The Human Rights (Parliamentary Scrutiny) Act 2011

[rowdy]

The Human Rights (Parliamentary Scrutiny) Act 2011 requires all new bills and disallowable legislative instruments to be accompanied by a 'Statement of Compatibility with Human Rights'. Statements will assess compatibility against the seven main United Nations human rights treaties to which Australia is a party.

Below are the two recent Bills that concerns us. However the first Bill now being law (unlimited portability).


Bill regarding Unlimited Portability

Overview

The Schedule inserts new provisions that will allow disability support pension recipients who have a severe and permanent impairment and no future work capacity to have their disability support pension paid overseas for greater than 13 weeks. These changes acknowledge that some disability support pensioners who have a severe and permanent impairment and no future work capacity should not be impacted by the portability rules applicable to the majority of disability support pension recipients.

Human rights implications

This Schedule promotes the right to social security as it changes the portability rules for disability support pension recipients with a severe and permanent impairment and no future work capacity to allow them to receive their payment overseas for greater than 13 weeks.

For the majority of disability support pension recipients the maximum time they can receive their payment outside Australia will remain 13 weeks.

This Schedule 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.

Conclusion

The Schedule is compatible with human rights because it advances the protection of human rights.

Bill Reducing Portability from 13 to 6 weeks

Overview of the legislative amendments

This Bill tightens the rules for people who travel overseas while receiving some income support payments and family payments. Under the change, the length of time individuals can spend overseas while continuing to receive their payments will generally be reduced from 13 weeks to six weeks.

The Australian Social Security System still retains generous portability provisions for those people on income support payments. Although, limited to six weeks there is generally no limit on the number of times a person can leave Australia, as long as they continue to reside in Australia.

There are also generous portability extension provisions for those people who are prevented from returning to Australia.

It should be noted that the change will generally not apply to those people who are not expected to have a participation requirement. These are people in receipt of the age pension and those disability support pensioners assessed as having a severe and permanent disability and no future work capacity. The new rules will not apply to students studying overseas as part of an approved Australian course. Family tax benefit Part A will continue to be paid for up to three years of a temporary absence from Australia, but will reduce to the base rate after six weeks.

Human rights implications

This Bill has considered the human rights implications particularly with reference to the right to social security as contained within Article 9 of the International Covenant on Economic, Social and Cultural Rights. It was concluded that the Bill does not place limitations on human rights and will have no impact on an individual’s right to social security.

Conclusion

The amendments are compatible with human rights because they advance the human rights to social security.

[rowdy]

These Statements of Compatibility are absolute rubbish. For starters they make no mention of the Human Rights implications regarding the Convention on the Rights of Persons with Disabilities.

The first Bill (now law) ..." For the majority of disability support pension recipients the maximum time they can receive their payment outside Australia will remain 13 weeks".... That was a LIE.

The second Bill ...The Australian Social Security System still retains generous portability provisions for those people on income support payments. Although, limited to six weeks there is generally no limit on the number of times a person can leave Australia, as long as they continue to reside in Australia. There are also generous portability extension provisions for those people who are prevented from returning to Australia.... OKAY, there you have it, no limit on the amount of times a person can leave Australia, just as long as they remain a resident. These changes are ALL about crippling us financially. The fact that they changed the requirement for on-going residency should have been enough, but they are reducing portability to further put us down a hole.

[rowdy]

DSP’ers have up until recently been able to enjoy a sustainable lifestyle by travelling regularly to neighboring countries, particularly in South East Asia. There are many factors that made this possible, low cost-of-living in these countries, compared to the high cost of living in Australia, favorable exchange rates and the advent of low cost airfares etc. Many sold what assets (real and personal property) they had in Australia. It was only a requirement that they complied with portability (13 weeks). There was no ongoing requirement that they satisfied the residency test. They complied with the law as it stood.

However, the Government decided to wield a very big axe and made it a requirement that a DSP’er must not only be a resident at time they are granted the DSP, but it is an ongoing requirement that they remain a resident - the continuing residency requirement. The test for residency is found in the Social Security Act and it provides for several criteria to be taken into account when determining ones residency. It could be argued that this is a fair test as it provides for many factors to be taken into consideration, of which frequency and duration of travel is just one factor.

The Government not happy with just the ongoing residency test decided to wield an even bigger axe and now wants to reduce portability to 6 weeks. There is no reasonable justification in doing this, other than to make it very restrictive for DSP’ers to travel. If there is a residency test, then that should be it.

It is my firm opinion that when we look at the substance of all these changes they do amount to Human Rights Breaches in relation to the following:

Article 9 of the International Covenant on Economic, Social and Cultural Rights provides; and

Article 18 - Liberty of movement and nationality

[Banjo]

There's no limit to how many times you can leave Australia, (starting next year) as long as you remain a resident.
But nothing in the bill says how many times in what period you can go before you lose your residency.
Is that right?
And what, pray tell, are the generous portability extension provisions?

[rowdy]

Jun 23, 2012 11:26:53 GMT 7 Banjo said:

There's no limit to how many times you can leave Australia, (starting next year) as long as you remain a resident.
But nothing in the bill says how many times in what period you can go before you lose your residency.
Is that right?
And what, pray tell, are the generous portability extension provisions?

Banjo,

Firstly, they are not generous portability extensions at all. One must already be overseas and the event must occur whilst they are. In short, if a DSP calls Centrelink and says, "my mum is dying in the UK, I am her only family, I need to be with her for at least 6 months". The answer will be BAD LUCK you lose your DSP after 6 weeks. Unless of course the DSP can come back every 6 weeks.

Secondly, there is no limit now on how many times you can leave Australia. There never has been. Residency is the only test, of which frequency and duration is ONE factor only. A person could make 50 overseas trips a year and pass the residency test, whereas a person could make 1 and fail it.

6 week portability is a sanction, because they know with 13 week portability people can travel regularly on their DSP. 6 weeks however makes it nearly impossible. Residency should be the sole test.

[roxane]

yes, we know and they know that this human rights compatibility is all bullshit.
But I've talked to Welfare Rights and it seems that not a single org. or lawyer would want to take this to court, as C/L is exempt from all these acts. Welfare Rights gave an example, if you wanted to claim age pension, you couldn't take them to court based on age discrimination.
Stupid example, but that just shows how uninterested they are.
They can do anything to the pension, and there is absolutely nothing you can do about it.
However I'm still focusing on claiming based on the int. agreement. I'm sure I have already lodged something very similar when we claimed DSP like the forms for JCA
www.humanservices.gov.au/customer/forms/aus140?utm_id=7
so maybe they won't need it again. I will find out what the story on this.

[bundyrum]

there must be a limit to how many times you are away...that was all I failed ..too long o/s getting medical treatment..so they cancelled me...i was always in Aussie within 13 weeks..but that didn't matter.They still couldn't prove I was a resident somewhere else..still didn't matter.
Just got shafted by email..Basically told to go starve..no councilling...no other benifit offered..nothing....they are SICK PEOPLE..

[Banjo]

Jun 23, 2012 12:30:11 GMT 7 roxane said:

yes, we know and they know that this human rights compatibility is all bullshit.
But I've talked to Welfare Rights and it seems that not a single org. or lawyer would want to take this to court, as C/L is exempt from all these acts. Welfare Rights gave an example, if you wanted to claim age pension, you couldn't take them to court based on age discrimination.
Stupid example, but that just shows how uninterested they are.
They can do anything to the pension, and there is absolutely nothing you can do about it.
However I'm still focusing on claiming based on the int. agreement. I'm sure I have already lodged something very similar when we claimed DSP like the forms for JCA
www.humanservices.gov.au/customer/forms/aus140?utm_id=7
so maybe they won't need it again. I will find out what the story on this.

Yes, I went over all that with WR a couple of years back and they told me the same thing.
So why does Centrelink consistently lose when their decisions are appealed?

[scuzzy]

Do you reckon these fly in -fly out mine workers who spend two weeks every month underground in WA then the other half of every month in Bali or Phuket shacked up with their local Mrs, in their local House that she's convinced him to buy, and does that every month of the year, do you reckon anyone says to them "Um guess what, because you spend 6 months of the year outside Australia and have a local wife, local house, local car, local bank account, local everything else, your not a resident of Australia any more". And I bet they especially don't say that to them come tax time! Sounds like discrimination to me.

They can spend half the year outside Australia and keep their residency because they are workers, we aren't allowed to because we are disabled. We're being discriminated against on the grounds of disability.

Sound like a solid enough argument?

[Banjo]

I know that offshore workers have problems, particularly if they are paid overseas into overseas accounts.
These are the ones who have to live in Australia for 2 years if they come back broke and wanting the OAP.