National Disability Insurance Scheme (Protection and Disclosure of Information) Amendment (No. 2) Rules 2014

Administered by Department of Social Services

Legislation au F2015L00017 Rules Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the Authority of the Assistant Minister for Social Services

 

National Disability Insurance Scheme Act 2013

 

National Disability Insurance Scheme (Protection and Disclosure of Information) Amendment (No. 2) Rules 2014

 

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 that Act to be prescribed or which are necessary or convenient to be prescribed in order to carry out or give effect to the Act.  

 

Subsection 58(1) of the Act contains a general rule that a requirement under the Act to give information or evidence or produce documents to the National Disability Insurance Scheme Launch Transition Agency (the Agency) is not affected by State and Territory laws. However, subsection 58(2) of the Act provides that despite subsection 58(1), a person is not required to give information, produce a document or give evidence to the Agency or an officer for the purposes of the Act if the person would be prevented from doing so under a law of a State or Territory and the relevant law is prescribed by the National Disability Insurance Scheme Rules for the purpose of paragraph 58(2)(b). Part 3 of the National Disability Insurance Scheme (Protection and Disclosure of Information) Rules 2013 (the Information Rules) provides a list of State and Territory laws that are exceptions to the general rule in subsection 58(1) of the Act for the purpose of paragraph 58(2)(b).

 

The National Disability Insurance Scheme (Protection and Disclosure of Information) Amendment (No. 2) Rules 2014 (the Amendment Rules) are made for the purposes of section 58 of the Act and amend the Information Rules to update references to Victorian legislation to reflect Victoria's new emergency management governance arrangements.

 

The Minister in making the Information Rules has had regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme as required under subsection 209(3) of the Act.

 

The Amendment Rules are Category B rules. Subsection 209(5) of the Act provides that the Minister must not make Category B rules unless the host jurisdiction has agreed to the making of the rules. Victoria (the host jurisdiction) has agreed to the making of these rules as required under subsection 209(5) of the Act.

 

The Amendment Rules are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

Commencement

 

The Amendment Rules commence the day after registration.

 

 

Consultation

 

The Commonwealth has consulted with the Victorian Government in making the Amendment Rules.

 

 

Regulation Impact Statement (RIS)

 

It has been determined, following consultation with the Office of Best Practice Regulation (OBPR), that a RIS is not required. OBPR ID 17924.

 

 

Explanation of provisions

 

Section 1 states the name of the Amendment Rules.

 

Section 2 provides that the Amendment Rules commence on the day after they are registered.

 

Section 3 provides that Schedule 1 to the Amendment Rules amends the Information Rules.

 

Schedule 1 sets out amendments to paragraph 3.3(b) of the Information Rules.

 

Item 1 deletes the references in paragraph 3.3(b) to the Emergency Management Act 1986, subsection 21G(2) and the Police Regulation Act 1958, sections 86ZG, 86ZH and inserts references to  the Emergency Management Act 2013, subsection 73(2) and the Victoria Police Act 2013, sections 184, 185. The amendments reflect changes made to Victorian legislation.

 

The list of laws in paragraph 3.3(b) is an exception to the general rule in subsection 58(1) that a requirement under the Act to give information or evidence or produce documents to the  Agency is not affected by State and Territory laws. A person is not required to give information, produce a document or give evidence to the Agency for the purposes of the Act if the person would be prevented from doing so under one of the State or Territory laws listed in paragraph 3.3(b) of the Information 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 (Protection and Disclosure of Information) Amendment (No. 2) Rules 2014

 

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 purpose of this legislative instrument is to deal with the circumstance in which a State or Territory law may prevent the disclosure of information or a document by a person under the National Disability Insurance Scheme Act 2013 (the Act).

 

Subsection 58(1) of the Act contains a general rule that a requirement under the Act to give information or evidence or produce documents to National Disability Insurance Scheme Launch Transition Agency (the Agency) is not affected by State and Territory laws. However, subsection 58(2) of the Act provides that despite subsection 58(1), a person is not required to give information, produce a document or give evidence to the Agency or an officer for the purposes of the Act if the person would be prevented from doing so under a law of a State or Territory and the relevant law is prescribed by the National Disability Insurance Scheme Rules for the purpose of paragraph 58(2)(b). Part 3 of the National Disability Insurance Scheme (Protection and Disclosure of Information) Rules 2013 (the Information Rules) provides a list of State and Territory laws that are exceptions to the general rule in subsection 58(1) of the Act for the purpose of paragraph 58(2)(b).

 

The National Disability Insurance Scheme (Protection and Disclosure of Information) Amendment (No. 2) Rules 2014 (the Amendment Rules) are made for the purposes of section 58 of the Act and amend the Information Rules to update references to Victorian legislation to reflect Victoria's new emergency management governance arrangements.

 

 

 

Human rights implications

 

The Information Rules engage the following rights:

  • the rights of people with disabilities in the Convention on the Rights of Persons with Disabilities (CRPD), especially Articles 3 and 22;
  • the rights of children in the Convention on the Rights of the Child (CRC), especially Article 7 and 16;
  • Articles 14 and 17 of the International Covenant on Civil and Political Rights (ICCPR).

 

General principles underpinning the CRPD

 

The CRPD recognises 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 National Disability Insurance Scheme (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 general principles in the Act that have been applied in the Information Rules in paragraph 1.3 align closely with the CRPD principles.  The two key principles of the Act that is reflected in the Information Rules:

  • People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation
  • People with disability should have their privacy and dignity respected.

 

Respect for privacy

 

Article 22 of the CRPD provides that no person with disability, regardless of place of residence or living arrangements, shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence or other types of communication, or to unlawful attacks on his or her honour and reputation.  It also provides that the privacy of personal, health and rehabilitation information of persons with disabilities should be protected on an equal basis with others.  This right contains similar protections to those in Article 17 of the ICCPR and Article 16 of the CRC in relation to children.

 

Information collected under the Act and stored in records of the National Disability Insurance Agency is considered to be ‘protected information’.  The Act provides limited circumstances in which ‘protected information’ can be disclosed.  The details in which these limited circumstances would arise are set out in more detail in the Information Rules.  This is a positive engagement with Article 22 of the CPRD as the provisions are specific and require certain criteria to be met before the discretion of a decision maker can be exercised.  This satisfies the requirement for any interference with privacy to be both lawful and non-arbitrary. 

 

Under subsection 58(1) and paragraph 58(2)(a) of the Act there are circumstances in which a person may be required to give information, produce a document, or give evidence to the Agency for the purposes of the Act.  Paragraph 3.3 (b) of the Information Rules limits the ambit of the operation of this provision by prescribing a list of State and Territory laws that apply where a person is not required to give information, produce a document, or give evidence, to the Agency if these State or Territory laws apply to that person. This instrument amends this list of State and Territory laws. This is a positive engagement of the right to privacy by providing a precise exception to the requirement to provide information, give a document or give evidence.

 

Conclusion

 

This instrument is compatible with human rights because it advances the protection of privacy rights of persons with disabilities in Australia, consistent with the ICCPR, CRC and 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 NDIS.

 

 

Senator the Hon Mitch Fifield, Assistant Minister for Social Services

Overview

The National Disability Insurance Scheme (Protection and Disclosure of Information) Amendment (No. 2) Rules 2014 were introduced to address discrepancies in the existing legislative framework, specifically those that arose from changes in Victorian laws regarding emergency management. Enacted by the Australian Parliament, these rules amend the National Disability Insurance Scheme (Protection and Disclosure of Information) Rules 2013 to ensure alignment with Victoria's updated emergency management governance structure. The primary policy objective of these amendments is to uphold the financial sustainability of the National Disability Insurance Scheme (NDIS) as required under the National Disability Insurance Scheme Act 2013. By updating references to reflect the new legislative environment, these rules aim to prevent conflicts between state and federal requirements, thereby facilitating smoother operation of the NDIS. This amendment process involved consultation with the Victorian government and aligns with broader human rights commitments, particularly concerning the rights and privacy of individuals with disabilities. These rules are designed to ensure that the NDIS can function effectively without impinging on the rights protected by state laws, particularly in emergency situations. They also reflect the government's commitment to ensuring the long-term sustainability and integrity of the NDIS, which is crucial for the provision of adequate support to individuals with disabilities. The rules are compatible with human rights as they reinforce the protection of privacy and dignity for individuals with disabilities, aligning with international conventions such as the Convention on the Rights of Persons with Disabilities (CRPD). This ensures that any limitations on human rights are reasonable, necessary, and proportionate, thereby supporting the overall objectives of the NDIS.

Scope and Application

The National Disability Insurance Scheme (Protection and Disclosure of Information) Amendment (No. 2) Rules 2014 amends the National Disability Insurance Scheme (Protection and Disclosure of Information) Rules 2013, updating references to Victorian legislation to reflect Victoria's new emergency management governance arrangements. These rules are made under section 58 of the National Disability Insurance Scheme Act 2013, which allows the Minister to prescribe matters necessary to carry out or give effect to the Act. The Amendment Rules update the list of State and Territory laws in Part 3 of the Information Rules that can prevent the disclosure of information or a document by a person under the Act. This amendment ensures that the requirements under the Act to provide information or evidence to the National Disability Insurance Scheme Launch Transition Agency are not overridden by State or Territory laws unless explicitly listed in the Information Rules. The rules apply to all persons and entities involved in the disclosure of information under the Act, primarily within the jurisdiction of Victoria, aligning with the state's new emergency management governance framework. These rules are compatible with human rights, particularly the rights of people with disabilities as articulated in the Convention on the Rights of Persons with Disabilities, by ensuring that any limitations on the disclosure of information are lawful, necessary, and proportionate to protect privacy rights.

Key Provisions

The National Disability Insurance Scheme (Protection and Disclosure of Information) Amendment (No. 2) Rules 2014 amends the existing Information Rules under the National Disability Insurance Scheme Act 2013. These Amendment Rules primarily focus on updating references to Victorian legislation to align with the state's new emergency management governance arrangements (Schedule 1). Specifically, the Amendment Rules update the Information Rules to reflect changes in Victorian laws, such as the substitution of the Emergency Management Act 2013 for the Emergency Management Act 1986 and the Victoria Police Act 2013 for the Police Regulation Act 1958 (Section 3). The purpose of these amendments is to ensure that the Information Rules accurately reflect current state laws, thereby maintaining the integrity of the information disclosure requirements under the NDIS Act. The Amendment Rules impose obligations on individuals and entities involved in the NDIS to comply with the updated list of State and Territory laws as prescribed in the Information Rules. This means that if a person is subject to a state or territory law listed in paragraph 3.3(b) of the Information Rules, they are exempt from the general requirement to provide information, documents, or evidence to the NDIS Agency if doing so would contravene those state or territory laws (subsection 58(2) of the NDIS Act). This ensures that individuals are not placed in a position where they must choose between complying with state laws and fulfilling obligations under the NDIS Act. Failure to comply with the requirements of the NDIS Act and the Information Rules may result in various legal consequences. However, the Amendment Rules themselves do not specify any new offences, penalties, or civil/criminal consequences. Any enforcement actions or penalties would be governed by the provisions of the NDIS Act and related legislation. For instance, under the NDIS Act, unauthorised disclosure of protected information may lead to civil penalties, including fines, and in serious cases, criminal penalties may apply (sections 60 and 61 of the NDIS Act). These measures ensure that the privacy and security of information held under the NDIS are maintained while allowing exceptions where state laws prevent the disclosure of certain information.

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Area of Law
Disability Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Reporting & Disclosure Obligations
Human Rights Law
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Privacy Protection

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.