Jenny Macklin (Jagajaga, Australian Labor Party, Minister for Disability Reform) Share this | Hansard source

I present a supplementary explanatory memorandum to the bill and ask leave of the House to move government amendments (1) to (77), as circulated, together.

Leave granted.

I thank the House. I move:

(1) Clause 3, page 4 (lines 4 to 25), omit subclause (1), substitute:

(1) The objects of this Act are to:

  (a) give effect to certain obligations that Australia has as a party to the Convention on the Rights of Persons with Disabilities; and

  (b) provide for the National Disability Insurance Scheme in Australia; and

(c) support the independence and social and economic participation of people with disability; and

  (d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and

(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

  (f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and

(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the mainstream community; and

  (h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability.

(2) Clause 3, page 5 (line 2), at the end of subclause (3), add:

  ; and (c)    the broad context of disability reform provided for in:

     (i) the National Disability Strategy 2010-2020 as endorsed by COAG on 13 February 2011; and

     (ii) the Carer Recognition Act 2010.

(3) Clause 4, page 5 (lines 12 and 13), omit "and control", substitute ", including in relation to taking reasonable risks,".

(4) Clause 4, page 5 (line 24), omit "informed choice and", substitute "choice and control, and to".

(5) Clause 4, page 6 (lines 5 to 7), omit paragraph (11)(b), substitute:

  (b) support people with disability to live independently and to be included in the community as fully participating citizens; and

  (c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the mainstream community and in employment.

(6) Clause 4, page 6 (after line 16), after subclause (14), insert:

  (14A) Positive personal and social development of people with disability, including children and young people, is to be promoted.

(7) Clause 5, page 7 (line 9), at the end of the clause, add:

  ; (f) if the person with disability is a child—the best interests of the child are paramount, and full consideration should be given to the need to:

     (i) protect the child from harm; and

     (ii) promote the child's development; and

     (iii) strengthen, preserve and promote positive relationships between the child and the child's parents, family members and other people who are significant in the life of the child.

(8) Clause 6, page 7 (line 11), omit "(1) The", substitute "To support people with disability to exercise choice and control in the pursuit of their goals, the".

(9) Clause 6, page 7 (lines 18 to 20), omit subclause (2).

(10) Clause 9, page 10 (after line 9), after the definition of Agency, insert:

  annual financial sustainability report means a report prepared under subsection 180B(1).

(11) Clause 9, page 11 (after line 14), after the definition of correspondence nominee, insert:

  cover, in relation to an enterprise agreement, has the same meaning as in the Fair Work Act 2009.

(12) Clause 9, page 11 (after line 31), after the definition of early intervention supports, insert:

  enterprise agreement has the same meaning as in the Fair Work Act 2009.

(13) Clause 9, page 12 (after line 9), after the definition of entry, insert:

  FaHCSIA agreement means the enterprise agreement known as the Department of Families, Housing, Community Services and Indigenous Affairs Enterprise Agreement 2012-2014 approved on 24 April 2012 in decision [2012] FWAA 3549.

(14) Clause 9, page 15 (after line 25), after the definition of reviewer, insert:

  reviewing actuary means the actuary who is nominated under section 180D.

  scheme actuary means the actuary who is nominated under section 180A.

(15) Page 21 (before line 2), before Part 1, insert:

Part 1A—Principles

17A Principles relating to the participation of people with disability

(1) People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.

(2) People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.

(3) The National Disability Insurance Scheme is to:

  (a) respect the interests of people with disability in exercising choice and control about matters that affect them; and

  (b) enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and

(c) support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.

(16) Clause 24, page 25 (lines 20 to 22), omit paragraph (1)(e), substitute:

  (e) the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime.

(17) Clause 24, page 25 (lines 24 to 26), omit all the words from and including "person's support" to and including "lifetime", substitute "person is likely to require support under the National Disability Insurance Scheme for the person's lifetime".

(18) Clause 25, page 25 (line 27) to page 26 (line 12), omit the clause, substitute:

25 Early intervention requirements

(1) A person meets the early intervention requirements if:

  (a) the person:

     (i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

     (ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

     (iii) is a child who has developmental delay; and

(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and

  (c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

     (i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or

     (ii) preventing the deterioration of such functional capacity; or

     (iii) improving such functional capacity; or

     (iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.

Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

  (a) as part of a universal service obligation; or

  (b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

(19) Clause 27, page 27 (line 20), after "paragraph 24(1)(b)", insert "or subparagraph 25(a)(i) or (ii)".

(20) Clause 27, page 27 (line 28) to page 28 (line 3), omit paragraphs (1)(d) to (f), substitute:

  (d) the provision of early intervention supports is likely to benefit a person by reducing the person's future needs for supports in relation to disability for the purposes of paragraph 25(1)(b); or

  (e) the provision of early intervention supports is likely to benefit a person by mitigating, alleviating or preventing the deterioration of the person's functional capacity to undertake one or more of the activities for the purposes of subparagraph 25(1)(c)(i) or (ii), or improving such functional capacity for the purposes of subparagraph 25(1)(c)(iii); or

(f) the provision of early intervention supports is likely to benefit a person by strengthening the sustainability of the informal supports available to the person, including through building the capacity of the person's carer for the purposes of subparagraph 25(1)(c)(iv).

(21) Clause 29, page 28 (lines 22 to 24), omit paragraph (1)(b), substitute:

  (b) the person enters a residential care service on a permanent basis, or starts being provided with community care on a permanent basis, and this first occurs only after the person turns 65 years of age; or

(22) Clause 31, page 30 (after line 13), after paragraph (d), insert:

  (da) if the participant and the participant's carers agree—strengthen and build the capacity of families and carers to support the participant in adult life; and

(23) Clause 32, page 31 (lines 5 and 6), omit subclause (2), substitute:

(2) The CEO must commence facilitating the preparation of the participant's plan in accordance with the National Disability Insurance Scheme rules.

(3) If National Disability Insurance Scheme rules made for the purposes of subsection (2) do not require the CEO to commence facilitating the preparation of a participant's plan within a prescribed period or in prescribed circumstances, the CEO must commence facilitating the preparation of the plan as soon as reasonably practicable, having regard to the obligations of the CEO under the rules to commence facilitating the preparation of other participants' plans.

(24) Page 31 (after line 6), after clause 32, insert:

32A Rules about preparation of plans

(1) Without limiting subsection 32(2), National Disability Insurance Scheme rules made for the purposes of that subsection may require the CEO to commence facilitating the preparation of the plan of a participant included in a class prescribed by the rules:

  (a) within a period prescribed by the rules; or

  (b) in circumstances prescribed by the rules.

(2) Without limiting the classes that may be prescribed as mentioned in subsection (1), a class may be prescribed by reference to one or more of the following:

  (a) whether the participant's name is included on a prescribed waiting list;

  (b) whether the participant is receiving support from a prescribed service provider or under a prescribed program;

(c) whether, when the participant first made an access request, he or she was not receiving supports other than informal supports in relation to his or her disability;

  (d) the place of residence of the participant on a prescribed date or throughout a prescribed period;

(e) whether, when the participant first made an access request, he or she had left, or was reasonably likely to leave, school at a prescribed time or during a prescribed period;

  (f) the participant's age;

(g) other matters.

(3) Despite subsection 32(2) and subsection (1) of this section, if the CEO is satisfied that, because of the urgency of the circumstances, it is appropriate to commence facilitating the preparation of a participant's plan at a particular time:

  (a) the CEO may do so; and

  (b) if doing so means that it is necessary not to commence facilitating the preparation of the plans of one or more other participants—the CEO may delay commencing such facilitation, so far as is reasonably necessary.

(4) The National Disability Insurance Scheme rules may prescribe matters to which the CEO is to have regard in deciding for the purposes of subsection (3) whether or not he or she is satisfied that, because of the urgency of the circumstances, it is appropriate to commence facilitating the preparation of a participant's plan.

(5) If the CEO commences or delays facilitating the preparation of a participant's plan in accordance with subsection (3), the CEO does not breach subsection 32(2), or National Disability Insurance Scheme rules made for the purposes of that subsection, in relation to the participants concerned.

(6) Without limiting subsection 32(2) of this section, National Disability Insurance Scheme rules made for the purposes of that subsection (including as mentioned in subsection (1) of this section) may do one or more of the following:

  (a) prescribe a class by reference to a decision of the CEO about a matter prescribed by the rules;

  (b) prescribe a period or circumstances by reference to a decision of the CEO;

(c) prescribe matters by reference to a decision of the CEO.

(7) The CEO does not have a duty to consider whether to exercise a discretion conferred upon the CEO by:

  (a) subsection (3); or

  (b) National Disability Insurance Scheme rules made for the purposes of subsection 32(2) (including as mentioned in subsection (1) of this section).

(25) Clause 33, page 32 (lines 18 and 19), omit "the reasonable and necessary supports that will be funded and the manner in which they", substitute "the manner in which the reasonable and necessary supports".

(26) Clause 57, page 48 (after line 31), at the end of the clause, add:

(3) It is a reasonable excuse for an individual to refuse or fail to give information or produce a document on the ground that to do so might tend to incriminate the individual or expose the individual to a penalty.

(27) Clause 72, page 56 (line 17), omit "must", substitute "may".

(28) Clause 72, page 56 (line 24), at the end of subclause (1), add:

  ; or (c) a circumstance exists that:

     (i) is a circumstance prescribed by National Disability Insurance Scheme rules for the purposes of this paragraph; and

     (ii) presents an unreasonable risk to one or more participants.

(29) Clause 72, page 56 (after line 24), after subclause (1), insert:

  (1A) Without limiting the circumstances that may be prescribed by National Disability Insurance Scheme rules made for the purposes of paragraph (1)(c), such circumstances may relate to:

  (a) a contravention by a person or entity that is a registered provider of supports, or an employee or contractor of such a person or entity, of a law or other requirement; or

  (b) a complaint made, or action taken, in relation to such a person or entity, or an employee or contractor of such a person or entity; or

(c) such a person or entity being an insolvent under administration.

(30) Clause 74, page 59 (after line 9), after subclause (1), insert:

  (1A) If a State or Territory Minister has parental responsibility for the child, the CEO must not make a determination under paragraph (1)(b) in relation to the child unless the State or Territory Minister has agreed in writing to the making of the determination.

(31) Clause 75, page 61 (after line 9), after subclause (3), insert:

  (3A) If a State or Territory Minister has guardianship of the child, the CEO must not make a determination under subsection (2) or (3) in relation to the child unless the State or Territory Minister has agreed in writing to the making of the determination.

(32) Clause 76, page 61 (lines 18 to 20), omit all the words after "act", substitute "in the best interests of the child".

(33) Clause 76, page 61 (lines 26 and 27), omit all the words after "thing", substitute "is in the best interests of the child".

(34) Clause 76, page 62 (lines 1 and 2), omit all the words after "thing", substitute "is in the best interests of the child".

(35) Clause 84, page 68 (after line 25), after subclause (7), insert:

  (7A) It is a reasonable excuse for an individual to refuse or fail to comply with a notice under subsection (1) on the ground that to do so might tend to incriminate the individual or expose the individual to a penalty.

(36) Clause 86, page 70 (after line 11), at the end of the clause, add:

(4) An appointment may provide that it has effect for a specified term.

(5) Without limiting the manner of specifying a term for the purposes of subsection (4), it may be specified by reference to the expiry of a specified period or the occurrence of a specified event.

(37) Clause 87, page 70 (after line 19), at the end of the clause, add:

(3) An appointment may provide that it has effect for a specified term.

(4) Without limiting the manner of specifying a term for the purposes of subsection (3), it may be specified by reference to the expiry of a specified period or the occurrence of a specified event.

(38) Clause 88, page 71 (lines 5 to 7), omit all the words after "whether", substitute "there is a person who, under a law of the Commonwealth, a State or a Territory:

  (a) has guardianship of the participant; or

  (b) is a person appointed by a court, tribunal, board or panel (however described) who has power to make decisions for the participant and whose responsibilities in relation to the participant are relevant to the duties of a nominee".

(39) Heading to clause 91, page 73 (line 16), omit "severe".

(40) Clause 91, page 73 (line 22), omit "severe".

(41) Clause 105, page 82 (lines 15 to 34), omit the clause, substitute:

105 Consequences of failure to comply with a requirement to take action to obtain compensation

(1) A participant or prospective participant who is given a notice under subsection 104(2) requiring him or her to take action (the required action) to claim or obtain compensation within a specified period must take the required action within the period.

(2) If a participant does not take the required action within the period, and the action is to enable the participant or prospective participant to claim or obtain compensation under a scheme of compensation under a Commonwealth, State or Territory law:

  (a) if a plan is in effect for the participant—the plan is suspended from the end of the specified period until the participant takes the required action; or

  (b) if a plan is not yet in effect for the participant—the CEO must still comply with section 32 in relation to commencing the facilitation of the preparation of the participant's plan, but the plan does not come into effect until the participant takes the required action.

(3) If a prospective participant does not take the required action within the period, the CEO is not prevented from deciding whether or not the prospective participant meets the access criteria and commencing the facilitation of the preparation of the participant's plan, but the plan does not, despite section 37, come into effect until the participant takes the required action.

(4) If a participant or prospective participant does not take the required action within the period, and the action is to enable the person to claim or obtain compensation otherwise than under a scheme of compensation under a Commonwealth, State or Territory law, the CEO may:

  (a) take action to claim or obtain compensation in the name of the participant or prospective participant; or

  (b) take over the conduct of any existing claim.

105A Matters relating to claims etc. by CEO

(1) If the CEO takes action to claim or obtain compensation, or takes over the conduct of an existing claim, the Agency becomes liable to pay all costs of and incidental to that claim that would otherwise be payable by the person who originally made the claim, or the person in whose name the claim was made, other than costs unreasonably incurred by that person.

(2) The CEO may:

  (a) take whatever steps are appropriate to bring the claim to a conclusion; and

  (b) if the claim is before a court—settle the proceedings either with or without obtaining judgement; and

(c) if the claim is before a court and judgement has been obtained in favour of the plaintiff—take such steps as are necessary to enforce the judgement.

(3) The participant or prospective participant must sign any document relevant to a claim made or taken over by the CEO under section 105 (including the settlement of the claim or of any proceedings arising out of the claim), being a document that CEO requires the participant or prospective participant to sign.

(4) If the participant or prospective participant does not sign a document in accordance with a requirement under subsection (3):

  (a) if the claim is not before a court or tribunal at the time of the failure—the Federal Court of Australia may, on the application of the CEO, direct that the document be signed on behalf of the participant or prospective participant by a person appointed by CEO; and

  (b) otherwise—the court or tribunal in which proceedings relating to the claim are being heard may, on the application of CEO, so direct.

(5) If the CEO proposes to make an application under subsection (4):

  (a) the CEO must notify the participant or prospective participant of that fact; and

  (b) the participant or prospective participant has a right of representation in the hearing of that application.

105B Recovery of amounts relating to claims etc. by CEO

     Any amount obtained as a result of a claim made or taken over by the CEO under section 105 (including amounts payable as a result of the settlement of such a claim) must be paid to the Agency. The Agency must deduct from the amount of those damages:

  (a) an amount equal to the total of all NDIS amounts paid to, or for the benefit of, the participant before the amount is paid to the Agency; and

  (b) the amount of any costs incidental to the claim paid by the Agency.

The Agency must pay the balance to the participant or prospective participant.

(42) Clause 118, page 93 (line 22), omit paragraph (1)(a), substitute:

  (a) to deliver the National Disability Insurance Scheme so as to:

     (i) support the independence, and social and economic participation, of people with disability; and

     (ii) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

     (iii) ensure that the decisions and preferences of people with disability are respected and given appropriate priority; and

     (iv) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and inclusion in the mainstream community; and

     (v) ensure that a reasonable balance is achieved between safety and the right of people with disability to choose to participate in activities involving risk;

(43) Clause 118, page 93 (line 31), at the end of paragraph (1)(b), add:

     and (iii) considering actuarial advice, including advice from the scheme actuary and the reviewing actuary;

(44) Page 98 (after line 11), at the end of Division 1, add:

125A Functions to be performed having regard to actuarial analysis and advice

     In performing its functions, the Board must have regard to relevant actuarial analysis and advice.

(45) Clause 127, page 99 (line 16), omit "host jurisdictions", substitute "States and Territories".

(46) Clause 127, page 99 (line 20), omit "host jurisdictions", substitute "States and Territories".

(47) Clause 127, page 99 (lines 22 to 25), omit paragraph (4)(b), substitute:

  (b) be satisfied that the appointment is supported by the Commonwealth, States and Territories.

(48) Clause 127, page 99 (after line 25), after subclause (4), insert:

  (4A) Despite subsection (4), the Minister may appoint a person as a Board member other than the Chair if:

  (a) the Minister sought under that subsection the support of the States and Territories for an appointment (the proposed appointment) of the person as a Board member; and

  (b) 90 days have passed since the Minister sought that support; and

(c) the Minister is satisfied that it is not possible to make the proposed appointment in accordance with that subsection or it is not known whether the proposed appointment can be made in accordance with that subsection.

(49) Clause 129, page 100 (line 25) to page 101 (line 9), omit subclause (2), substitute:

(2) The Minister may, by written instrument, appoint a person to act as a Board member other than the Chair, for a specified period of not more than 150 days, during a vacancy in the office of a Board member other than the Chair, whether or not an appointment has previously been made to the office.

  (2A) The Minister must consult the States and Territories about an appointment under subsection (2).

(50) Clause 134, page 103 (line 13), at the end of subclause 134(1), add:

  ; or (c) if the Minister does not have confidence in the member.

(51) Clause 147, page 110 (line 10), omit "host jurisdictions", substitute "States and Territories".

(52) Clause 147, page 110 (line 14), omit "host jurisdictions", substitute "States and Territories".

(53) Clause 147, page 110 (lines 16 to 19), omit paragraph (3)(b), substitute:

  (b) be satisfied that the appointment is supported by the Commonwealth, States and Territories.

(54) Clause 147, page 110 (after line 19), after subclause (3), insert:

  (3A) Despite subsection (3), the Minister may appoint a person as a member of the Advisory Council other than the Principal Member if:

  (a) the Minister sought under that subsection the support of the States and Territories for an appointment (the proposed appointment) of the person as a member of the Advisory Council; and

  (b) 90 days have passed since the Minister sought that support; and

(c) the Minister is satisfied that it is not possible to make the proposed appointment in accordance with that subsection or it is not known whether the proposed appointment can be made in accordance with that subsection.

(55) Clause 149, page 111 (line 30) to page 112 (line 13), omit subclause (2), substitute:

(2) The Minister may, by written instrument, appoint a person to act as a member of the Advisory Council other than the Principal Member, for a specified period of not more than 150 days, during a vacancy in the office of a member of the Advisory Council other than the Principal Member, whether or not an appointment has previously been made to the office.

  (2A) The Minister must consult the States and Territories about an appointment under subsection (2).

(56) Clause 159, page 117 (after line 15), at the end of the clause, add:

(7) The CEO must give the Board a copy of any significant actuarial report or advice he or she receives, as soon as reasonably practicable after receiving it.

(57) Page 121 (after line 27), at the end of Division 2,

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