Selkirk and National Disability Insurance Agency
[2021] AATA 3478
•29 September 2021
Selkirk and National Disability Insurance Agency [2021] AATA 3478 (29 September 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/2760
Re:Christine Selkirk
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member Reitano
Date:29 September 2021
Place:Sydney
The Tribunal does not have power to review the decision that is the subject of this application.
..............................[sgd]..........................................
Member Reitano
CATCHWORDS
JURISDICTION – where the decision maker has decided not to appoint a plan nominee or correspondence nominee – meaning or the words ‘a decision to appoint a plan nominee – meaning of the words ‘a decision to appoint a correspondence nominee’- section 99 reviewable decisions and decision makers – statutory interpretation – ordinary English meaning – context – purpose of Act – Tribunal does not have jurisdiction to review.
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth) ss.78, 79, 86, 87, 88, 99, 100, 103
CASES
NNXF and National Disability Insurance Agency [2019] AATA 5552
SECONDARY MATERIALS
National Disability Insurance Scheme Bill 2012 - Explanatory Memorandum
Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12)
REASONS FOR DECISION
Member Reitano
29 September 2021
This case concerns the jurisdiction of the Tribunal to review a decision of the Chief Executive Officer of the National Disability Insurance Agency (Agency) declining to appoint a plan nominee and correspondence nominee for a participant in the National Disability Insurance Scheme (Scheme) under the National Disability Insurance Scheme Act 2013 (Cth) (Act).
On 28 January 2021 Christine Selkirk requested the Agency to appoint her as plan nominee under s.86 of the Act and as a correspondent nominee under s.87 of the Act in respect of her daughter who participates in the Scheme.
On 17 February 2021 the Agency decided not to appoint Christine Selkirk as a plan nominee and not to appoint her as a correspondent nominee.
On 17 March 2021 Christine Selkirk applied for an internal review of both of those decisions on grounds that are presently immaterial.
On 19 April 2021 the Agency wrote by email to Christine Selkirk and advised her it had received her ‘complaint relating to the s100 request for a review of the decision for appointment of nominee’. The email said that the Agency considered that ‘the Public Guardian [was] responsible for raising requests with the NDIS, on behalf of the participant’ and directed Christine Selkirk to the Public Guardian ‘and request they make a review request on your behalf’. The email continued by referring to the role of the Public Guardian and encouraged Christine Selkirk to speak directly to the Public Guardian. The email then said the ‘NDIA now considers that your complaint has been investigated and your concerns have been addressed. Your complaint has now been closed.’
On 20 April 2021 Christine Selkirk applied to the Tribunal for a review of what was said to be a decision on 19 April 2021.
The Agency submitted that the Tribunal does not have power to review a decision not to appoint Christine Selkirk as a plan or a correspondence nominee or, alternatively, does not have power to review the decision because no decision has been made.
I have found that the Tribunal does not have power to conduct a review of a decision not to appoint someone as a plan or correspondence nominee under the Act because that decision is not a ‘reviewable decision’ for the purpose of s.99 of the Act. As the decision is not reviewable under s.99, consideration of whether a decision had been made on the internal review and whether the application was premature, because an internal review had not been finalised and a sufficient period had not elapsed so as to give rise to a ‘deemed decision’[1], does not arise.
[1] NNXF and National Disability Insurance Agency [2019] AATA 5552
ISSUE
The issue is whether the words in the table in s.99, Item 20 and Item 21 ‘a decision to appoint plan nominee’ and ‘a decision to appoint a correspondence nominee’ mean that a decision not to appoint a plan nominee and a decision not to appoint a correspondence nominee are able to be reviewed under s.100. That involves answering the question: is a decision not to appoint someone as a plan nominee or a correspondence nominee capable of being reviewed by the Tribunal under the Act?
THE ACT
There are very many provisions of the Act that are relevant to the issue. I will set them out in three broad categories, namely the provisions relevant to the jurisdiction to review decisions, the provisions relevant to nominees and those which are relevant to the objects and purpose of the Act. It will be seen that some of them overlap so far as their relevance is concerned, but the grouping of the relevant sections is convenient.
THE ACT: THE REVIEW PROVISIONS
Section 100(2) of the Act provides that a person who is directly affected by a ‘reviewable decision’ may request the decision maker to review that ‘reviewable decision’.[2] The period for making such a request is three months from the date of receiving notice of the ‘reviewable decision’.
[2] There was no issue taken as to Christine Selkirk’s standing and although I have reservations about it as it is not obvious how Christine Selkirk is directly affected by any decision I have proceeded on the presumed basis that Christine Selkirk has standing.
Section 100(6) of the Act provides that a reviewer conducting a review of a ‘reviewable decision’ must make, as soon as is reasonably practicable a decision concerning the ‘reviewable decision’ which must confirm, vary or set aside and substitute some other decision for the ‘reviewable decision’.
Section 103 of the Act provides that applications may be made to the Tribunal for a review of a decision made by a reviewer under subsection 100(6).
The combined effect of ss.100(2), 100(6) and s.103 is that only ‘reviewable decisions’ are capable of being the subject of an application for a review by the Tribunal.
Section 99(1) sets out in a table the ‘the reviewable decisions under this Act’ and ‘the decision maker in respect of each of those decisions’. The terms of the table are important as they are lengthy so it is necessary set out it out in full:
Reviewable decisions and decision-makers
Item
Column 1
Reviewable decision
Column 2
Provision under which the reviewable decision is made
Column 3
Decision-maker
1
a decision that a person does not meet the access criteria
paragraph 20(a), subsection 21(3) or paragraph 26(2)(c)
CEO
2
a decision not to specify a period
paragraph 26(2)(b)
CEO
3
a decision to revoke a person's status as a participant
section 30
CEO
4
a decision to approve the statement of participant supports in a participant's plan
subsection 33(2)
CEO
5
a decision not to extend a grace period
paragraph 40(2)(b)
CEO
6
a decision not to reassess a participant's plan
subsection 48(2)
CEO
7
a decision to refuse to approve a person or entity as a registered provider of supports
section 70
CEO
8
a decision to revoke an instrument approving a person or entity as a registered provider of supports
section 72
CEO
9
a decision to refuse to register a person as a registered NDIS provider
section 73E
Commissioner
10
a decision to impose conditions to which a person's registration as a registered NDIS provider is subject
section 73G
Commissioner
11
a decision to vary, or refuse to vary, the registration of a registered NDIS provider
section 73L
Commissioner
12
a decision to suspend the registration of a registered NDIS provider
section 73N
Commissioner
13
a decision to revoke, or not to revoke, the registration of a person as a registered NDIS provider
section 73P
Commissioner
14
a decision to give a compliance notice to an NDIS provider
section 73ZM
Commissioner
15
a decision to make a banning order
section 73ZN
Commissioner
16
a decision to vary, or to refuse to vary or revoke, a banning order
section 73ZO
Commissioner
17
a decision to make, or not to make, a determination in relation to a person
paragraph 74(1)(b)
CEO
18
a decision not to make a determination that subsections 74(1) and (2) do not apply to a child
paragraph 74(5)(c)
CEO
19
a decision to make, or not to make, a determination that a person has parental responsibility for a child
subsection 75(2) or (3)
CEO
20
a decision to appoint a plan nominee
section 86
CEO
21
a decision to appoint a correspondence nominee
section 87
CEO
22
a decision to cancel or suspend, or not to cancel or suspend, the appointment of a nominee
section 89, 90 or 91
CEO
23
a decision to give a notice to require a person to take reasonable action to claim or obtain compensation
section 104
CEO
24
a decision to refuse to extend a period
subsection 104(5A)
CEO
25
a decision to take action to claim or obtain compensation
paragraph 105(4)(a)
CEO
26
a decision to take over the conduct of a claim
paragraph 105(4)(b)
CEO
27
a decision to give a notice that the CEO proposes to recover an amount
section 111
CEO
28
a decision not to treat the whole or part of a compensation payment as not having been fixed by a judgment or settlement
section 116
CEO
29
a decision not to write off a debt
section 190
CEO
30
a decision that the CEO is not required to waive a debt
section 192
CEO
31
a decision not to waive a debt
section 193
CEO
32
a decision that the CEO is not required to waive a debt
subsection 194(3) or (4)
CEO
33
a decision not to waive a debt
section 195
CEO
Section 99(2) provides that the National Disability Insurance Scheme Rules (Rules) may provide that a decision made under a specified provision of the Rules is a reviewable decision and specify the decision maker in respect of the reviewable decision. No provision of the Rules was referred to as defining a relevant reviewable decision for the purposes of this matter. There does not appear to be any such provision.
THE ACT: THE NOMINEE PROVISIONS
Next, it is necessary to refer to some of the provisions of the Act that concern ‘plan nominees’ and ‘correspondence nominees’. I will set them out in the order in which they appear in the Act.
Section 78(1) provides:
(1) Any act that may be done by a participant under, or for the purposes of, this Act that relates to:
(a)the preparation, review or replacement of the participant's plan; or
(b)the management of the funding for supports under the participant's plan;
may be done by the participant's plan nominee, other than to the extent specified in the instrument of appointment of the plan nominee.
The effect of s.78(1) is that a plan nominee, so far as preparation, review or replacement of a participant’s plan is concerned and so far as the management of funding for supports under the plan are concerned, has power to act on the participant’s behalf. Absent such a nominee, the participant themselves does those things.
Section 79(1) of the Act provides:
(1) Any act that may be done by a participant under, or for the purposes of, this Act may be done by the participant's correspondence nominee, other than an act that relates to:
(a)the preparation, review or replacement of the participant's plan; or
(b)the management of the funding for supports under the participant's plan.
The effect of section 79(1) is that a correspondence nominee will perform all the acts of a participant under or for the purposes of the Act other than those that related to preparation, review or replacement of a participant’s plan, or so far as the management of funding for supports under the plan. Again, in the absence of a correspondence nominee, the participant themselves would do those things on their behalf.
It is important to note that there is no requirement in the Act, or elsewhere, that a participant have either a plan nominee or a correspondence nominee.
Section 80 provides that nominees have the duty to ascertain the wishes of the participant and to act in a manner that promotes the personal and social wellbeing of the participant.
Section 86 of the Act deals with the appointment of plan nominees and provides:
(1) The CEO may, in writing, appoint a person to be a plan nominee of a participant for the purposes of this Act.
Note: The CEO must make the appointment in accordance with section 88.
(2) An appointment may be made:
(a)at the request of the participant; or
(b)on the initiative of the CEO.[3]
(3) An appointment may limit the matters in relation to which the person is the plan nominee of the participant.
(4) An appointment may provide that it has effect for a specified term.
(5) Without limiting the manner of specifying a term for the purposes of subsection (4), it may be specified by reference to the expiry of a specified period or the occurrence of a specified event.
(6) To avoid doubt, the CEO may appoint more than one person to be a plan nominee of a participant for the purposes of this Act.
[3] I have serious reservations about whether the original request in this case was valid as it was not made by the participant but rather by the participant’s mother. Like with the question of standing, no issue was taken so I have proceeded on the basis that the request was valid.
Section 87 of the Act deals with the appointment of correspondence nominees and provides:
(1) The CEO may, in writing, appoint a person to be the correspondence nominee of a participant for the purposes of this Act.
Note: The CEO must make the appointment in accordance with section 88.
(2) An appointment may be made:
(a)at the request of the participant; or
(b)on the initiative of the CEO.
(3) An appointment may provide that it has effect for a specified term.
(4) Without limiting the manner of specifying a term for the purposes of subsection (3), it may be specified by reference to the expiry of a specified period or the occurrence of a specified event.
Section 88 of the Act deals with provisions relating to the appointment of nominees and provides:
(1) A person may be appointed as the plan nominee and the correspondence nominee of the same participant.
(2) The CEO must not appoint a person as a nominee of a participant under section 86 or 87 except:
(a)with the written consent of the person to be appointed; and
(b)after taking into consideration the wishes (if any) of the participant regarding the making of the appointment.
(3) In appointing a person as a nominee of a participant under section 86 or 87, the CEO must consider whether the person is able to comply with section 80.
(4) In appointing a nominee of a participant under section 86 or 87, the CEO must have regard to whether there is a person who, under a law of the Commonwealth, a State or a Territory:
(a)has guardianship of the participant; or
(b)is a person appointed by a court, tribunal, board or panel (however described) who has power to make decisions for the participant and whose responsibilities in relation to the participant are relevant to the duties of a nominee.
(5) The CEO must cause a copy of an appointment under section 86 or 87 to be given to:
(a)the nominee; and
(b)the participant.
(6) The National Disability Insurance Scheme rules may prescribe:
(a)persons who must not be appointed as nominees; and
(b)criteria the CEO is to apply or matters to which the CEO is to have regard in considering the appointment of a nominee.
THE ACT: OBJECTS AND PURPOSE
It will become apparent later in these reasons that it is necessary to have regard to the objects and purpose of the Act especially so far as the review and nominee provisions that I have referred to/ There are very many provisions of the Act that inform the object and purpose of the Act but I will set out some of the more important ones here.
The objects of the Act are important and in particular the objects found in ss.3(1)(a), (c) and (e) which relevantly provide:
(1) The objects of this Act are to:
(a)in conjunction with other laws, give effect to Australia's obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
…
(c)support the independence and social and economic participation of people with disability; and
…
(e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports;
Section 17A provides for the principles that inform the participation of people with a disability in the Scheme and provides:
(1) People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.
(2) People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.
(3) The National Disability Insurance Scheme is to:
(a)respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b)enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and
(c)support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.
Section 31 contains the principles that apply to Plans and it provides:
The preparation, review and replacement of a participant's plan, and the management of the funding for supports under a participant's plan, should so far as reasonably practicable:
(a)be individualised; and
(b)be directed by the participant; and
(c)where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(da) where possible, strengthen and build capacity of families and carers to support participants who are children; and
(d)if the participant and the participant's carers agree--strengthen and build the capacity of families and carers to support the participant in adult life; and
(e)consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f)support communities to respond to the individual goals and needs of participants; and
(g)be underpinned by the right of the participant to exercise control over his or her own life; and
(h)advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i)maximise the choice and independence of the participant; and
(j)facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k)provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
Although I have set out the whole of s.31 it is necessary, as will be seen later, to draw particular attention to .31(b)(g) and (i).
Section 32 provides that the ‘if a person becomes a participant, the CEO must facilitate the preparation of the participant's plan.’
Section 43 provides that a participant can choose how the funding for their supports will be managed and that it is only if the participant has a plan nominee that the funding is to be managed in accordance with the nominee appointment.
CONSIDERATION
As I have said the issue is whether the words ‘decision to appoint a plan nominee’ and ‘decision to appoint a correspondence nominee’ where they appear in s.99, Items 20 and 21 of the Act mean, or include, ‘decisions not to appoint’ either kind of nominee. The meaning of the words ‘decision to appoint a plan nominee’ or ‘decision to appoint a correspondence nominee’ is ascertained by applying the principles of statutory construction which necessarily involves consideration of the ordinary grammatical meaning of the words, their context and their purpose.
Ordinary English meaning
The ordinary English meaning of the words starts with an identification of the words in s.99 that create the facility of review that are relied upon. Those words are found in Items 20 and 21 in ‘Column 1 Reviewable decision’ where the words ‘a decision to appoint a plan nominee’ and ‘a decision to appoint a correspondence nominee’ are to be found. In ‘Column 2’ alongside Item 20 and Item 21 under the heading ‘Provision under which the reviewable decision is made’ the word and number ‘section 86’ and ‘section 87’ appear respectively. ‘Column 4’ in both items refers to ‘CEO’ as the ‘Decision – maker’.
All of the things identified would indicate that, in ordinary English, decisions made by the Chief Executive Officer of the Agency under s.86 to appoint a plan nominee and decisions made under s.87 to appoint a correspondence nominee are within the category of ‘reviewable decisions’.
A decision ‘to appoint’ means in ordinary English the taking of some affirmative or positive step to achieve something. It does not, in ordinary English usage, mean declining to do something or not doing something which generally speaking is the very opposite.
The context of the review provisions
Next, it is useful to look to the immediate context of the words to see if that casts any light on their meaning such that would alter the ordinary English meaning of them.
In the table in s.99 there are at least 33 different descriptions afforded to ‘Reviewable decisions’ in ‘Column 1’ and more than 33 sections of the Act set out under the heading ‘Provision under which the reviewable decision is made’ alongside each entry in ‘Column 2’. There are at least three contextual indicators that each reinforce that the ordinary English meaning of the words is confirmed rather than altered.
First, the very existence of s.99 and the limits placed on the kinds of decisions that can be reviewed indicate that the legislative intent was that not that all decisions made under the Act should be capable of review. The decisions described in each of the 33 items in ‘Column 1’ are very obviously not synonymous with all of the decisions that might be under the nominated sections in ‘Column 2’. That is, the ‘reviewable decisions’ described in Column 1 do not accord with all of the different kinds of decisions that might be made under each of the nominated sections in ‘Column 2’. That there is a separate description of the ‘reviewable decision’ and an identification of the section or sections referred to bares that out: if the legislature simply intended for all decisions under each of the nominated sections to be reviewable, ‘Column 1’ was entirely unnecessary.
Second, there are many decisions referred to under ‘Column 1’ that may be subject to review that involve an application to review a decision to do something or not to do something: a decision under s.73P to revoke or not to revoke registration as a provider, a decision under s.73ZO varying or refusing to vary or revoke a banning order, a decision under s.74(1)(b) to make or not to make a determination in relation to a person and decisions under s.75(2) or 75(3) to make or not make a determination that a person has parental responsibility for a child. All of the provisions relevant to these kinds of decisions concern things that a decision maker may do or may not do under each of the statutory powers. This suggests that where the legislature intended a review to be available against decisions to do things or decisions not to do them, it made express provisions by saying so much. The opposite is also so: where was intended that only a decision to do something could be reviewed then express provisions was made for that and no more.
Significantly, for present purposes, Item 22, the immediate neighbour of Item 21 and two doors up from Item 20, deals with the interruption or termination of nominee appointments. Nominee appointments is, the very same broad subject matter as dealt with in Items 20 and 21. Item 22 provides in ‘Column 1’ that a ‘Reviewable decision’ is a ‘decision to cancel or suspend, or not to cancel or suspend, the appointment of a nominee’ and refers under Column 3 to s.89, s.90 or s.91. Some of these sections concern decisions that a decision maker is required to make such as decisions under s.89 where the decision maker must cancel an appointment; others include discretionary decisions where the decision maker may decide to cancel or suspend by reference to criteria or things that must be considered such as in s.90. Item 22, which comprehends doing and not doing things related to the same subject matter, contextually supports the ordinary English meaning that I have identified.
The fact that the legislature identified decisions to take action and decisions not to take action points again to some deliberateness on the legislatures part in confining Item 20 and 21 to decisions to appoint and not including decisions not to appoint.
Third, there are many decisions referred to in s.99 that are only against decisions not to take some kind of action or another: Items 2, 5, 6, 18 and 33 are examples. It is true that in most cases a decision not to do the things identified would more likely than not leave a person aggrieved such that may wish to have a decision reviewed. Nonetheless, again there is an element of deliberateness in the approach taken by defining what is subject to review and what is not by using negative stipulations. The legislature did not content itself with simply providing that all decisions under those sections were capable of review.
These contextual indications in the Act all suggest that the ordinary English words of used in s.99, Item 20 and 21 in Column 1 should be give their ordinary meaning. Further, there is nothing in the wider context of the Act that would seem to suggest that any different meaning should be given to the words.
The purpose of the review provisions
Finally, it is important to have regard to the purpose of the provisions themselves. In that context the relevant purpose is that to be ascribed to s.99 Items 20 and 21, because they are the provisions which are relevant to the Tribunal’s power. The question briefly stated is what the legislative purpose is to be discerned from s.99 Item 20 and 21. The answer cannot be so briefly stated.
A decision to appoint a person as a plan nominee has a significant impact upon a participant in that it gives to someone else the power to make decisions about that participant’s preparation, review or replacement of a plan and so far as the management of funding for supports under the plan are concerned. Likewise, a correspondence nominee appointment gives the power to make all other decisions under the Act to someone other than the participant. Those things are significant: taking the ability to make those decisions and do those things away from someone is a significant intrusion upon their rights, in particular, in the context of an Act which is underpinned by objects and principles that seek to reinforce the rights of people to make decisions for themselves.
The object in s.3(1)(a) is directed to ‘in conjunction with other laws, give effect to Australia's obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12)’. The other objects in the Act reiterate the same goals: in s.3(1)(c) the object of supporting ‘the independence and social and economic participation of people with disability’; and in s.3(1)(e) enabling ‘people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports’. The principles found in s.17A and 31(b), (g) and (i) are no less important in reinforcing the objects’ ambition for the Act, which is to attribute maximum value to the rights of the individual participating in the Scheme under the Act to make choices for themselves.
Consistent with these objects and these principles, the Act gives primacy to the participant’s role in matters such as the preparation, review and replacement of a plan and the management of funding for supports ss.33 and 43. The Chief Executive Officer must facilitate and help with many of the participant’s actions in those respects: s.32, but they firmly reside with the participant.
The importance of these matters must not be understated, especially given that they are part of Australia’s international obligations under the Convention. The Convention says at Article 12(2) ‘States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’. In Article 12(3) the Convention says: ‘States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity’. In Article 12(4) the Convention says:
States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
The Convention is referred to in the National Disability Insurance Scheme Bill 2012 - Explanatory Memorandum (Explanatory Memorandum). Unsurprisingly, the Explanatory Memorandum reinforces the normative value in the Act, namely the need for people with disabilities to have ‘individual autonomy (including the freedom to make one’s own choices and the independence of the person)’. This is reflected where the Explanatory Memorandum refers to one of the principles underlying the Act as being ‘people with disability should have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise informed choice and engage as equal partners in decisions that will affect their lives, to the full extent of their capacity’.
All of these things re based on the premise that people with disabilities, are entitled to make decisions about their own lives, in particular ones that are so fundamental to their needs and to their care.
All of these matters assist in identifying one of the key purposes that lay behind why the legislature would have had in mind in creating the facility of review for decisions involving appointments of nominees: those decisions infringe upon a cornerstone upon which the Act is built, namely the autonomy, independence and choice for people with disabilities. In the words of Article 12(2) of the Convention they take away recognition that people with disabilities ‘enjoy legal capacity on an equal basis with others in all aspects of life’. A decision to appoint a nominee is significant because it would disturb the entire foundational premise upon which the Act proceeds.
The corollary is that a decision not to appoint a nominee does not ordinarily have such significance, because the assumed position is that participants should have the right do those things for themselves. The principles in the Act refer to that assumed position being given effect ‘so far as is reasonable in the circumstances’. The Act contemplates and proceeds upon a norm under which the Chief Executive Officer facilitates the choices and decisions that will be made by a participant within the regulatory scheme.
The purpose of the review provision so far as the table in s.99 and Items 20 and 21 is explained by the Explanatory Memorandum as being to provide safeguards for measures that relate to legal capacity. The measure here that relates to legal capacity is the appointment of a nominee: the Convention requires that there be a safeguard against abuse of that measure and so the facility of review both internally by the Agency itself and externally by the Tribunal has been prescribed. The facility of review of a decision in relation to legal capacity is the safeguard which ensures that taking the measure of appointing a nominee will ‘respect the rights, will and preferences of the person’ and that any such decision is ‘free of conflict of interest and undue influence.’
The reference to ‘rights, will and preference’ in the Explanatory Memorandum is not properly read as a reference to the desire of a participant to hand over management of their decision making for themselves to someone else. That concept is entirely antithetical to the Act, its objects, its principles and the Convention. Rather, the reference is to the circumstance in which a person has a nominee appointed and the need for the safeguard to ensure their rights, will and their preferences are properly respected in making that decision, that such appointment is free from conflict of interest and undue influence, is tailored to the personal circumstance and applies for the shortest time possible.
It should also be kept in mind that a decision maker who refuses to appoint a nominee always retains the facility of acting on their own initiative to appoint a nominee under s.86 or 87 so that a failure to appoint a nominee at one time would be capable of remedy should the decision maker consider it necessary in the interests of a participant at some other time. In that respect, the superintendence of things done under the Act by the Agency would readily bring its attention to the need, if any, to appoint a nominee.
The objects and purpose of the relevant provisions supports the ordinary English meaning of the words and their contextual meaning being that only a decision to appoint a nominee is capable of being subject to review.
DECISION
I consider that the words in s.99 Item 20 ‘a decision to appoint a plan nominee’ and the words in Item 21 ‘a decision to appoint a correspondence nominee’ both refer to an affirmative decision by the Chief Executive Officer to appoint a person as either kind of nominee and do not refer to a decision to decline or refuse to make an appointment of a plan or correspondence nominee.
In those circumstances, I find that the Tribunal does not have jurisdiction to review the decision that is the subject of this application.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Member Reitano
..............................[sgd]..........................................
Associate
Dated: 29 September 2021
Date(s) of hearing: 31 May 2021 Date final submissions received: 8 June 2021 Applicant: Self-represented Solicitors for the Respondent: Ms Z Harwood, National Disability Insurance Agency
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