Bill Shorten (Maribyrnong, Australian Labor Party, Minister for the National Disability Insurance Scheme) Share this | Hansard source

I present two supplementary explanatory memoranda to the bill. I ask leave to move government amendments (1) to (8) on sheet PA110 and government amendments (1) to (21) on sheet SK113, as circulated, together.

Leave granted.

I move:

SHEET PA110

(1) Schedule 1, item 30, page 10 (line 24), before "that the participant", insert "subject to subsection (3A),".

(2) Schedule 1, item 30, page 10 (after line 32), after subsection 30(3), insert:

(3A) The CEO must not request that the participant undergo an assessment under subparagraph (3)(b)(i) or an examination under subparagraph (3)(b)(ii) unless the CEO is satisfied that the report of the assessment or examination would provide information that the CEO cannot otherwise reasonably obtain.

(3) Schedule 1, item 31, page 12 (line 30), before "that the participant", insert "subject to subsection (5A),".

(4) Schedule 1, item 31, page 13 (after line 5), after subsection 30A(5), insert:

(5A) The CEO must not request that the participant undergo an assessment under subparagraph (5)(b)(i) or an examination under subparagraph (5)(b)(ii) unless the CEO is satisfied that the report of the assessment or examination would provide information that the CEO cannot otherwise reasonably obtain.

(5) Schedule 1, item 36, page 25 (line 34), after "subsections 4(5)", insert ", (9A)".

(6) Schedule 1, item 36, page 27 (after line 18), after subsection 32L(6), insert:

(6A) The CEO must give the participant a copy of the report as soon as practicable after the CEO receives the report.

(7) Schedule 1, item 36, page 28 (after line 8), at the end of subsection 32L(7), add:

Note: In reviewing a decision to approve a statement of participant supports, a reviewer or the Administrative Appeals Tribunal has all the powers of the CEO in making the original decision and must therefore arrange for a replacement assessment to be undertaken if satisfied as mentioned in paragraph (b) (subject to any applicable National Disability Insurance Scheme rules).

(8) Schedule 1, item 36, page 28 (line 27), after "subsections 4(5)", insert ", (9A)".

_____

SHEET SK113

(1) Schedule 1, item 4, page 3 (lines 23 to 25), omit the definition of funding component amount,substitute:

funding component amount, for a group of reasonable and necessary supports funded under an old framework plan, has the meaning given by paragraph 33(2A)(c).

(2) Schedule 1, item 4, page 4 (lines 4 to 7), omit paragraph (c) of the definition of funding period, substitute:

(c) for funding provided under an old framework plan for all reasonable and necessary supports, or a group of reasonable and necessary supports, funded under the plan—has the meaning given by paragraph 33(2A)(d).

(3) Schedule 1, item 6, page 4 (line 14), omit "section 10", substitute "subsections 10(1) and (4)".

(4) Schedule 1, item 13, page 5 (line 25), omit "specified in", substitute "funded under".

(5) Schedule 1, item 14, page 6 (line 1) to page 7 (line 7), omit section 10, substitute:

10 Definition of NDIS support

Supports that are NDIS supports

(1) Subject to subsection (4), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for:

(a) participants or prospective participants generally; or

(b) a class of participants or prospective participants that includes the person.

Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

(2) Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:

(a) for rules to which paragraph (1)(a) applies—that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

(b) for rules to which paragraph (1)(b) applies—that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

(3) National Disability Insurance Scheme rules may declare a support for the purposes of subsection (1) only if at least one of the following applies:

(a) the declaration of the support implements Australia's obligations under:

(i) the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or

(ii) any other agreement with one or more other countries;

(b) the declaration of the support enables the provision of sickness benefits.

Note: For subparagraph (a)(i), the Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No. 12 ([2008] ATS 12) and could in 2024 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

Supports that are not NDIS supports

(4) The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:

(a) participants or prospective participants generally; or

(b) a class of participants or prospective participants.

Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

(5) Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (4), the Minister must be satisfied:

(a) for rules to which paragraph (4)(a) applies—that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

(b) for rules to which paragraph (4)(b) applies—that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

(6) Schedule 1, item 36, page 21 (after line 7), at the end of subsection 32E(4), add:

Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

(7) Schedule 1, item 36, page 27 (lines 25 to 27), omit "in accordance with National Disability Insurance Scheme rules made for the purposes of this paragraph".

(8) Schedule 1, item 36, page 28 (after line 8), after subsection 32L(7), insert:

(7A) The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of paragraph (7)(b), including by prescribing:

(a) circumstances in which the CEO must or must not decide under that paragraph that another assessment should be undertaken; or

(b) requirements with which the CEO must comply, methods or criteria that the CEO is to apply, or matters that the CEO may, must or must not take into account, in making a decision under that paragraph whether another assessment should be undertaken.

(9) Schedule 1, item 39, page 29 (line 13) to page 32 (line 12), omit the item, substitute:

39 After subsection 33(2)

Insert:

Total funding amounts, funding component amounts and funding periods

(2A) In addition to the matters mentioned in paragraphs (2)(a) to (e), the statement of participant supports must:

(a) specify that funding will be provided under the plan to or in relation to the participant, for all reasonable and necessary supports funded under the plan taken as a whole, up to a specified amount (the total funding amount) worked out under subsection (2B); and

(b) in accordance with any requirements determined under subsection (2E) for the purposes of this paragraph, categorise the reasonable and necessary supports specified under paragraph (2)(b) into one or more groups of supports identified in the statement; and

(c) specify that funding will be provided under the plan to or in relation to the participant, for supports in each group identified under paragraph (b) of this subsection, up to an amount (a funding component amount) specified in the statement for the group that is worked out in accordance with any requirements determined under subsection (2E) for the purposes of this paragraph; and

(d) specify that funding will be provided under the plan to or in relation to the participant for reasonable and necessary supports during specified periods (each of which is a funding period).

Note: For paragraph (b), if the statement specifies only a single reasonable and necessary support or class of such supports, the support or class may be categorised and identified as a single group.

(2B) For the purposes of paragraph (2A)(a), the total funding amount specified in a statement of participant supports must be an amount equal to:

(a) if the statement specifies more than one funding component amount—the sum of those amounts; or

(b) if the statement specifies a single funding component amount—that amount.

(2C) For the purposes of paragraph (2A)(d), the statement must:

(a) specify funding periods for funding for either:

(i) all reasonable and necessary supports funded under the plan, taken as a whole; or

(ii) each group of supports identified under paragraph (2A)(b); and

(b) specify when each funding period starts and ends; and

(c) specify, for each funding period:

(i) if funding periods are specified as mentioned in subparagraph (a)(i) of this subsection—the proportion of the total funding amount that will be provided as funding under the plan, during the funding period, for reasonable and necessary supports; or

(ii) if funding periods are specified as mentioned in subparagraph (a)(ii) of this subsection—the proportion of the funding component amount for the group of supports to which the funding period relates that will be provided as funding under the plan, during the funding period, for supports in the group; and

(d) if funding periods are specified as mentioned in subparagraph (a)(i) of this subsection—specify that the amount of funding for reasonable and necessary supports that will be provided during a funding period will be increased above the proportion specified for the funding period under subparagraph (c)(i) of this subsection by an amount equal to the amount by which:

(i) the amount of funding that could have been provided under the plan for reasonable and necessary supports during the immediately preceding funding period; exceeds

(ii) the amount of funding that was actually provided for such supports; and

(e) if funding periods are specified as mentioned in subparagraph (a)(ii) of this subsection—specify that the amount of funding, for supports in a group to which a funding component amount relates, that will be provided during a funding period for that group will be increased above the proportion specified for the funding period under subparagraph (c)(ii) of this subsection by an amount equal to the amount by which:

(i) the amount of funding that could have been provided under the plan for supports in that group during the immediately preceding funding period for that group; exceeds

(ii) the amount of funding that was actually provided for supports in that group.

(2D) For the purposes of paragraph (2C)(b):

(a) a funding period must be no more than 12 months; and

(b) the duration of a particular funding period may be different from the duration of any other funding period; and

(c) without limiting paragraph (b) of this subsection, if the funding periods are specified as mentioned in subparagraph (2C)(a)(ii), then the duration of the funding periods for one group of supports identified in the plan under paragraph (2A)(b) may be different from the duration of funding periods for any other group of supports identified in the plan under paragraph (2A)(b); and

(d) if funding periods are specified as mentioned in subparagraph (2C)(a)(i):

(i) the first funding period must start on a day worked out in accordance with any requirements determined under subsection (2E) for the purposes of this subparagraph; and

(ii) each other funding period must start immediately after the end of the immediately preceding funding period; and

(e) if funding periods are specified as mentioned in subparagraph (2C)(a)(ii):

(i) the first funding period for a group of supports must start on a day worked out in accordance with any requirements determined under subsection (2E) for the purposes of this subparagraph; and

(ii) each other funding period for the group of supports must start immediately after the end of the immediately preceding funding period for that group.

(2E) The Minister may, by legislative instrument, determine:

(a) requirements for categorising reasonable and necessary supports into groups for the purposes of paragraph (2A)(b); and

(b) how to work out a funding component amount for a group of supports; and

(c) how to work out when a first funding period is to start for the purposes of subparagraph (2D)(d)(i) or (e)(i); and

(d) requirements with which the CEO must comply, methods or criteria that the CEO is to apply, and matters that the CEO may, must or must not take into account, in doing any of the following:

(i) working out a funding component amount;

(ii) specifying funding periods for the purposes of paragraph (2C)(a);

(iii) deciding any other matter for the purposes of subsection (2A), (2C) or (2D).

Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the instrument (see regulations made for the purposes of paragraph 54(2)(b) of that Act).

(2F) Despite subsection 14(2) of the Legislation Act 2003, a determination under subsection (2E) of this section may make provision for or in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

How supports may be specified in plan

(10) Schedule 1, item 74, page 40 (line 17) to page 41 (line 29), omit the item, substitute:

74 At the end of section 45

Add:

(4) The Agency must not pay an amount under the National Disability Insurance Scheme to any person in respect of a participant's plan if:

(a) the plan is a new framework plan that provides that flexible funding will be provided under the plan and the payment would result in any of the following events occurring:

(i) the total amount of flexible funding provided under the plan exceeding the total funding amount specified in the plan under paragraph 32E(2)(a);

(ii) the total amount of flexible funding provided under the plan during a funding period exceeding the amount of funding that is to be provided under the plan during the funding period; or

(b) the plan is a new framework plan that provides that funding will be provided under the plan for a stated support, or class of stated supports, and the payment would result in any of the following events occurring:

(i) the total amount of funding provided under the plan for the stated support or class of stated supports exceeding any total funding amount specified in the plan under paragraph 32G(2)(a);

(ii) the total amount of funding provided under the plan for the stated support or class of stated supports during a funding period for the support or class of supports exceeding the amount of funding that is to be provided under the plan during the funding period for the support or class of supports; or

(c) the plan is an old framework plan and the payment would result in any of the following events occurring:

(i) the total amount of funding provided under the plan for reasonable and necessary supports exceeding the total funding amount specified in the plan;

(ii) the total amount of funding provided under the plan for reasonable and necessary supports in a group of supports to which a funding component amount relates exceeding that funding component amount;

(iii) if the plan specifies funding periods for all reasonable and necessary supports funded under the plan, taken as a whole—the total amount of funding provided under the plan for such supports during a funding period exceeding the amount of funding for such supports that is to be provided under the plan during the funding period;

(iv) if the plan specifies funding periods for one or more groups of reasonable and necessary supports—the total amount of funding provided under the plan for supports in such a group during a funding period for that group exceeding the amount of funding for supports in that group that is to be provided under the plan during the funding period.

(5) Subsection (4) does not apply in relation to the payment of an amount if the CEO is satisfied that:

(a) the relevant event would occur because the participant has experienced fraud or financial exploitation; or

(b) making the payment is necessary to prevent or lessen an imminent threat to an individual's life, health or safety; or

(c) the participant has been unable to request a variation or reassessment of the participant's plan because of one or more of the participant's impairments or a lack of decision-making support; or

(d) the participant has requested a variation of the participant's plan covered by subparagraph 47A(1)(d)(i) or (1AB)(j)(i) (crisis or emergency funding as a result of a significant change to the participant's support needs), and neither of the following apply:

(i) the CEO has made a decision on the request to vary the plan and the variation has taken effect;

(ii) the CEO has made a decision on the request not to vary the plan (including because of the operation of subsection 47A(5)); or

(e) a circumstance prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph exists.

(11) Schedule 1, item 78, page 45 (after line 19), after subparagraph 47A(1AB)(j)(i), insert:

(ia) the CEO is satisfied that the participant requires funding because the participant has experienced fraud or financial exploitation; or

(ib) the CEO is satisfied that the variation is necessary to prevent or lessen a threat to the participant's life, health or safety (whether current or future); or

(12) Schedule 1, item 80, page 46 (line 6) to page 47 (line 15), omit paragraphs 47A(1A)(ab) to (af), substitute:

(ab) if the statement of participant supports included in the plan specifies one or more funding component amounts—a variation of the categorisation of the reasonable and necessary supports, specified under paragraph 33(2)(b), into one or more groups of supports;

(ac) for the purposes of dealing with a variation covered by paragraph (ab) of this subsection—a variation of one or more funding component amounts, or the number of those amounts, specified in the statement of participant supports, other than a variation that would result in an increase in the total funding amount for the plan;

(ad) if the statement of participant supports included in the plan specifies funding periods for all reasonable and necessary supports funded under the plan, taken as a whole—the following variations of the statement:

(i) a variation of the number or duration of such funding periods;

(ii) a variation of the proportion of the total funding amount that will be provided as funding under the plan for reasonable and necessary supports during one or more funding periods;

(ae) if the statement of participant supports included in the plan specifies funding periods for one or more groups of reasonable and necessary supports—the following variations of the statement:

(i) a variation of the number or duration of the funding periods for such a group;

(ii) a variation of the proportion of the funding component amount for such a group that will be provided as funding under the plan, during one or more funding periods that group, for reasonable and necessary supports in that group;

(13) Schedule 1, item 82, page 47 (lines 22 to 28), omit subsection 47A(1B), substitute:

(1B) To avoid doubt:

(a) a variation covered by any of paragraphs (1A)(ab) to (ae) must be made in accordance with subsections 33(2A) to (2D) and any determination in force for the purposes of subsection 33(2E); and

(b) a total funding amount for an old framework plan cannot be varied except by a variation covered by paragraph (1A)(d) of this section.

Conditions not limited

(1C) The fact that a paragraph in subsection (1AA), (1AB) or (1A) covers only certain kinds of variations does not limit the power under paragraph (1)(b) for the National Disability Insurance Scheme rules to prescribe conditions that have the effect of limiting the kinds of variations that may be made under subsection (1).

(14) Schedule 1, item 99, page 52 (after line 1), at the end of subsection 74(6), add:

Note: For example, National Disability Insurance Scheme rules could be made under this subsection that apply for the purposes of making a decision under paragraph (5)(a) whether a child is capable of making decisions for himself or herself.

(15) Schedule 1, item 115, page 54 (line 4), omit paragraph (aaa), substitute:

(aaa) subsections 10(1) and (4);

(16) Schedule 1, item 116, page 54 (line 16), omit paragraph (ci), substitute:

(ci) subsection 32L(7A);

(17) Schedule 1, item 124, page 57 (line 2) to page 58 (line 13), omit the item, substitute:

124 NDIS supports

(1) This item applies until the commencement of the first National Disability Insurance Scheme rules made for the purposes of subsection 10(1) of the National Disability Insurance Scheme Act 2013, as inserted by this Schedule.

(2) Section 10 of that Act has effect as if a reference in that section to the National Disability Insurance Scheme rules were a reference to rules made under item 138 of this Schedule.

(18) Schedule 1, item 129, page 59 (line 20), omit "Sections", substitute "Subject to subitem (3), sections".

(19) Schedule 1, item 129, page 59 (after line 29), at the end of the item, add:

(3) Subsection 33(2A) of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, applies in relation to a statement of participant supports included in an old framework plan for a participant if:

(a) the statement is approved on or after the commencement (the determination commencement) of the first determination made under subsection 33(2E) of that Act (as inserted by this Schedule); and

(b) the decision to approve the statement is not covered by subitem (4).

(4) This subitem covers the following decisions made on or after the determination commencement:

(a) a decision made by a reviewer under subsection 100(6) of the National Disability Insurance Scheme Act 2013 on review of a decision made by a decision-maker before the determination commencement;

(b) a decision, made by the Administrative Appeals Tribunal, on review of a decision made by a reviewer under that subsection:

(i) before the determination commencement; or

(ii) on or after the determination commencement, if the decision reviewed by the reviewer was made by a decision-maker before the determination commencement.

(5) Subitem (3) applies whether the participant becomes a participant before, on or after the determination commencement.

(20) Schedule 1, item 135, page 61 (line 7), omit "Subsections 47A(1A) and (3)", substitute "(1) Paragraphs 47(1A)(a) and (ag), and subsection 47A(3),".

(21) Schedule 1, item 135, page 61 (after line 11), at the end of item 135, add:

(2) Paragraphs 47A(1A)(ab) to (af), and subsection 47A(1B), of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, apply in relation to the variation of an old framework plan if subsection 33(2A) of that Act applied in relation to the approval of the plan (see subitems 129(3) to (5)).

I'm happy to explain the amendments on the basis of any consideration of detail. We presented the bill in March and it follows the review, but we always understood that, in presenting the bill, we wanted the contribution of people in the disability sector. We were interested to hear days of hearings from the Senate committee and to talk to the disability sector in the event that they could make observations as to how we could further improve the initial bill. These amendments represent the recognition that we can improve the bill, courtesy of contributions from crossbenchers, from the disability sector and from submissions that we have received. I'm happy to engage in the debate.

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