EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Social Services
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans—Queensland) Amendment Rules 2016
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 this Act to be prescribed or which are necessary or convenient to be prescribed in order to carry out or give effect to this Act.
The National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans—Queensland) Rules 2016 (Phasing Rules—Queensland) are made for the purposes of sections 32 and 32A (other than subsection 32A(4)) of the Act and state the manner in which the CEO of the National Disability Insurance Agency (NDIA) is to commence the facilitation of the preparation of participants’ plans in Queensland.
The National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans—Queensland) Amendment Rules 2016 (Amendment Rules) amend the Phasing Rules—Queensland to reflect the agreement between the Commonwealth of Australia and the State of Queensland regarding transition to the National Disability Insurance Scheme (NDIS) in Queensland from 1 July 2016. This amends the Phasing Rules—Queensland, which deal only with the facilitation of the preparation of participants’ plans in the areas of Townsville, Charters Towers and Palm Island, previously defined as 2016 NDIS early transition areas.
The purpose of the Amendment Rules is to state the manner in which the CEO of the NDIA is to commence the facilitation of the preparation of participants’ plans in all areas in Queensland, as they progressively transition into the NDIS in Queensland pursuant to the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Becoming a Participant Rules).
Commencement
The Amendment Rules commence on the date after this instrument is registered.
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, Queensland, about the making of the Amendment Rules. Queensland 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 NDIA on the form of the Amendment Rules.
The Amendment Rules are a legislative instrument for the purposes of the Legislation Act 2003.
Explanation of provisions
Section 1 provides how the Amendment Rules are to be cited, that is, as the National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans—Queensland) Amendment Rules 2016.
Section 2 provides that the Amendment Rules commence on the day after the instrument is registered.
Section 3 provides that Schedule 1 to the Amendment Rules amends the Phasing Rules—Queensland.
Schedule 1 to the Amendment Rules sets out the amendments made to the Phasing Rules—Queensland.
Schedule 1, item 1 omits “2016 NDIS early transition area” and in its place inserts “NDIS” to reflect that the rule encompasses all areas of Queensland.
Schedule 1, item 2 is a minor change to inoperative introductory text.
Schedule 1, item 3 omits paragraphs 1.3 to 1.5, and replaces them with a new introductory paragraph 1.3 explaining the operation of the Phasing Rules—Queensland, as amended.
Schedule 1, item 4 inserts new, self‑explanatory text into paragraph 2.3 to explain in more detail how the table in paragraph 2.5 works.
Schedule 1, item 5 replaces the table at paragraph 2.5 of the Phasing Rules—Queensland. The amended table sets out the classes of participants across the state of Queensland and the circumstances in which the CEO is to commence the facilitation of the preparation of those participants’ plans. The amended table reflects the progressive transition of participants in Queensland into the NDIS on a geographical basis as set out in the Becoming a Participant Rules.
The table sets out 10 classes of Queensland participants. The CEO will deal with each class sequentially; facilitation for a class will usually be commenced once the CEO has decided that the Agency has the capacity to do so, in light of the number of participants in previous classes whose plans have been dealt with, and the number yet to be dealt with.
The classes and circumstances in which the CEO is to commence each class have been defined jointly with the State of Queensland to ensure that there is a smooth and steady transition for participants within these classes. This arrangement will provide certainty for:
- individuals about when they will enter the new scheme;
- providers to assist their business planning; and
- governments to ensure that they can plan for the future of affected programs and the expected impact on their budgets.
The details within the table are intended to give legal effect to the Bilateral Agreement between the Commonwealth of Australia and the State of Queensland for transition to the NDIS.
The new paragraph 2.5A provides the CEO with a degree of flexibility. This will ensure a more seamless transition and where possible, enables participant’s plans to be facilitated at the earliest possible opportunity, noting changes to phasing arrangements need to be agreed between the Commonwealth of Australia and the State of Queensland.
Schedule 1, items 6 and 7 reflect changes to the number and description of the classes in the table in paragraph 2.5.
Schedule 1, item 8 amends paragraph 2.8 so as to set out an inclusive set of principles that the CEO is to consider when making a decision about a class. These principles ensure that the transition to the NDIS is as smooth as possible for each individual, as well as service providers.
All other amendments in Schedule 1 are consequential and reflect the expanded number of participant classes in the amended table at paragraph 2.5, and the roll out of the NDIS across the state of Queensland, expanding from the areas of Townsville, Charters Towers and Palm Island, previously defined as 2016 NDIS early transition areas.
Schedule 1, items 9 to 11 amend paragraph 3.4 to reflect that the rule encompasses all areas of Queensland.
Statement of Compatibility
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
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
The effect of this instrument is to state the circumstances in which the facilitation of the preparation of participants’ plans will commence across the State of Queensland. The instrument identifies classes of Queensland 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.
Progressive implementation
Consistent with the recommendations of the Productivity Commission, the scheme is being implemented progressively. The initial NDIS sites were the Hunter region in New South Wales, the Barwon region in Victoria, South Australia and Tasmania for specified age cohorts, the Australian Capital Territory, the Barkly region in the Northern Territory and the Perth Hills area in Western Australia. Early transition to the NDIS also commenced in Queensland in the Local Government Areas of Townsville and Charters Towers for children and young people and all eligible people in Palm Island from January 2016.
Human rights implications
The Phasing Rules—Queensland engage 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), 7 (children with disabilities), 9 (accessibility), 19 (living independently and being included in the community), 22 (respect for privacy) and 23 (respect for home and the family);
- Article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);
- Articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR); and
- The rights of children in the Convention on the Rights of the Child (CRC), especially Articles 2, 9, 18 and 23.
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 scheme 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—Queensland 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 scheme 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 Rules promotes 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 scheme 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.
Accordingly 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.
Conclusion
This instrument is compatible with human rights because it advances the protection of the rights of persons with disabilities in Australia, consistent with the CRPD. The Phasing Rules—Queensland create 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 the Phasing Rules—Queensland limits human rights in some circumstances, those limitations are reasonable, necessary and proportionate to ensure the long-term integrity and sustainability of the scheme.