Human Rights Commission Reply

[Banjo]

I refer to your email enquiry sent on 27 February 2011, regarding the Families, Housing, Community Services and Indigenous Affairs and other legislation amendment (2008 Budget and other measures) Bill 2010.

You advise that you are currently on the Disability Support Pension (DSP) and are living outside Australia. You say that DSP recipients are currently allowed 13 weeks outside Australia after which you are required to return. You say that legislation is currently before the Senate which aims to stop this practice.

Whilst the Commission can consider claims of disability discrimination in specified areas of public life, as well as human rights breaches, our complaint handling power does not extend to considering claims relating to the legislation itself. As your concerns appear to relate to the Families, Housing, Community Services and Indigenous Affairs and other Legislation Amendment (2008 Budget and other Measures) Bill 2010, currently before the Senate, it does not appear that your concerns can be handled as a complaint of either a breach of your human rights or a claim of unlawful disability discrimination under the Disability Discrimination Act 1992 (Cth).

Whilst the Commission can consider claims of disability discrimination in specified areas of public life, our complaint handling power does not extend to considering claims relating to legislation itself. I should also note that there is a specific exemption provided for in section 51 of the Disability Discrimination Act 1992, regarding provisions of a number of Acts, in relation to pensions, allowances and benefits. This means that any act done in direct compliance with the provisions of these Acts would not constitute unlawful discrimination.

Generally concerns about Federal legislation should be raised with the Federal Government. You may wish to contact your local Federal Member of Parliament to see what options you have to raise concerns about the new law. Alternatively, you may wish to contact the Minister for Families, Housing, Community Services and Indigenous Affairs, the Hon Jenny Macklin MP. Her contact details can be found via the following link: www.jennymacklin.fahcsia.gov.au/.

If you have any questions about this letter or if you would like to provide more information for the Commission to consider, please contact me on 1300 656 419.

Regards,

Penny De Paoli
Complaint Information Officer
Complaint Information Service

Australian Human Rights Commission

Level 8 Piccadilly Tower, 133 Castlereagh St, Sydney NSW 2000
GPO Box 5218, Sydney NSW 2001
T 1300 656 419 F [phone]
E [e-mail] W www.humanrights.gov.au

Human rights: everyone, everywhere, everyday
(Except Disability Support Pensioners)

[spaceyone]

Disappointing.

Didn't they come out the other day with their opinion that there are too many people sitting around on Disability pensions, who should instead be assisted into work?

They consider that to be the main abuse we are suffering, that we have been left alone. They are now towing the government's line, instead of the one of the victims.

Starting to seem like a conspiracy against us.

[Deleted]

Maybe you need to send a copy of the response to the Hon Jenny Macklin MP..Pointing out that she has not responded but other can.

This might wake her up to the fact that she has egg on her face.

[Banjo]

I've had a couple of replies from her office, we achieve little by writing to them other than making them aware we exist, it's important for that reason alone.

[rowdy]

.......Whilst the Commission can consider claims of disability discrimination in specified areas of public life, our complaint handling power does not extend to considering claims relating to legislation itself.......

The above is what concerns me. Basically the effects of Government legislation is exempt from disability discrimination provisions. Does this apply to the Convention? I dont know. If it does however, the Convention is nothing more than a piece of paper I could wipe my ar#e with.

I need to find out whether the effects of Government legislation (portability) can be the subject of a complaint to HREOC. If the answer is NO, then I guess it has to be a complaint directly to the UN that Australia has failed to comply with a convention they have ratified.

Interesting time lay ahead.

[numpty]

Interested in the phrase "done in direct compliance"

[numpty]

As far as overseas travel is concerned, how can they be 'in direct compliance' with the act, when the act does not specify exactly how much time somebody must remain in Australia to still be considered a resident ? If it is an arbitrary decision then what ?

[numpty]

As far as overseas travel is concerned, how can they be 'in direct compliance' with the act, when the act does not specify exactly how much time somebody must remain in Australia to still be considered a resident ? If it is an arbitrary decision then what ?
does the actual act have guidelines for decision making ?

[Banker]

Because Centrelink make their own rules. This has been proven many times here on the forum and it must STOP.

Just look at the amount of complaints that are sent to the Ombudsman about Centrelink more than any other Government department.

[peter]

The problem has to do with the definition of residency. There are many different definitions. The Taxation Dept has a very definite definition, so too does the Immigration Dept, but Centrelink seems to have used the common law definition, which defines residency in a common law way which depends on the 'balance of ties and time spent" in a particular place, to determine it.

It does not matter much now, since the six weeks rule will be used as the control.

It might happen though that someone will have eight periods of six weeks overseas in one year and still be in compliance with the Act, but not in compliance with the "balance of ties" provision, but since he has been coming "home" eight times a year, that should prove he is a "bona fide" resident, sufficiently well heeled to indulge wanderlust..................so I cannot foresee a case where one becomes non resident if in compliance with the six week rule.

So, once Centrelink benefits are commenced, Centrelink does not need a definition of continuing residency since the six week limit of the portability rule makes that moot.

At least its a clear cut situation in contrast to the uncertain situation of Centrelink defining residency, which was in place before.

[zorro1]

It might happen though that someone will have eight periods of six weeks overseas in one year and still be in compliance with the Act, but not in compliance with the "balance of ties" provision, but since he has been coming "home" eight times a year, that should prove he is a "bona fide" resident, sufficiently well heeled to indulge wanderlust..................so I cannot foresee a case where one becomes non resident if in compliance with the six week rule."

Peter I have given this a lot of thought . C/L by tightening the rules and reeling us back in every 6 weeks ,they have also apparently given us no choice but to remain Australian residents. If one has all the usual bases covered and also returns every 6 weeks it will be a lot harder for them to twist the rules

[anotherdsp]

to peter/zorro, yep a take on the system,if you have good residency ties to aust,an no real ties o/s and donot engage in the local community o/s and a basically just a tourist,i assume there should be no problem?? maybe??

[Denis-NFA]

I went overseas 3 times before I got pinged on residency and then told if I go again I will have to complete a new application for dsp.

My contribution to the demise of the foul, stinking, ars*hole corrupt Labor/Green union terrorist scum mob that are supposedly governing Australia is to cost the Australian Taxpayer an additional $5000+ per year.

Do let us get political.

[aussieinusa]

Jun 19, 2012 21:48:32 GMT 7 rowdy said:

The above is what concerns me. Basically the effects of Government legislation is exempt from disability discrimination provisions. Does this apply to the Convention? I dont know. If it does however, the Convention is nothing more than a piece of paper I could wipe my ar#e with.

That's actually the status of all UN Conventions in Australia. We're signatories to a whole bunch of them, but the government just ignores them whenever they feel like it. Hence throwing asylum seekers, including children, into jail for years, when under international law seeking asylum in a foreign country is not a crime. (Yes, there are people the government treats even worse than they do us... because those people are even more vulnerable than us. They don't even have the power to complain on a public internet forum about what's happening to them. )

My lawyer friends say that the real problem isn't all the individual bad policy decisions CL makes; it's that there's no real legal concept of human rights in Australia. If we had a US-style Bill of Rights, there would be something solid our courts could refer to, in overturning government policy decisions and legislation that infringe upon basic human rights. So for some reason, no politician in this country seems keen to lobby for one. Wonder why?