National Disability Insurance Scheme (NDIS Provider Definition) Amendment (Information, Linkages and Capacity Building Program) Rule 2022

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 (NDIS Provider Definition) Amendment (Information, Linkages and Capacity Building Program) Rule 2022

Purpose

The National Disability Insurance Scheme (NDIS Provider Definition) Amendment (Information, Linkages and Capacity Building Program) Rule 2022 (the instrument) prescribes recipients of funding under the Information, Linkages and Capacity Building program (‘ILC program’) as NDIS providers.

Background

The ILC program provides funding to organisations to deliver projects in the community that benefit all Australians with disability, their carers and families. These projects create connections between people with disability and the communities they live in. Projects aim to build the knowledge, skills and confidence of people with disability, and improve their access to community and mainstream services. ILC has two main and interlinked aims:

• provide supports and information to as many Australians with disability as possible
• fund activities that help Australian communities to be better equipped and more competent at including people with disability in economic and community life.

The ILC program was originally funded under section 14 of the National Disability Insurance Scheme Act 2013 (the NDIS Act) by the National Disability Insurance Agency (NDIA). As the relevant funding was provided under the NDIS Act, persons or entities so funded were NDIS providers under the definition of NDIS Provider in section 9 of that Act. An NDIS provider is subject to a variety of obligations under the oversight of the NDIS Quality and Safeguard Commissioner (the NDIS Commissioner), including obligations in relation to resolving complaints and a requirement to comply with the code of conduct. If such a provider is registered, they are also subject to audit, worker screening, reportable incident and behaviour support requirements.

The ILC program has transitioned from being funded by the NDIA representing the Commonwealth, to being funded by the Department of Social Services (Department) representing the Commonwealth. As a result of this change, recipients of funding no longer meet the definition of NDIS providers resulting in some protections no longer applying, and the NDIS Commissioner not having jurisdiction over these providers. In order to maintain these protections and the oversight of the NDIS Commissioner, the instrument amends the National Disability Insurance Scheme (NDIS Provider Definition) Rule 2018 to prescribe ILC providers as NDIS providers.

ILC funding recipients under grants administered by the Department may be either existing ILC grants that have transferred from NDIA to the Department or new ILC grants established by the Department.

The amendments made by the instrument prescribe ILC funding recipients as NDIS providers and does not include any powers.

Where any information about prescribed providers is collected by the NDIS Commissioner, it will be protected Commission information for the purposes of the NDIS Act, and required to be used and disclosed only in accordance with that Act.

Commencement

The instrument commences on the day after it is registered.

Reliance on subsection 33(3) of the Acts Interpretation Act 1901 (the power to make an instrument includes the power to vary or revoke the instrument)

As an instrument that amends another instrument, the instrument relies on subsection 33(3) of the Acts Interpretation Act 1901 for its authority.

Consultation

The Department has engaged with state and territory senior officials regarding the transfer of the ILC program from the Agency to the Department, and the consequences for the quality and safeguarding arrangements in place for providers delivering ILC services.

In addition the this engagement, this is a Category D rule change under the section 209 of the NDIS Act, and each host jurisdiction has been provided with an opportunity to respond to the rule change as required by the legislation.

Regulation Impact Statement (RIS)

The Office of Best Practice Regulation (OBPR) identified this is a minor regulatory change and a RIS is not required. The OBPR reference number is 42946.

Explanation of the provisions

Section 1 sets out how the instrument is to be cited, that is, as the National Disability Insurance Scheme (NDIS Provider Definition) Amendment (Information, Linkages and Capacity Building Program) Rule 2022.

Section 2 provides the instrument commences on the day after it is registered on the Federal Register of Legislation.

Section 3 provides the instrument is made under section 209 of the National Disability Insurance Scheme Act 2013 (NDIS Act).

Section 4 provides 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

Schedule 1 amends the National Disability Insurance Scheme (NDIS Provider Definition) Rule 2018.

Item 1 repeals and substitutes the heading to section 5 to distinguish section 5 from new section 6. Section 5 prescribes persons or entities who are providing supports or services to older people with disability under specified continuity of support programs as NDIS providers.

Item 2 inserts new section 6. New section 6 prescribes recipients of funding under the ILC program as NDIS providers.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

National Disability Insurance Scheme (NDIS Provider Definition) Amendment (Information, Linkages and Capacity Building Program) Rule 2022

The National Disability Insurance Scheme (NDIS Provider Definition) Amendment (Information, Linkages and Capacity Building Program) Rule 2022 (the 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 instrument amends the National Disability Insurance Scheme (NDIS Provider Definition) Rule 2018 to prescribe recipients of funding under the Information, Linkages and Capacity Building program (ILC program) who provide services or activities under the ILC program, as NDIS providers for the purposes of the National Disability Insurance Scheme Act 2013 (the NDIS Act).

An NDIS provider is subject to a variety of obligations under the oversight of the NDIS Commissioner, including obligations in relation to resolving complaints and a requirement to comply with the code of conduct. If such a provider is registered, they are also subject to audit, worker screening, reportable incident and behaviour support requirements.

The ILC program provides funding to organisations to deliver projects in the community that benefit all Australians with disability, their carers and families. These projects create connections between people with disability and the communities they live in. Projects aim to build the knowledge, skills and confidence of people with disability, and improve their access to community and mainstream services. ILC has two main and interlinked aims:

• provide supports and information to as many Australians with disability as possible
• fund activities that help Australian communities be better equipped and more competent at including people with disability in economic and community life.

The ILC program was originally funded under section 14 of the NDIS Act by the National Disability Insurance Agency (NDIA). As a result of the relevant funding being provided under the NDIS Act, persons or entities so funded were NDIS providers under the definition in section 9 of that Act.

When the ILC program transitioned from being funded by the NDIA representing the Commonwealth, to being funded by the Department of Social Services representing the Commonwealth, recipients of funding ceased to meet the definition of NDIS providers resulting in some protections no longer applying, and the NDIS Quality and Safeguards Commissioner (NDIS Commissioner) not having jurisdiction over these recipients. This results in some protections no longer applying, and the NDIS Commissioner not having jurisdiction over these funding recipients. In order to maintain protections and the oversight of the NDIS Commissioner, the instrument amends the National Disability Insurance Scheme (NDIS Provider Definition) Rule 2018 to ensure that ILC funding recipients remain NDIS providers under the NDIS Act.

Human rights implications

The instrument advances the protection of the rights of people with disability in Australia consistent with the Convention on the Rights of Persons with Disabilities (CRPD) and engages the following rights under international human rights law:

Article 12(4) of the CRPD requires State Parties 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 laws. The instrument prescribes ILC funding recipients as NDIS providers and subject to the oversight of NDIS Commissioner, which provides an appropriate and effective safeguard to prevent abuse.

Article 16(3) of the CRPD states in order to prevent the occurrence of all forms of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities. The instrument will protect persons with disabilities receiving services under the ILC program from exploitation, violence and abuse. It will ensure ILC funding recipients are NDIS providers and are subject to the oversight of the NDIS Commissioner, which is independent of the ILC program.

The instrument engages with these Articles by expanding the jurisdiction of the NDIS Commissioner to provide oversight of people with disability who are receiving supports or services under the ILC program. In particular, all NDIS providers, and any persons who are employed or otherwise engaged by an NDIS provider, are subject to the Code of Conduct and the complaints jurisdiction of the NDIS Commissioner.  

Conclusion

The instrument is compatible with human rights as it strengthens the legal safeguards to prevent abuse and promote wellbeing of people with disability in Australia receiving supports under the ILC program.

[Circulated by the authority of the Minister for the National Disability Insurance Scheme, the Senator Hon Linda Reynolds CSC]