Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Hansard source

I want to make sure the response here is precise. If we're not in a position to give it to you straightaway, we'll come back to you later in Committee of the Whole.

As a matter of general principle, co-design has its own meaning. I want to be precise, in terms of the way that it is intended to operate, in relation to the scheme and to the bill. One of the difficulties here is that express requirements for consultation or co-design on specific instruments beyond what already appears in the act and the legislation could cause significant uncertainty for the operation of the scheme.

There is no broadly accepted definition or process for co-design in Commonwealth legislation. So, while we talk about the principle of co-design in its ordinary meaning—when I say 'ordinary meaning', I think it has an ordinary meaning here in the way that service delivery agencies talk about the way that they deliver services—I expect that it's not a phrase that most Australians have heard before. It doesn't have a precise legal meaning—that is, there is no definition across the various agencies, beyond the NDIS, where these principles are articulated by public servants, by community organisations and by representative organisations when they are talking about policymaking or policy implementation. So, while it has that commonly understood meaning at that level, inserting specific references to co-design would create significant legal uncertainty. You might know what we mean and we might know what we mean but a court, the Administrative Appeals Tribunal, or whoever it is who engages in decision-making about these questions would not have that proper legal meaning.

Subsection 17(1) of the Legislation Act provides that, before a legislative instrument is made, the rule maker must be satisfied that appropriate and reasonably practicable consultation has been taken. The requirements under the act and the Legislation Act together impose a requirement on the minister to consult with the disability community when making any legislative instrument under the act. So, given that that requirement already exists, it's, in the view of the government, not necessary to impose any further consultation obligations on the minister beyond the argument that I have taken you to around the precise legal meaning of the term. In addition, the government has moved an amendment to table a consultation statement with each legislative instrument outlining consultations undertaken and views expressed. That is beyond a requirement for administrative co-design. When each legislative instrument comes here, there will be a requirement to table what is an exhaustive consultation statement that outlines who has been consulted with and also the views that have been expressed by each of those consultation participants.