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2016
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SOCIAL SERVICES LEGISLATION AMENDMENT
(TRANSITION MOBILITY ALLOWANCE TO THE NATIONAL DISABILITY
INSURANCE SCHEME) BILL 2016
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Social Services, the Hon Christian Porter MP)
SOCIAL SERVICES LEGISLATION AMENDMENT
(TRANSITION MOBILITY ALLOWANCE TO THE NATIONAL DISABILITY
INSURANCE SCHEME) BILL 2016
OUTLINE
This Bill will introduce a 2016-17 Budget measure to support transition of mobility
allowance to the National Disability Insurance Scheme (NDIS). From 1 January
2017, changes will apply to the qualification criteria for mobility allowance for new
claims and to the period for which mobility allowance is continued when a person
ceases to be qualified, in certain circumstances. In addition, mobility allowance will
no longer be payable to individuals who transition to the NDIS but subsequently
cease to be NDIS participants. These changes will support transition from mobility
allowance to the NDIS or to other arrangements for continuity of support.
Mobility allowance will cease on 1 July 2020, to ensure the NDIS is the main source
of support for people with disability who need assistance to enable them to engage
in the workplace and other economic activities.
Financial impact statement
MEASURE FINANCIAL IMPACT OVER THE FORWARD
ESTIMATES
Mobility Allowance - Transition to $46.5 million
the National Disability Insurance
Scheme
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
explanatory memorandum.
1
SOCIAL SERVICES LEGISLATION AMENDMENT
(TRANSITION MOBILITY ALLOWANCE TO THE NATIONAL DISABILITY
INSURANCE SCHEME) BILL 2016
NOTES ON CLAUSES
Abbreviations used in this explanatory memorandum
Farm Household Support Act mean the Farm Household Support Act 2014
Income Tax Assessment Act means the Income Tax Assessment Act 1997
NDIS Legislation Amendment Act means the National Disability Insurance
Scheme Legislation Amendment Act 2013
Social Security Act means the Social Security Act 1991
Social Security Administration Act means the Social Security
(Administration) Act 1999
Clause 1 sets out how the new Act is to be cited - that is, as the Social Services
Legislation Amendment (Transition Mobility Allowance to the National Disability
Insurance Scheme) Act 2016.
Clause 2 provides a table setting out the commencement dates of the various
sections in, and Schedules to, the new Act.
Clause 3 provides that each Act that is specified in a Schedule is amended or
repealed as set out in that Schedule.
1
Schedule 1 - Amendments
Summary
This Schedule makes amendments to the Social Security Act, Social Security
Administration Act, Farm Household Support Act, Income Tax Assessment Act and
NDIS Legislation Amendment Act to support transition of mobility allowance to the
National Disability Insurance Scheme (NDIS).
The changes made by Part 1 of this Schedule will amend the qualification criteria for
mobility allowance for new claims and the period for which mobility allowance is
continued when a person ceases to be qualified, in certain circumstances. In
addition, mobility allowance will no longer be payable to individuals who transition to
the NDIS but subsequently cease to be NDIS participants.
The changes made by Part 2 of this Schedule will cease mobility allowance from
1 July 2020, to ensure the NDIS is the main source of support for people with
disability who need assistance to enable them to engage in the workplace and other
economic activities.
Background
In broad terms, a person must meet the qualification criteria in Part 2.21 of the Social
Security Act in order to receive mobility allowance. The criteria set out in Part 2.21
cover a variety of circumstances in which a person may be qualified, including by
reference to whether the person is a handicapped person within the meaning of the
Social Security Act and the type of activities the person is engaged in, which may
include gainful employment, vocational training, job search activities, voluntary work,
vocational rehabilitation programs and other activities.
Part 1 - Amendments of mobility allowance provisions
The amendments in Part 1 of this Schedule will replace the current definition of
handicapped person with the requirement that a person has a physical or mental
disability and that the Secretary is of the opinion the disability is either permanent or
likely to last for at least 12 months. In addition to the current requirement that a
person has turned 16, a person will also need to be under 65 years of age.
The circumstances relevant to qualification for mobility allowance will be limited to
where a person is undertaking gainful employment or vocational training.
Mobility allowance will no longer be payable to individuals who transition to the NDIS
but subsequently cease to be NDIS participants. In addition, mobility allowance
advance will cease from 1 January 2017. These changes will support transition from
mobility allowance to the NDIS or to other arrangements for continuity of support.
The amendments made by Part 1 of this Schedule commence on the first 1 January
or 1 July to occur after the day this Act receives the Royal Assent.
1
Part 2 - Cessation of mobility allowance
Part 2 of this Schedule provides that mobility allowance will cease from 1 July 2020.
The amendments made by Part 2 of this Schedule commence on 1 July 2020.
Explanation of the changes
Part 1 - Amendments of mobility allowance provisions
Amendments to the Social Security Act
Items 1 and 2 repeal the definition of handicapped person contained in section 19
and subsection 23(1). These definitions will no longer be necessary as a result of the
amendments made to sections 1035 and 1035A of the Social Security Act made by
this Part.
Item 3 amends subsection 1035(1) by requiring that a person is 16 or over and
under 65 in order to qualify for mobility allowance at the rate specified in
subsection 1044(1).
Currently, handicapped person, as defined in section 19 of the Social Security Act,
means a person who has turned 16. The requirement that a person has turned 16 for
the purposes of section 1035 will now be covered by subsection 1035(1). In addition,
item 3 will require a person to be under 65 years of age.
Items 4 and 5 repeal subparagraphs 1035(1)(a)(i) and 1035(1)(b)(i) and substitute
the requirement that a person has a physical or mental disability and that the
Secretary is of the opinion that the disability is either permanent or likely to last at
least 12 months.
Current paragraphs 1035(1)(a)(i) and 1035(1)(b)(i) require that a person is a
handicapped person as defined in section 19 of the Social Security Act, which
means a person must have a physical or mental disability. For the purposes of
section 1035, this requirement will now be specified in subparagraphs 1035(1)(a)(i)
and 1035(1)(b)(i).
Items 4 and 5 also introduce for the purposes of paragraphs 1035(1)(a)(i) and
1035(1)(b)(i) the requirement that the Secretary is of the opinion the disability is
either permanent or likely to last for at least 12 months.
Items 6 and 11 repeal paragraphs 1035(1)(c) to (f) and (h). These paragraphs
currently describe a number of circumstances in which a person may qualify for
mobility allowance at the rate set out in subsection 1044(1). These provisions will be
repealed so that qualification for mobility allowance is limited to the circumstances
set out in paragraphs 1035(1)(a), (b) and (g). The effect of this is that, in addition to
meeting other qualification criteria, a person must be engaged in gainful employment
or undertaking vocational training (or a combination of these) in order to qualify
under section 1035.
2
Item 7 repeals subparagraph 1035(1)(g)(i) and substitutes a new subparagraph
1035(1)(g)(i). This change will replace the current reference to a handicapped
person with the requirement that a person has a physical or mental disability and
that the Secretary is of the opinion the disability is either permanent or likely to last
for at least 12 months. This is in line with the amendments made by items 4 and 5.
Item 8 amends the wording of subparagraph 1035(1)(g)(iii) as a consequence of the
repeal of sub-subparagraph 1035(1)(g)(iii)(C) by item 9.
Item 9 repeals sub-subparagraph 1035(1)(g)(iii)(C). The effect of this is that
qualification for mobility allowance under paragraph 1035(1)(g) is limited to where a
person is undertaking a combination of gainful employment and vocational training.
Item 10 makes a grammatical change as a result of the repeal of paragraph
1035(1)(h) by item 11.
Item 12 makes a grammatical change as a result of the repeal of paragraphs
1035(2)(c) to (e) by item 13.
Item 13 repeals paragraphs 1035(2)(c) to (e).
Subsection 1035(2) specifies relevant activities for the purposes of the travel test in
subsection 1035(1). This amendment will limit these activities to gainful employment
and vocational training and corresponds with the amendments made by this to
subsection 1035(1).
Items 14 and 15 repeal the definitions of vocational rehabilitation program and
voluntary work from subsection 1035(3). These definitions will no longer be
necessary as a result of the amendments to subsections 1053(1) and (2).
Item 16 substitutes a new paragraph 1035A(1)(a) to replace the current reference to
a handicapped person with the requirement that a person has a physical or mental
disability and that the Secretary is of the opinion the disability is either permanent or
likely to last for at least 12 months. This is in line with the amendments to
section 1035 made by this Part.
Item 17 repeals paragraphs 1035A(3)(b) to (d) and substitutes new paragraphs (b)
and (c).
This change will limit the circumstances that will satisfy subsection 1035A(3) in
relation to a person receiving disability support pension to where the person is
working for at least 15 hours per week on wages that are at or above the relevant
minimum wage and the person is required to travel to and from the person's home
for the purpose of performing the work. A person who satisfies subsection 1035A(3),
in addition to meeting the criteria in subsection 1035A(1), is qualified for mobility
allowance at the rate specified in subsection 1044(1A).
Item 18 repeals paragraphs 1035A(6)(b) to (d) and substitutes new paragraphs (b)
and (c).
3
This change will limit the circumstances that will satisfy subsection 1035A(6) in
relation to a person receiving newstart allowance or youth allowance (but who is not
undertaking full-time study and is not a new apprentice) to where the person is
working for at least 15 hours per week on wages that are at or above the relevant
minimum wage and the person is required to travel to and from the person's home
for the purpose of performing the work. A person who satisfies subsection 1035A(6),
in addition to meeting the criteria in subsection 1035A(1), is qualified for mobility
allowance at the rate specified in subsection 1044(1A).
Item 19 amends the heading of section 1038 in line with the changes made by items
20 and 21.
Item 20 inserts a new paragraph reference (1) in section 1038.
Item 21 adds a new subsection 1038(2).
Current section 1038 provides that mobility allowance is not payable to a person who
has transitioned to the NDIS (that is, a person who is an NDIS participant and who
has a plan in effect containing a statement specifying the reasonable and necessary
supports that will be funded under the NDIS).
New subsection 1038(2) extends the circumstances in which mobility allowance is
not payable to where a person ceases to be an NDIS participant. This means an
NDIS participant who previously received mobility allowance cannot return to
receiving mobility allowance.
Item 22 repeals subsection 1039AA(4) and substitutes a new subsection 1039AA(4).
Current subsection 1039AA(4) provides that newly arrived resident's waiting period
that may apply under subsection 1039AA(4) does not apply to a person who
becomes a handicapped person while in Australia.
New subsection 1039AA(4) preserves the requirement that a person's physical or
mental disability arose while the person was in Australia, consistent with the
terminology in new paragraph 1035A(1)(a).
Item 23 adds a note at the end of subsection 1044(1A) referring to the annual
indexation of mobility allowance in line with CPI increases.
Item 24 repeals subsections 1044(2) and (3). These subsections currently set out
the effect on a person's mobility allowance rate if the person has received mobility
allowance advance under section 1045. These provisions will no longer be required
as a result of the repeal of mobility allowance advance by item 26.
Item 25 repeals section 1044A. This section currently provides for reduction of a
person's advance payment period in relation to mobility allowance advance in certain
circumstances. This section will no longer be required as a result of the repeal of
mobility allowance advance by item 26.
4
Item 26 repeals Division 3 of Part 2.21. The effect of this will be the repeal of mobility
allowance advance.
Item 27 amends the list of activities set out in subparagraph 1046(1)(b)(i).
Currently, a person who ceases to undertake gainful employment, vocational training
or voluntary work will, subject to meeting other requirements under
subsection 1046(1), continue to be qualified for mobility allowance for a specified
period after they would otherwise cease to qualify.
This amendment limits the activities relevant to section 1046(1) to gainful
employment or vocational training.
Item 28 amends the wording of subparagraph 1046(1)(b)(ii) as a consequence of the
repeal of sub-subparagraph 1046(1)(b)(ii)(C) by item 29.
Item 29 repeals sub-subparagraph 1046(1)(b)(ii)(C). The effect of this is that the
application of paragraph 1046(1)(b)(ii) is limited to where a person ceases to
undertake a combination of gainful employment and vocational training.
Item 30 makes a grammatical change as a consequence of the repeal of
paragraphs 1046(2)(b)(iv) to (vi) by item 31.
Items 31 and 33 repeal subparagraphs 1046(2)(b)(iv) to (vi) and
subparagraph 1046(2B)(b)(iii) respectively.
A person to whom section 1046 applies continues to be qualified for 12 weeks after
the person would otherwise cease to be qualified.
Subsections 1046(2) and 1046(2B) set out some circumstances in which section
1046 applies to a person, based on factors including the reason the person would
cease to qualify for mobility allowance, but for the application of section 1046.
These amendments remove job search activities and vocational rehabilitation
programs under subparagraphs 1046(2)(b)(iv) to (vi) and subparagraph
1046(2B)(b)(iii).The cessation of these activities will no longer be relevant as a result
of the changes to qualification for mobility allowance.
Item 32 makes a grammatical change to subparagraph 1046(2B)(b)(iia) as a
consequence of the repeal of subparagraph 1046(2B)(b)(iii) by item 33.
Item 34 omits '12' from subsection 1046(3) and substitutes '4'. This change will
reduce the period for which a person's qualification for mobility allowance is
continued under subsection 1046(3) from 12 weeks to 4 weeks.
Items 35 and 36 delete the definitions of vocational rehabilitation program and
voluntary work from subsection 1046(6). These definitions will no longer be
necessary as a result of the changes to qualification for mobility allowance and
consistent with amendments to section 1046.
5
Item 37 removes the reference to mobility allowance from the note 1 at
subsection 1061A(1).
Item 38 removes mobility allowance advance debt from the recovery methods table
in subsection 1222(2). This reference becomes redundant with the repeal of mobility
allowance advance.
Item 39 repeals section 1224D. This section currently provides for amounts of
mobility allowance advance to be recovered as a debt in certain circumstances. This
section will also no longer be required as a result of the repeal of mobility allowance
advance.
Item 40 omits the reference to section 1224D from section 1230B due to the repeal
of section 1224D.
Amendments to the Social Security Administration Act
Items 41, 42 and 43 repeal paragraph (u) of the definition of category I welfare
payment and paragraph (l) of the definition of category Q welfare payment from
section 123TC and subparagraph (a)(xix) of the definition of restrictable payment
from section 124PD(1) respectively.
These paragraphs each refer to a mobility allowance advance under section 1045 of
the Social Security Act and will no longer required due to the repeal of mobility
allowance advance.
Item 44 provides for application and saving provisions for the amendments made by
Part 1 of this Schedule.
Subitem 44(1) provides that the amendments of sections 1035, 1035A and 1039AA
of the Social Security Act apply to claims made after the commencement of item 44,
except where a claim relates to a day before commencement. In effect this means
the changes to these sections will apply only to new claims, unless the claim relates
to days before commencement. The changes to these sections will not affect
existing mobility allowance recipients.
Subitem 44(2) provides that amended subsection 1038(2) of the Social Security Act
applies to a person who ceases to be an NDIS participant on or after item 44
commences.
Subitem 44(3) provides that the amendments of section 1039 AA and subsections
1046(1), (2) and (2B) of the Social Security Act apply to a person whose claim for
mobility allowance was granted on the basis of their qualification under section 1035
or 1035A as amended by this Part. This means the application of the amendments to
these provisions, which affect the application of the newly arrived resident's waiting
period and the circumstances relevant to continuation of mobility allowance, is
consistent with the application of amendments to sections 1035 and 1035A.
Subitem 44(4) provides that the amendments of subsection 1046(3) of the Social
Security Act apply in relation to a person to whom section 1046 applies, on or after
6
the commencement of item 44, whether the person's claim for mobility allowance
was made before, on or after commencement. This means that the reduction in the
period for which a person's qualification for mobility allowance is continued under
subsection 1046(3), as amended by item 34 of Part 1 of this Schedule, will apply to
existing mobility allowance recipients as well as those whose claims are granted
after commencement.
Subitem 44(6) provides for current Chapter 5 of the Social Security Act to continue to
apply to a payment of mobility allowance advance made before, on or after
commencement of Part 1 of this Schedule. This preserves the operation of the
mobility allowance advance debts provisions in relation to a payment of mobility
allowance advance.
Subitem 44(7) provides for current Parts 3B and 3D of the Social Security
Administration Act to continue to apply in relation to a payment of mobility allowance
advance made before, on or after commencement of Part 1 of this Schedule. This
preserves the operation of the income management regime in relation to a payment
of mobility allowance advance.
Part 2 - Cessation of mobility allowance
Amendments to the Farm Household Support Act
Item 45 repeals paragraph 94(g). This will remove Part 2.21 (mobility allowance)
from the list of provisions of the Social Security Act set out in section 94 that do not
apply in relation to the operation of the Farm Household Support Act. Paragraph
94(g) will not be required as a consequence of the repeal of mobility allowance from
the Social Security Act.
Amendments to the Income Tax Assessment Act
Item 46 repeals table item 18.1 (Mobility allowance) from the table about the income
tax treatment of security payments at section 52-10. Table item 18.1 will not be
required as a consequence of the repeal of mobility allowance from the Social
Security Act.
Item 47 repeals table item 18 from the table at section 52-10 relating to provisions of
the Social Security Act under which social security payments are made that are
wholly or partly exempt from income tax under Subdivision 52-A of the Income Tax
Assessment Act. Table item 18 will not be required as a consequence of the repeal
of mobility allowance from the Social Security Act.
Amendments to the NDIS Legislation Amendment Act
Item 48 repeals item 17 of Schedule 2.
7
Currently, the effect of this provision is that a person will continue to be qualified for a
health care card even though mobility allowance is not payable to the person
because of the operation of section 1038 of the Social Security Act, provided the
person was receiving mobility allowance immediately before becoming an NDIS
participant.
This provision will be repealed as a consequence of the cessation of mobility
allowance.
Amendments to the Social Security Act
Items 49 to 62 repeal references to mobility allowance and related provisions and
also make consequential grammatical changes.
Amendments to the Social Security Administration Act
Items 63 to 71 repeal references to mobility allowance and related provisions and
also make consequential grammatical changes.
Item 72 provides for saving provisions for the amendments made by Part 2 of this
Schedule.
Subitem 72(1) preserves the application of current subsection 7(6AA) of the Social
Security Act in working out whether a person has a qualifying residence exemption
for a mobility allowance before the commencement of the amendments made by
Part 2 of this Schedule.
Subitem 72(2) preserves the application of current Part 2.21 of the Social Security
Act in working out qualification for, or the rate of, a mobility allowance for days
occurring before the commencement of Part 2 of this Schedule. For example, these
provisions will apply in respect of a claim made but not determined prior to the
commencement of Part 2 of this Schedule, but only in respect of days up to that
commencement.
Subitem 72(3) provides that if a person is receiving mobility allowance immediately
before the commencement of Part 2 of this Schedule because their qualification is
continued under section 1046 of the Social Security Act, the person's qualification is
taken to end at the end of the day before the commencement of Part 2 of this
Schedule.
The effect of this is that a continuation period that applies to a person under section
1046 will end on the day before the commencement of Part 2 of this Schedule.
Subitem 72(4) preserves the application of current section 1158 of the Social
Security Act, relating to social security payments not payable during a period a
person is in gaol or in psychiatric confinement following criminal charge, in respect of
mobility allowance on days prior to the commencement of Part 2 of this Schedule.
8
This means section 1158 will apply to a claim in respect of a day prior to the
commencement of Part 2 of this Schedule, even if that claim is not made or granted
until after that commencement.
Subitem 72(5) preserves the application of current Chapter 5 of the Social Security
Act to a payment of mobility allowance whether made before, on or after the
commencement of Part 2 of this Schedule.
This preserves the application of overpayments and debt recovery provisions under
Chapter 5 to a payment of mobility allowance.
Subitem 72(6) preserves the application of current Part 3 of the Social Security
Administration Act to the making of claims for mobility allowance and making
payments of mobility allowance in respect of days occurring before the
commencement of Part 2 of this Schedule, and to determinations made under Part 3
in relation to mobility allowance on or after that commencement.
This means Part 3 of the Social Security Administration Act will continue apply to a
claim for or payment of mobility allowance, or a determination under Part 3 in relation
to mobility allowance, in respect of a day prior to the commencement of Part 2 of this
Schedule, even if the claim, payment or determination does not occur until after that
commencement.
Subitem 72(7) provides that current sections 63 and 64 of the Social Security
Administration Act continue to apply on and after the commencement of Part 2 of this
Schedule, to a person receiving or claiming mobility allowance before, on or after
that commencement.
This means the Secretary may continue to exercise the powers under sections 63
and 64 in relation to a person receiving or claiming mobility allowance.
Subitem 72(8) provides for existing Parts 3B and 3D of the Social Security
Administration Act to continue to apply after the commencement of Part 2 of this
Schedule in relation to a payment of mobility allowance made before, on or after
commencement. This preserves the operation of the income management regime in
relation to a payment of mobility allowance.
Subitem 72(9) provides for the continued application of existing Parts 4 and 4A of the
Social Security Administration Act to a decision under the social security law in
relation to mobility allowance before, on or after the commencement of Part 2 of this
Schedule.
This subitem preserves the operation of the internal review and Administrative
Appeals Tribunal review provisions contained in Parts 4 and 4A.
Subitem 72(10) preserves the application of current table item 18.1 of the table in
section 52-10 of the Income Tax Assessment Act to a payment of mobility allowance
whether before, on or after the commencement of Part 2 of this Schedule.
9
The effect of this subitem is that income tax treatment of a payment of mobility
allowance will continue as currently provided for by the Income Tax Assessment Act,
after the commencement of Part 2 of this Schedule.
10
Statement of compatibility with human rights
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
SOCIAL SERVICES LEGISLATION AMENDMENT
(TRANSITION MOBILITY ALLOWANCE TO THE NATIONAL DISABILITY
INSURANCE SCHEME) BILL 2016
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 2011.
Overview of the Bill
This Bill amends the Social Security Act 1991 to support the transition of mobility
allowance funding to the National Disability Insurance Scheme and the movement of
eligible recipients to a package of support with the National Disability Insurance
Scheme. As part of the transition, the Bill will tighten eligibility for mobility allowance
and close the mobility allowance program after the National Disability Insurance
Scheme has been rolled out nationally. Mobility allowance is a payment designed to
assist with transport costs for people with a disability who participate in work and
certain approved activities and who are unable to use public transport without
substantial assistance.
Mobility allowance recipients found to be ineligible for a package of support with the
National Disability Insurance Scheme will receive alternate means of support under
continuity of support arrangements. The amendments made by the Bill are
consistent with changes made in other Commonwealth programs where funding is
transitioning to the National Disability Insurance Scheme.
To support these changes, the Bill also proposes to make consequential
amendments to the Social Security (Administration) Act 1999, National Disability
Insurance Scheme Legislation Amendment Act 2013, Farm Household Support Act
2014 and the Income Tax Assessment Act 1997 to remove reference to mobility
allowance once the program has closed.
Tighten eligibility for mobility allowance
This Bill will amend the eligibility criteria for mobility allowance from 1 January 2017
to limit the payment to new claimants who are aged under 65 years with a
permanent or significant disability, who are not able to use public transport without
substantial assistance and who are undertaking gainful employment or vocational
training. These changes will not impact existing mobility allowance recipients, unless
they are cancelled off payment, in which case they will then be assessed under the
new rules if they reclaim.
Amendments will also be made to ongoing entitlement for all mobility allowance
recipients. The grace period during which a recipient continues to receive mobility
allowance while no longer engaged in a qualifying activity will be reduced from
12 weeks to four weeks. In addition, these amendments include provisions to stop
11
Statement of compatibility with human rights
recipients who have transitioned to the National Disability Insurance Scheme from
reclaiming mobility allowance.
Abolish mobility allowance
This Bill will close the mobility allowance program after the National Disability
Insurance Scheme has been rolled out nationally to ensure that the National
Disability Insurance Scheme is the main program of support for people with a
disability who need assistance to enable them to fully engage in the workforce and
other economic activities. It is expected that the program will close from 1 July 2020.
Human rights implications
Right to social security
This Bill engages the rights to social security contained in article 9 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR).
The right to social security requires that a system be established under domestic
law, and that public authorities must take responsibility for the effective
administration of the system. The social security scheme must provide a minimum
essential level of benefits to all individuals and families that will enable them to cover
essential living costs.
The amendments in this Bill initially tighten the eligibility criteria for mobility
allowance and later close the program. These amendments are compatible with the
right to social security as mobility allowance is not a social security payment to meet
the regular costs of living, rather it is a supplementary payment designed to assist
with transport costs for people with a disability who are undertaking approved
activities. Eligibility for social security pensions or benefits will be unaffected by these
amendments. The assistance provided by mobility allowance is being replaced with
individualised supports, including assistance with transportation, which will be
provided under the National Disability Insurance Scheme. Therefore tightening
eligibility rules, and then closing the program ensures the more efficient allocation of
resources.
To the extent that the changes in this Schedule may limit the right to social security,
those limitations are reasonable and proportionate to the policy objective of ensuring
a sustainable and well-targeted payment system.
The principle of non-discrimination
The Convention on the Rights of Persons with Disabilities (CRPD) recognises the
barriers that persons with disabilities may face in realising their rights. While the
rights under all human rights treaties apply to everyone, including persons with
disabilities, the CRPD applies human rights specifically to the context of persons with
disabilities.
Article 3(b) of the CPRD provides that non-discrimination is a general principle in
relation to all rights in the CRPD. As noted by the Human Rights Committee in
General Comment No. 18 on equivalent rights in the International Covenant on Civil
and Political Rights (ICCPR), the rights to equality and non-discrimination in the
12
Statement of compatibility with human rights
ICCPR sometimes require nation states 'to take affirmative action in order to
diminish or eliminate conditions which cause or help perpetuate discrimination'. In
this context, the amendments made by this Bill promote and advance the rights of
persons with disabilities in Australia by strengthening support for them to exercise
their social, economic and cultural rights through their participation in the National
Disability Insurance Scheme.
Non-discrimination ensures that no-one is denied their rights because of factors such
as race, colour, sex, language, religion, political or other opinion, national or social
origin, property or birth. In addition to those grounds, discrimination on certain other
grounds may also be prohibited. These grounds include age, nationality, marital
status, disability, place of residence within a country and sexual orientation.
Differential treatment will not constitute discrimination if the differences in treatment
are aimed at achieving a legitimate purpose and are reasonable and proportionate to
this purpose.
The Bill limits access to mobility allowance to persons under the age of 65. This
amendment is intended to provide consistency with access requirements for the
National Disability Insurance Scheme. Existing mobility allowance recipients will not
be affected by this change and both new and existing recipients can continue to be
paid mobility allowance if they turn 65 while receiving the payment. 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.
The National Disability Insurance Scheme 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.
Rights of persons with disabilities
This Bill engages article 28 of the Convention of the Rights of Persons with
Disabilities, which recognises the right to an adequate standard of living and social
protection for those with disability. The amendments recognise that mobility
allowance is a poorly targeted supplementary payment and therefore funding is
being transitioned to the National Disability Insurance Scheme to ensure that people
with disability are better assisted to fully engage in the workforce and other economic
activities.
Right to work and right to education
Article 6 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) recognises the right to work, including the right to the opportunity to gain a
living by work which the person freely chooses or accepts, and which is considered
13
Statement of compatibility with human rights
an inherent part of human dignity1, and article 13 of the ICESCR recognises the right
of everyone to education.
The amendments in the Bill initially enable new recipients to be paid mobility
allowance for participation in gainful employment, which includes self-employment
and supported employment, and vocational training, which includes study and life
skills training. The Bill recognises that these activities and outcomes are better
supported through participation in the National Disability Insurance Scheme.
Additional assistance for work, study and training also continues to be available
through Government-funded employment service providers and through the FEE
HELP and VET FEE HELP tuition loan program. As such, this Bill does not prevent
affected persons from entering the workforce, or undertaking further study to
enhance their employment prospects, rather directs them through more appropriate
channels.
Conclusion
This Bill is compatible with human rights because it does not limit access to social
security and it advances the protection of the rights of people with disability in
Australia, consistent with the Convention of the Rights of Persons with Disabilities,
by ensuring that the National Disability Insurance Scheme is the main program of
support for those who need assistance to fully engage in the workforce and other
economic activities.
[Circulated by the authority of the Minister for Social Services,
the Hon Christian Porter MP]
1
Committee on Economic, Social and Cultural Rights, General Comment 18, paragraphs 1 and 2.
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