EXPLANATORY STATEMENT
Issued by the authority of the Minister for the National Disability Insurance Scheme
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (Direction to the NDIS Quality and Safeguards Commissioner) Repeal Instrument 2025
Authority
This instrument is made under subsection 181K(1) of the National Disability Insurance Scheme Act 2013 (the Act) which allows the Minister to make directions to the NDIS Quality and Safeguards Commissioner (Commissioner) relating to the performance of their functions and the exercise of their powers to ensure those functions are being performed. Directions made under subsection 181K(1) of the Act also require the NDIS Quality and Safeguards Commission (Commission) to ensure their powers are being exercised in a manner that is aligned with the Government’s commitment to upholding the rights of, and promoting the health, safety and wellbeing, of persons with disability as outlined in the Commission’s Statement of Expectations.
This instrument relies on subsection 33(3) of the Acts Interpretation Act 1901 (AIA). Subsection 33(3) of the AIA provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Purpose
The purpose of the National Disability Insurance Scheme (Direction to the NDIS Quality and Safeguards Commissioner) Repeal Instrument 2025 (the Repeal Instrument) is to repeal the Direction to the NDIS Quality and Safeguards Commissioner under section 181K of the National Disability Insurance Scheme Act 2013 – No. 1/2023 (the Direction Instrument).
On 13 October 2023, the Minister issued the Direction Instrument requiring the Commissioner to ensure the Commission has policies and procedures in place requiring its staff to take compliance and enforcement action against NDIS providers who fail to comply with legislative requirements concerning the use of restrictive practices. The Direction Instrument also requires the Commission to report to the Minister every three months outlining action taken to implement the Direction.
Since the Direction Instrument was issued, the Commission has reported six times. Overall, the reporting has highlighted the importance of continued effort required by the Commission to progress reforming its processes, policies and systems to meet the breadth and demand of their responsibilities.
The mandatory reporting requirements imposed on the Commission in the Direction have been moved to the Statement of Expectations. It is the Government’s expectation that the Commissioner remains focused on achieving the Government’s overarching commitments to the safety, welfare, and overall wellbeing of people with disability in Australia.
Ministerial Statements of Expectations are issued by the responsible Minister to a regulator to provide greater clarity about government policies and objectives relevant to the regulator in line with its statutory objectives, and the priorities the Minister expects it to observe in conducting its operations.
A Regulator Statement of Intent responds to the expectations set out in a Ministerial Statement of Expectations. It outlines how the regulator intends to meet those expectations including how it will demonstrate progress. The Statement of Intent can be broader in scope than the expectations set out in the Statement of Expectations and offers an avenue to highlight any emerging risks or operational issues relevant to the delivery of the regulator’s functions.
The Direction Instrument is no longer required because many of its requirements, and the expectation to abide by them, are now covered by the Ministerial Statement of Expectations.
Consultation
The Commissioner and the Commission were advised of the intention to repeal the Direction Instrument, given that the primary impact of this Repeal Instrument is on the work of the Commissioner and the Commission.
The Repeal Instrument is a legislative instrument for the purposes of the Legislation Act 2003.
The Repeal Instrument commences the day after it is registered.
Details of the Repeal Instrument are set out in Attachment A
ATTACHMENT A
Details of the National Disability Insurance Scheme (Direction to the NDIS Quality and Safeguards Commissioner) Repeal Instrument 2025
Section 1 – Name
Section 1 provides that the name of the Instrument is the National Disability Insurance Scheme (Direction to the NDIS Quality and Safeguards Commissioner) Repeal Instrument 2025.
Section 2 – Commencement
Section 2 provides for the Instrument to commence the day after it is registered.
Section 3 – Authority
Section 3 provides that the Instrument is made under subsection 181K(1) of the National Disability Insurance Scheme 2013.
Section 4 – Schedules
Section 4 provides that each instrument that is specified in a Schedule to this Instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Instrument has effect according to its terms.
Schedule 1 – Repeals
Items 1 repeals the Direction to the NDIS Quality and Safeguards Commissioner under section 181K of the National Disability Insurance Scheme Act 2013 –No. 1/2023.
The Direction Instrument is no longer required because many of its requirements will now be covered by the Ministerial Statements of Expectations.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
National Disability Insurance Scheme (Direction to the NDIS Quality and Safeguards Commissioner) Repeal Instrument 2025
This instrument 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.
Overview of the legislative instrument
The purpose of the National Disability Insurance Scheme (Direction to the NDIS Quality and Safeguards Commissioner) Repeal Instrument 2025 (the Repeal Instrument) is to repeal the Direction to the NDIS Quality and Safeguards Commissioner under section 181K of the National Disability Insurance Scheme Act 2013 – No. 1/2023 (the Direction Instrument).
On 13 October 2023, the Minister issued the Direction Instrument requiring the Commissioner to ensure the Commission has policies and procedures in place requiring its staff to take compliance and enforcement action against NDIS providers who fail to comply with legislative requirements concerning the use of restrictive practices. The Direction Instrument also requires the Commission to report to the Minister every three months outlining action taken to implement the Direction.
Since the Direction Instrument was issued, the Commission has reported six times. Overall, the reporting has highlighted the importance of continued effort required by the Commission to progress reforming its processes, policies and systems to meet the breadth and demand of their responsibilities.
The mandatory reporting requirements imposed on the Commission in the Direction has been moved to the Statement of Expectations. It is the Government’s expectation that the Commissioner remains focused on achieving the Government’s overarching commitments to the safety, welfare, and overall wellbeing of people with disability in Australia.
Ministerial Statements of Expectations are issued by the responsible Minister to a regulator to provide greater clarity about government policies and objectives relevant to the regulator in line with its statutory objectives, and the priorities the Minister expects it to observe in conducting its operations.
A Regulator Statement of Intent responds to the expectations set out in a Ministerial Statement of Expectations. It outlines how the regulator intends to meet those expectations including how it will demonstrate progress. The Statement of Intent can be broader in scope than the expectations set out in the Statement of Expectations, and offers an avenue to highlight any emerging risks or operational issues relevant to the delivery of the regulator’s functions.
The Direction Instrument is no longer required because many of its requirements are now covered by the Ministerial Statements of Expectations.
Human rights implications
This instrument engages the following human rights under the Convention on the Rights of Persons with Disabilities (CRPD):
- the rights to freedom from exploitation, violence and abuse – Article 16
- the right to liberty and security of the person - Article 14
- the right to privacy - Article 22.
Right to freedom from exploitation, violence and abuse
Article 16 of the CRPD provides that all States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities from all forms of exploitation, violence and abuse. In order to prevent the occurrence of all forms of exploitation, violence and abuse, States Parties are required to ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities.
Further, the Ministerial Statement of Expectations includes a statement regarding regular reporting on enforcement and compliance action taking, which will enhance accountability in ensuring that the Commissioner is taking appropriate and timely regulatory action.
Right to liberty and security of the person
Article 14 of the CRPD provides that States Parties must ensure that people with disability, on an equal basis with others, are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.
The requirement of the Commissioner to put in place procedures requiring staff of the Commission to swiftly respond to complaints and notifications of reportable incidents concerning the use of restrictive practices and conduct timely and appropriate investigations into the issues raised, remains within the Minister’s Statement of Expectations. Procedures will continue to require staff to actively monitor registered NDIS providers’ compliance with the conditions of registration relating to behaviour support plans and restrictive practices.
The expectations of the Commissioner further the right of people with disability to liberty and the security of the person by enhancing monitoring and enforcement of the use of restrictive practices, to the extent permitted by law. The expectations to the Commissioner take into account the fact that States and Territories are primarily responsible for regulating the use of restrictive practices.
Right to privacy
Article 22 of the CRPD provides that no person with disability shall be subjected to arbitrary or unlawful interference with his or her privacy.
This instrument takes account of this right by noting that the collection, analysis, dissemination and sharing of information must only be done in accordance with the law, including the Privacy Act 1986 and the secrecy provisions contained in National Disability Insurance Scheme Act 2013.
Conclusion
Repealing the legislative instrument is compatible with human rights as it maintains the rights to freedom from exploitation, violence and abuse, the right to liberty and security of the person and the right to privacy.
Senator the Hon Jenny McAllister
Minister for the National Disability Insurance Scheme