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DisabilityCare
Australia Fund Bill 2013
Introduced into the House of
Representatives on 15 May 2013
Portfolio:
Finance and Deregulation
Family Trust Distribution Tax
(Primary Liability Amendment (DisabilityCare Australia) Bill 2013
Fringe Benefits Tax Amendment
(DisabilityCare Australia) Bill 2013
Income Tax (First Home Saver
Accounts Misuse Tax) Amendment (DisabilityCare Australia) Bill 2013
Income Tax (TFN Withholding Tax
(ESS)) Amendment (DisabilityCare Australia) Bill 2013
Income Tax Rates Amendment
(DisabilityCare Australia)
Bill 2013
Medicare Levy Amendment
(DisabilityCare Australia)
Bill 2013
Superannuation (Excess Concessional
Contributions Tax) Amendment (DisabilityCare Australia) Bill 2013
Superannuation (Excess
Non-concessional Contributions Tax) Amendment (DisabilityCare Australia) Bill
2013
Superannuation (Excess Untaxed
Roll-over Amounts Tax) Amendment (DisabilityCare Australia) Bill 2013
Taxation (Trustee Beneficiary
Non-disclosure Tax) (No. 1) Amendment (DisabilityCare Australia) Bill 2013
Taxation
(Trustee Beneficiary Non-disclosure Tax) (No. 2) Amendment (DisabilityCare
Australia) Bill 2013
Introduced into the House of
Representatives on 15 May 2013
Portfolio: Treasury
Summary of committee view
1.30
The committee
intends to seek clarification as to whether the exclusion from access to the
National Disability Insurance Scheme of New Zealand citizens who are long-term
residents of Australia, and not protected SCV holders or permanent residents,
is consistent with the right to non-discrimination and the right to social
security.
Overview
1.31
The Medicare
Levy Amendment (DisabilityCare Australia) Bill 2013 sought to amend the Medicare
Levy Act 1986 to increase the Medicare levy rate to fund the National
Disability Insurance Scheme (NDIS or DisabilityCare). Ten other bills
introduced with this bill incorporated this change into other legislation that
references the rate of the Medicare levy.
1.32
The
DisabilityCare Australia Fund Bill 2013 sought to establish a special fund, the
DisabilityCare Australia Fund, to house the revenue raised by the increase in
the Medicare levy. The bill sets 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.
1.33
All twelve bills[1]
were introduced on 15 May 2013 and passed both Houses the next day.
Compatibility with human
rights
1.34
The
DisabilityCare Australia Fund Bill 2013 was accompanied by an individual
statement of compatibility which stated that the amendments 'do not engage any
of the applicable rights or freedoms' and was therefore compatible with human
rights.
1.35
The eleven other
bills were accompanied by a single combined statement of compatibility that
stated that the bills did not engage any human rights. The explanatory
memorandum also dealt with all eleven bills in the one document, reflecting the
relationship between the change proposed by the Medicare Levy Amendment
(DisabilityCare Australia) Bill 2013 and the ten other bills which incorporated
references to the rate of the Medicare levy. The effect of the individual bills
is set out bill by bill in the explanatory memorandum.
Statements
of compatibility
1.36
The committee
has indicated in its Practice Note 1 that in general each bill
introduced into the Parliament should be accompanied by a separate
self-contained statement of compatibility. The purpose of this requirement is
to ensure that the impact of each individual bill, including those that form
part of an interrelated scheme or which appear to be merely consequential on
the changes made by one bill, has been assessed for human rights compatibility.
1.37
In the present
case, for example, the statement of compatibility for eleven of the bills notes
that the purpose of increasing the Medicare levy is to fund the NDIS and that
this will complement existing measures to remove discrimination against persons
with disabilities in Australia. It does not mention promotion of the rights of
persons with disabilities to participate in the life of the community on the
basis of equality. The imposition of an additional Medicare levy set aside for
the purpose of funding DisabilityCare is a measure intended to ensure the
sustainability of the measures. Accordingly, the bills advance a wide range of
rights, in particular those embodied in the Convention on the Rights of Persons
with Disabilities, and the rights to equality and the equal enjoyment of rights
without discrimination on the basis of disability under the other six treaties.
1.38
In addition to
amending the Medicare Levy Act 1986, the accompanying bills amend other
Acts, including legislation relating to superannuation contributions. Among
other changes, the proposed amendments include increases in tax rates on excess
concessional and non-concessional superannuation contributions. As the
committee has previously noted, superannuation entitlements and their
regulation may engage a variety of rights, including the right to social
security and the right to an adequate standard of living, guaranteed by
articles 9 and 11 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR). While it may be that any impact on those rights that
would result from the increase in tax rates in order to fund DisabilityCare
would be readily justified, the statement of compatibility should have referred
to the rights engaged by each bill (if any).
1.39
The
committee notes the need for statements of compatibility to address each bill
specifically even where they form part of a related package of legislation.
Adequate
time for Parliamentary consideration of bills
1.40
The committee
considers there will be circumstances in which there is a need to pass
uncontested legislation as a matter of urgency. Notwithstanding this, the
committee has previously expressed concern about the introduction and passage
of bills according to a timetable that does not allow a reasonable opportunity
for the scrutiny of those bills for human rights compatibility. As the chair of
the committee noted in his executive summary of the committee’s Fourth
Report of 2013:
The committee
considers that the timetable for the consideration of legislation should allow
sufficient time for the Parliament to examine draft legislation in some detail.
The committee notes that article 25 of the International Covenant on Civil and
Political Rights guarantees the rights of citizens to participate in government
through their elected representatives. A fundamental premise of the Human
Rights (Parliamentary) Scrutiny Act 2011 is that the examination of draft
legislation for human rights compatibility is an important component of the
Australian Human Rights Framework, and that the role of the committee is not a
purely formal one or intended to be primarily after-the-event commentary on
legislation.[2]
Equality
and non-discrimination
1.41
The attention of
the committee has been drawn to the interaction between the bill and earlier
draft legislation considered by the committee, now enacted as the National
Disability Insurance Scheme Act 2013. The issue has been raised whether
excluding certain New Zealand citizens who are resident in Australia (but not
permanent residents)[3]
from accessing the National Disability Scheme (NDIS), even though they will be
subject to the increased Medicare levy to help fund the Scheme, is compatible
with human rights, in particular the rights to equality and non-discrimination
and the right to social security.
1.42
As at 30 June
2012, an estimated 647,863 New Zealand citizens were present in Australia, most
of whom are not permanent residents. Under the 1973 Trans-Tasman Travel
Arrangement, New Zealand citizens are allowed to enter and reside indefinitely
in Australia without being required to hold a permanent visa.[4]
Since 1994 all non-citizens in Australia have been required to hold a visa. The
Special Category visa (SCV), a temporary visa, was introduced for New Zealand
citizens; which is automatically granted to all New Zealand citizens on
entering Australia.[5]
1.43
In 2001,
Australia and New Zealand concluded a new bilateral social security agreement[6]
which coordinated the social security schemes of both countries.[7]
Following this, changes were made that meant that New Zealand citizens arriving
in Australia after 26 February 2001 are not eligible for social security
benefits unless they hold a permanent visa. Most of those resident in Australia
before that date remained eligible for social security benefits (as they were
defined as being a 'protected SCV holder').[8]
Broadly speaking, the effect of the changes was to preserve the position of
many New Zealand citizens who, in February 2001, were already resident in
Australia to access various social security benefits, but to exclude access to
benefits for those New Zealanders who arrived and became resident after the
transitional period.
1.44
Before the 2001
changes, New Zealand citizens enjoyed a privileged position compared with other
non-citizens in relation to the right to enter into and reside in Australia and
to access certain social security benefits. New Zealand citizens continue to
enjoy a privileged position insofar as the right to enter and reside in
Australia when compared with other non-citizens. However, New Zealand citizens
governed by the post-2001 arrangements must now apply for a permanent visa or
citizenship in order to access certain benefits to which they would previously
have been entitled by virtue of the fact of residence in Australia. A grant of
permanent residence or citizenship is not automatic in the case of a New
Zealand citizen, even one who is a long-time resident of Australia, and many
will not qualify for an Australian permanent visa.
Eligibility
to participate in the National Disability Scheme
1.45
In order to
participate in the NDIS a person must satisfy the residence requirement set out
in section 23 of the National Disability Insurance Scheme Act 2013,
which is the same test as set out under the Social Security Act 1991.
Thus, New Zealand citizens who are SCV holders and long-term residents of
Australia, but who are not protected SCV holders (i.e. they were not resident
before February 2001) or the holders of permanent visas, will not be
eligible to participate in the NDIS.
1.46
At the same
time, New Zealand citizens residing in Australia who are not protected SCV
holders or holders of permanent visas fall within the definition of 'Australian
resident' for the purposes of the Health Insurance Act 1973[9]
meaning they are eligible for Medicare and are also liable to pay the Medicare
levy, including the increase in the Medicare levy imposed to finance the NDIS.
1.47
The exclusion of
certain New Zealand residents in Australia from access to the NDIS raises a
number of human rights concerns. These include issues of equal protection of
the law and non-discrimination on the basis of nationality, national origin or
immigration status[10]
and the right to social security and its non-discriminatory enjoyment.[11]
Equality
and non-discrimination
1.48
The eligibility
criteria for participation in the NDIS involve differential treatment of New
Zealand long-term residents compared to Australian citizens, permanent
residents and holders of protected SCV holders. Apart from the category of New
Zealand citizens who arrived before 2001 and are protected SCV holders, there
appears to be no difference in the treatment of New Zealand citizens and
citizens from other countries so far as eligibility for participation in the
NDIS is concerned. The concern, however, in relation to New Zealand citizens is
that, unlike other non-Australian citizens, they may stay in Australia
indefinitely and so could live most of their lives here yet not be eligible to
access the NDIS should they need it.
1.49
Article 1(2) of
the Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
provides:
This
Convention shall not apply to distinctions, exclusions, restrictions or
preferences made by a State Party to this Convention between citizens and
non-citizens.
1.50
The committee
notes that the UN Committee on the Elimination of Racial Discrimination (CERD
Committee) has considered a complaint against Australia on this issue. The
complainant claimed that the change in the entitlements of New Zealand
residents of Australia who were not permanent residents or protected SCV
holders resulting from the new definition of 'Australian resident' in the Social
Security Act 1991 involved a violation of the ICERD, as it involved
discrimination on the basis of national origin.[12]
The CERD Committee rejected the complaint, concluding:
The
provisions of the 2001 Act put New Zealand citizens on a more equal footing
with other non-citizens, and they can apply on the same terms for a permanent
resident's visa or Australian citizenship, the receipt of either of which would
bring them within the definition of "Australian resident" for the
purposes of receiving the benefits in question. In this context, the Committee
notes that the petitioner has neither argued nor demonstrated that the
implementation of the Act of 2001 itself results in distinctions based on
national origin. He has failed to show that his national origin would be an
impediment to receiving a permanent resident's visa or Australian citizenship,
that the majority of visa holders are non-citizens of national origins
different to himself, or indeed that he has been refused such a visa on the
grounds of his national origin. For these reasons, the Committee concludes that
the Act in question does not make any distinctions based on national origin and
thus finds no violation of either article 5 (e)(iv) or 2(1)(a) of the
Convention.[13]
1.51
This decision
focused on differential treatment claimed to be based on national origin, which
falls within the scope of the ICERD. However, differential treatment based on
immigration status or nationality[14]
may also constitute discrimination under international law under a number of
other human rights treaties,[15]
and possibly also ICERD. As the CERD Committee commented in its 2005 concluding
observations on Australia's reports under the ICERD:
differential
treatment based on citizenship or immigration status would constitute
discrimination if the criteria for such differentiation, judged in the light of
the objectives and purposes of the Convention, are not applied pursuant to a
legitimate aim, and are not proportional to the achievement of that aim.[16]
Right
to social security
1.52
The UN Committee
on Economic Social and Cultural Rights has noted in relation to the right to
social security:
9. The right
to social security includes the right not to be subject to arbitrary and
unreasonable restrictions of existing social security coverage, whether
obtained publicly or privately, as well as the right to equal enjoyment of
adequate protection from social risks and contingencies.
. . .
24.
Qualifying conditions for benefits must be reasonable, proportionate and
transparent.
. . .
36. Article
2, paragraph 2, prohibits discrimination on grounds of nationality and the
Committee notes that the Covenant contains no express jurisdictional
limitation. Where non- nationals, including migrant workers, have contributed
to a social security scheme, they should be able to benefit from that
contribution or retrieve their contributions if they leave the country....
37.
Non-nationals should be able to access non-contributory schemes for income
support, affordable access to health care and family support. Any restrictions,
including a qualification period, must be proportionate and reasonable. All
persons, irrespective of their nationality, residency or immigration status,
are entitled to primary and emergency medical care.[17]
1.53
The committee
considers that the exclusion of New Zealand citizens who are long-term
residents in Australia and who are not protected SCV holders, permanent
residents or Australian citizens, from access to the NDIS, raises issues of
compatibility with the enjoyment of the right to social security and the right
to non-discrimination in the enjoyment of that right, in particular as that exclusion
affects New Zealand citizens who have been long-term residents of Australia.
1.54
The committee
recognises that article 4 of the ICESCR permits limitations on the enjoyment of
the right to social security but notes that article permits only
such
limitations as are determined by law only in so far as this may be compatible
with the nature of these rights and solely for the purpose of promoting the
general welfare in a democratic society.
1.55
The committee
considers that it is not apparent from the NDIS Act and accompanying
explanatory materials why the exclusion of certain categories of New Zealand
residents is a justified limitation on the enjoyment of the right to social
security.
1.56
The
committee intends to write to the Minister for Families, Community Services and
Indigenous Affairs and Minister for Disability Reform to seek clarification as
to whether the exclusion from access to the NDIS of New Zealand citizens who
are long-term residents of Australia, and not protected SCV holders or
permanent residents, is consistent with right to non-discrimination and the
right to social security.
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