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—South Australia) 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—South Australia) Rules 2014 (the Phasing Rules—South Australia) are made pursuant to sections 32 and 32A of the Act (but not under subsection 32A(4)). The National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans—South Australia) Amendment Rules 2016 (Amendment Rules) amend the Phasing Rules—South Australia. There is an earlier set of phasing rules for South Australia, made in 2013, which remain unamended.
The Phasing Rules—South Australia are about the order in which the CEO of the National Disability Insurance Agency will commence the facilitation of the preparation of plans for different classes of participants in South Australia. The purpose of the Amendment Rules is to deal with the phasing of further cohorts of participants who will be introduced to the Scheme through the new National Disability Insurance Scheme (Becoming a Participant) Rules 2016.
The Minister in making the amendments has had regard to financial sustainability of the National Disability Insurance Scheme (the scheme) as required under subsection 209(3).
The Amendment Rules are Category B rules for the purposes of the Act. Accordingly the Commonwealth and the host jurisdiction, the Government of South Australia, have agreed to the making of the rules (see section 209 of the Act).
Commencement
The Amendment Rules commence on the date after this Instrument is registered.
Consultation
The Amendment Rules were developed in close consultation with the Government of South Australia.
The amending Rules are a legislative instrument for the purposes of the Legislation Act 2003.
Explanation of provisions
Schedule 1 to the amending Rules details the amendments made to the Phasing Rules—South Australia.
The substantive amendment to the Phasing Rules—South Australia is the repeal and replacement of the table in paragraph 2.7. The new table sets out the phasing rules for participants in South Australia who will become part of the Scheme due to the new National Disability Insurance Scheme (Becoming a Participant) Rules 2016.
The table provides for phasing of children in South Australia to continue in progressively expanding cohorts of age until 1 July 2017, when adults will start to join the Scheme on a geographically phased basis.
The transition of all existing South Australian specialist disability clients will be completed by July 2018, after which time the remainder of the estimated population will access the Scheme.
The table effects the phasing by setting out seven classes of South Australian participants and the circumstances in which the CEO is to commence the facilitation of the preparation of those participants’ plans. The CEO is generally required to 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 CEO cannot make a decision to commence facilitating the preparation of plans for a class before the date specified in the table for that class.
The classes and circumstances in which the CEO is to commence each class have been defined jointly with the State of South Australia to ensure that there is a smooth and steady transition for participants within these classes from the service or support they previously received to the scheme. 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 and South Australia.
All other amendments are consequential. In particular:
- The CEO retains the ability to divide each class into subclasses for further phasing (paragraphs 2.9 to 2.11).
- Schedule A is inserted. This Schedule defines the geographic regions to which the table in paragraph 2.7 refers, and does so on the basis of South Australian local government areas.
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 provide for circumstances in which the facilitation of the preparation of participants’ plans will commence in the State of South Australia. The instrument identifies classes of South Australia 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 will be 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 . It is now proposed that the Scheme will be fully operational in South Australia.
In South Australia there is a gradual intake of participants to ensure that all participants are well supported as they make the transition to the scheme.
Human rights implications
The Phasing Rules—South Australia 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) 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);
- 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—South Australia 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.
Progressive implementation by age
The Phasing Rules—South Australia, as amended, impose additional limitations on access to the scheme based on age.
Under the Phasing Rules—South Australia, as amended, there is progressive implementation of the scheme by age in South Australia. The additional age limitations are a temporary limitation designed to ensure an orderly transition to the full scheme in South Australia in a way that prioritises children.
The temporary age restrictions in South Australia are considered reasonable and proportionate, because of the overarching aim to ensure the integrity of the scheme when it is nationally extended.
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—South Australia 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—South Australia limits human rights in some circumstances, those limitations are reasonable, necessary and proportionate to ensure the long-term integrity and sustainability of the scheme.