EXPLANATORY STATEMENT
Issued by the Authority of the Assistant Minister for Social Services
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans—New South Wales) Amendment Rules 2015
Purpose
The purpose of the National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans—New South Wales) Amendment Rules 2015 (the Amendment Rules) is to state the manner in which the CEO of the National Disability Insurance Scheme Launch Transition Agency is to commence the facilitation of the preparation of participants’ plans in relation to the roll out of the National Disability Insurance Scheme (NDIS) in the Nepean Blue Mountains area for children and young people aged 17 years and under.
Section 209 of the National Disability Insurance Scheme Act 2013 (the Act) provides that the Minister may, by legislative instrument, prescribe matters required or permitted by the Act to be prescribed or which are necessary or convenient to be prescribed in order to carry out or give effect to the Act.
The Amendment Rules are made under sections 32 and 32A of the Act (but not under subsection 32A(4)).
The Minister in making the Amendment Rules has had regard to financial sustainability of the NDIS as required under subsection 209(3).
The Amendment Rules are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Background
In 2011, the Productivity Commission report, Disability Care and Support (Report No. 54), found that ‘current disability support arrangements are inequitable, underfunded, fragmented and inefficient, and give people with a disability little choice’ (Overview, p. 5), and recommended the establishment of a National Disability Insurance Scheme (NDIS).
The Act was enacted in March 2013 giving effect to the commitment by the Commonwealth, State and Territory Governments to establish such a scheme, and for its progressive implementation from 1 July 2013. The Act is supplemented by rules made under the Act, which address the more detailed operational aspects of the NDIS.
An early NDIS transition site in New South Wales will commence in the Nepean Blue Mountains region on 1 July 2015 and is the first step in transition to full scheme NDIS in New South Wales. This location was chosen particularly to assess the effectiveness of early intervention processes and provide benefits to children in terms of reduced lifelong support needs.
Commencement
The Amendment Rules will commence on 1 July 2015 as set out in section 2.
Consultation
The Amendment Rules are Category B rules for the purposes of the Act. Accordingly, as required under subsection 209(5) of the Act, the Commonwealth has consulted with the host jurisdiction, New South Wales, about the making of the Amendment Rules. New South Wales has agreed to the form of the Amendment Rules as a result of that consultation.
Within the Commonwealth, the Department of Social Services has consulted with the National Disability Insurance Agency (known in the Act as the National Disability Insurance Scheme Launch Transition Agency) on the form of the Amendment Rules.
Regulation Impact Statement (RIS)
The Office of Best Practice Regulation has been consulted and has advised that a RIS is not required (OBPR ID 19284).
Explanation of the provisions
Section 1
This section provides how the Amendment Rules are to be cited, that is, as the National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans—New South Wales) Amendment Rules 2015.
Section 2
Section 2 provides that the Amendment Rules will commence on 1 July 2015. The 1 July 2015 date aligns with the date that parallel amendments will take effect (the National Disability Insurance Scheme (Becoming a Participant) Amendment Rules 2015), which will enable children and young people aged 17 years and under to meet the residency requirements in the Nepean Blue Mountains area. This date will also ensure that access requests are able to be made and determined prior to the time that these Amendment Rules will enable plans to be facilitated; that is, from 1 September 2015.
Section 3
Section 3 clarifies that the amendments set out in Schedule 1 are intended to amend the existing rules made under sections 32 and 32A (but not subsection 32A(4)) of the Act, the National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans—New South Wales) Rules 2013 (the primary rules).
Schedule 1
Schedule 1 sets out the amendments to the primary rules.
Schedule 1, item 1
This item is a consequential amendment to add a reference in paragraph 1.3 of the primary rules to the new NDIS launch areas (as set out in the National Disability Insurance Scheme (Becoming a Participant) Amendment Rules 2015) being the City of Blue Mountains, the City of Hawkesbury, the City of Lithgow and the City of Penrith. Paragraph 1.3 is a descriptive, rather than operative, provision that deals with where the initial launch of the NDIS will occur in New South Wales.
Schedule 1, item 2
This item makes an amendment to paragraph 1.5 of the primary rules to reflect the fact that there are, and might be in the future, multiple agreements between the Commonwealth and New South Wales since the initial launch of the NDIS.
Schedule 1, item 3
This item makes a consequential amendment to paragraph 2.2 of the primary rules to refer to the fact that, as a result of these Amendment Rules, there are now seven classes of New South Wales participants whose plans will be facilitated in accordance with the primary rules.
Schedule 1, item 4
This item makes a consequential amendment to paragraph 2.5 of the primary rules to ensure that the paragraph is subject to more specific rules as set out in the table in relation to “new clients” (as defined in paragraph 3.4 of the primary rules). Prior to this amendment, the paragraph ensured that, for new clients, the CEO is to commence facilitating the preparation of the participant’s plan as soon as reasonably practicable having regard to the CEO’s obligations to commence facilitating the preparation of other participants’ plans. However, the new classes (classes 6 and 7) inserted by these Amendment Rules specify otherwise in relation to new clients and therefore need to be excluded from the default rule in paragraph 2.5.
Schedule 1, item 5
This item adds two more classes into the table in paragraph 2.7 of the primary rules. The first new class, class 6, covers people who reside in the new launch areas (City of Blue Mountains, City of Hawkesbury, City of Lithgow or City of Penrith), whether they receive Commonwealth disability services or New South Wales disability services or are new clients and who are among the first 2,000 such persons to become a participant in the NDIS . For this class, the CEO is to commence facilitation of plans between 1 September 2015 and 30 June 2016.
The second class, class 7, is defined in the same way as class 6 in relation to where people reside and whether or not they are new clients, however it will cover those people who become participants after the first 2,000 (covered by class 6). For this class, the CEO can commence facilitating plans after 1 July 2016 and only following consultation with the Government of New South Wales and the Commonwealth Department of Social Services.
Schedule 1, item 6
Under the primary rules, the CEO has the ability to treat subsets of specified classes (“subclasses”) in a manner that is appropriate, as long as doing so is consistent with the rules in the table.
The amendments made by this item: (a) ensure that the ability of the CEO to deal with certain cohorts as subclasses will extend to the new classes 6 and 7; and (b) ensure that subclasses can be determined by reference to age.
Schedule 1, item 7
This item adds new definitions of the Nepean Blue Mountains areas that are new areas in which a person is able to meet the residence requirements under the Act. The new areas are those as constituted under the Local Government Act 1993 (NSW) and referred to as: the City of Blue Mountains; the City of Hawkesbury; the City of Lithgow; and the City of Penrith.
Schedule 1, item 8
This item makes a minor technical amendment to reflect the fact that existing areas, as referred to in the primary rules, are those that had been “constituted” under the Local Government Act 1993 (NSW) rather than “proclaimed”. This reflects the fact that these areas were proclaimed as local government areas before the Local Government Act 1993 (NSW) was enacted and, as such, were proclaimed under previous legislation. From the enactment of the Local Government Act 1993 (NSW), they remained “constituted” as local government areas rather than proclaimed anew.
Schedule 1, item 9
This item makes a consequential amendment to paragraph 3.4 of the primary rules to qualify the definition of a “new client” as a participant who is a resident of New South Wales but does not fall within classes 1 to 5 of the table in paragraph 2.7 of the primary rules. The purpose of this amendment is to make it clear that, unless the person is a participant who falls within the new classes 6 and 7 of the Amendment Rules, the CEO must continue to only commence facilitating the preparation of plans for new clients in accordance with the default rule in paragraph 2.5 of the primary rules.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans—New South Wales) Amendment Rules 2015
This legislative 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 National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans—New South Wales) Amendment Rules 2015 (the Amendment Rules) sets out the circumstances in which the facilitation of the preparation of participants’ plans will commence in the State of New South Wales. The instrument identifies classes of New South Wales participants and sets out the circumstances in, or periods within, which the CEO is to commence the facilitation of the preparation of those participants’ plans.
The instrument amends the National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans—New South Wales) Rules 2013 (the Phasing Rules—New South Wales).
Human rights implications
This instrument engages the following human rights:
- The rights of persons with disabilities in the Convention on the Rights of Persons with Disabilities (CRPD), especially Articles 3 (general principles), 4 (general obligations) and 9 (accessibility) and 19 (living independently and being included in the community);
- Article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and
- Articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR).
General Principles underpinning the CRPD
The CRPD recognised the barriers that persons with disabilities may face in realising their rights. While the rights under all human rights treaties apply to everyone, including persons with disabilities, the CRPD applies human rights specifically to the context of persons with disabilities.
The establishment of the NDIS promotes the rights of people with disabilities in Australia by providing access to nationally consistent funding and support to help them realise their aspirations, and to participate in the social and economic life of the community.
The preamble of the CRPD, and the General Principles set out in Article 3 reflect the need for the respect for the inherent dignity, individual autonomy (including the freedom to make one’s own choices and the independence of the person), the need for persons with disabilities to be able to participate fully and effectively and be included in society, the need for respect for difference and acceptance of persons with disabilities as part of human diversity and providing persons with disabilities the opportunity to be involved actively in decision-making processes about policies and programmes, including those directly concerning them.
The objectives and general principles of the Act provide that:
- People with disability should be supported to participate in, and contribute to social and economic life to the extent of their ability;
- People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime; and
- People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
The Phasing Rules—New South Wales recognise that contributing to social and economic life to the extent of their ability is integral to participants’ sense of belonging and wellbeing in their communities, a right that is promoted in Articles 3 and 19 of the CRPD.
The objects and the guiding principles of the NDIS also recognise the rights of persons with disabilities to be provided with reasonable and necessary supports to live independently, engage in the life of the community, and to have certainty that they will receive the lifelong care and support they need. The role of carers, families and other significant persons is also recognised and respected. In this way, the Amendment Rules promote Article 10 of ICESCR, which requires that the widest possible protection and assistance should be accorded to the family, especially while it is responsible for the care and education of dependent children.
Progressive implementation of the NDIS and the principle of non-discrimination
The right to equality and non-discrimination is protected by Article 2 of the ICCPR and Article 2 of the CRC which prohibits denying a person or child rights on certain grounds. This is reinforced in the context of human rights for persons with disabilities by Article 3 (b) of the CRPD which provides that non-discrimination is a general principle in relation to all rights in the CRPD. As noted by the Human Rights Committee in General Comment No. 18 on equivalent rights in the ICCPR, the rights to equality and non-discrimination in the ICCPR sometimes require nation states ‘to take affirmative action in order to diminish or eliminate conditions which cause or help perpetuate discrimination’.
Non-discrimination ensures that no one is denied their rights because of factors such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or birth. In addition to those grounds, discrimination on certain other grounds may also be prohibited. These grounds include age, nationality, marital status, disability, place of residence within a country and sexual orientation.
Differential treatment will not constitute discrimination if the differences in treatment are aimed at achieving a legitimate purpose and are reasonable and proportionate to this purpose.
In line with the recommendations of the Productivity Commission, the NDIS is being implemented progressively. There are seven trial sites currently operating in Australia. All Governments are keen to see the benefits of the NDIS to individuals maximised, and support the incremental approach recommended by the Productivity Commission.
In each NDIS site there is a gradual intake of participants to ensure that all participants are well supported as they make the transition to the NDIS. This instrument establishes a new site in the New South Wales Nepean Blue Mountains region. This instrument will allow for the facilitation of plans for up to 2,000 participants who were under the age of 18 years on 1 July 2015 in the New South Wales Nepean Blue Mountains region.
The limit on the number of plans which can be facilitated does not engage the right to non-discrimination as it is not based on any of the grounds of discrimination. Rather, it is implemented by reference to the order in which the CEO is able to make a decision on a prospective participant’s access request. Further, it is a temporary restriction for nine months and is the first step in NDIS transition in New South Wales, which will extend further from 1 July 2016. The limit also takes into account principles of financial sustainability and the capacity and resources of the National Disability Insurance Agency to facilitate participants’ plans.
Conclusion
This instrument is compatible with human rights because it advances the protection of the rights of persons with disabilities in Australia, consistently with the CRPD. It creates additional opportunities for persons with disabilities to exercise those rights by providing support to enable participation in the social, economic and cultural life of the community. To the extent that it limits human rights in some circumstances, those limitations are reasonable, necessary and proportionate to ensure the long-term integrity and sustainability of the scheme.
Assistant Minister for Social Services
Mitch Fifield