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 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 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.
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 Agency is not affected by State and Territory laws. Part 3 of the National Disability Insurance Scheme (Protection and Disclosure of Information) Amendment 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.
The National Disability Insurance Scheme (Protection and Disclosure of Information) Amendment Rules 2013 (the Amendment Rules) are made for the purposes of section 58 of the Act and amend the Information Rules to include a list of laws for Western Australia that are an exception to the general rule in subsection 58(1) of the Act.
It is noted that from 1 July 2014, Western Australia will participate in a two-year trial of the National Disability Insurance Scheme (NDIS) using two different models:
• WA NDIS My Way model, which will operate in the Lower South West (LSW) and Cockburn/Kwinana areas; and
• Commonwealth National Disability Insurance Agency (NDIA) model, which will operate in the Perth Hills area.
This rule relates to the NDIS trial to be run by NDIA in the Perth Hills area.
The Minister in making the Information Rules has had regard to financial sustainability of the National Disability Insurance Scheme as required under subsection 209(3).
The Amendment Rules are Category B rules for the purposes of section 209 of the Act. The Commonwealth and each of the host jurisdictions to which the Amendment Rules relate have agreed to the making of the Amendment Rules as required under subsection 209(5) of the Act.
The Amendment Rules is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Commencement
The Information Rules commence on 1 July 2014.
Consultation
The Commonwealth has consulted with Governments of Western Australia in making the Amendment Rules. The Commonwealth has also notified Governments of other host jurisdictions about the changes made by the Amendment Rules.
The Western Australian Government consulted with all affected State Government Agencies to identify legislation to be listed. It is noted that the list may be amended as required.
Explanation of provisions
Section 1 states the name of the Amendment Rules.
Section 2 provides that the Amendment Rules commence on 1 July 2014.
Section 3 provides that Schedule 1 amends the Information Rules.
Schedule 1 sets out the amendments to the Information Rules.
Item 1 inserts a list of laws for Western Australia into subparagraph 3.3(b) of the Information Rules, which already contains a list of laws for the other host jurisdictions. A list of laws was not included for Western Australia at the time the Information Rules were made as it was not a host jurisdiction at that time.
The list of laws in subparagraph 3.3(b) is an exception to the general rule in subsection 58(1) of the Act 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 subparagraph 3.3(b) of the Information Rules.
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 the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
The purpose of this legislative instrument is to deal with the circumstances 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).
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 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 (and worth) of the human person, the importance for persons with disabilities of their 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 are reflected in the Information Rules are as follows:
- 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’. There 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 National Disability Insurance 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 National Disability Insurance Agency if these State or Territory laws apply to that person. This instrument adds to 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.