EXPLANATORY STATEMENT
Issued by the Authority of the Assistant Minister for Social Services
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (Timeframes for Decision Making) 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 the Act.
The National Disability Insurance Scheme (Timeframes for Decision Making) Amendment Rules 2014 (the Amendment Rules) are made pursuant to section 204 of the Act and amend the National Disability Insurance Scheme (Timeframes for Decision Making) Rules 2013 (the Timeframes for Decision Making Rules). The amendments reflect the addition of new host jurisdictions from 1 July 2014.
The Amendment Rules are Category C rules. Accordingly the Commonwealth and a majority of host jurisdictions have agreed to the making of these rules as required under section 209 of the Act.
The Amendment Rules is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Commencement
The Amendment Rules commence on 1 July 2014.
Consultation
The Commonwealth has consulted with Governments of all host jurisdictions in making the Amendment Rules.
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 Timeframes for Decision Making Rules.
Schedule 1 sets out the amendments to the Timeframes for Decision making Rules.
Item 1 replaces reference to the Australian Capital Territory in subparagraph 3.1(b) of the Timeframes for Decision Making Rules with a reference to 2014 NDIS launch area. This has the effect of extending timeframes for making particular decisions in relation to an access request made within 12 months after 1 July 2014 for areas where trials of the National Disability Insurance Scheme (NDIS) commence on 1 July 2014.
Item 2 inserts a new definition of 2014 NDIS launch area, which includes:
- Shire of Kalamunda, Shire of Mundaring and City of Swan in the Perth Hills area in Western Australia;
- Barkly Region in the Northern Territory; and
- the Australian Capital Territory.
This definition specifies areas where trials of the NDIS commence on 1 July 2014. This includes the Australian Capital Territory and specified areas in Western Australia and the Northern Territory.
It is noted that in Western Australia, from 1 July 2014, there will be a two-year trial of the 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.
These Rules relate to the NDIS trial run by NDIA.
For some purposes Jervis Bay Territory is treated as if it were part of the Australian Capital Territory. However, for the purposes of the Timeframes for Decision Making Rules, the Jervis Bay Territory is separate and distinct from the Australian Capital Territory. An explanatory note has been included to make this clear.
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 purpose of this legislative instrument is to extend timeframes within which certain decisions must be made regarding whether a person is eligible to become a participant in the scheme. The timeframes are extended for only a specified period, namely, for 12 months after the relevant trial commences under the Act.
Human rights implications
This legislative instrument is essential to the transitional implementation of the scheme, which is designed to advance the human rights of people with severe and permanent disability. Specifically, the instrument will help to ensure that the National Disability Insurance Agency will be able to efficiently process the large number of requests expected to be made during its initial period of operation by, or on behalf of, people who seek access to supports or funding for supports.
Accordingly, the instrument engages, either directly or indirectly, the following human rights:
Rights of people with disabilities
- The Convention on the Rights of Persons with Disabilities (CRPD) contains several human rights relevant to the scheme. Notably, Article 26 of the CRPD requires governments to take effective and appropriate measures to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.
- This instrument relates to several human rights set out in the CRPD (including personal mobility, health, habilitation and rehabilitation), and promotes respect for the dignity of people with disabilities.
Right to health; Right to social security; Right to an adequate standard of living
- The right to health – encompassing the right to the enjoyment of the highest attainable standard of physical and mental health – is contained in Article 12(1) of the International Covenant on Economic and Social and Cultural Rights (ICESCR). The UN Committee on Economic Social and Cultural rights has stated that health is a fundamental human right indispensible for the exercise of other human rights.
- The right to social security is set out in Article 9 of the ICESCR; Article 28 of the CRPD; and Article 26 of Convention on the Rights of the Child (CRC); and Article 11 of the Convention on the Elimination of all Forms of Discrimination Against Women. Essentially, that right requires that governments, within their maximum available resources, take action to ensure access to a social security scheme that provides a minimum essential level of benefits to all individual and families that will enable them to acquire essential health care.
- The right to an adequate standard of living is specified in Article 11 of the ICESCR, Article 28 of the CRPD and Article 27 of the CRC, which require governments to take appropriate steps to realise this right. The CRPD provides that one step is to ensure access by people with disabilities to appropriate and affordable services, devices and other assistance for disability related needs.
- It is appropriate that timeframes for decision-making during the first 12 months of trial be altered to ensure that urgent claims are prioritised, and expectations of prospective participants are appropriately managed, when the volume of requests to The National Disability Insurance Agency are expected to be high.
Conclusion
This legislative instrument is compatible with human rights as it forms part of an overall legislative scheme designed to deliver improved health social security and living standards to people with disability. This instrument does not limit any human rights. To the extent that decision-making may be delayed, these measures are reasonable, necessary and proportionate in the circumstances and consistent with the country’s available resources.