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 – Western Australia) Amendment Rules 2018
Authority for this Instrument
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 National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans – Western Australia) Rules 2014 (the Phasing Rules – Western Australia) were made pursuant to sections 32, 32A and 209 of the Act (but not under subsection 32A(4)). The Phasing Rules – Western Australia are about the order in which the CEO of the National Disability Insurance Agency (the Agency) will commence the facilitation of the preparation of plans for different classes of participants in Western Australia.
The National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans – Western Australia) Amendment Rules 2018 (Amendment Rules) amend the Phasing Rules – Western Australia. The Amendment Rules are made for the purposes of sections 32, 32A and 209 of the Act (but not under subsection 32A(4)) and give effect to agreements between the Commonwealth and the State of Western Australia relating to the full transition of Western Australia to the National Disability Insurance Scheme (NDIS).
In addition to the power to make this Instrument under sections 32, 32A and 209 of the Act, subsection 33(3) of the Acts Interpretation Act 1901 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.
The Minister, in making the Amendment Rules, has had regard to the financial sustainability of the NDIS as required by subsection 209(3) of the Act.
The Amendment Rules are a legislative instrument for the purposes of the Legislation Act 2003.
Commencement
The Amendment Rules commence on the day after the instrument is registered.
Consultation
The Amendment Rules are Category B rules for the purposes of section 209 of the Act. Accordingly, as required under subsection 209(5) of the Act, the Commonwealth has consulted closely with the State of Western Australia as the relevant host jurisdiction. Western Australia 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 Agency on the form of the Amendment Rules.
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 – Western Australia) Amendment Rules 2018.
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 – Western Australia.
Schedule 1 sets out the amendments to the Phasing Rules – Western Australia.
Schedule 1, items 1, 3, 5, 8, 20-23 amend the title page and paragraphs 1.2, 1.3, 1.5, 3.1, 3.2, 3.3 and 3.4 to replace references to the term “these Rules” with “this Instrument”. This is to be consistent with the Acts Interpretation Act 1901, the Legislation Act 2003 and the wording of section 209 of the Act, which permits the Minister to make rules via legislative instrument. This also complies with paragraph 7(a) of the Office of the Parliamentary Counsel’s Drafting Direction No. 1.1A (issued 14 November 2016).
Paragraph 3.3 is also amended to omit the reference to the Legislative Instruments Act 2003 and replace this with a reference to the Legislation Act 2003.
Schedule 1, items 2, 4, and 6-7 remove the references to the “Perth Hills trial site” and “NDIS trial” as it is no longer necessary to limit the implementation of the NDIS to these areas due to the agreement to the full transition of Western Australia.
Schedule 1, items 9-11 and 13-14 are consequential amendments because of the removal of references to the “Perth Hills trial site” and “NDIS trial” in the Phasing Rules – Western Australia.
Schedule 1, item 12 amends paragraph 2.3 to clarify that the table in paragraph 2.5 sets out the sequence in which the CEO is to commence the facilitation of the preparation of the plans of participants within that class, however the sequence is flexible.
Schedule 1, items 15-17 amend the table by setting out the new classes of participants, the conditions for inclusion in each class (based on area of residence), and the circumstances in which the CEO is to commence the facilitation of the preparation of the plans of participants within each class. 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.
Schedule 1, item 18 inserts new paragraph 2.6 to enable the CEO to commence a participant in a class before the date specified for that class, provided that:
- the CEO decides that the Agency has the capacity to commence the facilitation of the preparation of that participant’s plan before the date;
- the decision would not adversely affect the facilitation of the plans of participants in other classes; and
- the State of Western Australia and the Commonwealth of Australia agree to the CEO making the decision.
Schedule 1, item 19 inserts new paragraphs 2.7, 2.8, 2.9 and 2.10 to enable the CEO to divide each class into subclasses for further phasing.
Schedule 1, items 24 and 30 amend paragraph 8.4 to include the new definitions of “Existing WA client”, “Existing WA NDIS Participant” and “WA NDIS Model”.
A person is an Existing WA client if they are receiving specialist disability services funded or administered by the Western Australian Government and they are not an Existing WA NDIS Participant.
“Existing WA NDIS Participant” and “WA NDIS Model” have the same meanings as they have in the National Disability Insurance Scheme (Becoming a Participant) Rules 2016.
Schedule 1, items 25-27 and 29 are consequential amendments.
Schedule 1, item 28 amends paragraph 3.4 to include the definition of “NDIS area”.
Schedule 1, item 31 inserts new Schedule A that sets out the districts comprising the regions, and the shires comprising the territories, which are the NDIS Areas in Western Australia. The districts are constituted under the Local Government Act 1995 (WA) as at 1 December 2017.
Statement of Compatibility
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).
The (Facilitating the Preparation of Participants’ Plans – Western Australia) Amendment Rules 2018 (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 (Cth).
Overview
This Instrument is made for the purposes of sections 32, 32A and 209 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) (but not under subsection 32A(4)) and deals with amendments to National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans – Western Australia) Rules 2014 (Phasing Rules – Western Australia) regarding the full transition of Western Australia to the NDIS, including those areas that are currently delivering the Western Australia disability supports and services model (the WA NDIS Model).
In particular, this Instrument sets out the new phasing schedule for the NDIS areas of Western Australia to enable a staged implementation of the NDIS in Western Australian service regions.
This Instrument also provides for the continuity of services of Existing WA NDIS Participants, who are persons in Western Australia currently receiving supports or funding under the WA NDIS Model, at the time when their area of residence transitions to the NDIS, by enabling the CEO to commence the facilitation of their plans as soon as practicable (subject to any decision by the CEO to prioritise by sub-classes).
Human rights implications
This Instrument is essential to the transitional implementation of the NDIS in Western Australia. The NDIS is designed to advance the human rights of people with severe and permanent disability. Specifically, this Instrument will help to ensure that the Agency would be able to process the large number of NDIS access requests from Existing WA NDIS Participants, as well as new applicants, in an efficient and timely manner. Accordingly, this Instrument engages, either directly or indirectly, the following human rights:
The rights of persons with disabilities in the Convention on the Rights of Persons with Disabilities (CRPD), especially Articles 3, 7, 22, and 23.
The rights of children in the Convention on the Rights of the Child (CRC), especially Articles 2, 9, 18 and 23.
Article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Article 2 of the International Covenant on Civil and Political Rights (ICCPR).
General Principles underpinning the CRPD
The CRPD recognises the barriers that people with disability may face in realising their rights. While the rights under all human rights treaties apply to everyone, including people with disability, the CRPD applies human rights specifically to the context of people with disability.
The establishment of the NDIS promotes the rights of people with disability in Australia by providing access to nationally consistent funding and support to help them realise their goals and 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 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 people with disability to be able to participate fully and effectively and be included in society, the need for respect for difference and acceptance of people with disability as part of human diversity and providing people with disability the opportunity to be involved actively in decision-making processes about policies and programmes, including those directly concerning them.
The general principles in the Act that have been applied in this Instrument align closely with the CRPD principles. The objectives and general principles of the Act and Phasing Rules – Western Australia 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.
This Instrument recognises 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 people with disability to be provided with reasonable and necessary supports 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, this Instrument 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 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, including on the basis of age or place of residence. This is reinforced in the context of human rights for people with disability 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 International Covenant on Civil and Political Rights (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 residence
The Phasing Rules – Western Australia, as amended, impose additional limitations on transition to the scheme based on residence, by providing a sequential basis for the CEO to commence the facilitation of the preparation of the plans of Western Australian participants on the basis of their place of residence. These restrictions are temporary in nature, to ensure the integrity and financial sustainability of the NDIS and minimal disruption to Existing WA NDIS Participants as Western Australia transitions to the NDIS. The temporary residence restrictions in Western Australia are considered reasonable and proportionate, because of the overarching aim to ensure the integrity of the scheme when it is nationally extended.
Protection of Privacy
Article 22 of the CRPD is engaged by the Phasing Rules – Western Australia, as amended, to the extent that it allows the National Disability Insurance Agency to require evidence of a person’s residency, disability and early intervention needs. In particular, nation states are compelled to protect the privacy of personal, health and rehabilitation information. Any information that the person provides for the purposes of this Instrument is considered protected information and must be dealt with in accordance with the National Disability Insurance Scheme (Protection and Disclosure of Information) Rules 2013 (Information Rules) on the collection, use and disclosure of personal information. The stringent conditions attached to the treatment of protected information under the Act and Information Rules serve to support and protect the right to privacy under the CRPD.
Review rights
Article 12(4) of the CRPD requires signatories to the CRPD to 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.
Section 99 of the Act lists the reviewable decisions for the purposes of Act. A reviewable decision under the Act is subject to merit review by the Administrative Appeals Tribunal (following an internal review conducted by a properly delegated person who was not involved in making the reviewable decision). The CEO’s decisions to commence facilitating the preparation of plans made under the provisions of the Phasing Rules – Western Australia, as amended, will be decisions made under sections 32 and 32A of the Act. Decisions made under sections 32 and 32A of the Act are not listed as reviewable decisions in section 99 of the Act and are therefore not subject to merits review by the Administrative Appeals Tribunal.
However, this Instrument preserves the rights of a person who is dissatisfied with the administrative actions and decisions of the CEO to:
- make a complaint to the Commonwealth Ombudsman, who can receive and consider complaints about the CEO and the Agency regarding the administration of the NDIS;
- apply, under the Administrative Decisions (Judicial Review) Act 1997, to the Federal Court or Federal Circuit Court for an order of review in respect of the decision, conduct related to the making of the decision or failure to make decisions.
Conclusion
This Instrument is compatible with human rights because it advances the protection of the rights of people with disability in Western Australia, consistent with the CRPD. This Instrument will create opportunities for people with disability in Western Australia to exercise their rights by providing support to enable participation in the social, economic and cultural life of the community. To the extent that this Instrument limits human rights in some circumstances, those limitations are temporary, reasonable, proportionate and necessary to enable the full transition of Western Australia to the NDIS and ensure the long-term integrity and sustainability of the NDIS.
The Hon. Dan Tehan, Minister for Social Services