THE TREATMENT OF DISABLED PERSONS IN
SOCIAL SECURITY AND TAXATION LAW
Occasional Paper No. 11
Australian Government Publishing Service
Commonwealth pf Australia 1986,
ISBN 0 644 04812 3
Printed byC. J. THOMPSON, Commonwealth Government Printer, Canberra
The Occasional Paper Series
This is the eleventh of the Human Rights Commission's Occasional Papers series. It was prepared within the Commission by Ms Pamela Bedwell on behalf of the Australian Council of Social Services (ACOSS) for the Human Rights Commission.
Occasional Papers are issued by the Commission from time to time to deal in depth with a particular problem or subject. In some cases, as with this paper, they are intended to provide an analytic review of a subject, raising what are seen to be key issues and arguments. In other cases, they may set out facts or background to assist in a better understanding of a problem or a subject area. Their overall objective is to promote greater awareness and public discussion of human rights.
None of the views that may be expressed or implied in the Occasional Paper series are necessarily those of the Human Rights Commission or its members, and should not be identified with it or them.
Other papers in this series are:
Occasional Paper No. 1 Incitement to racial hatred:
issues and analysis, October 1982.
Occasional Paper No. 2 Incitement to racial hatred: the
international experience, October 1982.
Occasional Paper No. 3 Words that wound: proceedings of the
Conference on Freedom of Expression and Racist 'Propaganda, February 1983.
Occasional Paper No. 4 Compendium of human rights courses
in Australian tertiary institutions, August 1983.
Occasional Paper No. 5 Aboriginal reserves by-laws and human
rights, October 1983.
Occasional Paper No. 6 The teaching of human rights, October
Occasional Paper No. 7 Epilepsy and human rights, October
Occasional Paper No. 8 The rights of peaceful assembly in the
A.C.T., February 1985.
Occasional Paper No. 9 Teaching, enacting and sticking up for
human rights, March 1985.
Occasional Paper No. 10 Legal and ethical aspects of the
management of newborns with severe disabilities, August 1985.
This report was prepared by the Australian Council of Social Service. Ms Tania Evers of the Macquarie Legal Centre and
Mr Phil Molan of the Public Interest Advocacy Centre contributed the legal analysis of social security legislation and
Mr Phil Burgess of the University of New South Wales contributed the analysis of taxation legislation.
Valuable assistance and advice in the initial planning and information gathering stages was given by Ms Philippa Smith and Mrs Joan McClintock of ACOSS. Initial legal research was undertaken by Mr David Cannings, Mr David Dobell,
Ms Julie Fergusson, Mr Richard Krone, Mr Tony Krone and Mr Gregory Niven.
I would like to thank Mr John Ferguson, Professor Ian Webster, Mr Bob Brooks, Ms Barbara Spode, Ms Ruth Grayson, Ms Michele Powell, Mr Bert Braun and Mr Ben Boer for their help and advice at various stages of the research.
Thanks also to Colleen Daunt, Librarian at the N.S.W. Anti-Discrimination Board and the research staff at the N.S.W. State Library.
Thanks must be given to Ms Roberta Getgood who had responsibility for typing.
Finally, I should like to thank, with gratitude, the many individuals and representatives of organisations who responded to the 'issues paper' and shared their knowledge and experiences with us. Their contributions were warmly appreciated.
The Human Rights Commission has the responsibility of :prompting the observance of the broad range of human rights recognised in the International Covenant on Civil and Political Rights and in the Declarations of the Rights of the Child, on the Rights of Mentai1y Retarded Persons and on the Rights of Disabled Persons.
Paragraph 3 of the Declaration on the Rights of Disabled Persons provides that disabled persons have the, same fundamental rights as other citizens, of the same age, and that this implies first and foremost the right to enjoy a decent life as norma.1 and full as possible. Social security, and taxation legislation
have a particularly important role to play in ensuring that effect is given to this right, yet because of such reasons as inappropriate eligibility criteria, inadequate income support or lack of information regarding service's provided, a person with disabilities may well find that the general objective of assisting him or her to lead a normal life is frustrated. The Commission asked the Australian Council of Social Services to undertake the present study so as to highlight the difficulties and discrimination faced by persons with disabilities, in current social security and taxation law.
The Declaration, as well as the other human rights instruments, can be used as 4 standard against which existing laws can be evaluated and to which any proposals for law reform should conform. The principles in the Declaration which. may be used to assess how current social security and taxation laws conform, with the rights, of persons with disabilities include: the right to a decent standard of living, [paragraph;
the right to economic and social security [Paragraph 7];
the right to appropriate medical, psychological and
functional treatment [Paragraph 61;
the right to have their special needs taken into
consideration [Paragraph 8];
the right to have the benefit of special measures designed
to enable them to become as self-reliant as possible [Paragraph 5];
the right to live with their families. If a stay in a
specialised establishment is indispensable, the right to an environment which is as close as possible to that of the normal life of a person of the disabled person's age [Paragraph 9];
( vi )
the right to protection against all exploitation, all regulations and all treatment of a discriminatory, abusive or degrading nature [Paragraph 101; and
the entitlement of organisations of disabled persons to be consulted in all matters regarding the rights of disabled people [Paragraph 121.
The Commission hopes that this report will provide a basis for informed discussion about the needs and rights of people with disabilities when new legislation or reform of existing legislation in the areas of social security and taxation is under consideration. In the light of the ACOSS study, it sees a need for early action in relation to both areas. The Commission itself will be making a number of recommendations to the Attorney-General about the need for reforms.
Peter Bailey Deputy Chairman
Table of Contents
Terms of reference 1
What is disability? 2
What is discrimination? 5
Demographic profile of disabled persons 6
Legal examination 10
Literature review 11
THE AUSTRALIAN TAXATION AND SOCIAL SECURITY 12
SYSTEMS: AN OUTLINE
Principles of the taxation system: equity, 13
efficiency and simplicity
The social security system 16
Principles of the social security system: 17
categorisation and selectivity
Whose benefit? - the tax-transfer system 20
TOWARDS INDEPENDENCE 26
Reallocation of funds 31
AN ANALYSIS OF CURRENT AUSTRALIAN SOCIAL SECURITY 37
AND TAXATION LEGISLATION
Social security legislation 37
Invalid Pensions 50
Sickness Benefits .57
Handicapped Child's Allowance 62
Mobility Allowance 71
Program of Aids for Disabled People (PADP) 73
Taxation legislation 75
Sales tax and customs duty 80
6: EVIDENCE FROM THE SUBMISSIONS 87
Invalid Pension 88
Handicapped Child's Allowance 90
Program of Aids for Disabled People (PADP) 91
Mobility Allowance 93
Costs of independence 95
Discrimination in Government funding 96
Tax rebates and concessions 100
INCOME SUPPORT AND DIRECTIONS FOR FUTURE ACTION 104
Some recent proposals 104
Directions for future action 110
General reform 114
Taxation reform 117
What is to be done? 118
Disability and the law: ACOSS call for 121
submissions on social security and taxation law
Issues raised in submissions: a tabulation 129
TERMS OF REFERENCE
1.1 This report was prepared by the Australian Council of
Social Service (ACOSS) on behalf of the Human Rights Commission. The Human Rights Commission was set up in 1981 by the Commonwealth Government to promote and protect human rights in Australia.
1.2 By recognising the International Covenant on Civil and
Political Rights, the Declaration on the Rights of Disabled Persons, the Declaration on the Rights of
Mentally Retarded Persons and the Declaration of the Rights of the Child, the Australian Government has made a commitment to ensure that, regardless of any disabilities they may have, all citizens enjoy their fundamental rights to economic security, equal opportunity,
self-determination, freedom of choice and dignity.
1.3 The aim of this report is 'to examine the difficulties and
discrimination faced by disabled persons in the current social security and taxation law'.
1.4 Taxation and social security legislation are both premised
on fundamental notions of social justice and equity, yet clearly many disabled people and their families suffer economic hardship and social deprivation quite contrary to the aims and underlying spirit of these laws. In practice
a 'full life', including the right to live at home, to housing, to recreation, to public buildings and to the world of work, is denied.
1.5 This report could not hope to give comprehensive details
on all the intricacies of the inter-relationship between social security and taxation law, nor an exhaustive study of all aspects of discrimination faced by disabled people. Such a study would be a major task-and require vast resources. Accordingly, the research was-limited to examining the major inadequacies and anomalies in current
legal provisions, particularly in the area of income support. This emphasis is in accord with the concerns
raised in consultations with disabled people, and the submissions received.
1.6 It should also be noted that practically none of the
issues raised are new There is a wealth of evidence and
information to be found in various surveys, inquiries and reports published in Australia in the last decade. They
stand as testament to an increased awareness of the continuing lack of rights of disabled people in our society. In the long experience of Mr Justice Meares, 'if you drip water on stone long enough quite often the stone will wear away'. Disabled people have been remarkably patient. We have accepted the social obligations set out in the United Nations Declarations. What is needed now is action.
WHAT _IS DISABILITY?
1.7 In 1981, the Australian Bureau of Statistics completed a
survey which found that 194,200 Australians or 13.2 per cent of the population is disabled .1.
1.8 There is great confusion over legislative definitions and
terminology used to describe disabled people. The South Australian Committee on the Rights of Persons with Handicaps (the Bright Committee) found that South Australian legislation contained 24 different phrases used in connection with physical disability and 40 different phrases connected with mental disability.2 After considering the inconsistencies and potential for discrimination in their descriptions the Committee stressed the need to minimise ambiguity of Language in legislative and policy areas.
1.9 The World Health Organisation has provided definitions of
Impairment, disability and handicap as follows: Impairment
Disability is the loss or reduction of functional ability and activity that is consequent upon impairment. It is the mediating term of impairment and handicap. It covers incapacity in walking and other body movements and in manual activity, and behaviour disorders.
Handicap is the disadvantage that is consequent upon impairment and disability. Handicap represents the social and environmental consequences to the individual stemming from the presence of impairment and disability.
The activities or tasks a person has difficulty in fulfilling are categorised as: self care
1.10 The report Of the Bright Committee (the Bright Report) summarised these definitions as follows:
An impairment is an anatomic or functional
abnormality or 1oss which may or may not result in a disability. A disability is a loss or reduction of functional ability which results from an impairment. Handicap is the disadvantage caused-by –disability. Thus, impairment is a medical condition, disability
is functional consequence and handicap the social consequence.
On this definitional basis the Bright 'Report found the terms '''Persons with intellectual handicaps”; “Persons with 'physical handicaps' and 'handicapped persons' to the
most appropriate because they encompass the social barriers which compound the effects of impairment.4 It
was-further argued that many inequities in the social security system can be attributed to the law awarding benefits on the basis of impairment. For example, two people with a similar mobility impairment may well suffer a different-degree Of disablement if only one can afford
to own an imported electric wheelchair, make home and vehicular modifications, etc. Conversely, two people with quite different impairments may have similar
disabilities. People with speech impediments and people
who are deaf may have similar communication problems.
1.11 The need for a concise and consistent use of terminology is evident but in Australia as elsewhere remains unmet. Australian Federal legislation includes the Handicapped
Persons Assistance Act 1974 (Cwlth) and the Aged or -Disabled Persona Home Act 1954 (CW1th) while the Social
Security Act l947 (Cwlth) has Provisions relating to
“invalid persons', 'disabled persons' and 'handicapped persons'. Indeed, Australia is a signatory to a United Nations Declaration which speaks of the rights of disabled persons and another which speaks of the rights Of children who are 'physically, Mentally Or socially handicapped'.
1.12 The debate about the suitability of various definitions and terms continues and there is no clear unanimity among disabled people as to preferred usage. However,
indications are that the growing self-help movement in Australia prefers the use of 'disability' and 'disabled persons' and those terms are used in this Report.
WHAT IS DISCRIMINATION?
1.13 People may be discriminated against on many grounds including sex, race, ethnic origin, age, marital status, Political or religious conviction, and physical and mental disability. Some major areas in which discrimination may occur are employment, education, accommodation and the supply of goods and services.
There are two types of discrimination - direct and indirect.
Direct discrimination occurs when a person acts, either deliberately or unintentionally, to discriminate against another on the grounds of stereotyped attitudes or beliefs.
Indirect (covert, systematic) discrimination occurs when policies, practices or rules, although 'neutral' on the face of it, result in perpetuating discriminations against a Particular group of Persons.
1.14 Consider the following two examples of discrimination:
Universities are funded by the Public Purse and are free to all eligible students. On the other hand, Activity Therapy Centres,which are considered the equivalent of a tertiary education system for intellectually disabled People are so inadequately funded that clients, parents, and friends must raise
supplementary funds and commonly pay fees.
Access to transport is a necessary prerequisite for the vast majority of Australian workers. For those who are unable to use public transport a car may be the only answer. Provisions in the Sales Tax
(Exemptions and Classifications) Act 1935 (Cwlth) and the newly introduced Mobility Allowance give recognition to this fact, albeit meagrely. However disabled people who work at home or attend an
-Activity Therapy Centre are denied this small relief. Furthermore, those people, usually women, who work at home taking care of a severely disabled family member, are ineligible for any transport assistance.
1.15 Indirect discrimination, which is built into the system, is more difficult to uncover and clearly much more difficult to rectify than individual direct discriminatory acts. Any worthwhile challenge to indirect discrimination will require action at various levels and will confront many established structures and social processes. The law represents one avenue for removing existing inequalities and providing the principles for future action.5
DEMOGRAPHIC PROFILE OF DISABLED PERSONS
1.16 The Australian Bureau of Statistics (1981) Survey using the World Health Organisation guidelines, defined a disabled person as one who has one or more disabilities or impairments.6 A handicapped person is one who is limited (by her or his disability) in the performance of certain activities involving self-care, mobility, communication, schooling and employment.
1.17 A high proportion of income units with a handicapped person received Government benefits as a source of income.7
Table: 1, Income Units With Handicapped Person:: :Source of Income
Number of income
Per cent of
Source of Income, units (13.00)
Wages and salaries
Interest, rent, dividends
Handicapped child allowance
(a) Sum of components exceeds total because income units often
have more than one: source :of income.
61,8 per cent Of income units with handicapped person receive income from a Government, pension (invalid, age, widow, repatriation pension, unemployment benefits), By comparison, a Government pension is the principal source of income for only 18.4 per cent of all income units. REFERENCES Handicapped persons in Australia, Australian Bureau of Statistics, Canberra, 1982. Catalogue no. 4343.0. For a summary of the Survey see National Advisory Council for the Handicapped, Breakthrough, 20 November 1983.
South Australia, Committee on Rights of Persons with Handicaps (First Report, Charles H. Bright, Chairman), The law and persons with handicaps,Adelaide, 1978, vol. 1, pp. 7-77.
3- ibid., p. 11. See also Tasmania, Board of Inquiry into the Needs of the Handicapped (Ian W. Webster, Chairman), Report, Govt. Pr., Hobart, 1980, ch. 12; and New South Wales Anti-Discrimination Board, Discrimination and physical handicap, 2 vols, Sydney, 1979, ch. 1.
See L. Stein, 'Address' in Disability, discrimination, rights and entitlements, proceedings of a seminar organised by Disabled Advocates and Self-Help, Perth, W.A., 11 September 1982, pp. 13-15; E. Hastings, The self-help movement of disabled people in Australia, discussion paper prepared for the International Year of Disabled Persons Committee of Non-government
Organisations, Canberra, 1981.
Handicapped persons in Australia, op.cit., p. 13.
ibid., p. 167.
2.1 Information was gathered from disabled people and their
how current taxation and social security provisions discriminated against them and what effects this had on their daily lives;
their recommendations on appropriate measures to overcome these difficulties.
An 'issues paper' was prepared which outlined various provisions in relevant Acts followed by criticisms most often raised in relation to the practical effects of their implementation (see Appendix 1). Submissions were invited
on these and any other matters that respondents felt should be raised.
2.2 On 9 March 1983, 500 copies of the 'issues paper' were
mailed out. The mailing list was compiled from entries listed in various social service directories of disabled
people's organisations. Special efforts were made to include all diagnostic categories of disability and an emphasis was placed on reaching voluntary organisations and members and representatives of self-help groups. A covering letter explaining the purpose of the research was included and information leaflets were attached with a request that they be displayed and distributed to
members. It was further requested that details of the research be included in any available publications.
2.3 The closing date for submissions was set for 29 April 1983
and a reminder notice was sent out to those
organisations who had not responded by that date. Following the initial receipt of both written and oral
submissions it became clear that more 'issues papers' would need to be distributed and the submission deadline extended. Another 300 copies of the 'issues paper' were printed and the closing date for submissions was extended to 29 July 1983.
2 4 A breakdown of issues raised in the submissions shows 66.6
Per cent related to matters concerning social security legislation, 22.4 per cent concerned taxation legislation and 10.9 per cent concerned issues which did not directly fall within the ambit of social security or tax law (see
Appendix 2). Over one-third of all submissions were directly concerned with income support, which accords with the matters which arose out of the International Year of Disabled Persons, when the issue of income support was one of high priority. A total of 37 organisations responded and 55 individual people responded, with the latter making
38 written submissions and 17 verbal submissions (see
2.5 Further information and advice was sought from 'key
informants' who had specialised knowledge in areas
pertinent to the law and disability. Twenty informal interviews were conducted with members of self-help and advocacy groups, administrators of voluntary organisations and lawyers.
2.6 A comprehensive list of current legislation was compiled
and various acts were excluded from further consideration on a number of grounds. Practical constraints meant that certain acts were excluded on the ground that they were
largely peripheral to the main thrust of the research. Others, such as the A.C.T. Workmen's Compensation Ordinance 1951 and workers' compensation provisions in the
Commonwealth Public Service Act were deleted on the grounds of their complexity and the fact that
investigations are Currently being carried out in this area by other organisations.
2.7 On the basis of submissions received it was decided to
focus the legal analysis of social security to those issues concerning the Invalid Pension, Sickness Benefits, the Handicapped Child's Allowance, the Program of Aids for Disabled People (PADP) Scheme and the Mobility Allowance. The legal analysis of taxation issues focuses on issues concerning work related deductions, concessional rebates, sales tax and custom duty.
2.8 Literature searches were carried out in several
libraries. There is a vast amount of domestic and overseas literature which deals with the lack of equal opportunity faced by people with disabilities. Given the particular and often overlapping principles underlying
social security and taxation law and the emphasis on income security raised in the submission, it was decided
to focus on recent written material closely allied in subject matter.