achieving the same objective.
2.32
The Commissioner's response states that he will undertake a review into
the necessity of publicly notifying information about termination decisions on
the grounds of breach of the Code of Conduct, and that this review will include
appropriate consultation and examination of evidence regarding the deterrent
effects and impact on public confidence in the good management and integrity of
the APS. The Commissioner will notify the committee of his findings in this
matter by June 2017.
Committee response
2.33 The committee thanks the Commissioner for his response and has
concluded its examination of this issue.
2.34 The committee notes that the Commissioner will undertake a review
into the requirement to publish termination decisions and will notify the
committee of his findings by June 2017.
2.35 The committee looks forward to receiving the Commissioner's findings
in relation to his review into this matter.
Mr Ian Goodenough MP
Chair
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