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2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
DISABILITY SERVICES AMENDMENT (LINKING UPPER AGE LIMITS FOR
DISABILITY EMPLOYMENT SERVICES TO PENSION AGE) BILL 2017
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Social Services, the Hon Christian Porter MP)
DISABILITY SERVICES AMENDMENT (LINKING UPPER AGE LIMITS FOR
DISABILITY EMPLOYMENT SERVICES TO PENSION AGE) BILL 2017
OUTLINE
This Bill amends the Disability Services Act 1986 (DS Act) to link the upper age limit
of the Disability Employment Services - Disability Management Service (DES-DMS)
program to the age pension eligibility age under the Social Security Act 1991 (SS
Act). The Bill will remove the reference to '65 years' and replace it with the term
'pension age' as defined under subsection 23(5A), 23(5B), 23(5C) or 23(5D) of the
SS Act.
Under the SS Act, the age pension eligibility age will be raised by increments of six
months occurring every two years from 1 July 2017 until the age pension eligibility
age rises to 67 in 2024. This Bill provides for a mechanical amendment that will
ensure there is no gap between the age that persons are no longer able to access
services under DES-DMS and the age pension eligibility age.
Currently, to be eligible to start to receive services under the DES-DMS program, a
person must be aged between 14 and 64. The purpose of the age restrictions was to
conform with the intention of the program to provide support to persons with
disabilities of working age. By linking the upper limit to the pension age rather than a
set age, the Bill ensures that there will be no gap between the pension age and the
upper limit for services under the DES-DMS program during the period of the
increase to the pension age between 2017 and 2024.
The measure is intended to be implemented from 1 July 2017.
Financial Impact Statement
There is a total estimated cost of $4.6 million over the current forward estimates
period.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
explanatory memorandum.
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DISABILITY SERVICES AMENDMENT (LINKING UPPER AGE LIMITS FOR
DISABILITY EMPLOYMENT SERVICES TO PENSION AGE) BILL 2017
NOTES ON CLAUSES
Clause 1 sets out how the new Act is to be cited - that is, as the Disability Services
Amendment (Linking Upper Age Limits for Disability Employment Services to
Pension Age) Act 2017.
Clause 2 provides a table setting out the commencement dates of the various
sections in, and Schedules to, the new Act. Sections 1-3 will commence the day the
Act receives the Royal Assent. Schedule 1 will commence on the later of the day
after the Act receives the Royal Assent and 1 July 2017.
Clause 3 provides that each Act that is specified in a Schedule is amended or
repealed as set out in that Schedule.
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Schedule 1 - Amendments
Summary
This Schedule amends the Disability Services Act 1986 to link the upper age limit of
the Disability Employment Services - Disability Management Service program to the
pension age under the Social Security Act 1991. The Schedule will remove the
reference to '65 years' and replace it with the term 'pension age' as defined under
subsection 23(5A), 23(5B), 23(5C) or 23(5D) of the Social Security Act 1991.
Background
To be eligible to start to receive services under Part III of the Disability Services Act
1986, a person must be aged between 14 and 64. Part III provides for the DES-DMS
program which provides services to eligible job seekers with temporary or permanent
disability, injury or condition who require the assistance of a disability employment
service, but who are not expected to need regular, long-term support in the
workplace. The purpose of the age restrictions for DES-DMS was to conform with
the intention of the program to provide support to persons with disabilities of working
age. By linking the upper limit to the pension age rather than a set age, this
Schedule ensures that there will be no gap between the age pension eligibility age
and the upper limit for services under Part III of the Disability Services Act 1986
during the period of the increase to the pension age between 2017 and 2024.
Explanation of the changes
Amendments to the Disability Services Act 1986
Item 1 inserts a definition of 'pension age' into section 17 and provides that the term
has the same meaning as in subsection 23(5A), (5B), (5C) or (5D) of the Social
Security Act 1991.
Subsections 23(5A) and 23(5D) are mirror provisions which provide that the pension
age is:
65 for men born before 30 June 1952 and women born between 1 January
1949 and 30 June 1952;
65 years and 6 months for men and women born between 1 July 1952 and 31
December 1953;
66 years for men and women born between 1 January 1954 and 30 June
1955;
66 years and 6 months for men and women born between 1 July 1955 and 31
December 1956; and
67 for men and women born on or after 1 January 1957.
Subsections 23(5B) and 23(5C) are legacy provisions which provide a pension age
range of 60 to 64 years and 6 months for women born between 1 July 1935 and 31
December 1948. The practical effect of this is that women who are covered by these
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provisions have already reached age 67 (the maximum legislated pension age under
the Social Security Act 1991) and therefore will not be disadvantaged by the
amendments made by this Bill to link the upper age limit of the Disability
Employment Services - Disability Management Service (DES-DMS) program to the
pension age.
Item 2 replaces the term '65 years of age' in paragraph 18(a) with the term 'pension
age'. This links the upper age limit of the target group under Part III of the Disability
Services Act 1986 with the pension age under subsections 23(5A) to 23(5D) of the
Social Security Act 1991. This ensures that when the pension age rises under the
Social Security Act 1991 until it reaches 67 on 1 January 2024, persons aged 65 or
over, but who have not reached pension age will be eligible to start to receive
services under the DES-DMS program aimed at the target group specified in
paragraph 18(a) of the Disability Services Act 1986.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Disability Services Amendment (Linking Upper Age Limits for Disability
Employment Services to Pension Age) Bill 2017
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act
Overview of the Bill
This Bill amends the Disability Services Act 1986 (DS Act) to link the upper age limit
of the Disability Employment Services - Disability Management Service (DES-DMS)
program to the age pension eligibility age under the Social Security Act 1991 (SS
Act). The Bill will remove the reference to '65 years' and replace it with the term
'pension age' as defined under subsection 23(5A), 23(5B), 23(5C) or 23(5D) of the
SS Act.
Under the SS Act, the age pension eligibility age will be raised by increments of six
months occurring every two years from 1 July 2017 until the age pension eligibility
age rises to 67 in 2024. This Bill provides for a mechanical amendment that will
ensure there is no gap between the age that persons are no longer able to access
services under DES-DMS and the age pension eligibility age.
Currently, to be eligible to start to receive services under the DES-DMS program, a
person must be aged between 14 and 64. The purpose of the age restrictions was to
conform with the intention of the program to provide support to persons with
disabilities of working age. By linking the upper limit to the pension age rather than a
set age, the Bill ensures that there will be no gap between the pension age and the
upper limit for services under the DES-DMS program during the period of the
increase to the pension age between 2017 and 2024.
The measure is intended to be implemented from 1 July 2017.
Human rights implications
This Bill engages the United Nations Convention on the Rights of Persons with
Disabilities (CRPD) and the International Covenant on Civil and Political Rights
(ICCPR).
Promotion of rights under the Convention on Rights of Persons with Disabilities
There is a general obligation under the CRPD to provide reasonable
accommodation, which ensures that people with disability can enjoy their rights on
an equal basis with others. Article 2 of the CRPD considers reasonable
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accommodation to mean providing necessary and appropriate modifications and
adjustments, which do not impose a disproportionate or undue burden, where
needed in a particular place. Under subsection 23(5A) to 23(5D) of the SS Act, the
age pension eligibility age is set at between 60 and 67 dependent on birth year.
However, all persons who are currently eligible for rehabilitation services under Part
III of the DS Act will continue to be able to access these services. The youngest
class of persons who had an age pension eligibility age below 65 are now 68 (having
been required to be born before 31 December 1948, and are therefore not
disadvantaged by this Bill as they are over the previous upper limit of 65). In any
case, current arrangements allow for a job seeker who is undertaking a DES-DMS
program to continue to remain in that program after they have turned 65. The
current upper age limit only applies to a person seeking to enter the program after
the person has turned 65. Following the amendments made by this Bill, a person will
be able to remain in a DES-DMS program after they have reached the pension age,
but once they exit the program they will not be able to re-enter. On this basis, this Bill
promotes rights under the CRPD as eligible persons will be able to access
rehabilitation services for an extended period, specifically:
Habilitation and rehabilitation (article 26 CRPD), which enables persons with
disabilities to attain and maintain maximum independence, full physical, mental,
social and vocation ability.
Work and employment (article 27 CRPD), which includes the right to the
opportunity to gain a living by work freely chosen or accepted in a labour market
and a work environment that is open, inclusive and accessible to persons with
disabilities.
Permissive limitations on the right to work
Article 26 of the ICCPR guarantees the right to equality and non-discrimination and
prohibits discrimination on certain prohibited grounds. Under this article, age and sex
are considered relevant prohibited grounds. Article 5 of the CRPD also stresses
equality and non-discrimination. As discussed above, though there are differing
calculations for the age pension eligibility age for men and women, the Bill will have
no practical effect on women who have a pension age under the SS Act of between
60 and 64 as these women are now older than 67. All persons affected by the Bill
reach the pension age at the same age, resulting in there being no discrimination
based on sex.
In relation to discrimination on the basis of age, the Bill increases the upper age limit
for accessing rehabilitation services and is therefore more beneficial than the current
arrangements. In any event, the right to work is not absolute. This Bill constitutes a
permissible limitation on this right on the basis that differential treatment is
reasonable and objective. The treatment under this Bill is reasonable and objective
as the affected rehabilitation programs are targeted at persons of working age who
are eligible for rehabilitation services. Once persons reach pension age, a range of
other supports become available (including the age pension). In addition, subsection
3(2) of the DS Act requires, in construing the objects and administering the Act, that
due regard must be had to the need to consider equity and merit in accessing the
limited resources available to provide services and programs, impressing this
requirement of reasonable and objective limitation.
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Conclusion
This Bill is consistent with the overarching obligations of the CRPD notion of
reasonable accommodation and promotes the right to habilitation and rehabilitation
as well as the right to work and employment under the CRPD. This Bill does not
restrict any human rights beyond what is permissible on the basis of being
reasonable and objective. On this basis, this Bill is consistent with human rights
obligations.
Minister for Social Services, the Hon Christian Porter MP
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