Senate

Revised Explanatory Memorandum

(Circulated by the authority of the Minister for Social Services, the Hon Christian Porter MP)

Schedule 18 - Aligning social security and disability discrimination law

Summary

This Schedule aligns the operation of the social security law and disability discrimination law.

Background

Currently, the Disability Discrimination Act 1992 (the Disability Discrimination Act) provides, under subsection 51(1), that the Social Security Act does not affect discriminatory provisions relating to pensions, allowances or benefits and that anything done by a person in direct compliance with a provisions under the Social Security Act is not unlawful.

The Explanatory Memorandum to the Disability Discrimination Act provides that clause 51 'is designed to ensure that in relation to pensions and allowances a person's entitlement is as set out in the legislation which provides for those pensions and allowances and that entitlement is not affected by the coming into force of this Bill. The clause sets out Commonwealth laws under which pensions and allowances are paid and makes it clear that where there are discriminatory provisions in those Acts, this legislation does not affect those provisions.'

At the time the Disability Discrimination Act commenced, the Social Security Act encompassed the entire social security law. When the Social Security Act was split in 1999 into three Acts (that is, the Social Security Act, the Social Security Administration Act and the International Agreements Act), the Social Security Administration Act only dealt with the administration of the social security law. However, over the years the scope of the Social Security Administration Act has changed and expanded with the inclusion of provisions, such as those that deal with income management and compliance of participation payments. Accordingly, there are now a number of provisions that could be potentially discriminatory in relation to a person's entitlement to a pension or allowance.

The International Agreements Act gives effect to any social security agreement between Australia and another country relating to reciprocity in social security or superannuation matters that are set out in a Schedule to that Act. Under that Act the provisions of a Scheduled international social security agreement have effect despite anything in the social security law. The agreements that are set out in the relevant Schedules coordinate the social security systems of Australia and the specified country to give better income support protection for people who move between the two countries. Since 1999, the number of countries covered by the International Agreements Act has grown significantly. Again, provisions in the Schedules to the International Agreements Act could be potentially discriminatory in relation to a person's entitlement to a pension or allowance.

In view of the intention that the Disability Discrimination Act should not affect a person's entitlement to pensions and allowances, consequential amendments are required to ensure that any potential discrimination under those Acts does not occur.

For the avoidance of doubt, legislative instruments made under the Social Security Act and the Social Security Administration Act will also be exempt from the operation of the Disability Discrimination Act due to the heavy reliance on legislative instruments in particular policy areas, such as for instruments made for the purposes of disability support pension.

Explanation of provisions

Disability Discrimination Act

Item 1 repeals and substitutes paragraph 51(1)(d) with new paragraphs 51(1)(d), (da) and (db). New paragraphs (d) and (da) respectively provide that, where there are discriminatory provisions in the Social Security Act and Social Security Administration Act, or in legislative instruments made under those Acts, the Disability Discrimination Act does not affect those provisions where it relates to pensions, allowance or benefits.

New paragraph (db) provides that, where there are discriminatory provisions in the International Agreements Act, the Disability Discrimination Act does not affect those provisions where it relates to pensions, allowance or benefits.