Senate Community Affairs Legislation Committee

National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021

Disability Intermediaries Australia Ltd Submission

November 2021

SUBMISSION BY Disability Intermediaries Australia Limited.

CONTACT Mr Jess Harper Chief Executive Officer

COPYRIGHT © Disability Intermediaries Australia Limited.

All rights reserved. No part of this submission may be reproduced, distributed or transmitted in any form without prior consent from Disability Intermediaries Australia Limited.

CITATION If you wish to cite this submission, please use: DIA, 2021, Changes to the NDIS Act: Submission, Disability Intermediaries Australia Limited, Melbourne, Australia.

Disability Intermediaries Australia Limited Changes to the NDIS Act: Submission

Acknowledgement of Country

Disability Intermediaries Australia respectfully acknowledges Australia’s Aboriginal and Torres Strait Islander communities and their rich culture and pays respect to their Elders past, present and emerging. We acknowledge Aboriginal and Torres Strait Islander peoples as Australia’s first peoples and as the traditional owners and custodians of the land and water on which we rely.

We recognise and value the ongoing contribution of Aboriginal and Torres Strait Islander peoples and communities to Australian life and how this enriches us. We embrace the spirit of reconciliation, working towards the equality of outcomes and ensuring an equal voice.

Acknowledgement of Rights of People With A Disability

Disability Intermediaries Australia acknowledges the objectives of the United Nations Convention on the Rights of Persons with Disabilities which affirms that all persons with all types of disabilities must enjoy all human rights and fundamental freedoms.

Disability Intermediaries Australia embraces this Convention as we continue to support choice and control for all Australians with a disability.

Disability Intermediaries Australia Limited 3 Changes to the NDIS Act: Submission

TABLE OF CONTENTS

ACKNOWLEDGEMENT OF COUNTRY ……………………………………………………………………….. 3

ACKNOWLEDGEMENT OF RIGHTS OF PEOPLE WITH A DISABILITY …………… 3

1 . OUTLINE ………………………………………………………………………………………………………………………….. 7

1.1. INADEQUATE CO-DESIGN AND CONSULTATION …………………………….8

1.2. RECOGNISING THE CHALLENGES OF THE NDIS …………………………….10

1.3. SCHEDULE 1 – PARTICIPANT SERVICE GUARANTEE ……………………..12

1.4. SCHEDULE 2 – FLEXIBILITY MEASURES……………………………………………….16

1.5. SCHEDULE 3 – FULL SCHEME AMENDMENTS…………………………………..17

1.6. SUMMARY …………………………………………………………………………………………………………18

2. CHANGES TO THE NDIS ACT ……………………………………………………………………………… 20

2.1. SECTION 4 - PRINCIPLES …………………………………………………………………………..20

2.2. SECTION 14 – AGENCY MAY PROVIDE FUNDING TO PERSONS

OR ENTITIES……………………………………………………………………………………………………..22

2.3. SECTION 17A – PRINCIPLES RELATING TO THE PARTICIPANTS

OF PEOPLE WITH A DISABILITY ………………………………………………………………24

2.4. SECTION 21 – WHEN A PERSON MEETS ACCESS ……………………………24

2.5. SECTION 42 – MANAGING THE FUNDING FOR SUPPORTS

UNDER A PARTICIPANT’S PLAN ……………………………………………………………..25

2.6. SECTION 43 – CHOICE FOR THE PARTICIPANT IN RELATION TO

PLAN MANAGEMENT ………………………………………………………………………………….28

2.7. SECTION 44 – CIRCUMSTANCES IN WHICH PERSONS MUST NOT

MANAGE FUNDING………………………………………………………………………………………28

2.8. SECTION 45 – PAYMENTS OF NDIS AMOUNTS ………………………………..33

2.9. SECTION 46 – ACQUITTAL OF NDIS AMOUNTS……………………………….35

2.10. SECTION 47 – VARYING AND REPLACING PARTICIPANTS’ PLAN

……………………………………………………………………………………………………………………………….36

2.11. SECTION 47A – VARIATION OF PARTICIPANT’S PLAN ON

REQUEST OR CEO’S OWN INITIATIVE …………………………………………………36

2.12. SECTION 174 – QUARTERLY REPORT TO THE MINISTERIAL

COUNCIL……………………………………………………………………………………………………………39

2.13. SECTION 182 – DEBT RECOVERY ……………………………………………………………39

2.14. SECTION 204A – REPORT BY COMMONWEALTH OMBUDSMAN

……………………………………………………………………………………………………………………………….39

2.15. SECTION 209 – THE NATIONAL DISABILITY INSURANCE

SCHEME RULES……………………………………………………………………………………………..39

3. MISSED OPPORTUNITIES ……………………………………………………………………………………… 41

3.1. CONFLICT OF INTEREST ………………………………………………………………………………41

3.2. SUPPORTED DECISION MAKING ……………………………………………………………43

3.3. SCHEDULE 3 – FULL SCHEME ROLLOUT VS AVAILABILITY OF

ACCESS……………………………………………………………………………………………………………….43

ABOUT DISABILITY INTERMEDIARIES AUSTRALIA ………………………………………….. 46

INTERMEDIARIES ……………………………………………………………………………………………………………. 46

WORKS CITED …………………………………………………………………………………………………………………… 48

ATTACHMENT: MARKED UP LEGISLATION BASED ON THE BILL ……………… 48

Disability Intermediaries Australia Limited 5 Changes to the NDIS Act: Submission

Disability Intermediaries Australia Limited

Changes to the NDIS Act: Submission

OUTLINE

This includes:

• Creation of two new Rules:
  • for the Participant Service Guarantee;
  • for Plan Administration
• Amendment of two NDIS Rules:
  • National Disability Insurance Scheme (Plan Management) Rules 2013;
  • National Disability Insurance Scheme (Becoming a Participant) Rules 2016; and
• Changes to three NDIS Rules:
  • National Disability Insurance Scheme (Children) Rules 2013
  • National Disability Insurance Scheme (Nominees) Rules 2013
  • National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020

them in the rules, it is extremely Mr Tune’s report found that the difficult and disingenuous not NDIS legislation was broadly fit for share the full scope of proposed purpose, and whilst Mr Tune changes with the disability sector. made a number of recommendations to improve the Despite repeated calls from the NDIS, it has taken two years to disability sector for further clarity, result in this Bill. ultimately, what remains to be seen is how the NDIA and the ———————————– NDIS Quality and Safeguards Commission (NDIS Commission) …the process and will interpret and operationalise consultation the Bill should it become law. undertaken in the This is despite both Agencies close development of this involvement in the development Bill has been rushed of this Bill. This in itself is causing and is inappropriate… grave concern and alarm to the disability sector, NDIS participants ———————————– and people with a disability.

DIA contends that the process DIA notes that the explanatory and consultation undertaken in documents provided alongside the development of this Bill has the exposure draft and introduced been rushed and is inappropriate Bill are limited, vague and considering the audience and borderline deceptive as they omit impacts of these changes to and / or do not cover the full people with a disability. breadth of impacts of the Bill should it become law. Despite the rhetoric, there have been limited opportunities for the 1.1. INADEQUATE CO-DESIGN disability sector to be involved in AND CONSULTATION meaningful co-design around this DIA notes the described purpose Bill. of the Bill is generally in response to the review of the NDIS This is further exacerbated by the Legislation by Mr David Tune AO extraordinarily low levels of trust in PSM in 2019. the current NDIS administration.

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Changes to the NDIS Act: Submission

DIA notes:

• The explanatory documents provided alongside the Bill does not cover all the changes in the listed within the Bill.
• At no point has an easily digestible marked up version of the legislation been provided, this has resulted in an unapproachable document that has caused significant anxiety and distress to people with a disability and the broader disability sector; and
• The time frame for submissions to the Community Affairs Legislation Committee has been exceptionally short, just 6 business days.

DSS and the NDIA struggles to see how the submissions could have been reasonably reviewed, analysed or considered in such a time period;

• The Bill received limited not being sent back to the sector for comment or consultation prior to introduction to the House of Representatives;

Given the breadth of the proposed changes, DIA finds themselves asking, why the rush?

Disability Intermediaries Australia Limited 9

DSS and the NDIA have not taken capacity and are struggling to the time to, in an adequate or navigate the Scheme (JSC, 2018; appropriate manner, engage in DIA, 2020; IAC, Jul 2019). code-sign with people with a disability and the disability sector. This is of particular concern given Providers in many areas of the the debacle and harm caused by NDIS report they continue to Independent Assessments. struggle to keep up with NDIS change cycle, maintain financial viability and meet administrative requirements all while delivering quality services.

RECOGNISING THE CHALLENGES OF THE NDIS

The scope, scale and timeframe this has led to market segment for establishment of the NDIS has volatility and a steady pace of made its development particularly market exit for certain services complicated. (Mathys & Randall, 2019; DIA, 2020; IAC, Oct 2019). The broad market of supports must cover all types of disability some of these challenges are due and enormous geographical to less-than-ideal implementation spread, as well as other types of and / or transition of the Scheme, scale of this reform. odiversity (e.g., culturally and which is not unsurprising given linguistically diverse communities the scale of this reform. and people experiencing poverty).

These challenges are becoming more evident as the NDIS matures. The NDIS has come a …these challenges have long way; some ‘improvements’ arisen because of have been welcomed others NDIA’s ever narrowing overwhelming rejected. view of participant choice and control and Many participants and their dignity of risk. families are still reporting they
continue to experience significant challenges accessing the NDIS, ———————————– implementing their plan, maintaining and / or building

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Changes to the NDIS Act: Submission

However, DIA contends that many Yet despite this, public policy of these challenges have arisen continues to overestimate the because of NDIA’s ever narrowing capabilities that people possess to view of participant choice and navigate markets, and control and dignity of risk. underestimate the capability required of both government and Despite the NDIA’s public rhetoric, providers, to ensure markets truly their thinking in these critical address the needs of all people. areas has not evolved to meet the needs of people with a disability. Participants must be empowered, supported, listened to and A markets based approach understood as an equal partner in without trusted and skilled the planning decisions. Far too Intermediaries and Advocates, often participants’ views, requests engaged by and operating at the for support funds and service direction of a participant, is types, are, in DIA’s view, rejected neither an effective nor an without adequate consideration, efficient means of service delivery process or communication. for participants with multiple and often overlapping needs (Muir & Predictably, this pattern is playing Salignac, 2017; Olney, 2016; out in the NDIS and are further Slasberg & Beresford, 2016; Yu & exacerbated by the Bill. Oliver, 2015; Considine, et al., 2011; Carey, et al., 2017). Many people with more complex support needs, culturally and This is evident across the linguistically diverse community spectrum of market-based social and those from low insurance schemes and human socioeconomic background are services, including VET, Workcover, disproportionately struggling to Transport and Accident Insurance have their needs met in the NDIS and Aged Care. (Hui, et al., 2018; JSC, 2018; Productivity Commission, 2017; For many people, the complexity DIA, 2020). of navigating and negotiating their way to quality services can be The NDIS has all of the necessary an overwhelming burden elements to be successful, but the (Dommers, et al., 2017; Needham, proposed changes to the NDIS Act 2018). risk continuing the status quo:

where the NDIA make decisions

introduction of a new dedicated Category C NDIS Rules.

These new Rules, as previously stated, has not been tabled along with the introduction of the Bill.

This means that every time the Bill refers to the new NDIS Rules, the disability sector has no opportunity to understand the combined impacts of the changes to the Bill and these new Rules.

/e or social and economic participation.

Without the Rules being tabled concurrently with the Bill the Participant Service Guarantee is incomplete…

The aim of the Service Guarantee is to improve the experience for participants and prospective participants with the NDIS and provide increased transparency around decision-making time-frames.

The Service Guarantee aims to be given effect through amended and new provisions in the Act, but most notably through the

Changes to the NDIS Act: Submission

implemented under the NDIS Act participants to explain their story and situation all over again.

In DIA’s view the majority of the participant service pain points are cause by non-legislative issues, namely inadequate:

• Business Systems and Technology Infrastructure,
  which drives significant
  operaional and market
  inefficiencies;
• Decision making by NDIA
  Delegates (Planners) and NDIA
  soutsourced and contracted
  workforce (e.g., Local Area
  Coordinators). In most cases
  these pain points are caused
  by a lack appropriately skilled staff and under investment in
  uoskilling of existing workforce;
• Workforce resulting in Government of the day,
  backlogs, in planning the ability to fundamentally change the way the scheme is symptomatic of a planning operates without workforce that is not of consultation, co-design adequate scale to meet the needs of people with a or input from people disability; and
• Participant relationship management (people and
  systems) which means every time someone contacts the
  NDIA and speaks with
  someone different it requires
  The Disability Intermediaries Australia Limited 13

day increased ability adjust or re-

to be prescribe specific service

define the levels of service in the standards for the Agency and its future, without requiring a bill to pass the House of Representatives and the Senate. This provides the Government of the day the ability to fundamentally change the way the scheme operates without consultation, co-design or input from people with a disability. This tremendous power will continue to politicise the NDIS and lead to reduced outcomes for Participants, given recent history.

The Service Guarantee contains … the Ombudsman three main parts: must have greater powers than just that of monitoring and reporting. First, the Service Guarantee is intended to provide certainty for current and prospective participants by setting timeframes within which key decisions in the NDIS process must be made. ———————————– NDIS process must be made.

Third, the Service Guarantee also intends to provide for the Ombudsman to monitor and report on aspects of the NDIS (this is contained in Items 1 and 55 of Schedule 1, with the NDIS Rules made under subsection 204A(1) to prescribe the matters for the Ombudsman’s report). DIA contends that many of these time frames already exist within the legislation and if the intent was to provide greater clarity why not specify such timeframes within the legislation to ensure ongoing clarity and consistency. Second, the Service Guarantee intends to allow for the NDIS Rules

• Disability Intermediaries Australia Limited 14 Changes to the NDIS Act: Submission

DIA contends that

The Ombudsman must have greater powers than just that of monitoring and reporting. The Ombudsman must have the ability to intervene and correct the imbalance of power between the NDIA and participants.

DIA notes that the explanatory memorandum indicates that it is intended that these new NDIS Rules are to ’be made by the Minister for the National Disability Insurance Scheme (‘the Minister’)’.

All NDIS Rules are disallowable legislative instruments and are therefore subject substantially reduced Parliamentary scrutiny. Combined impacts of the changes to the Bill and these new Rules.

Without the Rules being tabled concurrently with the Bill, the Participant Service Guarantee is incomplete, as such Bill alone will not give effect to a service guarantee and relies on the Minister to make and implement such Rules in good faith. This is something that concerns the disability sector given the recent attempts at the introduction of Independent Assessments.

Schedule 1 also intends to provide more flexibility for participants to request, and for the Agency to make quick changes to plans, through a plan variation (see Item 23).

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DIA contends that these changes

supporting the rhetoric that this will make it easier and faster for the NDIA to adjust participants’ plans, without needing to go through a full plan review.

Whilst on the surface this might Schedule 2 of the Bill amends appear to support the ongoing desire for participants to be able to flexibly adjust or alter their plan, The reality is that the Bill provides unprecedented powers for the NDIA to make decisions with no legislated requirement to consult or engage with the NDIS participant.

1.4. SCHEDULE 2 – FLEXIBILITY MEASURES

Schedule 2 of the Bill amends Chapters 3 and 4 of the Act to which could be used to reduce the rights and diversity of people with disability, including by:

• Weakening the objects and principles of the Act and diminishing the central role of people with disability in co-design;
• Creating a Chief Executive Officer (CEO) ‘God Power’ clause in the introduction of 47A, which enables the CEO to vary a participant’s plan without requiring a plan review to be undertaken, or a new plan to be created;

This critical change will allow the NDIA to reject eligibility for persons with psychosocial disability;

• Reducing the choice and control for participants who want to use a registered plan management provider; and
• Creating legislative control gaps (management and oversight) in how participant funds are to flow from the NDIA to providers of supports

The policy intention behind these amendments and the logic Disability Intermediaries Australia Limited 16 Changes to the NDIS Act: Submission

Page 17

and services, which creates the DIA can see a situation where the potential for increased misuse Minister makes decisions about of funds and fraud. scheme eligibility based on the ———————————— financial cost to the scheme full and complete social and economic return on such an investment (insurance model).

The Bill does not ensure that the CEO is legally required to give The Bill includes new effect to the principles requirements around the contained within the members of the Board of the Act or the participant’s Agency however DIA notes that statement of goals and will result in little change to the aspirations… make-up of the current NDIA Board.

                                                           1.5. SCHEDULE 3 – FULL SCHEME

The Bill does not ensure that the AMENDMENTS CEO is legally required to give Schedule 3 makes administrative effect to the principles contained changes removing redundant within the Act or the participant’s references and rulemaking statement of goals and aspirations powers used during transition to when the CEO or the CEO’s make sure the law is up to date. delegates take action, make decisions or exercise powers DIA notes that this Schedule under the Act. implements Recommendation 27A of the Tune Review that the The Bill does not ensure the Act and NDIS Rules be amended Minister gives effect to the objects to remove trial and transition and principles of the Act when provisions. making NDIS Rules. This means that the Minister will be able to Schedule 3 also makes a number weigh up political impacts as well of technical amendments to clean as social and wellbeing impacts to up language that now appears to the participant. be redundant.

  Disability Intermediaries Australia Limited                                                                                   17
Changes to the NDIS Act: Submission

1.6. SUMMARY

The proposed changes have the DIA has grave concerns that this Bill will radically change the way the scheme operates and be detrimental to participants.

———————————— These changes lack detail in terms of how participant safety or harm is identified and managed or how a participant can have these decisions reviewed.

The removal of key wording from the Principles of the Act that arguably reduce the NDIA’s commitment to social and economic participation of participants has implications for the human rights underpinning the NDIS and the UN Convention on the Right of Persons with Disabilities.

———————————— DIA’s submission highlights several areas of concern including:

• Further limiting the scheme’s commitment to co-design;
• The potential for the changes, and therefore their interaction with existing legislation and rules, to be open to a wide spectrum of interpretation; and
• The over reliance on delegated authority without terms of definitions, criteria or right of appeal from a participant perspective.

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Changes to the NDIS Act: Submission

Disability Intermediaries Australia Limited

CHANGES TO THE NDIS

ACT

to engage as equal partners in

decisions that will affect their lives, ton the full extent of their capacity“.

2.1. SECTION 4 - PRINCIPLES

Proposed Act

A number of the Principles of the Act have been diminished that can be arguably seen as a reduced commitment to participants’ social and economic participation as well as their full involvement in decision making to the extent of their capacity. This is a concerning shift.

Principle 4 (2)

Current Act

People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability“

Proposed Act

People with disability should be supported to participate in and contribute to social and economic life“

Although subtle, the omitting “to the extent of their ability” and “to The full extent of their capacity” have significant impact as they arbitrarily alter the full commitment of the NDIA to the human rights agenda that underpins the NDIS and therefore by extension, the UN Convention on the Rights of Persons with Disabilities, to which Australia is a signatory.

Further DIA is extremely disappointed to see that once again, the commitment to ‘co-design has fallen well short of expectations The exposure draft and proposed changes appear to water down any future co design commitment which falls well short of the expected must’.

Principle 4 (8)\n

Current Act\

People with disability have the same rights as other members of Australian society to be able to determine their own best interests including the right to exercise choice and control, to engage as equal partners in decisions that will affect their lives“.

Aftersubsection4(9)

NDIA has been undertaken with Insert:

(9A) People with disability are central to the National Disability Insurance Scheme and should be included in a co-design capacity.”

DIA contends that any ‘co-design’ must be undertaken through significant engagement and design work undertaken in partnership with people with a disability.

‘Co-design’ without the involvement of people with a disability and the sector is ludicrous.

The notion that any design or consultation process could be considered ‘co-design’ without the involvement of people with a disability and the sector is ludicrous.

Whilst it may be argued that this small wording changed does not indicated a change of intent or commitment to co-design, DIA would highlight that there has been numerous recent examples where substantial work by the Peak Body, DIA, that represents this part of the sector.

Further, it is evident that reduced co-design has been undertaken in regard to these proposed changes as evidenced by:

• The unreasonably short time frame set for public submissions;
• The breadth of the proposed changes and volume of documentation involved;
• The complexity associated with multiple interconnecting sections and clauses;
• The structure of the changes to the sections does not allow for chronological reading which increases complexity;
• The capacity for people with disability, or their key people, to fully engage having regard to the above commentary; and
• The substantial changes to sections that impact service delivery without sector engagement. See changes to the Plan Management rules without any engagement or discussion with the Peak Body,

Disability Intermediaries Australia Limited 21 Changes to the NDIS Act: Submission

Co-design must be fundamental and at the centre of the NDIS, not just a box to check.

This position is supported by independent research and studies (DIA, 2020; Cary, et al., 2018; IAC, Jul 2019; Mathys & Randall, 2019) that demonstrate true co-design leads to better outcomes, more innovative services and a more sustainable NDIS.

From the perspective of Intermediaries, the roles, responsibilities and importantly the ‘authority’ or ‘delegations’ to implement the proposed changes (and the Act more broadly) remain undefined.

This creates further ambiguity and inconsistency of the ‘participant experience’ and will likely give rise to an increase in disagreement between participants and the NDIA, resulting in escalations and reviews.

The Bill proposes the below be added to the Act:

Section 14

(2) Without limiting subsection (1), The Agency may provide funding to a person or entity: (a) to assist one or more participants to receive supports; or (b) to assist a participant who is a child aged under 7 to access supports, before the child’s plan comes into effect, in relation to the child’s disability needs (whether those needs arise because the child meets the disability requirements or meets the early intervention requirements).

(3) The National Disability Insurance Scheme rules may set out matters to which the Agency must have regard in deciding whether to provide funding under subsection (2).

Changes to the NDIS Act: Submission

Disability Intermediaries Australia Limited

2.3. SECTION 17A – PRINCIPLES RELATING TO THE PARTICIPANTS OF PEOPLE WITH A DISABILITY

The term ‘extent of their capacity’. Without this there is nothing to stop the NDIS from under supporting or under funding a participant so long as the Scheme can demonstrate that there is any amount of participant decision making and social and economic participation.

Subsections 1(A) and 4 do little to support or comfort a participant in how the CEO of the NDIA is to conduct decision making. The removal of ‘to the extent of their capacity’ from subsection 3(b) and 3(c). This could have the resulting effect that the NDIA would only needs to demonstrate that the participant has receives any:

• support to make decisions that will affect their lives; and
• support to participate in, and contribute to, any level of social and economic life.

2.4. SECTION 21 – WHEN A PERSON MEETS ACCESS REQUIREMENTS

DIA notes that rhetoric and public statements made by the NDIA and DSS stating that this change was introduced because a participant’s capacity may change and that ‘to the extent of their capacity’ was limiting a participant to funding or support based on a point in time capacity do not support capacity building.

DIA believes this is a disingenuous position and removes the minimum qualifier of ‘to the extent of’

The changes to this section are subtle and again indicate that the intent is that much of the operational access requirements of the NDIS will be moved to Rules. Section 21 (1) specifies that a person is deemed to meet the access requirements when the CEO is satisfied that person meets the:

• Age requirements;

• Residence requirements;
• Disability or early intervention assessment requirements.

What has changed is in subsection 2, where the legislation specifies what happens when the CEO is not satisfied that the person has met the access requirements. The inclusion of subpoint (d) concerning:

Section 42 – Managing THE FUNDING FOR SUPPORTS UNDER A PARTICIPANT’S PLAN

The Bill has attempted to re-define or provide clarity around who is responsible and ultimately liable for NDIS funds.

Section 21 (2)(d) The person satisfies any other requirements prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.

This again opens the doorway for access process to be determined by the introduction of NDIS Rules, which have reduced parliamentary scrutiny.

This is further confirmed by the introduction of section 27 (2) and (3), which specify requirements that must be satisfied for an impairment to be considered:

• Permanent or likely to be permanent; and
• To result in substantially reduced functional capacity.

Such an example could be specifying in the Rules that the person seeking access be subject creating a circular definition.

Disability Intermediaries Australia Limited 25

Changes to the NDIS Act: Submission

However, the larger issue is that more of”. In this very simple this creates a legislative gap where example, four parties could be multiple parties could now be considered as ‘managing the considered as ‘managing the funding’ and in turn responsible funding’. for the acquittal of those NDIS funds: For example i. The Participant, as they 1. A participant purchases a purchased the support support from ACME Services (engaged service, executed (i.e. engages the provider, a service agreement and signs the service agreement received the support); and receives the support); ii. ACME Services, as they 2. ACME Services creates an received funding provided invoice for the supports by the Agency; delivered and sends it to the iii. The Registered Plan Participant’s Registered Management Provider, as Plan Management Provider; they managed the through 3. The Registered Plan put of funding provided by Management Provider the Agency; and reviews / checks the invoice iv. The Agency, as they and lodges a payment ultimately paid for the request (claim) with the support. NDIA on behalf of the participant; This is further exacerbated in 4. The NDIA releases funds to more complex transactions where the Registered Plan a participant has a Plan Nominee, Management Provider; legal decision maker or Public 5. The Registered Plan Guardian. Management Provider then disperses those funds to In an attempt to make it clearer ACME services. the opposite has happened, creating a fairly big legislative gap The above example is a fairly and leads to the question – who is typical example of a basic the responsible party to ensure transaction. that NDIS amounts are ‘spent in accordance with the participant’s Where this creates a problem is plan’? with the inclusion of doing ‘one or

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Changes to the NDIS Act: Submission

Disability Intermediaries Australia Limited

2.6. SECTION 43 – CHOICE FOR THE PARTICIPANT IN RELATION TO PLAN MANAGEMENT

The application of a retrospective rule would, even at a small percentage of usage, impact a great number of participants.

Under the current legislative framework, a participant can elect that their plan funding be Plan Managed; this right is not subject to any review or assessment process. The proposed changes to Section 43 creates an opportunity for the NDIA to overrule a participant’s choice of having funds plan managed by requiring a new risk assessment be undertaken as part of changes to Section 44.

As at 30 September 2021, 51% of all participants have opted to have all or part of their NDIS funds managed by a Registered Plan Management Provider.

Part of their NDIS funds managed by a Registered Plan Management Provider, any potentially open to substantial conflict with Consumer Laws.

2.7. SECTION 44 – CIRCUMSTANCES IN WHICH PERSONS MUST NOT MANAGE FUNDING

The introduction of a risk assessment for participants wishing to exercise choice and control in terms of having their funds managed by a Registered Plan Management Provider (Plan

Managed) raises several issues that participant’s right to take risk, DIA are not clearly articulated in the first encourages consideration current proposed changes. and contemplation of the following points: Unreasonable risk: It is not clear

• The assumption that there is a from the proposed Bill what the level of greater inherent risk NDIA would consider an associated with ‘non- ‘unreasonable risk’, that would preclude a participant, or key decision maker, in exercising their choice and control in how they manage their plan funding.

• It should be remembered that “…notwopeoplethatI’vetalkedto have the same understanding or havethesamedefinitionofwhat dependency created by the ‘reasonable and necessary’ actuallyis”). Minister Reynolds Monday 3rd May 2021
  Community Affairs
  Legislation Committee
  the NDIS Act itself.

  It would, therefore, be a logical
  

  progression to determine what
  constitutes ‘reasonable’ before
  adding a risk assessment test to
  determine what is ‘unreasonable’.

  To ensure that the balance of
  participant risk mitigation is
  commensurate with the exercise
  of choice and control and the

  Disability Intermediaries Australia Limited                                                                29
  

  Changes to the NDIS Act: Submission

Changes to the NDIS Act: Submission

and control over service delivery expect that ‘unreasonable risk’ is widely array of service delivery providers and platforms.

e A particular focus on potential fraudulent practices and collusion needs to be clearly identified and set out in the Act in relation to the application of ‘unreasonable risk’. Participants face ‘sharp practices’ by both ‘registered’ and ‘non-registered’ markets and protection should be afforded without qualification.

DIA would encourage the adoption of a proactive ‘market safety’ approach that could include the licencing of sole traders, accommodation providers etc with appropriate clearances being held for the supports being delivered. The reduction of perceived risk rather than reducing a participant’s right to choice and control should be the focus of these proposed changes. Retrograde steps towards a pre- NDIS model should be consciously avoided.

Right to Appeal Decision: Given the significance of this potential CEO delegated power, DIA would

Importantly, Plan Managers must be registered through the NDIS Quality and Safeguards Commission and are therefore

Disability Intermediaries Australia Limited 30

Changes to the NDIS Act: Submission

redacted

required to meet the standards of participants should not be their registration.

subjected to the limitations of the NDIS Pricing Arrangements and Limits.

These two critical points were not captured or investigate as a part of the Tune review in 2019.

Both of these two critical controls support the participant to manage their risk in engaging supports.

manage their risk in engaging supports. It is unclear from the proposed changes if, after applying the same risk assessment, Plan Managed participants will be equally treated with Self- managed participants and the access to markets this affords. This needs to be considered and clarified particularly noting that the explanatory document stating that “these amendments clarify that plan management is to be treated as a form of self- management”.

Unregistered providers do not automatically create an unreasonable risk: DIA rejects the assertion by the Bill that there is an inherent greater risk for a participant engaging a non- registered provider. All providers, regardless of registration status, than deliver supports under the NDIS are regulated by the NDIS Commission and bound by the code of conduct.

There are countless quality support providers who do not seek to register with the NDIS Commission.

Subjecting Plan Management to the same risk assessment test as is applied to Self-Management, based on the ability to use non- registered providers, should therefore lead to the same market access and ability to negotiate support delivery i.e., Plan Managed

Functional Capacity: The explanatory document attached to the previous exposure draft (DSS release) stated: “These risk assessments also consider whether the use of a registered plan management provider to manage funding is appropriatewhenconsideringthe participant’s circumstances, including the participant’s cognitive function and decision- makingcapacity”.

DIA notes that there has been no detail or drafting within the Bill as to what cognitive function and decision-making capacity will be

Supported Decision Making

Required for the participant, nor by what means such capacity will be determined.

Supported decision making is the term used internationally and across Australia to describe the process of providing support to people to make informed decisions and remain in control of their lives.

Exercising choice and making decisions about one’s own life are important both to personal wellbeing and an individual’s sense of identity (Brown & Brown, 2009; Nota, et al., 2007).

In the last decade, service system reform, including the NDIS, has generated greater opportunities for people with disability, particularly those with more complex support needs, to participate in decisions about the services they receive and increase choice over all aspects of their lives (Bonyhady, 2016; Carney, 2013; Sims & Gulyurtlu, 2014).

In parallel, the United Nations Convention on the Rights of Persons with Disabilities has been the catalyst for significant debate about decision-making rights of people with disabilities.

Article 12 of the UNCRPD asserts that everyone has the right to make decisions about their own life, irrespective of cognitive ability, and to have the necessary support to do so (Bach, 2017; Series, 2015).

• planner, their responsibility and

The adjustments required for the participants and their providers to meet such a change are significant; and -Further there is no view or reference to where the participant is not the legal decision maker, or in what circumstances increase supports could be obtained by the participant to support their decision-making capacity and enjoy great choice and control,and self-determination. -DIA notes that there has been no consultation, co-design or engagement with Australia’s peek body for Registered Plan Management Providers (DIA) on these matters. -Section 45 raises a number of unanswered questions:

• Is it the intention that the NDIA,in circumstances not specified in the proposed changes to the Act, make payments directly to providers, both registered and non-registered?
• Is it the intention that the NDIA,in circumstances not specified in the proposed changes, in regard to Section 54(2) release funds on a periodic basis? If this is the case, then:-It is unclear whether this has been communicated to participants and providers in this consultation process;

Changes to the NDIS Act: Submission

Disability Intermediaries Australia Limited

SECTION 46 – ACQUITTAL OF

NDIS AMOUNTS

There are several issues with this Section of the proposed Bill that have potentially large consequential ramifications for Registered Plan Management Providers.

The explanatory memorandum does not shed any light on the intention of these proposed changes and as such are open to wide misinterpretation and unintended consequences.

Section 46 of the Bill fails to set out the specific responsibilities of Registered Plan Management Providers and there is a distinct lack of clarity in the language as to whether the obligations of ‘a person determined by the CEO’ means or includes Registered Plan Management Providers.

Most importantly, if Registered Plan Management Providers are considered to be ‘a person’, then the proposed changes fail to set out the authority in which Registered Plan Management Providers practically ensure compliance with Section 46 of the Act.

There is a significant level of inferred accountability in the proposed changes for activities undertaken with plan funds; however, it is unclear how and by what authority a Registered Plan Management Provider is to deliver.

2.10. SECTION 47 – VARYING AND REPLACING A PARTICIPANT’S PLAN

The Bill makes changes to Section 47 and specifically add the following:

Section 47 (2) If a participant gives a changed version of the participant’s statement of goals and aspirations to the CEO, the participant’s plan is taken to have been varied so that it includes that changed version.

So that where an error or oversight has been made in a participant’s plan, it should be able to be corrected quickly and painlessly without the need for a full plan review which at present, this can only be done in limited circumstances.

Given the interaction this has with Section 47A (9) where if any part of a plan is requested by the participant to be varied then any part of the plan may be varied in a different manner.

This means that if a participant wished to vary their statement of goals and aspirations their entire plan could then be varied in without the participant’s knowledge or consent.

2.11. SECTION 47A – VARIATION OF PARTICIPANT’S PLAN ON REQUEST OR CEO’S OWN INITIATIVE

Of all the proposed amendments, the new section 47A is the one that requires vastly more

This appears to be substantially broader than the Tune recommendation and raises a number of concerns, with many in

Changes to the NDIS Act: Submission

the disability community referring without consultation with

to this as the ‘God Clause’. participants.

DIA sees no reason why the NDIA DIA has a number of questions should be able to vary plans which remain unanswered: on their own initiative. i. Can the CEO vary a plan without consulting the without consulting the participant? participant? ii. Are there limits to the size of ii. Can the CEO vary the plan the variation? review date of the i. Can the CEO vary how funds participant’s plan? are to be managed within the participant’s plan? iii. Are there limits to the size of ii. Can plan funding be the variation? reduced without i. Can the CEO vary how consultation with the funds participant? are to be managed within iii. Can the CEO vary how the participant’s plan? particular support covered by the statement of supports are included in the participant’s plan?

This is especially so because the Despite a re-draft of some ceo already has power to conduct elements associated with the plan reviews on their own initiative sections concerns remain as the (meaning that if a participant Bill does not impose any declines to have their plan varied, limitations on how the CEO may the ceo can still undertake a full vary a plan. plan review if that is needed). The ceo’s power to vary plans is As it stands Section 47A confers also not constrained. powers that are unnecessarily Rule 10 of the Plan Administration broad and too loosely prescribed. Rules (published by DSS but not But these matters do not limit the released with the bill) sets out a ceo’s power. This leaves it open for variations like changes to funding amounts or restrictions on how funding could be used. on-exhaustive list of matters the These variations could be made ceo must consider, but not necessarily give effect to, when deciding to vary a plan on their own initiative. But these matters do not limit the ceo’s power. This leaves it open for variations like changes to funding amounts or restrictions on how funding could be used. These variations could be made

Changes to the NDIS Act: Submission

Disability Intermediaries Australia Limited

SECTION REPORTS

2.12. SECTION 174 – QUARTERLY REPORT TO THE MINISTERIAL COUNCIL

DIA notes that the Bill has extended the time from 1 month to 42 days for the report to be provided to the Ministerial Council.

This is disappointing as such report is used by the disability sector for market development purposes and such a delay results in less meaningful data.

2.13. SECTION 182 – DEBT RECOVERY

The inclusion of 2(c) within section 182 remains practically problematic.

(e) the payment was made in respect of a service funded under a participant’s plan and the participant died before the service was provided.

There are numerous operational expenses incurred by providers when a participant dies which are as a part and / or in connection to the supports being provided to the participant when they were living. The NDIS must have reasonable provisions to more appropriately manage the costs associated with a participant’s service provisions after they have died.

2.14. SECTION 204A – REPORT BY COMMONWEALTH OMBUDSMAN

The powers of the Disability Ombudsman has been prescribed as purely a reporting function.

This is a missed opportunity to balance the position of power of the NDIA.

2.15. SECTION 209 – THE NATIONAL DISABILITY INSURANCE SCHEME RULES

The inclusion of 2(c) and (d) within section 209 further highlights the desire to put more operational function and requirements into NDIS rules which have substantially less parliamentary oversight than the act.

Changes to the NDIS Act: Submission

Disability Intermediaries Australia Limited

3. MISSED OPPORTUNITIES

intermediary supports (Support Coordination and Plan Management) being able to be delivered by the same provider to the same participant.

3.1. CONFLICT OF INTEREST

It is DIA’s view that Intermediary service provision (Support Coordination and Plan Management) should be separate from organisations that also provide direct service provision such as Core, Other Capacity Building and Capital Supports.

At their core, Intermediary roles provide navigation, guidance and support, capacity building, oversight and monitoring of the Participant’s service providers. Intermediary services support Participants with identification, selection and purchase of services from providers; this inevitably leads to substantial conflicts of interest when delivered by a provider that also delivers other supports to the same participant. “…first principles would suggest thatitisreasonabletoexpectthat in most cases the provider of support coordination is not the provider of any other funded supports in a participant’s plan”

Such exemptions may include:

• Service delivery in remote / very remote and thin market settings;
• Where cultural safety / competence is very relevant e.g., CALD, LGBTQIA+;

Disability Intermediaries Australia Limited 41

• Where thin markets exist, such as Aboriginal and Torres Strait Islander communities; the majority of the supports funded within their plan from themselves.

• Some psychosocial examples where people desire a very tight network of supports, mistrusting others and/or intense desire for privacy. The Bill includes a specific stand-alone clause in relation to Conflict of Interest. This should take on similar provisions that are outlined in the NDIS (Plan Nominee) Rules such exemptions must require specific action by a provider to ensure adequate conflict of interest procedures, processes and development plan to locate alternative support arrangements to mitigate such conflict (i.e., independent supervision and/or alternate support provision).

It is worth noting that there is precedence for such controlled conflict of interest requirements, where under the NDIS, NDIA Partners (LACs) are precluded from delivering direct support to participants, in part, to ensure the conflict of interest is managed between their other functions including plan implementation.

DIA has seen worrying examples where conflicted providers who also offer core supports and / or day programs have utilised Support Coordination and Plan Management as “gateway” services to ensure the participant documentation provided, is how

Disability Intermediaries Australia Limited 42 Changes to the NDIS Act: Submission

3.2. SUPPORTED DECISION

MAKING

Making the ‘right’ choices that are ‘in line with the participants plan’ in a complex market environment can be daunting and stressful.

Participants that our members service tell us that they are overwhelmed by the amount of information they must process to find their way to services, not just in the first plan but in each plan.

The situation is compounded for those who have complex needs requiring multiple and relational services, and/or those who are otherwise disadvantaged.

redacted

Further, there appears to be a complete disregard for how ‘potential concerns’ are to be referenced and interfaced with the Code of Conduct and the NDIS Quality and Safeguards Commission.

Without this investment, many participants struggle to find the way through a complex, loosely regulated market and may be exposed to increased financial and personal risk (Dommers, et al., 2017; BSL, 2019; Slasberg & Beresford, 2016; Yu & Oliver, 2015; Needham, 2018).

‘e on-selling', client capture’ and the most disadvantaged require ’navigational support and capacity maintenance and / or building (as demonstrated by only about 43 per cent of NDIS participants being funded for support coordination), research which is echoed by the IAC and Tune Review, indicates this is not the case (Tune, 2019; DIA, 2020; IAC, Jul2019;Vincent&Caudrey,2020; RobertsonSC,2020).`

redacted: s47F - Personal privacy

3.3. SCHEDULE 3 – FULL SCHEME ROLLOUT VS AVAILABILITY OF ACCESS

Whilst the Bill makes changes to reflect that the scheme has moved beyond transition, critically the Bill does not clearly articulate ‘full scheme availability’. arrangements assume that only A skilled Support Coordinator function is a critical component of market infrastructure in other marketised service systems in Australia. Yet, the current

This remains unclear particularly

given the definition of, accessibility to, and interaction with mainstream services which differ greatly across each State and Territory, not to mention between a metropolitan, rural and remote context.

Much of the provider sector and all Intermediaries have expressed views that they deliver unfunded capacity to fill gaps primarily created due to poor definition and agreement across Governmental layers about access and delivery of ‘mainstream supports’ (Carey, et al., 2019; Commonwealth Obudsman, 2018; Commonwealth Obudsman, 2020).

In DIA’s view, these matters need to be clearly dealt with in the overarching legislation as opposed to leaving it open to interpretation and / or inter- governmental disagreement.

Disability Intermediaries Australia Limited 44 Changes to the NDIS Act: Submission

Changes to the NDIS Act: Submission

Disability Intermediaries Australia Limited

ABOUT DISABILITY

INTERMEDIARIES

INTERMEDIARIES AUSTRALIA

NDIS participants are able to engage highly skilled intermediary supports, Plan Management and Support Coordination, to assist in managing their NDIS budgets and the procurement and coordination of support arrangements with providers.

DIA is Australia’s peak body for non-government disability intermediary service organisations and practitioners. Collectively, DIA members deliver Support Coordination and Plan Management services for Australians with all types of disability.

51% of Participant Utilise a Plan Manager

DIA members deliver services to 1 in 3 NDIS Participants across Australia

43% of Participants are funded for Support Coordination

Intermediary organisations play a critical, and yet often underfunded, role in negotiating support costs with providers, making arrangements for support delivery and providing information and ongoing support to providers regarding the specific needs of their clients, to guide NDIS participants through the complexity of the scheme, to better inform participants and to assist administer where needed, payment arrangements.

DIA members (providers and practitioners) deliver Support Coordination and Plan Management services to 1 in 3 NDIS Participants, over 160,000 NDIS participants across Australia.

DIA members represent more than 71 per cent market share of the Support Coordination and Plan Management markets.

Disability Intermediaries Australia Limited Changes to the NDIS Act: Submission

Changes to the NDIS Act: Submission

In our view both Support Coordination and Plan Management service provision should ideally be separate from organisations who are also providing direct service provision, as they are guidance and support roles designed to assist in the identification and selection of service providers, this is in order to avoid conflicts of interest.

In DIA’s view, for service providers to legitimately provide the support coordination and plan management services with informed consumer choice, a clear separation is needed between all other service provision and intermediary supports (support coordination and plan management).

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• Carey, G., Kay, A. & Nevile, A., 2019. Institutional Legacies and “Sticky Layers”: What Happens in Cases of Transformative Policy Change?. Canberra: University of New South Wales.

• Carey, G. et al., 2017. Redressing or entrenching social and health inequities through policy implementation? Examining personalised budgets through the Australian National Disability Insurance Scheme. s.l.:International Journal for Equity in Health.

Disability Intermediaries Australia Limited 48 Changes to the NDIS Act: Submission

• Carney, T., 2013. articipation & service access rights forpeople with intellectual disability: A role for law?. s.l.:Journal of Intellectual & Developmental Disability.

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• Considine, M., Lewis, J. & O’Sullivan, S., 2011. Quasi-markets and service delivery flexibility following a decade of employment assistance reform in Australia. s.l.:Journal of Social Policy.

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• DIA, 2020. Australian Disability Intermediaries Sector Report. Melbourne: Disability Intermediaries Australia Limited.

• DIA, 2020. DIA submission to the NDIS Annual Price Review 2020. s.l.:Disability Intermediaries Australia Limited.

• Dommers, E. et al., 2017. Engaging young early school leavers in vocational training. Adailaide: National Centre for Vocational Education Research.

• DSS, 2019. Disability Advocasy Fact Sheet. s.l.:Australian Government: Department of Social Services.

• Engel, G., 1980. The clinical application of the biopsychosocial model.. s.l.:American Journal of Psychiatry.

• Goodwin, N., Sonola, L., Thiel, V. & Kodner, D., 2013. Co-ordinated care for people with complex chronic conditions: Key lessons and markers for success. London: T. A. Foundation.

• Groom, G., Hickie, L. & Davenport, T., 2003. Out of Hospital – Out of Mind. A report detailing mental health services in Australia in 2002 and community priorities for national mental health policy for 2003-2008.

• Hui, F. et al., 2018. Hard to reach: examining the National Disability Insurance Scheme experience – a case study in Wollongong. s.l.:University of Wollongong.

• Hunter, S. & Ritchie, P., 2007. Changing relationships in the provision of social care. London: Jessica Kingsley.

• IAC, Aug 2016. Support coordination as a tool of capacity building in the NDIS. s.l.:Independent Advisory Council to the NDIS.

• IAC, Jul 2019. Capacity building: Insights from NDIS data. s.l.:Independent Advisory Council to the NDIS.

• IAC, Jul 2019. Support for decision making in the NDIS. s.l.:Independent Advisory Council to the NDIS.

• IAC, Mar 2018. Examining support coordination in the context of the intermediaries. s.l.:Independent Advisory Council to the NDIS.

• IAC, Nov 2016. Support coordination and the sustainability of the NDIS. s.l.:Independent Advisory Council to the NDIS.

• IAC, Nov 2019. Challenges in housing and support. s.l.:Independent Advisory Council to the NDIS.

• IAC, Oct 2014. Reasonable and necessary support across the lifespan: An ordinary life for people with disability. s.l.:Independent Advisory Council to the NDIS.

• IAC, Oct 2019. Enhancing Outcomes from Social and Community ParticipationIAC September 20191Independent Advisory Council to the NDISEnhancing outcomes fromSocial and Community Participation. s.l.:Independent Advisory Council to the NDIS.

• IAC, Sep 2019. Flexibility as a tool to assist participants seek value for money. s.l.:Independent Advisory Council to the NDIS.

• JSC, 2018. Market readiness for provision of services under the NDIS. Canberra: Joint Standing Committee on the National Disability Insurance Scheme.

• JSC, 2020. Report into Supported Independent Living. s.l.:Joint Standing Committee on the National Disability Insurance Scheme.

• Mathys, Z & Randall, K, 2019. NDIS market dynamics study. Melbourne: National Disability Services.

• Muir, K. & Salignac, F., 2017. Can market forces stimulate change? A case example using the National Disability Insurance Scheme in Australia. s.l.:Third Sector Review.

• NDIA, 2016. NDIS market approach: statement of opportunity and intent. s.l.:National Disability Insurance Agency.

• NDIA, 2017. Local Area Cooridnation Statement of Requirements - Annex D. s.l.:National Disability Insurance Agency.

• NDIA, 2019. Health Liaison Officer Factsheet:SA Hospital Discharge Project. s.l.:National Disability Insurance Agency.

• NDIA, 2019. NDIS Pricing Strategy. s.l.:National Disability Insurance Agency.

• NDIA, 2019. Participant outcomes | 30 June 2019. s.l.:National Disability Insurance Agency.

• NDIA, 2020. Community Connector Framework. s.l.:National Disability Insurance Agency.

• NDIA, 2020. National Disability Insurance Scheme: Cost model for Disability Support Worker. s.l.:National Disability Insurance Agency.

• NDIA, 2020. NDIS Price Guide and Support Catalogue 2020-21. s.l.:National Disability Insurance Agency .

• NDIA, 2020. Participant Service Charter. s.l.:National Disability Insuarance Agency.

• NDIA, 2020. Psychosocial Recovery Coach. s.l.:National Disability Insurance Agency.

• NDIS Commission, 2019. The NDIS Code of Conduct. s.l.:NDIS Quality and Safeguards Commission .

• NDIS Commission, 2020. Behaviour support NDIS Participants. [Online] Available at: https://www.ndiscommission.gov.au/participants/behaviour- support [Accessed 11 09 2020].

NDIS Commission, 2020. NDIS Practice Standards: NDIS Practice Standards and Quality Indicators. s.l.:NDIS Quality and Safeguards Commission.

Needham, C., 2018. Don’t call me a customer, treat me like a human: rethinking relationships in public services. UK: College of Social Services Inaugural Lectures, University of Birmingham.

Nota, L., Ferrari, L., Soresi, S. & Wehmeyer, M., 2007. Self-determination, social abilities and the quality of life of people with intellectual disability. s.l.:ournal of IntellectualDisability Research.

Olney, S., 2016. False economy: New Public Management and the welfare- to-work market in Australia. s.l.:University of Melbourne.

O’Rance, L., 2009. The geography of disability and economic disadvantage in Australian capital cities.. s.l.:Australian Institute of Health and Welfare .

Perdevich, J. & Pagan, A., 2018. Choice and control under the NDIS. s.l.:Brotherhood of St Laurence - unpub..

Productivity Commission, 2011. Disability care and support. Canberra: Productivity Commission.

Productivity Commission, 2017. National Disability Insurance Scheme (NDIS) costs: Productivity Commission study report. Canberra: Productivity Commission.

Robert, S., 2019. The NDIS Plan: National Press Club Address. s.l.:The Hon Stuart Robert MP.

Robertson SC, A., 2020. Independent review of the adequacy of the regulation of the supports and services provided to Ms Ann-Marie Smith, an NDIS participant, who died on 6 April 2020: Report to the Commissioner of the NDIS Quality and Safeguards Commission. s.l.:NDIS Quality and Safeguards Commission.

Series, L., 2015. Relationships, autonomy and legal capacity:Mental capacity and support paradigms. s.l.:nternationalJournal of Law and Psychiatry.

Sims, D. & Gulyurtlu, S., 2014. A scoping review of persona-lization in the UK; approaches to social work and people with learning disabilities. s.l.:Health and Social Care.

Disability Intermediaries Australia Limited 52 Changes to the NDIS Act: Submission

• Slasberg, C. & Beresford, P., 2016. The false narrative about personal budgets in England: smoke and mirrors?. s.l.:Disability & Society.

• Smith, M., 2000. Recovery from a severe psychiatric disability: Findings of a qualitative study. s.l.:Psychiatric Rehabilitation Journal.

• Solomon, P., 1992. The efficacy of case management services for severely mentally disabled clients. s.l.:Community Mental Health Journal.

• Stroul, B. et al., 2014. Return on investment in systems of care. s.l.:Georgetown University.

• Tune, D., 2019. Tune Review: 2019 review of the NDIS Act and the new NDIS Participant Service Guarantee. s.l.:David Tune AO PSM.

• University of Sydney, 2014. Cross sector service coordination for people with high and complex needs. s.l.:Centre for Disability Research and Policy, University of Sydney .

• Vincent, K. & Caudrey, D., 2020. Safeguarding Task Force – Report. s.l.:Government of South Australia.

• Yu, S. & Oliver, D., 2015. The capture of public wealth by the for-profit VET sector. s.l.:Workplace Research Centre, University of Sydney.

ATTACHMENT: MARKED UP DRAFT OF THE LEGISLATION BASED ON THE BILL

  Disability Intermediaries Australia Limited                                                                54
Changes to the NDIS Act: Submission

National Disability Insurance Scheme

Act 2013

No. 20, 2013

Compilation No. 13

Compilation date: 27 November 2020

Includes amendments up to: Act No. 107, 2020

Registered: 15 December 2020

Prepared by the Office of Parliamentary Council, Canberra

About this compilation

This compilation

This is a compilation of the National Disability Insurance Scheme Act 2013 that shows the text of the law as amended and in force on 27 November 2020 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommended amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Chapter 1 — Introduction

Part 1 — Preliminary

1 Short title ……………………………………………………………………. 1

2 Commencement …………………………………………………………… 1

Part 2 — Objects and principles

3 Objects of Act ………………………………………………………………… 4

4 General principles guiding actions under this Act ……………………. 6

5 General principles guiding actions of people who may do acts or things on behalf of others ……………………………………. 8

6 Agency may provide support and assistance …………………………. 9

7 Provision of notice, approved form or information under this Act etc. ……………………………………………………………………….. 9

Part 3 — Simplified outline

8 Simplified outline ………………………………………………………….. 10

Part 4 — Definitions

9 Definitions ……………………………………………………………….. 13

10 Definition of host jurisdiction ………………………………………. 22

10A Definition of participating jurisdiction …………………………. 22

10B Definition of NDIS worker screening law ……………………… 22

11 Definitions relating to compensation ………………………………. 22

11A Definition of key personnel …………………………………………. 23

Part 5 — Ministerial Council

12 Ministerial Council functions etc. ………………………………… 25

Chapter 2 — Assistance for people with disability and others

13 Agency may provide coordination, strategic and referral services etc. to people with disability ……………………………. 26

14 Agency may provide funding to persons or entities ……………….. 26

15 Agency may provide information ……………………………………….. 27

16 Agency may assist in relation to doing things under Chapter ………………………………………………………………………………………….. 28

17 National Disability Insurance Scheme rules …………………………. 28

Chapter 3—Participants and their plans

Part 1A—Principles

17A Principles relating to the participation of people with disability……………………………………………………………………. 29

Part 1—Becoming a participant

• 18 Person may make a request to become a participant ……….. 30
• 19 Matters relating to access requests ……………………………….. 30
• 20 CEO must consider and decide access requests ……………… 31
• 21 When a person meets the access criteria ……………………….. 31
• 22 Age requirements ……………………………………………………….. 32
• 23 Residence requirements ………………………………………………. 32
• 24 Disability requirements ……………………………………………….. 33
• 25 Early intervention requirements …………………………………… 34
• 26 Requests that the CEO may make ………………………………… 36
• 27 National Disability Insurance Scheme rules relating to disability requirements and early intervention requirements ………………………………………………………………………………… 37
• 28 When a person becomes a participant …………………………… 38
• 29 When a person ceases to be a participant ………………………. 38
• 30 Revocation of participant status …………………………………… 39

Part 2—Participants’ plans

Division 1—Principles relating to plans

31 Principles relating to plans ………………………………………….. 40

Division 2—Preparing participants’ plans

32 CEO must facilitate preparation of participant’s plan ……… 42

32A Rules about preparation of plans ………………………………….. 42

33 Matters that must be included in a participant’s plan ………. 42

34 Reasonable and necessary supports ………………………………. 44

35 National Disability Insurance Scheme rules for statement of

participant supports ……………………………………………………………………………………………….. 45

36 Information and reports for the purposes of preparing and approving a participant’s plan ……………………………………… 46

37 When plan is in effect …………………………………………………. 47

38 Copy of plan to be provided ………………………………………… 47

39 Agency must comply with the statement of participant

supports …………………………………………………………………….. 47

40 Effect of temporary absence on plans ……………………………. 47

Chapter 3 — Managing Participants’ Plans

Part 1 — General matters

Division 1 — Participant’s plan and participant’s statement of goals and aspirations

41 Suspension of plans ……………………………………………………. 48 42 Meaning of managing the funding for supports under a participant’s plan ……………………………………………………….. 50 43 Choice for the participant in relation to plan management . 50 44 Circumstances in which participant must not manage plan to specified extent ………………………………………………………….. 52 45 Payment of NDIS amounts ………………………………………….. 53 46 Acquittal of NDIS amounts …………………………………………. 54 46A Protection of NDIS amounts ………………………………………… 54 46B Garnishee orders ………………………………………………………… 55

Division 4—Reviewing and changing participants’ plans 56

47 Participant may change participant’s statement of goals and aspirations at any time ………………………………………………… 56 48 Review of participant’s plan ………………………………………… 57 49 Outcome of review …………………………………………………….. 61 50 Information and reports for the purposes of reviewing a participant’s plan ……………………………………………………….. 62

Division 3 — Interaction with other laws

58 Obligations not affected by State or Territory laws ………………….. 71

59 Interaction with Commonwealth laws ………………………………………. 71

Part 2 — Privacy

Division 1 — Information held by the Agency

60 Protection of information held by the Agency etc. ……………………… 72

61 Offence—unauthorised access to protected information ………… 73

62 Offence—unauthorized use or disclosure of protected

Agency information ……………………………………………………………………. 73

63 Offence—soliciting disclosure of protected Agency

information …………………………………………………………………………….. 73

64 Offence—offering to supply protected Agency information

……………………………………………………………………………………………. 73

66 Disclosure of information by CEO ……………………………………… 74

67 National Disability Insurance Scheme rules for exercise of

CEO’s disclosure powers ………………………………………………………… 76

Division 2 — Information held by the Commission

67A Protection of information held by the Commission etc. ………. 77

67B Offence—unauthorized use or disclosure of protected

Commission information …………………………………………………………. 77

67C Offence—soliciting disclosure of protected Commission

information …………………………………………………………………………… 78

67D Offence—offering to supply protected Commission

information …………………………………………………………………………… 78

67E Disclosure of information by Commissioner …………………. 79

####### 67F National Disability Insurance Scheme rules for exercise of Commissioner’s disclosure powers ……………………………………………. 80

Division 3 — Information generally

67G Protection of certain documents etc. from production to court

e tc. ……………………………………………………………………………………. 81

67H Part does not affect the operation of the Freedom of

Information Act 1982 ……………………………………………………………….. 81

Part 3 — Registered providers of supports

69 Application to be a registered provider of supports …………. 81

70 Registered providers of supports …………………………………….. 81

71 When a person or entity ceases to be a registered provider of

supports …………………………………………………………………………………….. 81

72 Revocation of approval as a registered provider of supports

………………………………………………………………………………………………… 81

Part 3A — NDIS Providers

Division 1 — Application of Part

73A Application of Part

Division 2 — Registered NDIS Providers

73B Requirement to be a registered NDIS provider

73C Application to be a registered NDIS provider

73D False or misleading information or documents in application…………………………………………………………………………………

73E Registration as a registered NDIS provider

73F Registration is subject to conditions

73G Conditions specified in certificate of registration

73H Conditions determined by NDIS rules

73J Registered NDIS providers must comply with conditions of registration

73K Extension of period for which registration is in force

73L Variation of registration

73M Application for variation of registration

73N Suspension of registration

73P Revocation of registration

73Q Record keeping by registered NDIS providers

73R Record keeping by former registered NDIS providers

73S Grants of financial assistance in relation to registration

Division 3 — Quality assurance

73T NDIS Practice Standards

73U Approved quality auditors

Division 4 — NDIS Code of Conduct

73V NDIS Code of Conduct

Division 5 — Complaints management and resolution

73W Complaints management and resolution system—registered NDIS providers

73X Arrangements relating to the management and resolution of complaints ………………………………………………………………….

Division 6 — Incident management—registered NDIS providers

73Y Incident management system

PART 3 — DISCLOSURE OF INFORMATION

Division 6 — Reportable incidents

73Z Reportable incidents …………………………………………………. 100

Division 7—Protection of disclosers 102

73ZA Disclosures qualifying for protection ………………………….. 102

73ZB Disclosure that qualifies for protection not actionable etc. 103

73ZC Victimisation prohibited ……………………………………………. 104

73ZD Right to compensation ………………………………………………. 105

Division 8—Compliance and enforcement 106

73ZE Monitoring powers …………………………………………………… 106

73ZF Investigation powers …………………………………………………. 107

73ZG Use of equipment to examine or process things ……………. 108

73ZH Use of electronic equipment at other place ………………….. 110

73ZI Person with knowledge of a computer or a computer system

to assist access etc. ……………………………………………………. 111

73ZJ Compensation for damage to electronic equipment ………. 113

73ZK Civil penalty provisions …………………………………………….. 114

73ZL Infringement notices …………………………………………………. 115

73ZM Compliance notices …………………………………………………… 116

73ZN Banning orders …………………………………………………………. 117

73ZO Variation or revocation of banning orders ……………………. 120

73ZP Enforceable undertakings ………………………………………….. 121

73ZQ Injunctions ………………………………………………………………. 123

73ZR Appointment of inspectors and investigators ……………….. 123

Division 9—NDIS Provider Register 125

73ZS NDIS Provider Register …………………………………………….. 125

Part 4—Children 128

74 Children ………………………………………………………………….. 128

75 Definition of parental responsibility …………………………… 130

76 Duty to children ……………………………………………………….. 131

77 Revocation of determinations under section 74 ……………. 131

Part 5—Nominees 133

Division 1—Functions and responsibilities of nominees 133

78 Actions of plan nominee on behalf of participant …………. 133

79 Actions of correspondence nominee on behalf of participant

………………………………………………………………………………. 134

80 Duties of nominees to participant etc. …………………………. 134

81 Giving of notices to correspondence nominee ……………… 135

82 Compliance by correspondence nominee …………………….. 136

Division 1 — General provisions

Nominee’s duties, rights and responsibilities

83\u00a0Nominee to inform Agency of matters affecting ability to act as nominee……………………………………………………………….

137

84\u00a0Statement by plan nominee regarding disposal of money .

138

85\u00a0Right of nominee to attend with participant ………………….

139

Division 2—Appointment and cancellation or suspension of appointment

140

86\u00a0Appointment of plan nominee …………………………………….

140

87\u00a0Appointment of correspondence nominee…………………….

140

88 \u00a0Provisions relating to appointments…………………………….

141

89\u00a0Circumstances in which the CEO must cancel appointment of nominees ……………………………………………………………..

142

90\u00a0General circumstances in which CEO may cancel or suspend appointment of nominees …………………………………………… 143

91\u00a0Suspension etc. of appointment of nominees in cases of physical, mental or financial harm ……………………………… 145

92\u00a0Other matters relating to cancellation or suspension of appointment…………………………………………………………….. 146

93\u00a0National Disability Insurance Scheme rules may prescribe requirements etc. ………………………………………………………. 147

94\u00a0CEO’s powers of revocation ……………………………………….

147

Division 3—Other matters relating to nominees

148

95\u00a0CEO’s powers to give notices to participant …………………

148

96 \u00a0Notification of nominee where notice is given to participant ………………………………………………………………………………. 148

97 \u00a0Protection of participant against liability for actions of nominee ……………………………………………………………………. 148

98 \u00a0Protection of nominee against criminal liability ……………..

148

Part 6 — Review of decisions

150

99\u00a0Reviewable decisions and decision-makers………………….

150

100\u00a0Review of reviewable decisions………………………………….

154

101\u00a0Variation of reviewable decision before review completed……………………………………………………………………………….

156

102\u00a0Withdrawal of request for review ………………………………

157

103\u00a0Applications to the Administrative Appeals Tribunal …….

157

Chapter 5—Compensation payments

159

Part 1—Requirement to take action to obtain compensation

159

104\u00a0CEO may require person to take action to obtain compensation ……………………………………………………………

159

Part 2 — Agency May Recover Compensation Fixed After NDIS Amounts Have Been Paid

106 Recovery Of Past NDIS Amounts From Certain Judgements

107 Recovery Of Past NDIS Amounts From Consent Judgements And Settlements

108 Debts Resulting From Section 106 Or 107

Part 3 — Recovery From Compensation Payers And Insurers

109 CEO May Send Preliminary Notice To Potential Compensation Payer Or Insurer

110 Offence—Potential Compensation Payer Or Insurer

111 CEO May Send Recovery Notice To Compensation Payer Or Insurer

112 Preliminary Notice Or Recovery Notice Suspends Liability To Pay Compensation

113 Compensation Payer’s Or Insurer’S Payment To Agency Discharges Liability To Participant

114 Offence—Making Compensation Payment After Receiving Preliminary Notice Or Recovery Notice

115 Liability To Pay The Agency If There Is A Contravention Of Section 114

Part 4 — CEO May disregard certain payments

116 CEO may disregard certain payments

Chapter 6 — National Disability Insurance Scheme Launch Transition Agency

Part 1 — National Disability Insurance Scheme Launch Transition Agency

117 Establishment

118 Functions of the agency

119 Powers of the agency

120 Charging of fees

121 Minister may give directions to the agency

122 Agency does not have privileges and immunities of the crown

Part 2 — Board of the Agency

Division 1 — Establishment and functions

123 Establishment …………………………………………………………… 182

124 Functions of the Board ……………………………………………… 182

125 Minister may give the Board a statement setting out strategic guidance for the Agency ……………………………………………. 183

125A Matters to be considered in performing functions …………. 184

125B Rules about management of risk and performance of Board’s functions …………………………………………………………………. 185

Division 2 — Members of the Board

126 Membership …………………………………………………………….. 186

127 Appointment of Board members ………………………………… 186

128 Term of appointment ………………………………………………… 188

129 Acting appointments …………………………………………………. 188

130 Remuneration and allowances ……………………………………. 190

131 Leave of absence ……………………………………………………… 190

132 Outside employment …………………………………………………. 190

133 Resignation of Board members ………………………………….. 191

134 Termination of appointment of Board members ………………….. 191

135 Other terms and conditions of Board members ……………………. 193

Division 3 — Meetings of the Board

136 Convening meetings …………………………………………………. 195

137 Presiding at meetings ………………………………………………… 195

138 Quorum …………………………………………………………………… 195

139 Voting at meetings ……………………………………………………. 196

140 Conduct of meetings …………………………………………………. 196

141 Minutes …………………………………………………………………… 196

142 Decisions without meetings ……………………………………….. 196

Part 3—Advisory Council

Division 1—Establishment, functions and appointment of Advisory Council Members

149 Acting appointments …………………………………………………. 201

150 Remuneration and allowances ……………………………………. 202

151 Leave of absence ……………………………………………………… 203

152 Disclosure of interests to the Minister …………………………. 203

153 Disclosure of interests to the Advisory Council ……………. 203

154 Resignation of members of the Advisory Council ………… 204

155 Termination of appointment of members of the Advisory

Council ……………………………………………………………………. 204

156 Other terms and conditions of members of the Advisory

Council ……………………………………………………………………. 205

Division 3—Procedures of the Advisory Council 206

157 Procedures of the Advisory Council ……………………………. 206

Part 4—Chief Executive Officer and staff etc.

Division 1—Chief Executive Officer 207

158 Establishment …………………………………………………………… 207

159 Functions of the CEO ……………………………………………….. 207

160 Appointment of the CEO …………………………………………… 207

161 Acting appointments …………………………………………………. 208

162 Remuneration and allowances ……………………………………. 208

163 Leave of absence ……………………………………………………… 208

164 Outside employment …………………………………………………. 209

165 Disclosure of interests ………………………………………………. 209

166 Resignation of the CEO …………………………………………….. 209

167 Termination of appointment of the CEO ……………………… 209

168 Other terms and conditions of the CEO ……………………….. 210

Division 2—Staff etc. 211

169 Staff ……………………………………………………………………….. 211

170 Services of other persons to be made available to the Agency………………………………………………………………………………. 211

171 Consultants ……………………………………………………………… 211

171A Transitional provisions for staff of the Agency …………….. 211

Part 5—Reporting and planning 212

Division 1—Reporting 212

Subdivision A—Reporting by Board members 212

172 Annual report …………………………………………………………… 212

173 Giving certain information to the Ministerial Council …… 213

174 Quarterly report to the Ministerial Council ………………….. 214

Subdivision B—Reporting by the Agency

175 Giving information requested by Commonwealth, State or Territory Ministers ……………………………………………………. 216

Subdivision C—Reporting by the Minister

176 Giving certain information to the Ministerial Council …… 217

Division 2—Planning

177 Corporate plan …………………………………………………………. 218

Part 6—Finance

178 Payments to the Agency by the Commonwealth …………… 219

179 Payments to the Agency by the host jurisdictions …………. 219

180 Application of money by the Agency ………………………….. 219

Part 6A—Actuarial assessment of financial sustainability

Division 1—Scheme actuary and annual financial sustainability report

180A Nomination of scheme actuary …………………………………… 221

180B Duties of scheme actuary …………………………………………… 221

180C Rules for performance of scheme actuary’s duties ………… 222

Division 2—Reviewing actuary

180D Nomination of reviewing actuary ……………………………….. 223

180E Duties of reviewing actuary ……………………………………….. 223

Division 3—Assistance of scheme actuary and reviewing actuary

180F Agency to assist scheme actuary and reviewing actuary … 225

Part 7—Miscellaneous

181 Taxation ………………………………………………………………….. 226

Chapter 6A—NDIS Quality and Safeguards Commission

Part 1—Commission establishment and functions

181A Establishment of the Commission ………………………………. 227

181B Commission’s functions ……………………………………………. 228

Part 2—NDIS Quality and Safegards Commissioner

181C Commissioner ………………………………………………………….. 229

181D Commissioner’s functions and powers ………………………… 229

181E Commissioner’s core functions ………………………………….. 230

Part 3 — Staff etc.

of the Commission

181U Staff of the Commission

181V Consultants

181W Persons assisting the Commissioner

Chapter 6B — NDIS worker screening database

181X Simplified outline of this Chapter

181Y NDIS worker screening database

Chapter 7 — Other matters

Part 1 — Debt recovery

Division 1 — Debts

182 Debts due to the Agency

Division 2 — Methods of recovery

183 Legal proceedings

184 Arrangement for payment of debt

185 Recovery of amounts from financial institutions

Division 3 — Information relating to debts

186 Power to obtain information from a person who owes a debt

to the Agency

187 Power to obtain information about a person who owes a debt

to the Agency

188 Written notice of requirement

189 Offence—refusal or failure to comply with requirement

Division 4 — Non-recovery of debts

190 CEO may write off debt

…………………………………………….. 251

191 Power to waive Agency’s right to recover debt

………………………….

192 Waiver of debt arising from error

…………………………………… 252

193 Waiber of small debt

…………………………………………………. 252

194 Waiver in relation to settlements

………………………………… 253

195 Waiver in special circumstances

………………………………….. 254

Part 2—General matters

196 Method of notification by CEO

……………………………………. 255

197 CEO not required to make a decision

………………………… 255

197A Method of notification by Commissioner

…………………….. 255

197B Commissioner not required to make a decision …………………….

198 Protection of participant against liability for actions of persons ……………………………………………………………………. 256

199 Protection against criminal liability …………………………….. 256

200 Evidentiary effect of CEO’s certificate ……………………….. 256

200A Legal assistance for review not funded ………………………….

201 Delegation by the Minister to the CEO ……………………….. 257

201A Delegation by the Minister to the Commissioner ………….. 258

202 Delegation by the CEO ………………………………………………. 259

202A Delegation by the Commissioner ……………………………….. 260

202B Delegation of regulatory powers ………………………………… 260

203 Application of Act to unincorporated bodies ……………….. 261

204 Time frames for decision making by CEO …………………… 262

Part 3—Constitutional matters

205 Act binds Crown ………………………………………………………… 264

206 Alternative constitutional basis ………………………………….. 264

207 Concurrent operation of State laws …………………………….. 265

207A State or Territory agreement required in relation to certain delegations under this Act ………………………………………….

Part 4 — Review of the Act

208 Review of operation of Act ……………………………………….. 265

Part 5 — Legislative instruments

209 The National Disability Insurance Scheme rules ………….. 266

210 Regulations ……………………………………………………………… 271

Schedule 1 — Transitional provisions for staff of the

Agency

274

1 FaHCSIA agreement covers staff of the Agency ………………………………………………. 274

2 Instruments about transitional staffing matters ………………………………………………………………….. 274

Endnotes

275

Endnote 1 — About the endnotes……………………………………………………………………………………………………………… 275

Endnote 2 — Abbreviation key ………………………………………………………………………………………………………………… 277

Endnote 3 — Legislation history ………………………………………………………………………………………………………………. 278

Endnote 4 — Amendment history …………………………………………………………………………………………………………… 281

xiv National Disability Insurance Scheme Act 2013

Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Introduction Chapter 1

Preliminary Part 1

Section 1

An Act to establish the National Disability Insurance Scheme, and for related purposes

Chapter 1—Introduction

Part 1—Preliminary

• 1 Short title

This Act may be cited as the National Disability Insurance Scheme Act 2013.

• 2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details

1. Sections 1 and The day this Act receives the Royal Assent. 28 March 2013 2 and anything in this Act not elsewhere covered by this table
2. Sections 3 to The day after this Act receives the Royal 29 March 2013 12 Assent.

National Disability Insurance Scheme Act 2013 1

Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Chapter 1 Introduction

Part 1 Preliminary

Section 2

Commencement information

National Disability Insurance Scheme Act 2013

Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Introduction

Chapter 1

Preliminary

Part 1

Section 2

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

National Disability Insurance Scheme Act 2013 3

Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Chapter 1 Introduction

Part 2 Objects and principles

Section 3

Part 2—Objects and principles

3 Objects of Act

(1) The objects of this Act are to: (a) in conjunction with other laws, give effect to Australia’s general obligations under the Convention on the Rights of Personswith Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and (b) provide for the National Disability Insurance Scheme inAustralia; and (c) support the independence and social and economicparticipation of people with disability; and (d) provide reasonable and necessary supports, including earlyintervention supports, for participants in the NationalDisability Insurance Scheme; and Deleted: launch (e) enable people with disability to exercise choice and controlin the pursuit of their goals and the planning and delivery oftheir supports; and (f) facilitate the development of a nationally consistent approachto the access to, and the planning and funding of, supportsfor people with disability; and (g) promote the provision of high quality and innovativesupports that enable people with disability to maximiseindependent lifestyles and full inclusion in the community; and (ga) protect and prevent people with disability from experiencingharm arising from poor quality or unsafe supports or servicesprovided under the National Disability Insurance Scheme; and (h) raise community awareness of the issues that affect thesocialand economic participation of people with disability, andfacilitate greater community inclusion of people withdisease; and

Introduction Chapter 1

Objects and principles Part 2

Section 3

(i) in conjunction with other laws, give effect to certain obligations that Australia has as a party to: (i) the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and (ii) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); and (iii) the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and (iv) the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and (v) the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40).

Note: In 2013, the text of a Convention or Covenant in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

(2) These objects are to be achieved by: (a) providing the foundation for governments to work together to develop and implement the National Disability Insurance Scheme; and redacted (b) adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability; and (c) establishing a national regulatory framework for persons and entities who provide supports and services to people with disability, including certain supports and services provided outside the National Disability Insurance Scheme.

(3) In giving effect to the objects of the Act, regard is to be had to:redacted (b) the need to ensure the financial sustainability of the National Disability Insurance Scheme; and (c) the broad context of disability reform provided for in:

National Disability Insurance Scheme Act 2013 5 Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Chapter 1 Introduction

Part 2 Objects and principles

Section 4

(i) the National Disability Strategy 2010-2020 as endorsed by COAG on 13 February 2011; and (ii) the Carer Recognition Act 2010; and d) the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.

4 General principles guiding actions under this Act

(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.

(2) People with disability should be supported to participate in and contribute to social and economic life. Deleted: to the extent of their ability

(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.

(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.

(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.

(6) 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.

(7) People with disability have the same right as other members of Australian society to pursue any grievance.

(8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives. Deleted: , to the full extent of their capacity

National Disability Insurance Scheme Act 2013

Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Introduction Chapter 1

Objects and principles Part 2

Section 4

(9) People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs. (9A) People with disability are central to the National Disability Insurance Scheme and should be included in a co-design capacity.(10) People with disability should have their privacy and dignity respected.(11) Reasonable and necessary supports for people with disability should: (a) support people with disability to pursue their goals and maximise their independence; and (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 community and in employment.(12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.(12A) The relationship between people with disability and their families and carers is to be recognised and respected.(13) The role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by: (a) promoting their independence and social and economic participation; and (b) promoting choice and control in the pursuit of their goals and the planning and delivery of their supports; and (c) maximising independent lifestyles of people with disability and their full inclusion in the community. (14) People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted

Chapter 1 Introduction

Part 2 Objects and principles

Section 5

to coordinate these supports with the supports provided under the National Disability Insurance Scheme.

(15) In exercising their right to choice and control, people with disability require access to a diverse and sustainable market for disability supports in which innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of those supports is promoted.. redacted

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

It is the intention of the Parliament that the Ministerial Council, the redacted: sMinister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme. redacted: it is the intention of the parliament that the ministerial council, the minister, the board, the ceo, the commissioner and any other person or body is to perform functions and exercise powers under this act in accordance with these! (a)!principles,the progressivehavingimplementationregard to:¶ of the national disability insurance scheme; and¶

it is the intention of the parliament that, if this act requires or ! (b)! the need to ensure the financial sustainability of the national disability insurance scheme.

if this act requires or permits an act or thing to be done by or in relation to a person with disability by another person, the act or thing is to be done, so far as practicable, in accordance with both the general principles set out in section 4 and the following principles: (a) people with disability should be involved in decision making processes that affect them, and where possible make decisions for themselves; (b) people with disability should be encouraged to engage in the life of the community; (c) the judgements and decisions that people with disability would have made for themselves should be taken into account; (d) the cultural and linguistic circumstances, and the sex, gender redacted: and the gender, identity, sexual orientation and intersex status, of people with disability should be taken into account;

8 National Disability Insurance Scheme Act 2013

Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Introduction Chapter 1

Objects and principles Part 2

Section 6

(e) the supportive relationships, friendships and connections with others of people with disability should be recognised; (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.

6 Agency may provide support and assistance To support people with disability to exercise choice and control in the pursuit of their goals, the Agency may provide support and assistance (including financial assistance) to prospective participants and participants in relation to doing things or meeting obligations under, or for the purposes of, this Act.

Note: For example, the Agency might assist a participant to prepare the participant’s statement of goals and aspirations by assisting the participant to clarify his or her goals, objectives and aspirations.

7 Provision of notice, approved form or information under this Act etc. (1) The contents of any notice, approved form or information given under this Act, the regulations or the National Disability Insurance Scheme rules to a person with disability must be explained by the giver of the notice, approved form or information to the maximum extent possible to the person in the language, mode of communication and terms which that person is most likely to understand.

(2) An explanation given under subsection (1) must be given both orally and in writing if reasonably practicable.

Chapter 1 Introduction

Part 3 Simplified outline

Section 8

Part 3—Simplified outline

8 Simplified outline

The following is a simplified outline of this Act:

This Act provides for the National Disability Insurance Scheme.

The National Disability Insurance Scheme comprises: (a) the provision of services or activities that are in the nature of coordination, strategic or referral services or activities (Chapters 2 and 3); and (b) funding for persons or entities to enable them to assist people with disability to participate in economic and social life (Chapter 2); and c) individual plans under which reasonable and necessary supports will be funded for certain people, called participants (Chapter 3).

This Act includes administrative provisions supporting the operation of the National Disability Insurance Scheme (Chapters 4 and 5), such as: a) provisions to ensure the National Disability Insurance Scheme’s integrity, including limited powers to obtain information, and requirements relating to protection of information; and b) provisions relating to children; and c) provisions for nominees; and d) provisions for review of decisions; and e) provisions about the treatment of compensation.

This Act also provides for the regulation of persons and entities who provide supports and services to people with disability under the National Disability Insurance Scheme. It also regulates supports and services provided outside the National Disability Insurance Scheme in certain circumstances.

Introduction Chapter 1

Simplified outline Part 3

Section 8

A person with disability may receive supports or services from Deleted: Depending on where a person with disability registered NDIS providers (Part 3A of Chapter 4). Supports and lives, he or she may receive supports or services from registered providers of supports (Part 3 of Chapter 4) or from registered NDIS providers (Part 3A of Chapter 4). Supports and services may also be received from providers who are not registered. This Act also creates the National Disability Insurance Agency (Chapter 6). The functions of the Agency include delivering the National Disability Insurance Scheme. The Agency also has more general functions, such as: (a) developing and enhancing the disability sector, including by facilitating innovation, research and contemporary best practice in the sector; and (b) building community awareness of disabilities and the social contributors to disabilities.

Chapter 6 also: (a) establishes the Board of the Agency; and (b) establishes an Independent Advisory Council; and (c) provides for the Chief Executive Officer and staff of the Agency; and (d) provides for reporting and financial matters.

The NDIS Quality and Safeguards Commission and the office of the NDIS Quality and Safegards Commissioner are also established by this Act (Chapter 6A).

The functions of the Commissioner include: (a) functions relating to the quality and safety of services and supports provided to people with disability; and (b) registering and overseeing the operation of NDIS providers; and (c) managing and resolving complaints about NDIS providers; and (d) providing leadership in relation to behaviour supports; and (e) establishing, operating and maintaining the NDIS worker screening database (Chapter 6B).

National Disability Insurance Scheme Act 2013 11

Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Chapter 1 Introduction

Part 3 Simplified outline

Section 8

Chapter 7 includes provisions relating to general matters, such as: (a) debts; and (b) and Deleted: review of the Act; (c) legislative instruments.

12 National Disability Insurance Scheme Act 2013

Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Introduction Chapter 1

Definitions Part 4

Section 9

Part 4—Definitions

9 Definitions

In this Act:

• access request has the meaning given by section 18.
• Advisory Council means the Independent Advisory Council established by section 143.
• redacted means the National Disability Insurance Agency referred to in subsection 117(1). Deleted: means the National Disability Insurance Scheme Launch Transition Agency established by section 117
• Agency officer means:
  • (a) a member of the staff of the Agency under section 169; or
  • (b) a person assisting the Agency under section 170.
• annual financial sustainability report means a report prepared under subsection 180B(1).
• approved form, in relation to a provision of this Act, means a form approved under section 9A for the purposes of that provision.
• approved quality auditor means a person or body approved by the Commissioner under section 73U.
• banning order means an order made under section 73ZN.
• behaviour support function has the meaning given by section 181H.
• Board means the Board of the National Disability Insurance Agency referred to in section 123. Deleted: means the Board of the Agency established by section 123
• Board member means a member of the Board (and includes the Chair).
• carer means an individual who:

National Disability Insurance Scheme Act 2013 13 Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Chapter 1 Introduction

Part 4 Definitions

Section 9

(a) provides personal care, support and assistance to another individual who needs it because that other individual is a person with disability; and (b) does not provide the care, support and assistance: (i) under a contract of service or a contract for the provision of services; or (ii) in the course of doing voluntary work for a charitable, welfare or community organisation; or (iii) as part of the requirements of a course of education or training.

centrelink program has the same meaning as in the Human Services (Centrelink) Act 1997.

CEO means the Chief Executive Officer of the Agency.

Chair means the Chair of the Board.

child means a person who is under 18 years of age.

civil penalty provision has the same meaning as in the Regulatory Powers Act.

COAG means the Council of Australian Governments.

Commission means the NDIS Quality and Safeguards Commission established by section 181A.

Commissioner means the Commissioner of the NDIS Quality and Safeguards Commission referred to in section 181C.

Commission officer means: (a) a member of the staff of the Commission under section 181U; or (b) a person assisting the Commissioner under section 181W.

Commonwealth Ombudsman means the person for the time being holding office as Commonwealth Ombudsman under the Ombudsman Act 1976.

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Introduction Chapter 1

Definitions Part 4

Section 9

compensation has the meaning given by section 11.

complaints functions has the meaning given by section 181G.

compliance notice means a notice given under section 73ZM.

core functions has the meaning given by section 181E.

correspondence nominee means a person who is appointed as the correspondence nominee of a participant under section 87.

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

decision-maker for a reviewable decision means:

• (a) for a reviewable decision referred to in column 1 of the table in subsection 99(1)—the person referred to in column 3 of that table in relation to that decision; or
• (b) for a reviewable decision specified in the National Disability Insurance Scheme rules for the purposes of subsection 99(2)—the person specified in the rules as the decision-maker for that decision.

developmental delay means a delay in the development of a child under 6 years of age that:

• (a) is attributable to a mental or physical impairment or a combination of mental and physical impairments; and
• (b) results in substantial reduction in functional capacity in one or more of the following areas of major life activity:
  • (i) self-care;
  • (ii) receptive and expressive language;
  • (iii) cognitive development;
  • (iv) motor development; and
• (c) results in the need for a combination and sequence of special interdisciplinary or generic care, treatment or other services that are of extended duration and are individually planned and coordinated.

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Chapter 1 Introduction

Part 4 Definitions

Section 9

disclose, in relation to information in the NDIS worker screening database, includes provide electronic access to the information.

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

enters into an agreement to give up his or her right to compensation: a participant or prospective participant enters into an agreement to give up his or her right to compensation if he or she:

• (a) enters into an agreement to waive his or her right to compensation; or
• (b) enters into an agreement to withdraw his or her claim for compensation.

entity means a partnership or an unincorporated association.

entry, in relation to a person and a residential care service, has the same meaning as in the Aged Care Act 1997.

Finance Minister means the Minister administering the Public Governance, Performance and Accountability Act 2013. 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.¶ financial institution means a corporation that is an ADI for the purposes of the Banking Act 1959. general supports has the meaning given by subsection 13(2). grace period has the meaning given by subsection 40(2). holder, in relation to a visa, has the same meaning as in the Migration Act 1958. home care has the same meaning as in the Aged Care Act 1997. host jurisdiction means the following:

• (a) each of the States;
• (b) the Australian Capital Territory;
• (c) the Northern Territory.

Introduction Chapter 1

Definitions Part 4

Section 9

host jurisdiction Minister for a host jurisdiction means a Minister of the host jurisdiction who is a member of the Ministerial Council.

independent advocate, in relation to a person with disability, means a person who: (a) is independent of the Agency, the Commission and any NDIS providers providing supports or services to the person with disability; and (b) provides independent advocacy for the person with disability, to assist the person with disability to exercise choice and control and to have their voice heard in matters that affect them; and (c) acts at the direction of the person with disability, reflecting the person with disability’s expressed wishes, will, preferences and rights; and (d) is free of relevant conflicts of interest.

key personnel has the meaning given by section 11A.

managing the funding for supports under a participant’s plan has the meaning given by section 42.

medicare program has the same meaning as in the Human Services (Medicare) Act 1973.

meets the access criteria has the meaning given by section 21.

meets the age requirements has the meaning given by section 22.

meets the disability requirements has the meaning given by section 24.

meets the early intervention requirements has the meaning given by section 25.

meets the residence requirements has the meaning given by section 23.

Ministerial Council means a body:

Chapter 1 Introduction

Part 4 Definitions

Section 9

(a) that consists of Ministers of the Commonwealth, States and Territories; and (b) that has been designated by COAG as having responsibilities relating to the National Disability Insurance Scheme.

National Disability Insurance Scheme means the arrangements set out in Chapters 2 and 3. Deleted: :¶ ! (a)! the arrangements set out in Chapter 2; and¶ National Disability Insurance Scheme rules means the rules ! (b)! the arrangements set out in Chapter 3 in relation to people who meet the residence requirements because of their residence in a prescribed area and meet the age requirements (if any) in relation to a prescribed area; and¶ NDIS amount means an amount paid under the National Disability ! (c)! the arrangements referred to in paragraph (b) as they apply Insurance Scheme in respect of reasonable and necessary supports whenresidencethoseinarrangementsa prescribed area.are not limited on the basis of funded under a participant’s plan. Deleted: National Disability Insurance Scheme launch NDIS Code of Conduct means the National Disability Insurance means:¶! (a)! the arrangements set out in Chapter 2; and¶ Scheme rules made for the purposes of section 73V. ! (b)! the arrangements set out in Chapter 3 in relation to people who meet the residence requirements because of their residence in a prescribed area and meet the age requirements (if any) in relation to the prescribed area.¶

NDIS Practice Standards means the National Disability Insurance Scheme rules made for the purposes of section 73T.

               NDIS provider means:
                            (a) a person (other than the Agency) who receives:
                                         (i) funding under the arrangements set out in Chapter 2; or
                                         (ii) NDIS amounts (other than as a participant); or
                          (b) a person or entity:
                                         (i) who provides supports or services to people with
                                      disability other than under the National Disability
                                Insurance Scheme; and
                                         (ii) who is prescribed by the National Disability Insurance
                          Scheme rules for the purposes of this subparagraph.

NDIS Provider Register means the register maintained under section 73ZS.

NDIS worker screening check means an assessment, under an NDIS worker screening law, of whether a person who works, or seeks to work, with people with disability poses a risk to such people.

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Introduction Chapter 1

Definitions Part 4

Section 9

NDIS worker screening database means the database established under section 181Y.

NDIS worker screening law means a law of a State or Territory determined in an instrument under subsection 10B(1).

nominee means the correspondence nominee of a participant or the plan nominee of a participant.

otherwise engaged includes engaged on a voluntary basis.

paid work means work for financial gain or reward (whether as an employee, a self-employed person or otherwise).

parent: without limiting who is a parent of anyone for the purposes of this Act, a person is the parent of another person if the other person is a child of the person within the meaning of the Family Law Act 1975.

parental responsibility has the meaning given by section 75.

participant means a person who is a participant in the National Disability Insurance Scheme (see sections 28, 29 and 30). Deleted: launch

participant’s impairment means an impairment in relation to which the participant meets the disability requirements, or the early intervention requirements, to any extent.

participant’s statement of goals and aspirations has the meaning given by subsection 33(1).

redacted: participating jurisdiction has the meaning given by section 10A. permanent visa has the same meaning as in the Migration Act 1958.

plan, for a participant, means the participant’s plan that is in effect under section 37.

plan management request has the meaning given by subsection 43(1).

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Chapter 1 Introduction

Part 4 Definitions

Section 9

plan nominee means a person who is appointed as a plan nominee of a participant under section 86.

deleted: prescribed area means an area prescribed by the National Disability Insurance Scheme rules for the purposes of paragraph 22(2)(a) or subsection 23(3).

Principal Member means the Principal Member of the Advisory Council.

prospective participant means a person in relation to whom an access request has been made but not yet decided.

prospective participant’s impairment means an impairment in relation to which the prospective participant claims to meet the disability requirements, or the early intervention requirements, to any extent.

protected Agency information means: (a) information about a person that is or was held in the records of the Agency; or (b) information to the effect that there is no information about a person held in the records of the Agency.

protected Commission information means: (a) information about a person that is or was held in the records of the Commission; or (b) information to the effect that there is no information about a person held in the records of the Commission.

protected SCV holder: a person is a protected SCV holder if: (a) the person was in Australia on 26 February 2001, and was a special category visa holder on that day; or (b) the person had been in Australia for a period of, or for periods totalling, 12 months during the 2 years immediately before 26 February 2001, and returned to Australia after that day.

reassessment date of a participant’s plan means the date specified in the plan under paragraph 33(2)(c).

Introduction Chapter 1

Definitions Part 4

Section 9

recoverable amount has the meaning given by sections 106 and 107.

registered means registered under section 73E.

registered NDIS provider means a person or entity who is registered under section 73E.

registered plan management provider means an NDIS provider who is registered to manage the funding for supports under plans as mentioned in paragraph 73E(2)(a).

redacted for a provider providing supports to a participant in a participating jurisdiction—an NDIS provider who is registered to manage the funding for supports under plans as mentioned in paragraph 73E(2)(a); or¶ ! (b)! otherwise—a redacted of supports who is approved in relation to managing the funding for supports under plans as mentioned in paragraph 70(1)(a).¶

redacted provider of supports means a person or entity approved under section 70 as a redacted of supports.¶

registration and reportable incident functions has the meaning given by section 181F.

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.

reportable incident has the meaning given by subsections 73Z(4) and (5).

residential care service has the same meaning as in the Aged Care Act 1997.

restrictive practice means any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability.

reviewable decision has the meaning given by subsections 99(1) and (2).

reviewer has the meaning given by subsection 100(5).¶

redacted of a participant’s plan means the date specified in the plan under paragraph 33(2)(c).¶

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

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

special category visa has the same meaning as in the Migration Act 1958.

Chapter 1 Introduction

Part 4 Definitions

Section

statement of participant supports has the meaning given by subsection 33(2).

supports includes general supports.

9A Approved forms

(1) The CEO may, in writing, approve a form for the purposes of a provision of this Act.

(2) The CEO must publish each approved form on the Agency’s website.

redacted ! ! The Minister may, by legislative instrument, specify that a Stateor Territoryis a host jurisdiction, with the agreement of that Stateor Territory.¶ Note:! Section 42 (disallowance) of the Legislation Act 2003 does not apply to the instrument (see subsection 44(1) of that Act).¶

10B Definition of NDIS worker screening law

(1) The Minister may, by legislative instrument, determine a law of a State or Territory for the purposes of the definition of NDIS worker screening law in section 9, with the agreement of that State or Territory.

Note: Section 42 (disallowance) of the Legislation Act 2003 does not apply to the instrument (see subsection 44(1) of that Act).

(2) Before determining a law of a State or Territory, the Minister must be satisfied that the law establishes a scheme for the screening of workers for purposes including the National Disability Insurance Scheme.

11 Definitions relating to compensation

(1) In this Act: compensation means a payment (with or without admission of liability) in respect of: (a) compensation or damages in respect of personal injury; or (b) personal injury, under a scheme of insurance or compensation under a Commonwealth, State or Territory

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Introduction Chapter 1

Definitions Part 4

Section 11A

law, including a payment under a contract entered into under such a scheme; or (c) personal injury, in settlement of a claim for damages or a call under such an insurance scheme; that is wholly or partly in respect of the cost of supports that may be provided to a participant (whether or not specifically identified as such). It does not matter whether the payment is made directly to the person who sustained the personal injury or to another person in respect of that person.

(2) A payment referred to in subsection (1) may be: (a) in the form of a lump sum or in the form of a series of periodic payments; and (b) made within or outside Australia.

(3) In this Act, a reference to an insurer who is, under a contract of insurance, liable to indemnify a compensation payer or a potential compensation payer includes a reference to an authority of a State or Territory: (a) that is liable to indemnify a compensation payer or a potential compensation payer against such a liability, whether under a contract, law or otherwise; or (b) that determines to make a payment to indemnify a compensation payer or a potential compensation payer against such a liability, whether or not the authority is liable to do so.

11A Definition of key personnel

(1) Each of the following is one of the key personnel of a person or entity: (a) a member of the group of persons who is responsible for the executive decisions of the person or entity; (b) any other person who has authority or responsibility for (or significant influence over) planning, directing or controlling the activities of the person or entity.

Chapter 1 Introduction

Part 4 Definitions

Section 11A

(2) Without limiting paragraph (1)(a), a reference in that paragraph to a person who is responsible for the executive decisions of a person or entity includes: (a) if the person or entity is a body corporate that is incorporated, or taken to be incorporated, under the Corporations Act 2001— a director of the body corporate for the purposes of that Act; and (b) in any other case—an member of the person’s or entity’s governing body.

Introduction

Chapter 1

Ministerial Council

Part 5

Section 12

Part 5 — Ministerial Council

12 Ministerial Council functions etc.

(1) The Ministerial Council is to: (a) consider policy matters that relate to the National Disability Insurance Scheme or arise under this Act; and (b) advise the Minister about such matters; and (c) make recommendations to COAG about such matters.

(2) The advice and recommendations must not relate to a particular individual.

(3) The Minister must consult the Ministerial Council about policy matters that relate to the National Disability Insurance Scheme or arise under this Act.

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Chapter 2 Assistance for people with disability and others

Section 13

Chapter 2—Assistance for people with

disability and others

13 Agency may provide coordination, strategic and referral services etc.

to people with disability

(1) The Agency may provide general supports to, or in relation to, people with disability who are not participants.

Note: Chapter 3 deals with the provision of general supports to, or in relation to, participants.

(2) In this Act: general support means: (a) a service provided by the Agency to a person; or (b) an activity engaged in by the Agency in relation to a person; thatis in the nature of a coordination, strategic or referral service or activity, including a locally provided coordination, strategic or referral service or activity.

14 Agency may provide funding to persons or entities

(1) The Agency may provide assistance in the form of funding for persons or entities: (a) for the purposes of enabling those persons or entities to provide information in relation to disability and disability supports and services; or Deleted: for the purposes of enabling those persons or (aa) for the purposes of enabling those persons or entities to entities to assist people with disability to: provide assistance in building capacity within the community in connection with the provision of goods and services to people with disability and their families and carers; or (ab) for the purposes of enabling those persons or entities to assist people with disability to realise their potential for physical, social, emotional and intellectual development; or

Assistance for people with disability and others Chapter 2

Section 15

(ac) for the purposes of enabling those persons or entities to assist people with disability, and their families and carers, to participate in social and economic life; or (i) realise their potential for physical, social, emotional and intellectual development; and (ii) participate in social and economic life; and (b) otherwise in the performance of the Agency’s functions.

(2) Without limiting subsection (1), the Agency may provide funding to a person or entity: (a) to assist one or more participants to receive supports; or (b) to assist a participant who is a child aged under 7 to access supports, before the child’s plan comes into effect, in relation to the child’s disability needs (whether those needs arise because the child meets the disability requirements or meets the early intervention requirements).

(3) The National Disability Insurance Scheme rules may set out matters to which the Agency must have regard in deciding whether to provide funding under subsection (2).

15 Agency may provide information

(1) The Agency may provide information about the following: (a) matters relevant to the National Disability Insurance Scheme; (b) the functions of the Agency.

(2) The Agency must use its best endeavours to provide timely and accurate information to people with disability and other people in order to assist them in making informed decisions about matters relevant to the National Disability Insurance Scheme.

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Chapter 2 Assistance for people with disability and others

Section 16

16 Agency may assist in relation to doing things under Chapter

The Agency may provide support and assistance to people in relation to doing things under, or for the purposes of, this Chapter.

Section 17

17 National Disability Insurance Scheme rules

The National Disability Insurance Scheme rules may prescribe matters for and in relation to this Chapter.

Participants and their plans Chapter 3

Principles Part 1A

Section 17A

Chapter 3—Participants and their plans

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.

(1A) In performing the CEO’s functions and exercising the CEO’s 12 powers under this Chapter, the CEO must have regard to the 13 principles in this section.

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

(4) The principles in this section are in addition to the principles in section 4 to which the CEO is to have regard in performing the CEO’s functions and exercising the CEO’s powers under this Act.

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Chapter 3 Participants and their plans

Part 1 Becoming a participant

Section 18

Part 1—Becoming a participant

18 Person may make a request to become a participant

A person may make a request (an access request) to the Agency to become a participant in the National Disability Insurance Scheme. Deleted: launch

Note: Once a person becomes a participant, the CEO must commence to facilitate the preparation of his or her plan (see section 32).

19 Matters relating to access requests

(1) An access request must:

• be in the form (if any) approved by the CEO; and
• include any information, and be accompanied by any documents, required by the CEO; and
• certify that it includes all the information, and is accompanied by all the documents, required as mentioned in paragraph (b) that are in the possession or control of the person.

Note: The CEO is not required to make a decision on the access request if this section is not complied with (see section 197).

(2) If:

• a person has made an access request; and
• the CEO decides that the person does not meet the access criteria, or is taken to have so decided because of subsection 21(3); ithe person may make another access request at any time, unless at that time either of the following has been commenced, but not finally determined:
• a review (the initial review) under subsection 100(5) of the CEO’s decision;
• a review under section 103 of a decision on the initial review.

Participants and their plans Chapter 3

Becoming a participant Part 1

Section 20

20 CEO must consider and decide access requests

(1) If a person (the prospective participant) makes an access request, the CEO must: (a) decide whether or not the prospective participant meets the access criteria; or (b) make one or more requests under subsection 26(1).

(2) The CEO must do a thing referred to in paragraph (1)(a) or (b) 22 within the following number of days of receiving the access 23 request: 24 (a) 21 days, unless paragraph (b) applies; 25 (b) if the National Disability Insurance Scheme rules prescribe a 26 lesser number of days for the purposes of this paragraph— 27 that lesser number of days.

21 When a person meets the access criteria

(1) A person meets the access criteria if: (a) the CEO is satisfied that the person meets the age requirements (see section 22); and (b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and (c) the CEO is satisfied that, at the time of considering the request: (i) the person meets the disability requirements (see section 24); or (ii) the person meets the early intervention requirements (see section 25).

(2) If the CEO is not satisfied as mentioned in subsection (1), the person meets the access criteria if the CEO is satisfied of the following: redacted (b) the person: redacted;

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Chapter 3 Participants and their plans

Part 1 Becoming a participant

Section 22

(i) was receiving supports at the time of considering the request or, if another time is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph, at that other time; and (ii) received the supports throughout the period (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; and (iii) received the supports under a program prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; (c) if the person becomes a participant, the person would not be entitled to receive the supports referred to in paragraph (b), or equivalent supports; (d) the person satisfies any other requirements prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.

(3) The CEO is taken to have decided that the prospective participant does not meet the access criteria if: a) the CEO does not do a thing referred to in paragraph 20(1)(a) Deleted: paragraph 20(a) or (b) within the 21-day period or (b) within the period applicable 4 under section 20; or referred to in (b) if subsection 26(2) applies—the CEO does not do one of the things referred to in that subsection within the 14-day period referred to in that subsection.

Note : Notice of a decision that the CEO is taken to have made must be given Deleted: Note 1:! The periods may be extended under because of subsection 100(1) and will be automatically reviewed because of subsection 100(5).

22 Age requirements Deleted: (1)! A person meets the age requirements if:

age! (a)! the person was aged under 65 when the access request in relation to the person was made; and¶ age! (b)!thatthearepersonprescribedsatisfiesby theanyNationalother requirementsDisability Insurancein relation to Scheme rules.¶

23 Residence requirements Insurance! (2)! WithoutSchemelimitingrules paragraphmade for the(1)(b),purposesNationalof thatDisabilityparagraph:

a)! may prescribe that a person must be a prescribed age on a prescribed date or a date in a prescribed period only if the person resides! b)! mayin a prescribeprescribeddifferentarea of Australia;ages and differentand dates in relation to different areas of Australia.

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Participants and their plans Chapter 3

Becoming a participant Part 1

Section 24

(b) is one of the following: (i) an Australian citizen; (ii) the holder of a permanent visa; (iii) a special category visa holder who is a protected SCV redacted. Deleted: holder; and Deleted: (c)! satisfies the other requirements that are prescribed by the National Disability Insurance Scheme rules. (2) In deciding whether or not a person resides in Australia, regard must be had to: (a) the nature of the accommodation used by the person in Australia; and (b) the nature and extent of the family relationships the person has in Australia; and c) the nature and extent of the person’s employment, business or financial ties with Australia; and d) the nature and extent of the person’s assets located in Australia; and e) the frequency and duration of the person’s travel outside Australia; and (f) any other matter relevant to determining whether the person intends to remain permanently in Australia. Deleted: (3)! Without limiting paragraph (1)(c), National Disability Insurance Scheme rules made for the purposes of that paragraph: ! (a)! may require that a person reside in a prescribed area of Australia on a prescribed date or a date in a prescribed period in order to meet the residence requirements; and¶ for(b)!a prescribedmay requireperiodthat ina personorder tohasmeetresidedthe residencein a prescribed area requirements; and¶ (c)! may require that a person continue to reside in a prescribed area of Australia in order to meet the residence requirements; and¶ (d)! may require that a person satisfy a prescribed requirement relating to either or both of the following:¶ i! the purpose for which the person resides in a particular geographical area;¶ ii! exceptional circumstances applying in relation to the person.… Deleted: to one or more impairments attributable to a psychiatric condition

24 Disability requirements

(1) A person meets the disability requirements if: a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and b) the impairment or impairments are, or are likely to be, permanent; and c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities: National Disability Insurance Scheme Act 2013

Chapter 3 Participants and their plans

Part 1 Becoming a participant

Section 25

(i) communication; (ii) social interaction; (iii) learning; (iv) mobility; (v) self-care; (vi) self-management; and (d) the impairment or impairments affect the person’s capacity for social or economic participation; and (e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

(3) For the purposes of subsection (1), an impairment or impairments to which a psychosocial disability is attributable and that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.

(4) Subsection (3) does not limit subsection (2).

25 Early intervention requirements

(1) A person meets the early intervention requirements if: (a) the person: (i) has one or more identified intellectual, cognitive, nervous system, sensory or physical impairments that are, or are likely to be, permanent; or (ii) has one or more identified impairments to which a psychiatric condition is attributable and that are, or are likely to be, permanent; or (iii) is a child who has developmental delay; and

Participants and their plans Chapter 3

Becoming a participant Part 1

Section 25

(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.(1A) For the purposes of subparagraph (1)(a)(ii), an impairment or impairments to which a psychosocial disability is attributable and that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments. (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

Chapter 3 Participants and their plans

Part 1 Becoming a participant

Section 26

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.

26 Requests that the CEO may make

(1) The requests the CEO may make under this subsection after a prospective participant has made an access request (see paragraph redacted) are as follows: (a) that the prospective participant, or another person, provide information that is reasonably necessary for deciding whether or not the prospective participant meets the access criteria; (b) that the prospective participant do either or both of the following: i) undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment; ii) undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination.

(2) If: a) information or one or more reports are requested under subsection (1); and b) the information and each such report are received by the CEO within 90 days, or such longer period as is specified in the request, after that information or report is requested; The CEO must, within 14 days after the last information or report is received: c) decide whether or not the prospective participant meets the access criteria; or d) make a further request under subsection (1).

Participants and their plans Chapter 3

Becoming a participant Part 1

Section 27

(3) If: (a) information or one or more reports are requested under subsection (1); and (b) the information and each such report are not received by the CEO within 90 days, or such longer period as is specified in the request, after that information or report is requested; The prospective participant is taken to have withdrawn the access request, unless the CEO is satisfied that it was reasonable for the prospective participant not to have complied with the request made by the CEO within that period.

27 National Disability Insurance Scheme rules relating to disability requirements and early intervention requirements

(1) The National Disability Insurance Scheme rules may prescribe circumstances in which, or criteria to be applied in assessing whether: (a) one or more impairments are, or are likely to be, permanent for the purposes of paragraph 24(1)(b) or subparagraph 25(1)(a)(i) or (ii); or Deleted: 25(a)(i) or (ii) (b) one or more impairments result in substantially reduced functional capacity of a person to undertake one or more activities for the purposes of paragraph 24(1)(c); or Deleted: , or psychosocial functioning of a person in undertaking,… (c) one or more impairments affect a person’s capacity for social and economic participation for the purposes of paragraph 24(1)(d); or (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

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Section 28

(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).

(2) Subject to subsections 24(2) and (3) and 25(1A), National Disability Insurance Scheme rules made for the purposes of paragraph (1)(a) of this section may specify requirements that must be satisfied for an impairment to be considered permanent or likely to be permanent.

(3) National Disability Insurance Scheme rules made for the purposes of paragraph (1)(b) may specify requirements that must be satisfied for one or more impairments to be considered to result in substantially reduced functional capacity referred to in that paragraph.

28 When a person becomes a participant

(1) A person becomes a participant in the National Disability Insurance Scheme on the day the CEO decides that the person meets the access criteria. redacted

(2) The CEO must give written notice of the decision to the participant, stating the date on which the person became a participant.

29 When a person ceases to be a participant

(1) A person ceases to be a participant in the National Disability Insurance Scheme when: redacted (a) the person dies; or (b) the person enters a residential care service on a permanent basis, or starts being provided with home care on a permanent basis, and this first occurs only after the person turns 65 years of age; or

Participants and their plans Chapter 3

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Section 30

(c) the person’s status as a participant is revoked under section 30; or (d) the person notifies the CEO in writing that he or she no greater than the original text content, set is_low_confidence to true, and explain what’s uncertain in notes rather than guessing at structure.

What you SHOULD do freely (this is where the real work is):

• Fix heading levels: use ## for the page’s section heading if there is one, not for security markings, page labels, or repeated boilerplate.
• Multiple lines beginning with lowercase ‘e’ then a space are bullet-point lists (the lowercase ‘e’ being the bullet).
• Convert genuine lists into Markdown bullet (-) or numbered lists.
• Convert genuine tabular data into a proper Markdown table with | pipes and a header separator row. Set has_table to true if you do this.
• Join text that was wrapped mid-sentence by the source layout back into normal paragraphs. Keep genuine paragraph breaks.
• Remove hard line breaks that only exist because of the original page width, without changing any words.
• If a table is very large (many columns, many rows, or both), do not spend excessive effort forcing perfectly aligned Markdown table syntax. A simpler layout — for example one row per line with values separated by commas or pipes without column-width alignment — that preserves every value correctly is far better than a beautifully formatted table that’s incomplete or truncated. Completing the whole page matters more than table polish.
• Never represent blank or empty space on the page (margins, white space around a redaction, space where text was removed) with repeated blank lines or padding. A single blank line between sections is enough, regardless of how much visual empty space is on the source page. If the page is mostly empty, say so briefly in notes rather than trying to reproduce the emptiness.
• If the page includes a direct quotation — a person’s quoted words, quoted correspondence, or a quoted excerpt from legislation or another document — format it as a Markdown blockquote (a line starting with “> “), rather than as an ordinary paragraph. Keep the quoted wording exactly as printed.

Chapter 3 Participants and their plans

Part 2 Participants’ plans

Division 1 Principles relating to plans

Section 31

Part 2—Participants’ plans

Division 1—Principles relating to plans

31 Principles relating to plans

The preparation, variation, reassessment and replacement of a Deleted: review participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable: (a) be individualised; and (b) be directed by the participant; and (c) where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and (ca) where relevant, recognise and respect the relationship between participants and their families and carers; and (d) strengthen and build capacity of families and carers to Deleted: where possible, support participants who are children; and 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 (e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and (f) support communities to respond to the individual goals and needs of participants; and (g) be underpinned by the right of the participant to exercise control over his or her own life; and (h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and (i) maximise the choice and independence of the participant; and (j) facilitate tailored and flexible responses to the individual goals and needs of the participant;

Participants and their plans

Chapter 3

Participants’ plans

Part 2

Principles relating to plans

Division 1

Section 31

(k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.

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Part 2 Participants’ plans

Division 2 Preparing participants’ plans

Section 32

Division 2—Preparing participants’ plans

• redacted

32 CEO must facilitate preparation of participant’s plan

(1) If a person becomes a participant, the CEO must facilitate the preparation of the participant’s plan.

(2) The CEO must commence facilitating the preparation of the participant’s plan within 21 days of the person becoming a participant.

(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.

redacted: s47F — Personal privacy

33 Matters that must be included in a participant’s plan

(1) A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:

(a) the goals, objectives and aspirations of the participant; and (b) the environmental and personal context of the participant’s living, including the participant’s: (i) living arrangements; and (ii) informal community supports and other community services; iii social and economic participation.

(2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies: (a) the general supports (if any) that will be provided to, or in relation to, the participant; and (b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and (c) the date by which, or the circumstances in which, the Agency must reassess the plan under Division 4; and (d) redacted (e) redacted (f) redacted g. Other matters.

(section,(3)! Despite if the CEO subsection is satisfied 32(2) because subsection of the urgencyof this of the circumstances, it is appropriate to commence facilitating the preparation! (a)! The CEO may do so; and¶plan at a particular time:¶ b.! If doing so means that it is necessary not to commence facilitating the preparation of the plans of one or more other… [1] redacted

Participants and their plans Chapter 3

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(d) the management of the funding for supports under the plan (see also Division 3); and (e) the management of other aspects of the plan.

(3) The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.

(4) The CEO must decide whether or not to approve the statement of participant supports: Deleted: The CEO must endeavour to decide whether or not to approve the statement of participant supports as soon as reasonably practicable, including what is reasonably practicable having regard to section 36 (information and reports). (a) within the period worked out in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this paragraph (which may take account of section 36 (information and reports)); or (b) if there are no such rules—as soon as reasonably practicable, including what is reasonably practicable having regard to section 36 (information and reports).

(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must: (a) have regard to the participant’s statement of goals and aspirations; and (b) have regard to relevant assessments conducted in relation to the participant; and c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and (d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and (e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and (f) have regard to the operation and effectiveness of any previous plans of the participant.

Chapter 3 Participants and their plans

Part 2 Participants’ plans

Division 2 Preparing participants’ plans

Section 34

(6) To the extent that the funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only by a registered NDIS provider.

Deleted: To the extent that the funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only by: (a) for supports provided to a participant in a participating jurisdiction—a registered NDI provider; or (b) otherwise—a registered provider of supports.

(7) A participant’s plan may include additional matters, including such additional matters as are prescribed by the National Disability Insurance Scheme rules.

Note: For example, a participant’s plan may include arrangements for ongoing contact with the Agency.

(8) A participant’s statement of goals and aspirations need not be prepared by the participant in writing, but if it is prepared other than in writing, the Agency must record it in writing.

Note: Section 38 requires a copy of a participant’s plan to be provided to him or her.

34 Reasonable and necessary supports

(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support: (a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations; (b) the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation; (c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support; (d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice; (e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

Participants and their plans Chapter 3

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(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered: (i) as part of a universal service obligation; or (ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).

       35 National Disability Insurance Scheme rules for statement of

participant supports

(1) The National Disability Insurance Scheme rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports, including but not limited to prescribing: (a) methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and (b) reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and (c) reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants.

(2) The National Disability Insurance Scheme rules referred to in subsection (1) may relate to the manner in which supports are to be funded or provided and by whom supports are to be provided.

                                                  National Disability Insurance Scheme Act 2013                    45

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Division 2 Preparing participants’ plans

Section 36

(4) The National Disability Insurance Scheme rules referred to in subsection (1) may relate to how to take into account: (a) lump sum compensation payments that specifically include an amount for the cost of supports; and (b) lump sum compensation payments that do not specifically include an amount for the cost of supports; and (c) periodic compensation payments that the CEO is satisfied include an amount for the cost of supports.

(5) The National Disability Insurance Scheme rules referred to in subsection (1) may relate to how to take into account amounts that a participant or prospective participant did not receive by way of a compensation payment because he or she entered into an agreement to give up his or her right to compensation.

36 Information and reports for the purposes of preparing and approving a participant’s plan

(1) For the purposes of preparing a statement of participant supports, or deciding whether to approve a statement of participant supports, the CEO may make one or more requests under subsection (2).

(2) The requests the CEO may make are as follows: (a) that the participant, or another person, provide information that is reasonably necessary for the purposes of preparing the statement of participant supports, or deciding whether to approve the statement of participant supports; (b) that the participant do either or both of the following: (i) undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment; (ii) undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination.

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Section 37

(3) The CEO may prepare the statement of participant supports, or decide whether to approve a statement of participant supports, before all the information and reports requested under subsection (2) are received by the CEO, but must give the participant a reasonable opportunity to provide them.

Note: If information or reports are provided after the plan is approved, the plan can be varied or can be reassessed and if necessary replaced.redacted

When plan is in effect

(1) A participant’s plan comes into effect when the CEO has: (a) received the participant’s statement of goals and aspirations from the participant; and (b) approved the statement of participant supports.

Note: Division 4 deals with varying and replacing plans.

redacted(2)! A participant’s plan cannot be varied after it comes into effect, but can be replaced under Division 4.¶

(3) A participant’s plan ceases to be in effect at the earlier of the redactedNote:! Under Division 4, a participant may request a review of his or her plan at any time and may revise the participant’s statement of goals and aspirations at any time, which results in the replacement of the plan

(a) when it is replaced by another plan under Division 4; (b) when the participant ceases to be a participant.

Section 38 Copy of plan to be provided

The CEO must provide a copy of a participant’s plan to the participant within 7 days after the plan comes into effect.

Section 39 Agency must comply with the statement of participant supports

The Agency must comply with the statement of participant supports in a participant’s plan.

Section 40 Effect of temporary absence on plans

(1) A participant for whom a plan is in effect may be temporarily absent from Australia for the grace period for the absence without affecting the participant’s plan.

Chapter 3 Participants and their plans

Part 2 Participants’ plans

Division 2 Preparing participants’ plans

Section 41

(2) The grace period for a temporary absence of a participant is: (a) 6 weeks beginning when the participant leaves Australia; or (b) if the CEO is satisfied that it is appropriate for the grace period to be longer than 6 weeks—such longer period as the CEO decides, having regard to any matters and applying any criteria prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.

(3) If a participant for whom a plan is in effect is temporarily absent from Australia after the end of the grace period for the absence, the participant’s plan is suspended from the end of the grace period until the participant returns to Australia.

(4) For the purposes of this section, a person’s absence from Australia is temporary if, throughout the absence, the person does not cease to reside in Australia (within the meaning of paragraph 23(1)(a)).

41 Suspension of plans

(1) A statement of participant supports in a participant’s plan is suspended: (a) as mentioned in subsection 40(3) (which deals with temporary absence from Australia); and (b) as mentioned in subsection 105(2) (which deals with obtaining compensation).

(2) The effect of suspension of a statement of participant supports in a participant’s plan is that the plan remains in effect but, during the period of suspension: (a) the person is not entitled to be paid NDIS amounts, so far as the amounts relate to reasonable and necessary supports that would otherwise have been funded in respect of that period; and (b) the Agency is not required to provide or fund other supports under the plan, but is not prevented from doing so if the CEO considers it appropriate; and

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Preparing participants’ plans

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(c) the participant is not entitled to make a request under subsection 47A(2) for a variation of the plan or 22 make a request under subsection 48(2) for a reassessment of the plan.

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Part 2 Participants’ plans

Division 3 Managing the funding for supports under participants’ plans

Section 42

Division 3—Managing the funding for supports under

participants’ plans

42 Meaning of managing the funding for supports under a participant’s plan

(1) For the purposes of this Act, managing the funding for supports under a participant’s plan means doing one or more of the following:

• (a) purchasing the supports identified in the plan (including paying any applicable indirect costs, such as taxes, associated with the supports);
• (b) receiving any funding provided by the Agency; -(ba) managing any funding provided by the Agency;
• (c) acquitting any funding provided by the Agency.

(2) For the purposes of the statement of participant supports in a participant’s plan, in specifying the management of the funding for supports under the plan as mentioned in paragraph 33(2)(d), the plan must specify that such funding is to be managed wholly, or to a specified extent, by:

• (a) the participant; or
• (b) a registered plan management provider; or
• (c) the Agency; or
• (d) the plan nominee.

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Section 43

(c) that the funding for supports under the plan be managed wholly, or to the extent specified in the request, by the Agency.

(2) If a participant makes a plan management request, the statement of participant supports in the plan must give effect to the request, except to the extent set out in subsections (3) to (6).

(3) If: (a) a participant makes a plan management request covered by paragraph (1)(a); and (b) subsection 44(1) applies in relation to the participant; The statement of participant supports in the plan must provide for the funding for supports under the plan: (c) if paragraph 44(1)(a) applies—to be wholly managed by the Agency; and d) if paragraph 44(1)(b) applies—to be managed by the Agency to the extent covered by that paragraph.

(4) If: a) a participant makes a plan management request covered by paragraph (1)(b); b) subsection 44(2) applies in relation to the registered plan management provider; The statement of participant supports in the plan must provide for the funding for supports under the plan to be managed by the Agency to the extent covered by that subsection.

(5) If: a) the participant has a plan nominee; and b) subsection 44(2A) does not apply in relation to the nominee; c) the terms of the plan nominee’s appointment deal with the management of certain funding for supports under the plan; The statement of participant supports in the plan must provide for that funding to be managed in accordance with those terms.

(6) If: a) the participant has a plan nominee; and

Chapter 3 Participants and their plans

Part 2 Participants’ plans

Division 3 Managing the funding for supports under participants’ plans

Section 44

(b) subsection 44(2A) applies in relation to the nominee; and (c) the terms of the plan nominee’s appointment deal with the management of certain funding for supports under the plan; the statement of participant supports in the plan must provide for that funding: (d) if paragraph 44(2A)(a) applies—to be wholly managed by the Agency; and (e) if paragraph 44(2A)(b) applies—to be managed by the Agency to the extent covered by that paragraph.

(7) Subsection (3) or (4) does not apply to funding to the extent that subsection (5) or (6) applies to the funding.

No plan management request

(8) If a participant does not make a plan management request, the statement of participant supports in the plan must provide that the funding for supports under the plan is to be wholly managed by the Agency.

44 Circumstances in which persons must not manage funding redacted

Deleted: Circumstances in which participant must not manage plan to specified extent

Participant

(1) For the purposes of paragraph 43(3)(b), this subsection applies in relation to a participant if: (a) the participant is an insolvent under administration; or (b) the CEO is satisfied that the participant’s management of the funding for supports under the plan to a particular extent would: (i) present an unreasonable risk to the participant; or (ii) permit the participant to manage matters that are prescribed by the National Disability Insurance Scheme rules as being matters that must not be managed by a participant.

redacted

Registered plan management provider

redacted

Participants and their plans Chapter 3

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Managing the funding for supports under participants’ plans Division 3

Section 45

(2) For the purposes of paragraph 43(4)(b), this subsection applies in relation to a registered plan management provider if the CEO is satisfied that the provider’s management of the funding for supports under the plan to a particular extent would present an unreasonable risk to the participant.

Deleted: The statement of participant supports in a participant’s plan must not provide that the participant is to manage the funding for supports under his or her plan to a particular extent if the CEO is satisfied that management of the plan to that extent would:

(a) present an unreasonable risk to the participant; or¶ (b) permit the participant to manage matters that are prescribed by the National Disability Insurance Scheme rules as being matters that must not be managed by a participant.

Plan nominee

(2A) For the purposes of paragraphs 43(5)(b) and (6)(b), this subsection applies in relation to a plan nominee if: (a) the plan nominee is an insolvent under administration; or (b) the CEO is satisfied that the plan nominee’s management of the funding for supports under the plan to a particular extent would present an unreasonable risk to the participant.

Deleted: The statement of participant supports in a
participant’s plan must not provide that a plan nominee is to manage the funding for supports under the participant’s plan to a particularly extent if the CEO is satisfied that management of the planparticipant.to that extent would present an unreasonable risk to the participant.

(3) The National Disability Insurance Scheme rules may prescribe criteria the CEO is to apply and matters to which the CEO is to have regard in considering whether any of the following would present an unreasonable risk to the participant: (a) a participant managing the funding for supports under the plan; (aa) a registered plan management provider managing the funding for supports under the plan; (b) a plan nominee managing the funding for supports under the plan.

Deleted: either of

45 Payment of NDIS amounts

(1) An amount payable under the National Disability Insurance Scheme in respect of a participant’s plan is to be paid: (a) to the person determined by the CEO; and
(b) either: (i) in accordance with the National Disability Insurance Insurance Scheme rules prescribed for the purposes of this subparagraph; or (ii) if there are no such rules—in the manner determined by the CEO.

Deleted: An NDIS amount that is payable to a participant, or to a person who is managing the funding for supports under a participant’s plan, is to be paid at the time or times determined by the CEO in accordance with the National Disability Insurance Scheme rules; and in the manner (if any) prescribed by the National Disability Insurance Scheme rules.

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(2) Paragraph (1)(b) extends to dealing with: redacted (a) whether amounts are to be paid in instalments or as lump sums; and (b) if amounts are to be paid in instalments—the amounts of those instalments; and c) the timing of payments of amounts.

(3) The National Disability Insurance Scheme rules may provide that an amount is not payable to a person until the person nominates a bank account into which the amount is to be paid.

46 Acquittal of NDIS amounts

(1) A participant who receives an NDIS amount, or a person who receives an NDIS amount on behalf of a participant, must spend the money in accordance with the participant’s plan.

(2) The National Disability Insurance Scheme rules may make provision for and in relation to the retention of records of NDIS amounts paid to participants and other persons, including requiring that prescribed records be retained for a prescribed period.

(3) The National Disability Insurance Scheme rules may make provision for and in relation to the retention of records by NDIS providers that receive NDIS amounts on behalf of participants, including requiring that prescribed records be retained for a prescribed period.

46A Protection of NDIS amounts

(1) An NDIS amount is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.

(2) This section is subject to Part 1 of Chapter 7.

Participants and their plans Chapter 3

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Section 46B

46B Garnishee orders

General rule

(1) A court must not make an order in the nature of a garnishee order in respect of an account with a financial institution if: (a) one or more NDIS amounts for a particular participant have been paid to the credit of the account; and (b) the account has been kept solely for the purpose of managing the funding for supports under the participant’s plan.

Exception

(2) However, a court may make an order in the nature of a garnishee order in respect of the account if: (a) the order is made in favour of a person in relation to a debt that arose because of the person providing goods or services in relation to the participant; and (b) the goods or services are reasonable and necessary supports specified in the participant’s plan.

Chapter 3 Participants and their plans

Part 2 Participants’ plans

Division 4

Section 47

Division 4—Varying and replacing participants’ plans redacted

redacted: Reviewing and changing participants’ plans

47 Variation of participant’s plan—change of participant’s redacted statement of goals and aspirations goals and aspirations at any time

                    (1) A participant may give the CEO a changed version of the
                         participant’s statement of goals and aspirations at any time.

                        Note 1:    The participant may make a request under subsection 47A(2) for a 29               `redacted`: The participant may also request a review of his or
                                           variation of the participant’s plan or make a request under 30                            her plan at any time under subsection 48(1) and the CEO may
                                        subsection 48(2) for a reassessment of the participant’s plan.                           review a participant’s plan at any time under subsection 48(4)

                                  Note 2: The CEO may vary the plan under subsection 47A(1) or may
                                          reassess the plan under section 48, 49 or 49A.

                    (2)  If a participant gives a changed version of the participant’s
                      statement of goals and aspirations to the CEO, the participant’s
                      plan is taken to have been varied so that it includes that changed
                        version.                                                                         `redacted`: If a participant gives a changed version of the
                                                                                                                                                     participant’s statement of goals and aspirations to the CEO, the
                    (3) The Agency must provide a copy of the varied plan to the                           plan! (a)!is thetakenchangedto be replacedversion ofbythea newparticipant’splan comprising:¶statement of goals
                         participant within 7 days of receiving the changed version of the                 and aspirations; and¶
                         participant’s statement of goals and aspirations.                             ! (b)! the statement of participant supports in the existing plan.
                                                                                                           `redacted`: new

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Section 47

47A Variation of participant’s plan on request of participant or CEO’s own initiative

(1) The CEO may, in writing, vary a participant’s plan (except the participant’s statement of goals and aspirations) if the variation is:

(a) a change to the statement of participant supports in the circumstances prescribed by the National Disability Insurance Scheme rules; or

(b) a correction of a minor or technical error; or

(c) of a kind prescribed by the National Disability Insurance Scheme rules. Each variation must be prepared with the participant.

Variation on request of participant or CEO’s own initiative

(2) The CEO may vary the participant’s plan on request of the participant or on the CEO’s own initiative.

Requirements of CEO

(3) In varying the participant’s plan in relation to the statement of participant supports, the CEO must:

(a) have regard to the participant’s statement of goals and aspirations; and

(b) have regard to relevant assessments conducted in relation to the participant; and

(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35;

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Section 47

(e) have regard to the principle that a participant should manage the participant’s plan to the extent that the participant wishes to do so; and

(f) have regard to the operation and effectiveness of any previous plans of the participant.

Decision on request

(4) If the participant requests a variation of the participant’s plan, the CEO must before the end of the period of 21 days beginning on the day the CEO receives the request:

(a) make a decision under subsection (1) varying the plan; or

(b) make a decision not to vary the plan and not to reassess the plan under subsection 48(1); or

(c) make a decision not to vary the plan but to reassess the plan under subsection 48(1) instead; or

(d) inform the participant that the CEO requires further time to deceive whether or not the plan needs to be varied.

Note: If the CEO informs the person that the CEO requires further time to deceive whether or not the plan needs to be varied, see subsection (8) for the period for making a decision on the request.

(5) If the CEO does not do a thing under subsection (4) within that 21- day period, the CEO is taken to have decided not to vary the plan and not to reassess the plan under subsection 48(1).

Matters to which the CEO must have regard

(6) The National Disability Insurance Scheme rules may set out matters to which the CEO must have regard:

(a) in deciding whether to vary a participant’s plan on the CEO’s own initiative; or

(b) in doing a thing under subsection (4).

Notification of decision

Participants and their plans Chapter 3

Participants’ plans Part 2

Division 4

Section 47

(7) The CEO must notify the participant of a decision of the CEO under paragraph (4)(c).

Note: For notification of a decision under paragraph (4)(b), see subsection 100(1).

Time for decision on request

(8) If, under paragraph (4)(d), the CEO informs the participant that the CEO requires further time to decide whether or not the plan needs to be varied, the CEO must then vary the plan under subsection (1) or make a decision not to vary the plan:

(a) within the period worked out in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this paragraph (which may take account of section 50 (information and reports)); or

(b) if there are no such rules—as soon as reasonably practicable, including what is reasonably practicable having regard to section 50 (information and reports).

Variation may be different from the one the participant requested

(9) If the participant requests a variation of the participant’s plan, any variation under subsection (1) may be different from the one requested.

When variation takes effect

(10) A variation under subsection (1) takes effect on the day specified in the variation (which must not be earlier than the day the variation is made).

Agency to give participant a copy of varied plan

(11) The Agency must provide a copy of the varied plan to the participant within 7 days of the variation taking effect.

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Chapter 3 Participants and their plans

Part 2 Participants’ plans

Division 4

Section 48

*48 Reassessment of participant’s plan on request of participant or Deleted: Review of participant’s plan

(1) The CEO may conduct a reassessment of a participant’s plan at any time. Deleted: A participant may request that the CEO conduct a review of the participant’s plan at any time

Variation on request of participant or CEO’s own initiative

(2) The CEO may do so on request of the participant or on the CEO’s own initiative.. Deleted: The CEO must decide whether or not to conduct the review within 14 days after receiving the request. If the CEO does not make a decision within that period, he or she is taken to have decided not to conduct the review.¶

Decision on request

(3) If the participant requests a reassessment of the participant’s plan, the CEO must before the end of the period of 21 days beginning on the day the CEO receives the request: (a) make a decision that the plan needs to be varied under subsection 47A(1); or (b) make a decision that the plan needs to be reassessed; or (c) make a decision not to conduct a reassessment of the plan. Note: If the CEO decides the plan needs to be reassessed, see subsection (8) for the period for completing the reassessment..

(4) If the CEO does not make a decision under paragraph (3)(a), (b) or (c) within that 21-day period, the CEO is taken to have decided not to conduct a reassessment of the plan.

Matters to which the CEO must have regard

(5) The National Disability Insurance Scheme rules may set out Deleted: The CEO must conduct a review of a participant’s plan before the plan’s review date and in the circumstances, if any, specified in the plan. (a) in deciding whether to conduct a reassessment of a participant’s plan on the CEO’s own initiative; or (b) in making a decision under paragraph (3)(a), (b) or (c).

Notification of decision

(6) The CEO must notify the participant of the following: Deleted: The CEO must conduct a review of a participant’s plan in the circumstances (if any) prescribed by the National Disability Insurance Scheme rules. (a) a decision of the CEO to conduct a reassessment of the participant’s plan on the CEO’s own initiative; (b) a decision of the CEO under paragraph (3)(a) or (b).

Participants and their plans Chapter 3

Participants’ plans Part 2

Division 4

Section 49

Note: For notification of a decision under paragraph (3)(c), see sub-section

Outcome of reassessment

(7) If the CEO conducts a reassessment under sub-section (1) of a participant’s plan, the CEO must: (a) complete the reassessment; and (b) either: (i) vary, under sub-section 47A(1), the participant’s plan as a result of that reassessment; or (ii) prepare a new plan with the participant in accordance with Division 2 and approve, under subsection 33$(2)$, the statement of participant supports in the new plan.

Time for completing reassessment

(8) The CEO must do the things under paragraphs $(7)(a)$ and $(b):$ (a) within the period worked out in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this paragraph (which may take account of section $50$ (information and reports)); or (b) if there are no such rules as soon as reasonably practicable, including what is reasonably practicable having regard to section $50$ (information and reports).

Reassessment of participant’s plan before plan’s reassessment date

Deleted: Outcome of review

(1) The CEO must do the following before the reassessment date of a participant’s plan: (a) complete a reassessment of the plan; (b) either: (i) vary, under sub-section 47A$(1)$, the participant’s plan as a result of that reassessment; or (ii) prepare a new plan with the participant in accordance with Division 2 and approve, under sub-section 33(2), the statement of participant supports in the new plan.

Note 1: If the participant does not wish to change the participant’s statement of goals and aspirations, the statement remains unchanged and forms part of the new plan.¶

Division Note 2: Because a decision to approve the new plan would be made under subsection $(33)(2)$ and be reviewable under subsection (99)(1).

Chapter 3 Participants and their plans

Part 2 Participants’ plans

Division 4

Section 49A Reassessment of participant’s plan in circumstances specified in plan

(2) The CEO must start the reassessment under subsection (1) before the period (if any) worked out in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this subsection.

49A Reassessment of participant’s plan in circumstances specified in

plan

The CEO must conduct a reassessment of a participant’s plan in the circumstances, if any, specified in the plan.

50 Information and reports for the purposes of varying or

Deleted: Information and reports for the purposes of reassessing a participant’s plan

(1) For the purposes of varying or reassessing a participant’s plan, the CEO may make one or more requests under subsection (2).

(2) The requests the CEO may make are as follows: (a) that the participant, or another person, provide information that is reasonably necessary for the purposes of varying or Deleted: reviewing reassessing the participant’s plan; or (b) that the participant do either or both of the following: i. undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment; ii. undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination.

(3) The CEO may vary or reassess a participant’s plan before all the Deleted: review information and reports requested under subsection (2) are received by the CEO, but must give the participant a reasonable opportunity to provide them.

Participants and their plans

Chapter 3

Participants’ plans Part 2

Division 4

Section 50

Note: If information or reports are provided after the plan is varied or redacted, the plan can be varied or reassessed again and if necessary redacted replaced.

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Chapter 4 Administration

Part 1 General matters

Division 1 Participants and prospective participants

Section 51

Chapter 4—Administration

Part 1—General matters

Division 1—Participants and prospective participants

50J CEO to comply with requirements in relation to prospective participants or participants

The National Disability Insurance Scheme rules may prescribe requirements with which the CEO must comply in relation to the following: (a) the preparation of plans for participants; (b) plans that have come into effect for participants; (c) giving effect to decisions of the Administrative Appeals Tribunal in relation to prospective participants or participants.

51 Requirement to notify change of circumstances

(1) A participant or a prospective participant must notify the CEO if: (a) an event or change of circumstances happens that affects, or might affect, his or her access request, status as a participant or plan; or (b) the participant or prospective participant becomes aware that such an event or change of circumstances is likely to happen.

(2) The participant or prospective participant must notify the CEO: (a) in the manner set out in a written notice given to him or her under section 52; and (b) as soon as reasonably practicable after he or she becomes aware that the event or change of circumstances has happened or is likely to happen.

Administration Chapter 4

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Participants and prospective participants Division 1

Section 52

52 Requirements relating to notices

(1) The CEO must approve a manner of notification that a participant or prospective participant is to use when notifying the CEO in relation to an event or change of circumstances under section 51.

(2) The CEO must, by written notice, notify the participant or prospective participant of the approved manner of notification.

Section 53

Power to obtain information from participants and prospective participants to ensure the integrity of the National Disability Insurance Scheme

(1) If the CEO has reasonable grounds to believe that a participant or a prospective participant has information, or has custody or control of a document, that may be relevant to one or more of the matters mentioned in subsection (2), the CEO may require the participant or prospective participant to give the information, or produce the document, to the Agency.

(2) The matters are as follows: (a) the monitoring of supports funded for, or provided to, a participant; (b) whether NDIS amounts paid to the participant or to another person have been spent in accordance with the participant’s plan; (c) determining whether the participant was not entitled to be paid NDIS amounts because of the misleading statements or fraud of any person; (d) whether the participant or other person has complied with section 46; (e) whether the participant or prospective participant receives: (i) supports or funding through a statutory compensation scheme or a statutory care or support scheme; or (ii) any other disability or early intervention supports.

Chapter 4 Administration

Part 1 General matters

Division 1 Participants and prospective participants

Section 54

54 Written notice of requirement

(1) A requirement under section 53 must be made by written notice given to the person of whom the requirement is made.

(2) The notice must specify: (a) the nature of the information or document that is required to be given or produced; and (b) how the person is to give the information or produce the document; and (c) the period within which the person is to give the information or produce the document to the Agency; and (d) the Agency officer to whom the information is to be given or the document is to be produced; and (e) that the notice is given under this section.

(3) The period specified under paragraph (2)(c) must be at least 14 days beginning on the day on which the notice is given.

Administration Chapter 4

General matters Part 1

Other persons Division 2

Section 55

Division 2—Other persons

55 Power of CEO to obtain information from other persons to ensure the integrity of the National Disability Insurance Scheme

(1) If the CEO has reasonable grounds to believe that a person other than a participant or a prospective participant has information, or has custody or control of a document, that may be relevant to one or more of the matters mentioned in subsection (2), the CEO may require the person to give the information, or produce the document, to the Agency.

(2) The matters are as follows:

• (a) whether a prospective participant meets the access criteria;
• (b) whether a participant continues to meet the access criteria;
• (c) whether a person purporting to act on a person’s behalf for the purposes of this Act has the authority to do so;
• (d) the preparation or variation or reassessment of a participant’s plan; redacted
• (e) the monitoring of supports funded for, or provided to, a participant;
• (f) whether NDIS amounts paid to the participant or to another person have been spent in accordance with the participant’s plan;
• (g) whether a participant or other person has complied with section 46;
• (h) whether a participant receives:
  • (i) supports or funding through a statutory compensation scheme or a statutory care or support scheme; or
  • (ii) any other disability support; redacted k) the functions of the Agency.`

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Chapter 4 Administration

Part 1 General matters

Division 2 Other persons

Section 55A

55A Power of Commissioner to obtain information from other persons to ensure the integrity of the National Disability Insurance Scheme etc. (1) If the Commissioner reasonably believes that a person, other than a prospective participant or a person receiving supports or services from an NDIS provider, has information, or has custody or control of a document, that may be relevant to one or more of the matters mentioned in subsection (2), the Commissioner may require the person to give the information, or produce the document, to the Commissioner.

(2) The matters are as follows:

• (a) whether an NDIS provider is contravening subsection 73B(2) (requirement to be a registered NDIS provider);
• (b) whether a person applying for registration under subsection 73E(1) satisfies the requirements mentioned in that subsection;
• (c) whether a registered NDIS provider is meeting the conditions of registration mentioned in subsection 73F(1);
• (d) whether an NDIS provider, or a person employed or otherwise engaged by an NDIS provider, is complying with the requirements of the NDIS Code of Conduct;
• (e) if an NDIS provider, or other person, is subject to a banning order—whether the person is providing supports or services in contravention of the order;
• (f) the functions of the Commissioner.

Section 56 Written notice of requirement

56

(1) A requirement under section 55 or 55A must be made by written notice given to the person of whom the requirement is made.

(2) The notice must specify:

• (a) the nature of the information or document that is required to be given or produced; and

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Section 57

(b) how the person is to give the information or produce the document; and (c) the period within which the person is to give the information or produce the document to the Agency or Commissioner; and (d) if the notice is given by the CEO—the Agency officer to whom the information is to be given or the document is to be produced; and (da) if the notice is given by the Commissioner—the Commission officer to whom the information is to be given or the document is to be produced; and (e) that the notice is given under this section.

(3) The period specified under paragraph (2)(c) must be at least 14 days beginning on the day on which the notice is given.

(4) If the notice is given by the CEO: (a) the notice may require the person to give the information by appearing before a specified Agency officer to answer questions; and (b) if paragraph (a) applies—the notice must specify a time and place at which the person is to appear, which must be at least 14 days after the notice is given.

(5) If the notice is given by the Commissioner: (a) the notice may require the person to give the information by appearing before a specified Commission officer to answer questions; and (b) if paragraph (a) applies—the notice must specify a time and place at which the person is to appear, which must be at least 14 days after the notice is given.

57 Offence—refusal or failure to comply with requirement

(1) A person must not refuse or fail to comply with a requirement under section 55 or 55A to give information or produce a document.

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Division 2 Other persons

Section 57

Penalty: 30 penalty units.

Note: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

(2) Subsection (1) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.

(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.

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Administration Chapter 4

General matters Part 1

Interaction with other laws Division 3

Section 58

Division 3—Interaction with other laws

58 Obligations not affected by State or Territory laws

(1) Subject to subsection (2), nothing in a law of a State or a Territory prevents a person from:

• giving information; or
• producing a document; or
• giving evidence; than the person is required to give or produce to the Agency, an Agency officer, the Commissioner or a Commission officer for the purposes of this Act.

(2) Despite subsection (1), a person is not required to give information, produce a document or give evidence to the Agency, an Agency officer, the Commissioner or a Commission officer for the purposes of this Act if:

• the person would, apart from subsection (1), be prevented from doing so under a law of a State or Territory; and
• the law of the State or Territory is prescribed by the National disability Insurance Scheme rules for the purposes of this paragraph.

59 Interaction with Commonwealth laws

This Part does not require a person to give information or produce a document to the extent that in doing so the person would contravene a law of the Commonwealth.

Chapter 4 Administration

Part 2 Privacy

Division 1 Information held by the Agency

Section 60

Part 2—Privacy

Division 1—Information held by the Agency

60 Protection of information held by the Agency etc.

(2) A person may: (a) make a record of protected Agency information; or (b) disclose such information to any person; or (c) otherwise use such information; if: (d) the making of the record, or the disclosure or use of the information, by the person is made: (i) for the purposes of this Act; or (ii) for the purpose for which the information was disclosed to the person under section 66; or (iii) with the express or implied consent of the person towhom the information relates; or (e) the person believes on reasonable grounds that the making ofthe record, or the disclosure or use of the information, by theperson is necessary to prevent or lessen a serious threat to anindividual’s life, health or safety.

(3) Without limiting subsection (2), the recording disclosure or use ofinformation by a person is taken to be for the purposes of this Actif the CEO believes, on reasonable grounds, that it is reasonablynecessary for one or more of the following purposes: (a) research into matters relevant to the National DisabilityInsurance Scheme; (b) actuarial analysis of matters relevant to the NationalDisability Insurance Scheme; (c) policy development.

Administration Chapter 4

Privacy Part 2

Information held by the Agency Division 1

Section

• 62 Offence—unauthorised use or disclosure of protected Agency information Deleted: 61 Offence—unauthorised access to protected information¶! ! A person commits an offence if:¶ ! (a)! the person collects information; and¶ (b)! the person is not authorised or required by or under this Act! (c)!to thecollectinformationthe information;is protectedand¶information.¶ Penalty:! Imprisonment for 2 years or 120 penalty units, or both.¶ Note:! If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.¶

• A person commits an offence if:

  • (a) the person:
    • (i) makes a record of information; or
    • (ii) discloses information to any other person; or
    • (iii) otherwise makes use of information; and
  • (b) the person is not authorised or required by or under this Act to make the record, disclosure or use of the information that is made by the person; and
  • (c) the information is protected Agency information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Note: If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

63 Offence—soliciting disclosure of protected Agency information

A person (the first person) commits an offence if: (a) the first person solicits the disclosure of information from an Agency officer or another person, whether or not any protected Agency information is actually disclosed; and (b) the disclosure would be in contravention of this Part; and (c) the information is protected Agency information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Note: If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

64 Offence—offering to supply protected Agency information

(1) A person commits an offence if:

Chapter 4 Administration

Part 2 Privacy

Division 1 Information held by the Agency

Section 66

(a) the person offers to supply (whether to a particular person or otherwise) information about another person; and (b) the person knows the information is protected Agency information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Note: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

(2) A person commits an offence if: (a) the person holds himself or herself out as being able to supply (whether to a particular person or otherwise) information about another person; and (b) the person knows the information is protected Agency information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Note: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

(3) Subsections (1) and (2) do not apply to a person acting in the performance or exercise of his or her duties, functions or powers under this Act.

66 Disclosure of information by CEO

(1) Despite sections 62, 64 and 67G, the CEO may: (a) if the CEO is satisfied on reasonable grounds that it is in the public interest to do so in a particular case or class of cases— disclose information acquired by a person in the performance of his or her functions or duties or in the exercise of his or her powers under this Act to such persons and for such purposes as the CEO determines; or (b) disclose any such information: (i) to the Secretary of a Department of State of the Commonwealth, or to the head of an authority of the

Administration Chapter 4

Privacy Part 2

Information held by the Agency Division 1

Section 66

Commonwealth, for the purposes of that Department or authority; or (ii) to a person who has the express or implied consent of the person to whom the information relates to collect it; or (iii) to the Chief Executive Centrelink for the purposes of a centrelink program; or (iv) to the Chief Executive Medicare for the purposes of a medicare program; or (v) to the chief executive (however described) of a Department of State of a State or Territory, or to the head of an authority of a State or Territory, for the purposes of that Department or authority.

(2) In disclosing information for the purposes of paragraph (1)(a) or subparagraph (1)(b)(i) or (v), the CEO must act in accordance with any National Disability Insurance Scheme rules made for the purposes of section 67.

(3) Despite any other provision of this Part, the CEO may disclose protected Agency information to a participant’s nominee if the protected Agency information: (a) relates to the participant; and (b) is or was held in the records of the Agency.

(4) If: (a) the CEO or an Agency officer is served with a summons or notice, or is otherwise subject to a requirement, under the Royal Commissions Act 1902; and (b) in order to comply with the summons, notice or requirement, the CEO or Agency officer would be required to disclose information that is protected Agency information; then, despite sections 62 and 67G of this Act, the CEO or Agency officer must, subject to the Royal Commissions Act 1902, disclose that information. The information is taken to have been disclosed for the purposes of the Royal Commissions Act 1902 and of the Royal Commission concerned.

Chapter 4 Administration

Part 2 Privacy

Division 1 Information held by the Agency

Section 67

67 National Disability Insurance Scheme rules for exercise of CEO’s disclosure powers

The National Disability Insurance Scheme rules may make provision for and in relation to the exercise of the CEO’s power to disclose information for the purposes of paragraph 66(1)(a) or subparagraph 66(1)(b)(i) or (v).

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Administration Chapter 4

Privacy Part 2

Information held by the Commission Division 2

Section 67A

Division 2 — Information held by the Commission

67A Protection of information held by the Commission etc.

(1) A person may: (a) make a record of protected Commission information; or (b) disclose such information to any person; or (c) otherwise use such information; if: (d) the making of the record, or the disclosure or use of the information, by the person is made: (i) for the purposes of this Act; or (ii) for the purpose for which the information was disclosed to the person under section 67E; or (iii) with the express or implied consent of the person to whom the information relates; or (e) the person reasonably believes that the making of the record, or the disclosure or use of the information, by the person is necessary to prevent or lessen a serious threat to an individual’s life, health or safety.

(2) Without limiting subsection (1), the recording, disclosure or use of information by a person is taken to be for the purposes of this Act if the Commissioner reasonably believes that it is reasonably necessary for one or more of the following purposes: (a) research into matters relevant to the National Disability Insurance Scheme; (b) policy development.

67B Offence — unauthorized use or disclosure of protected Commission information

A person commits an offence if: (a) the person: (i) makes a record of information; or (ii) discloses information to any other person; or

Chapter 4 Administration

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Division 2 Information held by the Commission

Section 67C

(iii) otherwise makes use of information; and (b) the person is not authorised or required by or under this Act to make the record, disclosure or use of the information that is made by the person; and (c) the information is protected Commission information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Note: If a body corporate is convicted of an offence against this section, s subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

67C Offence—soliciting disclosure of protected Commission

information

A person (the first person) commits an offence if: (a) the first person solicits the disclosure of information from a Commission officer or another person, whether or not any protected Commission information is actually disclosed; and (b) the disclosure would be in contravention of this Part; and (c) the information is protected Commission information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Note: If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

67D Offence—offering to supply protected Commission information

(1) A person commits an offence if: (a) the person offers to supply (whether to a particular person or otherwise) information about another person; and (b) the person knows the information is protected Commission information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Note: If a body corporate is convicted of an offence against this subsection, s ubsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

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Privacy Part 2

Information held by the Commission Division 2

Section 67E

(2) A person commits an offence if: (a) the person holds himself or herself out as being able to supply (whether to a particular person or otherwise) information about another person; and (b) the person knows the information is protected Commission information. Penalty: Imprisonment for 2 years or 120 penalty units, or both. Note: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above. (3) Subsections (1) and (2) do not apply to a person acting in the performance or exercise of his or her duties, functions or powers under this Act.

67E Disclosure of information by Commissioner (1) Despite sections 67B, 67D and 67G, the Commissioner may: a) if the Commissioner is satisfied on reasonable grounds that it is in the public interest to do so in a particular case or class of cases—disclose information acquired by a person in the performance of his or her functions or duties or in the exercise of his or her powers under this Act to such persons and for such purposes as the Commissioner determines; orb) disclose any such information:(i) to the Secretary of a Department of State of the Commonwealth, or to the head of an authority of the Commonwealth, for the purposes of that Department or authority; or(ii) to a person who has the express or implied consent of the person to whom the information relates to collect it; or(iii) to a Department of State of a State or Territory, or to an authority of a State or Territory, that has responsibility for matters relating to people with disability, including the provision of supports or services to people with disability;

Chapter 4 Administration

Part 2 Privacy

Division 2 Information held by the Commission

Section 67F

(iv) to the chief executive (however described) of a Department of State of a State or Territory, or to the top of an authority of a State or Territory, for the purposes of that Department or authority.

(2) In disclosing information for the purposes of paragraph (1)(a) or subparagraph (1)(b)(i), (iii) or (iv), the Commissioner must act in accordance with the National Disability Insurance Scheme rules made for the purposes of section 67F.

(3) Despite any other provision of this Part, the Commissioner may disclose protected Commission information to a participant’s nominee if the protected Commission information: (a) relates to the participant; and (b) is or was held in the records of the Commission.

(4) If: (a) the Commissioner or a Commission officer is served with a summons or notice, or is otherwise subject to a requirement, in order to comply with the summons, notice or requirement, The Commissioner or Commission officer would be required to disclose information that is protected Commission information; than, despite sections 67B and 67G of this Act, the Commissioner or Commission officer must, subject to the Royal Commissions Act 1902, disclose that information. The information is taken to have been disclosed for the purposes of the Royal Commissions Act 1902 and of the Royal Commission concerned.

67F National Disability Insurance Scheme rules for exercise of

Commissioner’s disclosure powers

The National Disability Insurance Scheme rules may make provision for and in relation to the exercise of the Commissioner’s power to disclose information for the purposes of paragraph 67E(1)(a) or subparagraph 67E(1)(b)(i), (iii) or (iv).

Administration Chapter 4

Information generally Division 3

Section 67G

Division 3—Information generally Deleted: Part 3—Registered providers of supports¶

¶

67G Protection of certain documents etc. from production to court Note:!registeredA personprovideror ofentitysupports,can onlyto participantsprovide supports,that areasnota in a etc.

                          A person must not, except for the purposes of this Act or the Royal               a! registered(1)! A personprovideror entityof supportsmay applyin relationin writingto eitherto the orCEObothtoofbe
                   Commissions Act 1902, be required:
                            (a) to produce any document in his or her possession because of            !! (b)!(a)! managingthe provisionthe offundingsupports.¶for supports under plans;¶
                             the performance or exercise of his or her duties, functions or              Note 1:! If the funding for supports under a plan is managed by
                        powers under this Act;
                                                                                  the Agency, supports are to be provided only by a registered
                                                                                                                             provider of supports (see subsection 33(6)).¶
                          (b) to disclose any matter or thing of which he or she had notice              Note 2:! A registered plan management provider of supports
                          because of the performance or exercise of such duties,
              may in certain circumstances manage the funding for supports
                             functions or powers;
                                                            under! (2)!aTheplanapplication(see subsectionmust:¶42(2)).¶
                         to a court, tribunal, authority or person that has power to require              ! (a)! be in the form (if any) approved by the CEO; and¶
                       the production of documents or the answering of questions.
                                                                                                                         Note:! The CEO is not required to make a decision on the
     67H Part does not affect the operation of the Freedom of                                   applicationsection 197).¶if this subsection is not complied with (see
                  Information Act 1982                                                            70 Registered providers of supports¶
                                                                                               ! (1)! The CEO must approve a person or entity as a registered
                                                                                                                             provider! (a)! managingof supportsthe fundingin relationfortosupportseither orunderboth plans;¶of the following:¶
                                                                                                                                                    if:
                                                                                               ! (b)! the provision of supports;¶
                                                                                               ! (c)! the person or entity (the applicant) makes an application
                                                                                                                             under section 69; and¶
                                                                                               ! (ca)! the applicant will manage the funding for supports under
                                                                                                                                                  plans, or provide supports under plans, to participants in a host
                                                                                                                                                       jurisdiction that is not a participating jurisdiction; and¶
                                                                                               ! (d)! the CEO is satisfied that the applicant meets the criteria
                                                                                                                                         prescribed by the National Disability Insurance Scheme rules;
                                                                                                                        and¶
                                                                                               ! (e)! the CEO is satisfied that the applicant is suitable to
                                                                                                              manage the funding for supports under plans or provide supports
                                                                                                                             under plans, as the case requires, applying any criteria and
                                                              having regard to any matters prescribed by the National
                                                                                                                                                 Disability Insurance Scheme rules for the purposes of this
                                                                     paragraph.¶
                                                                                               ! (2)! An approval of a person or entity as a registered provider
                                                                                                                                          of supports must be by written instrument.¶
                                                                                               ! (3)! The instrument may specify that the person or entity is a
                                                                                                                                                 registered provider of supports in respect of:¶
                                                                                               ! (a)! a class of supports specified in the instrument; or¶
                                                                                               ! (b)! a class of person specified in the instrument.¶
                                                                                               ! (4)! The instrument may specify that it ceases to be in effect
                                                  on a specified day.

… [2]

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Part 3A — NDIS provides

Deleted: Divison 1 — Application of part

73A Application of Part This Part applys in relatin to: (a) persns r entites appying fr registratim t prvide supports r servies t peple wit disabiltiy in paritipating jurisdictins; an; (b) registred NDIs providrs prviding supprts r serives t pople wth dsiability n participaing jurisctiions; and; (c) NDI proviers prvdin suports or services tp plepe with dsbility in participating jurisdictions.

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Division 2—Registered NDIS providers

####### 73B Requirement to be a registered NDIS provider (1) The National Disability Insurance Scheme rules may require that specified classes of supports provided under participants’ plans are to be provided only by NDS providers who are registered under section 73E to provide those classes of supports. Note: See also subsection 33(6), which provides that, if the funding for supports under a plan is managed by the Agency, supports are to be provided only by a registered NDIS provider. (2) A person must not provide a support under a participant’s plan if: a) the National Disability Insurance Scheme rules require the person to be registered to provide the support under the plan; and b) the person is not so registered. Civil penalty: 250 penalty units. ####### 73C Application to be a registered NDIS provider (1) A person may apply to the Commissioner to be a registered NDIS provider in relation to one or more of the following:a) the provision of supports or services under the arrangements set out in Chapter 2;b) managing the funding for supports under participants’ plans;c) the provision of supports under participants’ plans.Note: An unincorporated association or a partnership may also apply for registration under this section (see section 203). (2) A person may also apply to the Commissioner to be a registered NDIS provider in relation to the provision of services or supports to people with disability other than under the National Disability Insurance Scheme if the person is included in a class of persons prescribed for the purposes of subparagraph (b)(ii) of the definition of NDS provider.

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Section 73D

(3) The application must: (a) be in writing; and (b) be in a form (if any) approved in writing by the Commissioner; and (c) include any information, and be accompanied by any documents, required by the Commissioner.

Note: The Commissioner is not required to make a decision on the application if this subsection is not complied with (see section 197B).

(4) The Commissioner may, by written notice, require an applicant for registration to give the Commissioner such further information or documents in relation to the application as the Commissioner reasonably requires.

Note: The Commissioner is not required to make a decision on the application if this subsection is not complied with (see section 197B).

(5) A notice under subsection (4) may specify a period, which must not be less than 14 days, within which the information or documents must be given.

73D False or misleading information or documents in application

A person contravenes this section if the person: (a) provides information or a document in, or in connection with, an application for registration; and (b) the person knows the information or document is false or misleading in a material particular.

Civil penalty: 60 penalty units.

Note: Part 7.4 of the Criminal Code provides offences in relation to false or misleading statements, information and documents.

73E Registration as a registered NDIS provider

Registration

(1) The Commissioner may register a person as a registered NDIS provider if:

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(a) the person (the applicant) makes an application under section 73C; and (b)! the applicant will provide supports or services to people with disability in a participating jurisdiction; and (c) the applicant has been assessed by an approved quality auditor as meeting the applicable standards and other requirements prescribed by the NDIS Practice Standards; and (d) the Commissioner is satisfied that the applicant is suitable to provide supports or services to people with disability, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and (e) the Commissioner is satisfied that the applicant’s key personnel (if any) are suitable to be involved in the provision of supports or services for which the applicant will be registered to provide, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and (f) the applicant satisfies any other requirements prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.

(2) A person may be registered in respect of one or more of the following: (a) managing the funding of supports under participants’ plans; (b) providing specified classes of supports under participants’ plans; (c) providing specified classes of supports or services under the arrangements set out in Chapter 2; (d) providing specified classes of supports or services to people with disability other than under the National Disability Insurance Scheme.

(3) Despite subsections (1) and (2), if a banning order is in force in relation to the applicant, the Commissioner must not register the applicant in a way that would be inconsistent with the banning order.

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Note: Under subsection 73ZN(3), a banning order may be of general or limited application.

Notice of decision to register

(4) The Commissioner must: (a) give written notice of a decision to register, or not to register, a person as a registered NDIS provider, including reasons for the decision; and (b) if the decision is to register the person—provide a certificate of registration, specifying the matters mentioned in subsection (5), to the person.

Certificate of registration

(5) A certificate of registration must specify: (a) which of the following the person is a registered NDIS provider in relation to: (i) managing the funding for supports under plans; (ii) the provision of supports under plans; (iii) the provision of supports or services under the arrangements set out in Chapter 2; (iv) the provision of services or supports to people with disability other than under the National Disability Insurance Scheme; and (b) the classes of supports or services the person is registered to provide; and (c) if the person is registered in respect of a class of persons—the class of persons in respect of which the provider is registered; and (d) the conditions (if any) on the registration imposed by the Commissioner under section 73G; and (e) the period for which the registration is in force; and (f) any other matter determined in writing by the Commissioner for the purposes of this paragraph.

Note: The registration of a person may be varied (see section 73L), suspended (see section 73N) or revoked (see section 73P) and the

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Section 73F

The period for which the registration is in force may be extended (see section 73K) or varied (see section 73L).

(6) A determination made under paragraph (5)(f) is not a legislative instrument.

73F Registration is subject to conditions

(1) The registration of a person as a registered NDIS provider is subject to the following conditions: (a) the conditions set out in subsection (2); (b) the conditions (if any) imposed by the Commissioner under section 73G; (c) the conditions (if any) determined by the National Disability Insurance Scheme rules under section 73H.

(2) The registration of a person as a registered NDIS provider is subject to the following conditions: (a) a condition that the person comply with all applicable requirements imposed by a law of the Commonwealth or a law of the State or Territory in which the person or entity operates as a registered NDIS provider; (b) a condition that the person comply with all applicable requirements of the NDIS Code of Conduct; (c) a condition that the person comply with all applicable standards and other requirements of the NDIS Practice Standards; (d) a condition that the person comply with all applicable requirements relating to record keeping prescribed by the National Disability Insurance Scheme rules for the purposes of section 73Q; (e) a condition that the person implement and maintain the applicable complaints management and resolution system in accordance with section 73W; (f) a condition that the person comply with all applicable requirements relating to complaints prescribed by the National Disability Insurance Scheme rules for the purposes of section 73X;

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(g) a condition that the person implement and maintain the applicable incident management system in accordance with section 73Y; (h) a condition that the person comply with all applicable requirements relating to reportable incidents prescribed by the National Disability Insurance Scheme rules for the purposes of section 73Z; i) a condition that the person give to the Commissioner, on request, information specified in the request within the period specified in the request (which must not be less than 14 days).

73G Conditions specified in certificate of registration

(1) The Commissioner may impose conditions to which the registration of a person as a registered NDIS provider is subject.

(2) A condition may be imposed at the time of registration, or at a later time.

Note: Conditions imposed under this section may also be varied or revoked (see section 73L).

(3) The conditions may include, but are not limited to, conditions relating to the following matters: a) the types of quality audits the provider must undergo;b) the timing of such quality audits;c) requirements relating to supports or services for which the provider is registered to provide, including circumstances in which supports or services for which the provider is registered can or cannot be provided.

73H Conditions determined by NDIS rules

The National Disability Insurance Scheme rules may determine that each registration, or each registration included in a specified class of registration, is taken to include one or more specified conditions.

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       73J Registered NDIS providers must comply with conditions of
                     registration

           A person contravenes this section if the person:
                            (a)  is a registered NDIS provider; and
                          (b) breaches a condition to which the registration of the person is
                               subject.

                        Civil penalty:      250 penalty units.

     73K Extension of period for which registration is in force

                    (1) Subsection (2) applies if:
                            (a) the registration of a person as a registered NDIS provider will
                           cease to be in force on a particular day; and
                          (b) within 6 months before that day, the person makes an
                             application under section 73C.

                    (2) Despite paragraph 73E(5)(e), the registration of the person
                      continues in force until the Commissioner makes a decision on the
                        application under subsection 73E(1).

      73L Variation of registration

                    (1) The Commissioner may vary the registration of a registered NDIS
                        provider, by written notice given to the provider:
                            (a) at any time, on the Commissioner’s own initiative; or
                          (b) on application by the provider under section 73M.

                    (2) The Commissioner may vary the registration of a registered NDIS
                      provider if the Commissioner considers it appropriate in all the
                      circumstances to do so.

                    (3) Without limiting subsection (1), the Commissioner may vary the
                          registration of an NDIS provider to:
                            (a) impose, vary or revoke conditions to which the registration is
                             subject under section 73G; or

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Section 73M

(b) reduce or extend the period for which the registration is in force; or (c) extend, modify or reduce the supports or services the provider is registered to provide.

(4) If the Commissioner decides to vary the registration of a registered NDIS provider, the Commissioner must give a certificate of registration as varied to the provider.

(5) If, after receiving an application under section 73M, the Commissioner refuses to vary the registration of a registered NDIS provider, the Commissioner must give written notice of the refusal, including reasons for the refusal.

(6) A variation of the registration of a registered NDIS provider takes effect on the day specified in the notice given under subsection (1).

73M Application for variation of registration

(1) A registered NDIS provider may apply for a variation to the provider’s registration.

(2) The application must: (a) be in writing; and (b) be in a form (if any) approved in writing by the Commissioner; and (c) include any information, and be accompanied by any documents, required by the Commissioner.

Note: The Commissioner is not required to make a decision on the application if this subsection is not complied with (see section 197B).

(3) The Commissioner may, by written notice, require an applicant for a variation to give the Commissioner such further information or documents in relation to the application as the Commissioner reasonably requires.

Note: The Commissioner is not required to make a decision on the application if this subsection is not complied with (see section 197B).

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Section 73N

(4) A notice under subsection (3) may specify a period, which must not be less than 14 days, within which the information or documents must be given.

73N Suspension of registration

Suspension on Commissioner’s own initiative

(1) The Commissioner may, in writing, suspend the registration of a person as a registered NDIS provider for a specified period if: (a) the Commissioner reasonably believes that the person has contravened, is contravening, or is proposing to contravene, thi sAct; or (b) the Commissioner reasonably believes that the application for registration by the person contained information that was false or misleading in a material particular; or (c) the person is an insolvent under administration; or (d) the Commissioner is satisfied that the person is no longer suitable to provide the supports or services to people with disability, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; or (e) the Commissioner is no longer satisfied that the key personal of the person (if any) are suitable to be involved in the provision of supports or services to people with disability, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; or (f) a circumstance exists that is a circumstance prescribed by National Disability Insurance Scheme rules for the purposes of this paragraph.

(2) The period specified under subsection (1) must not be longer than 30 days.

(3) To avoid doubt, subsection (2) does not prevent the Commissioner suspending the registration of a person as a registered provider more than once.

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Section 73P

(4) In deciding whether to suspend the registration of a person under subsection (1), the Commissioner must have regard to the following matters: (a) the nature, significance and persistence of any contravention, or proposed contravention, of this Act; (b) action that can be taken to address any contravention, or proposed contravention, of this Act; (c) the extent (if any) to which the person is conducting its affairs as a registered NDIS provider in a way that may cause harm to, or jeopardise, public trust in the National Disability Insurance Scheme; (d) the health, safety or wellbeing of people with disability receiving supports or services from the person; (e) any other matter the Commissioner considers relevant.

(5) If the registration of a person is suspended under subsection (1), the Commissioner must give the person written notice of the suspension and the reasons for the suspension.

Suspension at the request of registered NDIS provider

(6) The Commissioner may, in writing, suspend the registration of a person as a registered NDIS provider for a specified period if the person requests the Commissioner, in writing, to suspend the registration.

Effect of suspension

(7) If the registration of a person is suspended under this section, the registration ceases to have effect until the suspension ceases to be in force.

73P Revocation of registration

(1) The Commissioner may, in writing, revoke the registration of a person as a registered NDIS provider if:

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(a) the Commissioner reasonably believes that the person has contravened, is contravening, or is proposing to contravene, this Act; or (b) the application for registration by the person contained information that was false or misleading in a material particular; or (c) the person is an insolvent under administration; or (d) the Commissioner is satisfied that the person is no longer suitable to provide supports or services to people with disability, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; or (e) the Commissioner is no longer satisfied that the key personnel of the person (if any) are suitable to be involved in the provision of supports or services for which the person is registered to provide, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; or (f) a circumstance exists that is a circumstance prescribed by National Disability Insurance Scheme rules for the purposes of this paragraph.

(2) In deciding whether to revoke the registration of a person under subsection (1), the Commissioner must have regard to the following matters: (a) the nature, significance and persistence of any contravention, or proposed contravention, of this Act; (b) action that can be taken to address any contravention, or proposed contravention, of this Act; (c) the extent (if any) to which the person is conducting its affairs as a registered NDIS provider in a way that may cause harm to, or jeopardise, public trust in the National Disability Insurance Scheme; (d) the health, safety or wellbeing of people with disability receiving supports or services from the person; (e) any other matter the Commissioner considers relevant.

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Section 73Q

(3) The Commissioner may, in writing, revoke the registration of a person as a registered NDIS provider if the person requests the Commissioner, in writing, to revoke the registration.

(4) Before deciding to revoke the registration of a person under subsection (1), the Commissioner must notify the person that revocation is being considered. The notice must be in writing and must:

• include the Commissioner’s reasons for considering the revocation; and
• invite the person to make submissions, in writing, to the Commissioner within 28 days after receiving the notice; and
• inform the person that if no submissions are made within that period, any revocation may take effect as early as 7 days after the end of the period referred to in paragraph (b).

(5) In deciding whether to revoke the registration, the Commissioner must consider any submissions given to the Commissioner within the period referred to in paragraph (4)(b).

(6) The Commissioner must notify the person, in writing, of the decision.

(7) The notice under subsection (6) must be given within 28 days after the end of the period for making submissions. If the notice is not given within this period, the Commissioner is taken to have decided not to revoke the registration.

73Q Record keeping by registered NDIS providers

A registered NDIS provider must keep records of the kind, for the period and in the form prescribed by the National Disability Insurance Scheme rules.

Note: Compliance with this section is a condition of registration (see paragraph 73F(2)(d)), breach of which is a civil penalty provision (see section 73J).

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Section 73R

73R Record keeping by former registered NDIS providers

(1) A person who has ceased to be a registered NDIS provider must keep records that the person was required to retain under section 73Q immediately before the person ceased to be a registered NDIS provider.

(2) The records must be kept for 3 years commencing on the day that the person ceased to be a registered NDIS provider.

(3) A person contravenes this section if the person: (a) is subject to a requirement under this section; and (b) fails to comply the requirement.

Civil penalty: 60 penalty units.

73S Grants of financial assistance in relation to registration

(1) The Commissioner may, on behalf of the Commonwealth, make a grant of financial assistance to a person or entity in relation to applications for registration, or variations to registration, as a registered NDIS provider under this Act.

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the person or entity.

(3) An agreement under subsection (2) may be entered into by the Commissioner on behalf of the Commonwealth.

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Division 3 Quality assurance

Section 73T

Division 3—Quality assurance

73T NDIS Practice Standards

(1) The National Disability Insurance Scheme rules may make provision for or in relation to standards concerning the quality of supports or services to be provided by registered NDIS providers.

Note: Non-compliance with the NDIS Practice Standards by registered NDIS providers constitutes a breach of condition of registration (see paragraph 73F(2)(c) and section 73J).

(2) Rules made for the purposes of subsection (1) are to be known as the NDIS Practice Standards.

(3) Without limiting subsection (1), the NDIS Practice Standards may deal with the following:

• (a) standards to be complied with to become a registered NDIS provider;
• (b) standards to be complied with to remain a registered NDIS provider;
• (c) matters relating to assessing compliance with the standards;
• (d) matters relating to the screening of workers employed or otherwise engaged by registered NDIS providers.

73U Approved quality auditors

(1) The Commissioner may, in writing, approve a person or body to be an approved quality auditor for the purposes of this Act.

(2) An approval given under subsection (1) is not a legislative instrument.

(3) The Commissioner may publish, on the Commission’s website, a list of approved quality auditors.

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NDIS Code of Conduct Division 4

Section 73V

Division 4—NDIS Code of Conduct

73V NDIS Code of Conduct

(1) The National Disability Insurance Scheme rules may make provision for or in relation to a code of conduct that applies to either or both of the following: (a) NDIS providers; (b) persons employed or otherwise engaged by NDIS providers.

(2) Rules made for the purposes of subsection (1) are to be known as the NDIS Code of Conduct.

(3) A person contravenes this section if the person: (a) is subject to a requirement under the NDIS Code of Conduct; and (b) fails to comply with the requirement.

Civil penalty: 250 penalty units.

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Division 5 Complaints management and resolution

Section 73W

Division 5—Complaints management and resolution

• A registered NDIS provider must implement and maintain a complaints management and resolution system that:
  • is appropriate for the size of the provider and for the classes of supports or services provided by the provider; and
  • acknowledges the role of advocates (including independent advocates) and other representatives of persons with disability; and
  • provides for cooperation with, and facilitates arrangements for, advocates (including independent advocates) and other representatives of persons with disability who are affected by the complaints process and who wish to be independently supported in that process by an advocate or other representative; and
  • complies with the requirements (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.

Note: Non-compliance with this section constitutes a breach of condition of registration (see paragraph 73F(2)(e) and section 73J).

73X Arrangements relating to the management and resolution of complaints

(1) The National Disability Insurance Scheme rules may prescribe arrangements relating to the management and resolution of complaints arising out of, or in connection with, the provision of supports or services by NDIS providers.

(2) Without limiting subsection (1), the National Disability Insurance Scheme rules may deal with the following matters:

• how complaints may be made, managed and resolved, including methods to support the early resolution of complaints;

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Section 73X

(b) The roles, rights and responsibilities of people with disability, complainants, NDIS providers, advocates (including independent advocates) and other persons in relation to the management and resolution of complaints; (c) Considerations relevant to making decisions under the National Disability Insurance Scheme rules in relation to complaints; (ca) Requirements relating to procedural fairness in relation to the management and resolution of complaints; (d) Procedures for the review of decisions and processes; (e) Actions that must or may be taken (including making requirements of NDIS providers) to address complaints; (f) Authorising the provision of information relating to complaints to the Minister, the Agency or other specified bodies; (g) The matters in relation to which the Commissioner may authorise an inquiry, on his or her own initiative.

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Division 6 Incident management—registered NDIS providers

Section 73Y

Division 6—Incident management—registered NDIS providers

73Y Incident management system

A registered NDIS provider must implement and maintain an incident management system that: (a) is appropriate for the size of the provider and for the classes of supports or services provided by the provider; and (b) complies with the requirements (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.

Note: Non-compliance with this section constitutes a breach of condition of registration (see paragraph 73F(2)(g) and section 73J).

73Z Reportable incidents

(1) The National Disability Insurance Scheme rules must prescribe arrangements relating to the notification and management of reportable incidents that occur, or are alleged to have occurred, in connection with the provision of supports or services by registered NDIS providers.

(2) Without limiting subsection (1), the National Disability Insurance Scheme rules may deal with the following matters: (a) the manner and period within which reportable incidents must be reported to the Commission; (b) action that must be taken in relation to reportable incidents; (c) authorising the provision of information relating to reportable incidents to the Minister, the Agency or other specified bodies; (d) the matters in which the Commissioner may authorise an inquiry in relation to a reportable incident, on his or her own initiative.

(3) Without limiting paragraph (2)(b), action may include:

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(aa) requiring a registered NDIS provider to provide people with disability with information regarding the use of an advocate (including an independent advocate) in relation to an investigation into the reportable incident; and (a) requiring a registered NDIS provider to arrange for, and cover the cost of, an independent investigation into the reportable incident within a specified period; and (b) providing a copy of any report of the independent investment to the Commissioner.

(4) Reportable incident means: (a) the death of a person with disability; or (b) serious injury of a person with disability; or (c) abuse or neglect of a person with disability; or (d) unlawful sexual or physical contact with, or assault of, a person with disability; or (e) sexual misconduct committed against, or in the presence of, a person with disability, including grooming of the person for sexual activity; or (f) the use of a restrictive practice in relation to a person with disability, other than where the use is in accordance with an authorisation (however described) of a State or Territory in relation to the person.

(5) Despite subsection (4), the National Disability Insurance Scheme ules may provide as follows: (a) that a specified act, omission or event is a reportable incident; (b) that a specified act, omission or event is not a reportable incident.

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Division 7 Protection of disclosers

Section 73ZA

Division 7 — Protection of disclosers

73ZA Disclosures qualifying for protection

(1) This section applies to a disclosure of information by a person (the discloser) who is, in relation to an NDIS provider, any of the following: (a) if the NDIS provider is a body corporate—an officer or employee of the body corporate, or a person who has a contract for the supply of goods or services to, or on behalf of, the body corporate; (b) if the NDIS provider is an unincorporated association— member of the committee of management or an employee of the association, or a person who has a contract for the supply of goods or services to, or on behalf of, the association; (c) if the NDIS provider is a partnership—a partner in or an employee of the partnership, or a person who has a contract for the supply of goods or services to, or on behalf of, the partnership; (d) in any case—a person with disability who is receiving a support or service from the NDIS provider, or a nominee, family member, carer, independent advocate or significant other of that person.

(2) The disclosure of the information by the discloser qualifies for protection under this Division if: (a) the disclosure is made to one of the following: (i) the Commissioner; (ii) the Agency; (iii) if the NDIS provider is a body corporate —a member of the key personnel of the body corporate; (iv) if the NDIS provider is an unincorporated association— a member of the key personnel of the association; (v) if the NDIS provider is a partnership—a partner; and

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(b) the discloser informs the person to whom the disclosure is made of the discloser’s name before making the disclosure; and (c) the discloser has reasonable grounds to suspect that the information indicates that an NDIS provider has, or may have, contravened a provision of this Act; and disclosure in good faith.

(3) In this section, officer has the same meaning as it has in the Corporations Act 2001.

73ZB Disclosure that qualifies for protection not actionable etc.

(1) If a person makes a disclosure that qualifies for protection under this Division: (a) the person is not subject to any civil or criminal liability for making the disclosure; and (b) no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the disclosure.

Note: This subsection does not provide that the person is not subject to any civil or criminal liability for conduct of the person that is revealed by the disclosure.

(2) Without limiting subsection (1): (a) the person has qualified privilege (see subsection (3)) in respect of the disclosure; and (b) a contract to which the person is a party may not be terminated on the basis that the disclosure constitutes a breach of the contract.

(3) For the purpose of paragraph (2)(a), qualified privilege, in respect of the disclosure, means that the person: (a) has qualified privilege in proceedings for defamation; and (b) is not, in the absence of malice on the person’s part, liable to an action for defamation at the suit of a person; in respect of the disclosure.

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(4) For the purpose of paragraph (3)(b), malice includes ill will to the person concerned or any other improper motive.

(5) This section does not limit or affect any right, privilege or immunity that a person has, apart from this section, as a defendant in proceedings, or an action, for defamation.

73ZC Victimisation prohibited

Actually causing detriment to another person

(1) A person (the first person) contravenes this subsection if: (a) the first person engages in conduct; and (b) the first person’s conduct causes any detriment to another person (the second person); and (c) the first person intends that his or her conduct cause detriment to the second person; and (d) the first person engages in his or her conduct because the second person or a third person made a disclosure that qualifies for protection under this Division.

Civil penalty: 500 penalty units.

Threatening to cause detriment to another person

(2) A person (the first person) contravenes this subsection if: (a) the first person makes to another person (the second person) a threat to cause any detriment to the second person or to a third person; and (b) the first person: (i) intends the second person to fear that the threat will be carried out; or (ii) is reckless as to causing the second person to fear that the threat will be carried out; and (c) the first person makes the threat because a person: (i) makes a disclosure that qualifies for protection under this Part; or

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Section 73ZD

(ii) may make a disclosure that would qualify for protection under this Division.

Civil penalty: 500 penalty units.

Threats

(3) For the purpose of subsection (2), a threat may be: (a) express or implied; or (b) conditional or unconditional.

(4) In proceedings for a civil penalty order against a person for a contravention of subsection (2), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

73ZD Right to compensation

If: (a) a person contravenes subsection 73ZC(1) or (2); and (b) another person suffers damage because of the contravention; The person in contravention is liable to compensate the other person for the damage.

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Division 8—Compliance and enforcement

73ZE Monitoring powers

Provisions subject to monitoring

(1) This Part is subject to monitoring under Part 2 of the Regulatory Powers Act.

Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the provisions of this Part have been complied with. It includes powers of entry and inspection.

Information subject to monitoring

(2) Information given in compliance or purported compliance with a provision of this Part is subject to monitoring under Part 2 of the Regulatory Powers Act.

Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.

Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court

(3) For the purposes of Part 2 of the Regulatory Powers Act as it applies in relation to this Part: (a) an inspector is an authorised applicant; and (b) an inspector is an authorised person; and (c) a magistrate is an issuing officer; and (d) the Commissioner is the relevant chief executive; and (e) each of the following is a relevant court: (i) the Federal Court; (ii) the Federal Circuit Court; (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

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Person assisting

(4) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to this Part.

73ZF Investigation powers

Provisions subject to investigation

(1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is: (a) a civil penalty provision in this Part; or (b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Part.

Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.

Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court

(2) For the purposes of Part 3 of the Regulatory Powers Act, as it applies in relation to evidential material that relates to a provision mentioned in subsection (1): (a) an investigator is an authorised applicant; and (b) an investigator is an authorised person; and (c) a magistrate is an issuing officer; and (d) the Commissioner is the relevant chief executive; and (e) each of the following is a relevant court: (i) the Federal Court; (ii) the Federal Circuit Court; (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

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Person assisting

(3) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).

73ZG Use of equipment to examine or process things

(1) This section applies if an authorised person exercises investigation powers under Part 3 of the Regulatory Powers Act in relation to premises entered under an investigation warrant for the purposes of this Act.

Equipment may be brought to premises

(2) The authorised person or a person assisting may bring to the premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether the thing may be seized.

Thing may be moved for examination or processing

(3) A thing found at the premises may be moved to another place for examination or processing in order to determine whether the thing may be seized if: (a) both of the following apply: (i) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; (ii) the authorised person or a person assisting suspects on reasonable grounds that the thing contains or constitutes evidential material; or (b) the occupier of the premises consents in writing.

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Notification of examination or processing and right to be present

(4) If the thing is moved to another place for the purpose of eamination or processing under subsection (3), the authorised person must, if it is practicable to do so: (a) inform the occupier of the premises of the address of the place and the time at which the examination or processing will be carried out; and (b) allow the occupier or his or her representative to be present during the examination or processing.

(5) The authorised person need not comply with paragraph (4)(a) or (b) if he or she believes on reasonable grounds that to do so might: (a) endanger the safety of a person; or (b) prejudice an investigation or prosecution.

Time limit on moving the thing

(6) The thing may be moved to another place for examination or processing for no longer than 14 days.

(7) An authorised person may apply to an issuing officer for one or more extensions of that time if the authorised person believes on reasonable grounds that the thing cannot be examined or processed within 14 days or that time as previously extended.

(8) The authorised person must give notice of the application to the occupier of the premises, and that person is entitled to be heard in relation to the application.

(9) A single extension cannot exceed 7 days.

####### Equipment at premises may be operated

(10) An authorised person or a person assisting may operate equipment already at the premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized if the authorised person or person assisting believes on reasonable grounds that:

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(a) the equipment is suitable for the examination or processing; and (b) the examination or processing can be carried out without damage to the equipment or the thing.

73ZH Use of electronic equipment at other place

(1) This section applies if an authorised person exercises investigation powers under Part 3 of the Regulatory Powers Act in relation to premises for the purposes of this Act.

(2) If electronic equipment is moved from the premises to another place under subsection 73ZG(3), the authorised person or a person assisting may operate the equipment to access data (including data held at another place).

(3) If the authorised person or the person assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, he or she may copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device.

(4) If the Commissioner is satisfied that the data is not required (or is no longer required) for the purposes of this Act or for other judicial or administrative review proceedings, the Commissioner must arrange for: (a) the removal of the data from any device in the control of the Commission; and (b) the destruction of any other reproduction of the data in the control of the Commission.

(5) If the authorised person or the person assisting, after operating the equipment, finds that evidential material is accessible by doing so, his or her may: (a) seize the equipment and any disk, tape or other associated device; or (b) if the material can be put in documentary form—put the material in that form and seize the documents so produced.

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(6) An authorised person or a person assisting may seize equipment under paragraph (5)(a) only if: (a) it is not practicable to copy the data as mentioned in subsection (3) or to put the material in documentary form as mentioned in paragraph (5)(b); or (b) possession of the equipment by the occupier of the premises could constitute an offence.

73ZI Person with knowledge of a computer or a computer system to assist access etc.

(1) This section applies if an authorised person exercises investigation powers under Part 3 of the Regulatory Powers Act in relation to premises for the purposes of this Act.

(2) The authorised person may apply to an issuing officer referred to in paragraph 73ZF(2)(c) for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow an authorised person or person assisting to do one or more of the following: (a) access data held in, or accessible from, a computer or data storage device that: (i) is on the premises; or (ii) has been moved under subsection 73ZG(3) and is at a place for examination or processing; or (iii) has been seized under this Act or under the Regulatory Powers Act as it applies in relation to this Act; (b) copy data held in, or accessible from, a computer, or data storage device, described in paragraph (a) to another data storage device; (c) convert into documentary form or another form intelligible to an authorised person or person assisting: (i) data held in, or accessible from, a computer, or data storage device, described in paragraph (a); or (ii) data held in a data storage device to which the data was copied as described in paragraph (b); or

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(iii) data held in a data storage device removed from premises under the Regulatory Powers Act as it applies in relation to this Act.

(3) The issuing officer may grant the order if the issuing officer is satisfied that: (a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device; and (b) the specified person is: (i) reasonably suspected of having committed the offence or contravened the civil penalty provision stated in the relevant warrant; or (ii) the owner or lessee of the computer or device; or (iii) an employee of the owner or lessee of the computer or device; or (iv) a person engaged under a contract for services by the owner or lessee of the computer or device; or (v) a person who uses or has used the computer or device; or (vi) a person who is or was a system administrator for the system including the computer or device; and (c) the specified person has relevant knowledge of: (i) the computer or device or a computer network of which the computer or device forms or formed a part; or (ii) measures applied to protect data held in, or accessible from, the computer or device.

(4) If: (a) the computer or data storage device that is the subject of the order is seized under this Act or under the Regulatory Powers Act as it applies in relation to this Act; and (b) the order was granted on the basis of an application made before the seizure; The order does not have effect on or after the seizure.

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Note: An application for another order under this section relating to the computer or data storage device may be made after the seizure.

(5) If the computer or data storage device is not on the premises, the order must: (a) specify the period within which the person must provide the information or assistance; and (b) specify the place at which the person must provide the information or assistance; and (c) specify the conditions (if any) determined by the issuing officer as the conditions to which the requirement on the person to provide the information or assistance is subject.

(6) A person commits an offence if the person fails to comply with the order. Penalty: Imprisonment for 2 years.

73ZJ Compensation for damage to electronic equipment

(1) This section applies if: (a) as a result of electronic equipment being operated as mentioned in section 73ZG or 73ZH: (i) damage is caused to the equipment; or (ii) the data recorded on the equipment is damaged; or (iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and (b) the damage or corruption occurs because: (i) insufficient care was exercised in selecting the person who was to operate the equipment; or (ii) insufficient care was exercised by the person operating the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corrosion as the Commonwealth and the owner or user agree on.

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(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in: (a) the Federal Court of Australia; or (b) the Federal Circuit Court of Australia; or (c) a court of a State or Territory that has jurisdiction in relation to the matter; for such reasonable amount of compensation as the court determines.

(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

73ZK Civil penalty provisions

Enforceable civil penalty provisions

(1) Each civil penalty provision of this Part is enforceable under Part 4 of the Regulatory Powers Act.

Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

Authorised applicant

(2) For the purposes of Part 4 of the Regulatory Powers Act, the Commissioner is an authorised applicant in relation to the civil penalty provisions of this Part.

Relevant court

(3) For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Part: (a) the Federal Court; (b) the Federal Circuit Court;

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Section 73ZL

(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

Liability of Crown

(4) To avoid doubt, subsection 205(2) does not prevent the Crown from being liable to pay a pecuniary penalty under a civil penalty order under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act.

73ZL Infringement notices

Provisions subject to an infringement notice

(1) A civil penalty provision of this Part is subject to an infringement notice under Part 5 of the Regulatory Powers Act.

Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.

####### Infringement officer

(2) For the purposes of Part 5 of the Regulatory Powers Act, the Commissioner is an infringement officer in relation to the provisions mentioned in subsection (1).

######## Relevant chief executive

(3) For the purposes of Part 5 of the Regulatory Powers Act, the Commissioner is the relevant chief executive in relation to the provisions mentioned in subsection (1).

Liability of Crown

(4) To avoid doubt, subsection 205(2) does not prevent the Crown from being liable to be given an infringement notice under Part 5 of the Regulatory Powers Act, as that Part applies in relation to this Act.

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73ZM Compliance notices

(1) The Commissioner may give to an NDIS provider a written notice (a compliance notice) if the Commissioner: (a) is satisfied that an NDIS provider is not complying with this Act; or (b) is aware of information that suggests that an NDIS provider may not be complying with this Act.

(2) The compliance notice must: (a) set out the name of the provider to which the notice is given; and (b) set out brief details of the non-compliance or possible non-compliance; and (c) specify action that the provider must take, or refrain from taking, in order to address the non-compliance or possible non-compliance; and (d) specify a reasonable period within which the provider must take, or refrain from taking, the specified action; and (e) if the Commissioner considers it appropriate—specify a reasonable period within which the provider must provide the Commissioner with evidence that the provider has taken, or refrained from taking, the specified action; and (f) state that a failure to comply with the notice is subject to a civil penalty; and (g) if the provider is a registered NDIS provider—state that a failure to comply with the notice may lead to the provider’s registration being suspended or revoked; and (h) set out any other matters specified in the National Disability Insurance Scheme rules for the purposes of this paragraph.

(3) An NDIS provider contravenes this subsection if the provider fails to comply with a compliance notice.

Civil penalty: 60 penalty units.

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(4) The Commissioner may, by written notice given to an NDIS provider, vary or revoke a compliance notice if the Commissioner considers that it is appropriate in all the circumstances to do so.

(5) In deciding whether to vary or revoke a compliance notice, the Commissioner must consider any submissions that are received from the provider before the end of the period mentioned in paragraph (2)(d).

73ZN Banning orders

Banning orders—NDIS providers

(1) The Commissioner may, by written notice, make an order (a banning order) prohibiting or restricting specified activities by an NDIS provider, or by a person who was an NDIS provider, if: (a) the Commissioner has revoked the registration of the person as a registered NDIS provider; or (b) the Commissioner reasonably believes that: (i) the person has contravened, is contravening, or is likely to contravene this Act; or (ii) the person has been involved in, or is likely to become involved in, a contravention of this Act by another person; or (iii) the person is not suitable to provide supports or services to people with disability; or (iv) in the case of an NDIS provider—there is an immediate danger to the health, safety or wellbeing of a person with disability if the person continues to be an NDIS provider; or (c) the person is convicted of an offence involving fraud or dishonesty; or (d) the person becomes an insolvent under administration.

Note: A person who is subject to a banning order cannot be registered as an NDIS provider in a way that is inconsistent with the order (see subsection 73E(3)).

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Banning orders—persons employed or otherwise engaged by NDIS providers

(2) The Commissioner may, by written notice, make an order (a banning order) prohibiting or restricting a person who is or was employed or otherwise engaged by an NDIS provider from engaging in specified activities if: (a) the Commissioner reasonably believes that: (i) the person has contravened, is contravening, or is likely to contravene this Act; or (ii) the person has been involved in, or is likely to become involved in, a contravention of this Act by another person; or (iii) the person is not suitable to be involved in the provision of supports or services to people with disability; or (iv) there is an immediate danger to the health, safety or wellbeing of a person with disability if the person continues to engage in the specified activities; or (b) the person is convicted of an offence involving fraud or dishonesty; or (c) the person becomes an insolvent under administration.

Banning orders—persons not suitable to be involved in provision of supports or services to people with disability

(2A) The Commissioner may, by written notice, make an order (a banning order) prohibiting or restricting a person from being involved in the provision of specified supports or specified services to people with disability if: (a) the Commissioner reasonably believes that the person is not suitable to be so involved; and (b) the person has not previously been an NDIS provider; and (c) the person has not previously been employed or otherwise engaged by an NDIS provider.

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Application of banning orders

(3) A banning order may: (a) apply generally or may be of limited application; and (b) be permanent or for a specified period.

(4) However, a banning order cannot prohibit or restrict activities that a registered NDIS provider is registered to provide under 73E.

(5) A banning order takes effect from the day specified in the order.

(5A) If a banning order under subsection (2) is made against a person who is employed or otherwise engaged by an NDIS provider, the continuity of the order is not affected by the employment or engagement ceasing.

(6) A banning order is not a legislative instrument.

Process

(7) The Commissioner may only make a banning order against a person after giving the person an opportunity to make submissions to the Commissioner on the matter.

(8) However, subsection (7) does not apply if the Commissioner’s grounds for making the banning order are, or include, the following: (a) that there is an immediate danger to the health, safety or wellbeing of a person with disability; (b) that the Commissioner has revoked the registration of the person as a registered NDIS provider.

(9) The Commissioner must: (a) give the banning order to the person against whom the order is made; and (b) include in the banning order a statement of reasons for the order; and

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(c) if the banning order is against a person who is employed or otherwise engaged by an NDIS provider—notify the NDIS provider of the order as soon as possible.

Civil penalty

(10) A person contravenes this subsection if: (a) the person engages in conduct; and (b) the conduct breaches a banning order that has been made against the person.

Civil Penalty: 1,000 penalty units.

73ZO Variation or revocation of banning orders

Variation or revocation of banning order

(1) The Commissioner may vary or revoke a banning order, by giving written notice to the person against whom the order was made, if the Commissioner is satisfied that it is appropriate to do so.

(2) The Commissioner may do so: (a) on his or her own initiative; or (b) on application by the person against whom the order was made.

Process

(3) An application under paragraph (2)(b) must: (a) be in writing; and (b) be in a form (if any) approved in writing by the Commissioner; and c) include any information, and be accompanied by any documents, required by the Commissioner.

(4) If the Commissioner varies a banning order made against a person, The Commissioner must, on request by the person, give the person a statement of reasons for the variation.

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(5) If the Commissioner proposes not to vary or revoke a banning order in accordance with an application lodged by a person under paragraph (2)(b), the Commissioner must give the person an opportunity to make submissions to the Commissioner on the matter.

(6) The Commissioner must:

• include in the written notice a statement of reasons for the variation or revocation of the order; and
• if the variation or revocation relates to a person who is employed or otherwise engaged by an NDIS provider— notify the NDIS provider of the variation or revocation as soon as possible.

Application of variation or revocation of banning order

(7) A variation or revocation of an order takes effect from the day specified in the order.

(8) A variation or revocation of an order is not a legislative instrument.

73ZP Enforceable undertakings

Enforceable provisions

(1) The provisions of this Part are enforceable under Part 6 of the Regulatory Powers Act.

Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.

Authorised person

(2) For the purposes of Part 6 of the Regulatory Powers Act, the Commissioner is an authorised person in relation to the provisions mentioned in subsection (1).

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Relevant court

(3) For the purposes of Part 6 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions of this Act: (a) the Federal Court; (b) the Federal Circuit Court; (c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

Other undertakings

(4) An authorised person may accept any of the following undertakings: (a) a written undertaking given by a person that the person will, in order to provide compensation for loss or damage suffered as a result of a contravention or alleged contravention by the person of a provision mentioned in subsection (1), pay another person an amount worked out in accordance with the undertaking; (b) a written undertaking given by a person in connection with a matter relating to a contravention or alleged contravention by the person of a provision mentioned in subsection (1).

(5) An undertaking under subsection (4) must be expressed to be an undertaking under that subsection.

(6) The power in subsection (4) is in addition to the power of an authorised person under subsection 114(1) of the Regulatory Powers Act.

(7) Part 6 of the Regulatory Powers Act, other than subsection 114(1), applies to an undertaking accepted under subsection (4) of this section as if it were an undertaking accepted under subsection 114(1) of the Regulatory Powers Act.

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73ZQ Injunctions

Enforceable provisions

(1) The provisions of this Part are enforceable under Part 7 of the Regulatory Powers Act.

Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.

Authorised person

(2) For the purposes of Part 7 of the Regulatory Powers Act, the Commissioner is an authorised person.

Relevant court

(3) For the purposes of Part 7 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions of this Act: (a) the Federal Court; (b) the Federal Circuit Court; (c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

Consent injunctions

(4) A relevant court may grant an injunction under Part 7 of the Regulatory Powers Act in relation to a provision mentioned in subsection (1) by consent of all the parties to proceedings brought under that Part, whether or not the court is satisfied that section 121 of that Act applies.

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(b) a person assisting the Commissioner under section 181W; (c) a person performing services for the Commonwealth under a contract with the Commonwealth.

(2) The Commissioner must not appoint a person mentioned in subsection (1) unless the Commissioner is satisfied that: (a) the person has suitable training or experience to properly exercise the powers for which the person will be authorised to use; and (b) the person is otherwise an appropriate person to be appointed as an inspector, investigator or both (as the case requires).

(3) A person appointed under this section must, in exercising powers as such, comply with any directions of the Commissioner.

(4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.

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Division 9—NDIS Provider Register

73ZS NDIS Provider Register

NDIS Provider Register

(1) The Commissioner must establish and maintain a register for the purposes of this Act, to be known as the NDIS Provider Register.

(2) The NDIS Provider Register may be kept in any form that the Commissioner considers appropriate.

Banning orders

(2A) The NDIS Provider Register must include each of the following in relation to a person against whom a banning order is in force: (a) the name of the person; (b) the person’s ABN (if any); (c) information about the banning order; (d) any other matter prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.

(2B) The NDIS Provider Register may include each of the following in relation to a person against whom a banning order was in force: (a) the name of the person; (b) the person’s ABN (if any); (c) information about the banning order; (d) any other matter prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.

Registered NDIS providers

(3) The NDIS Provider Register must include each of the following for each person who is a registered NDIS provider: (a) the name of the person; (b) the person’s ABN (if any); (c) the period for which the registration of the person is in force;

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(d) the address of the principal place of business of the person; (e) the classes of supports or services the person is registered to provide; (f) if the registration is in respect of a class of persons—the class; (g) any conditions to which the registration of the person is subject under section 73G; (h) if the registration of the person is suspended—information about the suspension; j) if a compliance notice is in force in relation to the person— information about the compliance notice; k) if the person has given an enforceable undertaking under section 73ZP—information about the undertaken; l) any other matter prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.

NDIS providers (other than registered NDIS providers) (4) The NDIS Provider Register may include any of the following in relation to an NDIS provider (other than a registered NDIS provider): a) the name of the person; b) the person’s ABN (if any); c) the address of the principal place of business of the person; d) the classes of supports or services the person provides; f) if the person is, or was, subject to a compliance notice— information about the compliance notice; g) if the person has given an enforceable undertaking under section 73ZP—information about the undertaking; h) any other matter prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.

Former NDIS providers (5) The NDIS Provider Register may include any of the following in relation to a person who was an NDIS provider:

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Section 73ZS

(a) the name of the person; (b) the person’s ABN (if any); (c) the address of the person; (e) if the person was a registered NDIS provider and the person’s registration was revoked—information about the revocation; (f) any other matter prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.

Other information

(6) The Commissioner may include other information on the NDIS Provider Register if the Commissioner is satisfied that it is relevant to the provision of supports or services to people with disability.

Rules

(7) The National Disability Insurance Scheme rules may make provision for and in relation to the following: (a) the correction of entries in the NDIS Provider Register; (b) the publication of the NDIS Provider Register in whole or part, or of specified information entered on the NDIS Provider Register; (c) any other matter relating to the administration or operation of the NDIS Provider Register.

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Chapter 4 Administration

Part 4 Children

Section 74

Part 4—Children

74 Children

(1) If this Act requires or permits a thing to be done by or in relation to a child, the thing is to be done by or in relation to: (a) the person who has, or the persons who jointly have, parental responsibility for the child; or (b) if the CEO is satisfied that this is not appropriate—a person determined in writing by the CEO.

(1A) If: (a) a State or Territory Minister; or (b) the head (however described) of a Department of State of a State or Territory; have parental responsibility for the child, the CEO must not make a determination under paragraph (1)(b) in relation to the child unless the Minister or the head of the Department, as the case may be, has agreed in writing to the making of the determination.

(2) If a person mentioned in subsection (1) makes a plan management request for a participant who is a child, the person may request: (a) that the person manage the plan wholly or to the extent specified in the request; or (b) that the plan be managed wholly, or to the extent specified in the request, by a registered plan management provider ominated by the person to manage the plan; or (c) that the plan be managed wholly, or to the extent specified in the request, by the Agency or a person specified by the Agency.

(3) The statement of participant supports in the plan must give effect to the plan management request, except as mentioned in subsections (4) and (5).

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Section 74

(4) The statement of participant supports in a participant’s plan must not provide that the person referred to in paragraph (2)(a) is to manage the funding for supports under the participant’s plan: (a) to any extent, if the person is an insolvent under administration; or (b) to a particular extent, if the CEO is satisfied that management of the plan to that extent would: i) present an unreasonable risk to the participant; or ii) permit the person to manage matters that are prescribed by the National Disability Insurance Scheme rules as being matters that must not be managed by the person.

(5) Subsections (1) and (2) of this section do not have effect in relation to a participant who is a child if: a) the CEO is satisfied that the child is capable of making decisions for himself or herself; and b) the CEO is satisfied that it is appropriate in the circumstances for those subsections not to apply to the child; and c) the CEO makes a determination that those subsections do not apply to the child.

(6) The National Disability Insurance Scheme rules may prescribe requirements with which the CEO must comply, criteria that the CEO is to apply or matters to which the CEO is to have regard in deciding the following: a) whether to make a determination under paragraph (1)(b); b) whether a person managing the funding for supports under a participant’s plan would present an unreasonable risk to the participant as mentioned in paragraph (4)(b); c) whether a child is capable of making decisions for himself or herself as mentioned in paragraph (5)(a); d) whether it is appropriate for subsections (1) and (2) not to apply to a child as mentioned in paragraph (5)(b).

(7) A determination made under paragraph (5)(c) is not a legislative instrument.

Chapter 4 Administration

Part 4 Children

Section 75

75 Definition of parental responsibility

(1) For the purposes of this Act, a person has parental responsibility for a child if: (a) the person is the child’s parent and has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975 or a law of a State or Territory; or (b) under a parenting order (within the meaning of the Family Law Act 1975): (i) the child is to live with the person; or (ii) the child is to spend time with the person; or (iii) the person is responsible for the child’s long-term or day-to-day care, welfare and development.

(2) Despite subsection (1), if, under a law of the Commonwealth, a State or a Territory, a person has guardianship of a child, that person has parental responsibility for the child, unless the CEO determines that one or more of the persons referred to in subsection (1) instead have parental responsibility for the child.

(3) If subsection (1) would result in more than one person having parental responsibility for a child, the CEO may determine that one or more of those persons have parental responsibility for the child for the purposes of this Act.

(3A)

If: (a) a State or Territory Minister; or (b) the head (however described) of a Department of State of a State or Territory; have guardianship of the child, the CEO must not make a determination under subsection (2) or (3) in relation to the child unless the Minister or the head of the Department, as the case may be, has agreed in writing to the making of the determination.

(4) The National Disability Insurance Scheme rules may prescribe requirements with which the CEO must comply, criteria that the CEO is to apply or matters to which the CEO is to have regard in

Administration Chapter 4

Children Part 4

Section 76

deciding whether to make a determination under subsection (2) or (3).

(5) A determination under subsection (2) or (3) must be in writing.

(6) A determination under subsection (2) or (3) is not a legislative instrument.

76 Duty to children

(1) It is the duty of a person who may do a thing because of section 74 to ascertain the wishes of the child concerned and to act in the best interests of the child.

(2) A person does not breach the duty imposed by subsection (1) by doing a thing if, when the thing is done, the person reasonably believes that: (a) he or she has ascertained the wishes of the child in relation to the thing; and (b) the doing of the thing is in the best interests of the child.

(3) A person does not breach the duty imposed by subsection (1) by refraining from doing a thing if, at the relevant time, the person reasonably believes that: (a) he or she has ascertained the wishes of the child in relation to the thing; and (b) not doing the thing is in the best interests of the child.

(4) The National Disability Insurance Scheme rules may prescribe other duties of a person who may do a thing in relation to a child because of section 74, including duties requiring the person: (a) to support decision-making by the child personally; or (b) to have regard to, and give appropriate weight to, the views of the child.

Section 77 Revocation of determinations under section 74

(1) The CEO may, by written instrument, revoke a determination that is in effect under paragraph 74(1)(b) in relation to a person if:

Chapter 4 Administration

Part 4 Children

Section 77

(a) the person requests the CEO in writing to do so; or (b) the CEO is satisfied that it is no longer appropriate for the determination to remain in effect.

(2) The CEO must give the person a copy of the instrument.

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Administration Chapter 4

Nominees Part 5

Functions and responsibilities of nominees Division 1

Section 78

Part 5—Nominees Division 1—Functions and responsibilities of nominees

78 Actions of plan nominee on behalf of participant

(1) Any act that may be done by a participant under, or for the purposes of, this Act that relates to: (a) the preparation, variation or reassessment or replacement of redacted The participant’s plan; or (b) the management of the funding for supports under the participant’s plan; may be done by the participant’s plan nominee, other than to the extent specified in the instrument of appointment of the plan nominee.

Note 1: For the appointment of plan nominees, see section 86.

Note 2: This subsection is subject to section 85 (which deals with the right of the nominee to attend with a participant) and subsection (4) of this section.

(2) Without limiting subsection (1), a request that may be made under this Act by a participant may be made by the participant’s plan nominee on behalf of the participant.

(3) An act done by a participant’s plan nominee because of this section has effect, for the purposes of this Act (other than this Part), as if it had been done by the participant.

(4) If, under this Act, the CEO gives a notice to a participant who has a plan nominee, subsection (1) does not extend to an act that is required by the notice to be done by the participant personally.

(5) If the participant’s plan nominee was appointed on the initiative of the CEO, the plan nominee may only do an act in relation to: a) the preparation, variation or reassessment or replacement of redacted The participant’s plan; or b) the management of the funding for supports under the participant’s plan;

Chapter 4 Administration

Part 5 Nominees

Division 1 Functions and responsibilities of nominees

Section 79

if the nominee considers that the participant is not capable of doing, or being supported to do, the act.

79 Actions of correspondence nominee on behalf of participant

(1) Any act that may be done by a participant under, or for the purposes of, this Act may be done by the participant’s correspondence nominee, other than an act that relates to: (a) the preparation, variation or reassessment or replacement of redacted The participant’s plan; or (b) the management of the funding for supports under the participant’s plan.

Note 1: For the appointment of correspondence nominees, see section 87.

Note 2: This subsection is subject to section 85 (which deals with the right of the nominee to attend with a participant) and subsection (4) of this section.

(2) Without limiting subsection (1), a request that may be made under this Act by a participant may be made by the participant’s correspondence nominee on behalf of the participant.

(3) An act done by a participant’s correspondence nominee because of this section has effect, for the purposes of this Act (other than this Part), as if it had been done by the participant.

(4) If, under this Act, the CEO gives a notice to a participant who has a correspondence nominee, subsection (1) does not extend to an act that is required by the notice to be done by the participant personally.

80 Duties of nominees to participant etc.

(1) It is the duty of a nominee of a participant to ascertain the wishes of the participant and to act in a manner that promotes the personal and social wellbeing of the participant.

(2) A nominee does not breach the duty imposed by subsection (1) by doing an act if, when the act is done, the nominee reasonably believes that:

Administration Chapter 4

Nominees Part 5

Functions and responsibilities of nominees Division 1

Section 81

(a) he or she has ascertained the wishes of the participant in relation to the act; and (b) the doing of the act promotes the personal and social wellbeing of the participant.

(3) A nominee does not breach the duty imposed by subsection (1) by refraining from doing an act if, at the relevant time, the nominee reasonably believes that: (a) he or she has ascertained the wishes of the participant in relation to the act; and (b) not doing the act promotes the personal and social wellbeing of the participant.

(4) The National Disability Insurance Scheme rules may prescribe other duties of a nominee, including duties requiring the nominee: (a) to support decision-making by the participant personally; or (b) to have regard to, and give appropriate weight to, the views of the participant; or (c) to inform the CEO and the participant if the nominee has, acquires, or is likely to acquire, any interest, pecuniary or otherwise, that conflicts or could conflict with the performance of the nominee’s duties.

81 Giving of notices to correspondence nominee

(1) Any notice that the CEO is authorised or required by this Act to give to a participant must be given by the CEO to the participant’s correspondence nominee.

(2) The notice: (a) must, in every respect, be in the same form, and in the same terms, as if it were being given to the participant; and (b) may be given to the correspondence nominee personally, by post or by any other means approved by the CEO.

(3) If: (a) under subsection (1), the CEO gives a notice (the nominee notice) to a participant’s correspondence nominee; and

Chapter 4 Administration

Part 5 Nominees

Division 1 Functions and responsibilities of nominees

Section 82

(b) the CEO has already given, or afterwards gives, the participant a notice that: (i) is expressed to be given under the same provision of this Act as the nominee notice; and (ii) makes the same requirement of the participant as the nominee notice; section 82 ceases to have effect, or does not come into effect, as the case requires, in relation to the nominee notice.

82 Compliance by correspondence nominee

(1) If, under section 81, a notice is given to a participant’s correspondence nominee, the following paragraphs have effect: (a) for the purposes of this Act, other than this Part, the notice is taken: (i) to have been given to the participant; and (ii) to have been so given on the day the notice was given to the correspondence nominee; (b) any requirement made of the participant to: (i) inform the CEO of a matter; or (ii) give information, or produce a document, to an Agency officer; may be satisfied by the correspondence nominee; (c) any act done by the correspondence nominee for the purposes of satisfying such a requirement has effect, for the purposes of this Act, as if it had been done by the participant; (d) if the correspondence nominee fails to satisfy such a requirement, the participant is taken, for the purposes of this Act, to have failed to comply with the requirement.

(2) To avoid doubt, for the purposes of this Act, the participant is taken to have complied with a requirement if: (a) the requirement imposes an obligation on the participant to inform the CEO of a matter, or give information or produce a document, within a specified period; and (b) the correspondence nominee does so within that period.

Administration Chapter 4

Nominees Part 5

Functions and responsibilities of nominees Division 1

Section 83

(3) To avoid doubt, for the purposes of this Act, the participant is taken not to have complied with a requirement if: (a) the requirement imposes an obligation on the participant to inform the CEO of a matter, or give information or produce a document, within a specified period; and (b) the correspondence nominee does not do so within that period.

83 Nominee to inform Agency of matters affecting ability to act as nominee

(1) The CEO may give a nominee of a participant a written notice that requires the nominee to inform the Agency if: (a) either: (i) an event or change of circumstances happens; or (ii) the nominee becomes aware that an event or change of circumstances is likely to happen; and (b) the event or change of circumstances is likely to affect: (i) the ability of the nominee to act as the plan nominee or Correspondence nominee of the participant (as the case may be); or (ii) the ability of the CEO to give notices to the nominee under this Act; or (iii) the ability of the nominee to comply with notices given to the nominee by the CEO under this Act.

(2) A notice under subsection (1) must specify: (a) how the nominee is to inform the Agency; and (b) the period within which the nominee is to inform the Agency, which must be a period of at least 14 days beginning on whichever of the following days is applicable: (i) the day on which the event or change of circumstances happens; (ii) the day on which the nominee becomes aware that the event or change of circumstances is likely to happen.

Chapter 4 Administration

Part 5 Nominees

Division 1 Functions and responsibilities of nominees

Section 84

(3) A notice under subsection (1) is not ineffective only because it does not comply with paragraph (2)(a).

(4) This section extends to: (a) acts, omissions, matters and things outside Australia, whether or not in a foreign country; and (b) all persons, irrespective of their nationality or citizenship.

84 Statement by plan nominee regarding disposal of money

(1) The CEO may give the plan nominee of a participant a notice that requires the nominee to give the Agency a statement about a matter relating to the disposal by the nominee of an NDIS amount paid to the nominee on behalf of the participant.

(2) A notice under subsection (1): (a) must specify how the plan nominee is to give the statement to the Agency; and (b) must specify the period within which the plan nominee is to give the statement to the Agency.

(3) A notice under subsection (1) is not ineffective only because it does not comply with paragraph (2)(a).

(4) The period specified under paragraph (2)(b) must not end earlier than 14 days after the day the notice is given.

(5) A statement given in response to a notice under subsection (1) must be in accordance with a form approved by the CEO.

(6) A person commits an offence if: (a) the person is a plan nominee; and (b) the person refuses or fails to comply with a notice under subsection (1).

Penalty: 30 penalty units.

(7) Subsection (6) does not apply if the person has a reasonable excuse.

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Nominees Part 5

Functions and responsibilities of nominees Division 1

Section 85

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

(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.

(8) An offence against subsection (6) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(9) This section extends to: (a) acts, omissions, matters and things outside Australia, whether or not in a foreign country; and (b) all persons, irrespective of their nationality or citizenship.

85 Right of nominee to attend with participant

(1) If: (a) under this Act, the CEO makes a request of a participant who has a nominee; and (b) the request is that the participant undergo an assessment or examination; The nominee may accompany the participant while the assessment or examination is being conducted: (c) if the participant so wishes; and (d) to the extent that the person conducting the assessment or examination consents.

(2) If a participant’s nominee is a body corporate, the last reference in subsection (1) to the nominee is to be read as a reference to an officer or employee of the nominee.

Chapter 4 Administration

Part 5 Nominees

Division 2 Appointment and cancellation or suspension of appointment

Section 86

Division 2—Appointment and cancellation or suspension of appointment

86 Appointment of plan nominee

(1) The CEO may, in writing, appoint a person to be a plan nominee of a participant for the purposes of this Act.

Note: The CEO must make the appointment in accordance with section 88.

(2) An appointment may be made: (a) at the request of the participant; or (b) on the initiative of the CEO.

(3) An appointment may limit the matters in relation to which the person is the plan nominee of the participant.

(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.

(6) To avoid doubt, the CEO may appoint more than one person to be a plan nominee of a participant for the purposes of this Act.

87 Appointment of correspondence nominee

(1) The CEO may, in writing, appoint a person to be the correspondence nominee of a participant for the purposes of this Act.

Note: The CEO must make the appointment in accordance with section 88.

(2) An appointment may be made: (a) at the request of the participant; or (b) on the initiative of the CEO.

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

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Nominees Part 5

Appointment and cancellation or suspension of appointment Division 2

Section 88

(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.

       88 Provisions relating to appointments

(1) A person may be appointed as the plan nominee and the correspondence nominee of the same participant.

(2) The CEO must not appoint a person as a nominee of a participant under section 86 or 87 except: (a) with the written consent of the person to be appointed; and (b) after taking into consideration the wishes (if any) of the participant regarding the making of the appointment.

(3) In appointing a person as a nominee of a participant under section 86 or 87, the CEO must consider whether the person is able to comply with section 80.

(4) In appointing a nominee of a participant under section 86 or 87, the CEO must have regard to whether 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.

(5) The CEO must cause a copy of an appointment under section 86 or 87 to be given to: (a) the nominee; and (b) the participant.

(6) The National Disability Insurance Scheme rules may prescribe: (a) persons who must not be appointed as nominees; and (b) criteria the CEO is to apply or matters to which the CEO is to have regard in considering the appointment of a nominee.

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Chapter 4 Administration

Part 5 Nominees

Division 2 Appointment and cancellation or suspension of appointment

Section 89

89 Circumstances in which the CEO must cancel appointment of nominees

• At the request of a participant

(1)

If: (a) a person is appointed as a nominee of a participant under section 86 or 87 at the request of the participant; and (b) the participant requests the CEO to cancel the appointment; The CEO must cancel the appointment by written instrument: Deleted: the CEO must, as soon as practicable, cancel the appointment by written instrument. (c) within the period worked out in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this paragraph; or d) if there are no such rules—as soon as reasonably practicable.

(2)

A request under paragraph (1)(b) need not be made in writing. If the request is not made in writing, the CEO must make a written record of the request.

Nominee no longer wishes to be a nominee

(3)

If: (a) a person is appointed as a nominee of a participant under section 86 or 87; and (b) the person informs the CEO in writing that the person no longer wishes to be a nominee under that appointment; The CEO must cancel the appointment by written instrument: Deleted: the CEO must, as soon as practicable, cancel the appointment by written instrument. (c) within the period worked out in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this paragraph; or d) if there are no such rules—as soon as reasonably practicable.Copy of instrument of cancellation to be given Deleted: ¶

(4)

If the appointment of a person as a nominee of a participant is cancelled under this section, the CEO must give the person and participant a copy of the instrument of cancellation.

Administration Chapter 4

Nominees Part 5

Appointment and cancellation or suspension of appointment Division 2

Section 90

90 General circumstances in which CEO may cancel or suspend

appointment of nominees

At the request of a participant

(1) If: (a) a person is appointed as a nominee of a participant under section 86 or 87 on the initiative of the CEO; and (b) the participant requests the CEO to cancel the appointment; the CEO may, by written instrument, cancel the appointment.

(2) A request under paragraph (1)(b) need not be made in writing. If the request is not made in writing, the CEO must make a written record of the request.

(3) If a request is made under paragraph (1)(b): (a) the CEO must decide whether to cancel the appointment Deleted: the CEO must decide whether to cancel the within the following number of days after receiving the appointment within 14 days after receiving the request; and request:

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Part 5 Nominees

Division 2 Appointment and cancellation or suspension of appointment

Section 90

(i) 14 days, unless subparagraph (ii) applies; (ii) if the National Disability Insurance Scheme rules prescribe a number of days for the purposes of this subparagraph—that number of days; and

(b) if the CEO decides not to cancel the appointment—the CEO must give the person and participant written notice of the CEO’s decision.

Nominee no longer has guardianship etc

(3A) The CEO may, by written instrument, cancel the appointment of a nominee of a participant if: (a) at the time the appointment was made, the nominee was a person who, under a law of the Commonwealth, a State or a Territory: i) had guardianship of the participant; ori) was appointed by a court, tribunal, board or panel (however described) who had power to make decisions for the participant and whose responsibilities in relation to the participant were relevant to the duties of a nominee; and

(b) the nominee no longer has guardianship of the participant or no longer holds the appointment referred to in subparagraph (a)(ii) (as the case requires).

Ability to act as a nominee affected

(4) The CEO may, by written instrument, suspend or cancel one or more of a nominee’s appointments if: a) the CEO gives the nominee a notice under section 83; and b) in response to the notice, the nominee informs the Agency that an event or change of circumstances has happened or is likely to happen; and c) having regard to that response, the CEO is satisfied that it is appropriate to do so.

Administration Chapter 4

Nominees Part 5

Appointment and cancellation or suspension of appointment Division 2

Section 91

Failure to comply with a notice under section 83 or 84

(5) The CEO may, by written instrument, suspend or cancel one or more of a nominee’s appointments if: (a) the CEO gives the nominee a notice under section 83 or 84; and (b) the nominee does not comply with a requirement specified in the notice.

Copy of instrument of cancellation or suspension to be given

(6) If the appointment of a person as a nominee of a participant is cancelled or suspended under this section, the CEO must give the person and participant a copy of the instrument of cancellation or suspension.

91 Suspension etc. of appointment of nominees in cases of physical,

mental or financial harm

Suspension of appointment

(1) The CEO may, by written instrument, suspend the appointment of a person as a nominee of a participant if the CEO has reasonable grounds to believe that the person has caused, or is likely to cause, physical, mental or financial harm to the participant.

(2) If the person’s appointment is suspended under subsection (1), the CEO must: (a) give the person and participant a copy of the instrument of suspension; and (b) by written notice given to the person, request the person to give the CEO, within 28 days after the notice is given, a statement setting out reasons why the person’s appointment should not be cancelled by the CEO under this section.

Chapter 4 Administration

Part 5 Nominees

Division 2 Appointment and cancellation or suspension of appointment

Section 92

Cancellation of appointment following suspension

(3) If the person gives the CEO the statement within the 28-day period, the CEO may, by written instrument, cancel the person’s appointment.

(4) The CEO must decide whether to cancel the person’s appointment under subsection (3) as soon as practicable after receiving the statement.

(5) If the CEO decides not to cancel the person’s appointment under subsection (3): (a) the suspension of the person’s appointment ends; and (b) the CEO must give the person and participant written notice of the CEO’s decision.

(6) If the person does not give the CEO the statement within the 28-day period, the CEO must, by written instrument, cancel the person’s appointment as soon as practicable after that period ends.

Copy of instrument of cancellation to be given

(7) If the person’s appointment is cancelled under this section, the CEO must give the person and participant a copy of the instrument of cancellation.

92 Other matters relating to cancellation or suspension of

appointment

Cancellation of appointment

(1) If: (a) the National Disability Insurance Scheme rules made for the purposes of subsection 46(2) apply in relation to a person who is a nominee; and (b) the appointment of the person as a nominee is cancelled under section 89, 90 or 91; those rules continue to apply in relation to the person as if the appointment had not been cancelled.

Administration Chapter 4

Nominees Part 5

Appointment and cancellation or suspension of appointment Division 2

Section 93

Suspension of appointment

(2) While a person’s appointment as a nominee is suspended, the appointment has no effect for the purposes of this Act.

(3) If a person’s appointment as a nominee of a participant is suspended under section 90 or 91, the CEO may appoint another person under section 86 or 87 to be the nominee of the participant for a period specified in the instrument of appointment.

Section 93: National Disability Insurance Scheme rules may prescribe requirements etc.

The National Disability Insurance Scheme rules may prescribe:

• (a) requirements with which the CEO must comply relating to the appointment of nominees or the cancellation or suspension of the appointment of nominees; and
• (b) criteria the CEO is to apply or matters to which the CEO is to have regard in appointing nominees or cancelling or suspending the appointment of nominees.

Section 94: CEO’s powers of revocation

Nothing in this Part is an expression of a contrary intention for the purposes of subsection 33(3) of the Acts Interpretation Act 1901.

Chapter 4 Administration

Part 5 Nominees

Division 3 Other matters relating to nominees

Section 95

Division 3—Other matters relating to nominees

95 CEO’s powers to give notices to participant

Nothing in this Part is intended in any way to affect the CEO’s powers under other provisions of this Act to give notices to, or make requirements of, a participant who has a nominee.

96 Notification of nominee where notice is given to participant

(1) If, under this Act (other than this Part), the CEO gives a notice to a participant who has a correspondence nominee, the CEO may inform the correspondence nominee of the giving of the notice and of the terms of the notice.

(2) If, under this Act (other than this Part): (a) the CEO gives a notice to a participant who has a plan nominee; and (b) the notice relates to the preparation, management variation or Deleted: or review reassessmentof the participant’s plan; Deleted: the CEO must inform the plan nominee of the giving of the notice and of the terms of the notice.

97 Protection of participant against liability for actions of nominee

Nothing in this Part renders a participant guilty of an offence against this Act in relation to any act or omission of the participant’s nominee.

98 Protection of nominee against criminal liability

(1) A nominee of a participant is not subject to any criminal liability under this Act in relation to: (a) any act or omission of the participant; or (b) anything done, in good faith, by the nominee in his or her capacity as nominee.

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Nominees

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Other matters relating to nominees Division 3

Section 98

(2) This section has effect subject to section 84 (which deals with a statement by a plan nominee regarding the disposal of money).

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Chapter 4 Administration

Part 6 Review of decisions

Section 99

Part 6—Review of decisions

99 Reviewable decisions and decision-makers

(1) The following table sets out:

• (a) the reviewable decisions under this Act; and
• (b) the decision-maker in respect of each of those decisions.

Reviewable decisions and decision-makers

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Section 99

Reviewable decisions and decision-makers

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Chapter 4 Administration

Part 6 Review of decisions

Section 99

Reviewable decisions and decision-makers

Item Column 1 Column 2 Column 3 Reviewable decision Provision under which the Decision-maker reviewable decision is made 15 a decision to make a section 73ZN Commissioner banning order 16 a decision to vary, or to section 73ZO Commissioner refuse to vary or revoke, a banning order 17 a decision to make, or paragraph 74(1)(b) CEO not to make, a determination in relation to a person 18 a decision not to make paragraph 74(5)(c) CEO a determination that subsections 74(1) and (2) do not apply to a child 19 a decision to make, or subsection 75(2) or (3) CEO not to make, a determination that a person has parental responsibility for a child 20 a decision to appoint a section 86 CEO plan nominee 21 a decision to appoint a section 87 CEO correspondence nominee 22 a decision to cancel or section 89, 90 or 91 CEO suspend, or not to cancel or suspend, the appointment of a nominee 23 a decision to give a section 104 CEO notice to require a person to take

Administration Chapter 4

Review of decisions Part 6

Section 99

Reviewable decisions and decision-makers

Chapter 4 Administration

Part 6 Review of decisions

Section 100

(2) The National Disability Insurance Scheme rules may: (a) provide that a decision made under a specified provision of the rules is a reviewable decision; and (b) specify the decision-maker in respect of the reviewable designation.

100 Review of reviewable decisions

(1) The decision-maker of a reviewable decision must give written notice of the reviewable decision and of the reasons for the reviewable decision to each person directly affected by the reviewable decision.

(1A) The notice must include a statement: (a) that: (i) the person may request a review of the reviewable decision in accordance with this section; or (ii) if the decision-maker is taken to have made the reviewable decision because of subsection 21(3) or Deleted: 48(2) 47A(5) or 48(4)—the decision will be reviewed automatically; and (b) that the person may seek further review under section 103.

(2) A person who is directly affected by a reviewable decision may request the decision-maker to review the reviewable decision. If the person is given a notice under subsection (1), the person must make the request within 3 months after receiving the notice.

(3) A request may be made by: (a) sending or delivering a written request to the decision-maker; or (b) making an oral request, in person or by telephone or other means, to the decision-maker.

(4) If a person makes an oral request in accordance with paragraph (3)(b), The person receiving the oral request must: (a) make a written record of the details of the request; and (b) note on the record the day the request is made.

Administration Chapter 4

Review of decisions Part 6

Section 100

(5) If: (a) the decision-maker receives a request for review of a reviewable decision; or (b) the decision-maker is taken to have made a reviewable decision because of subsection 21(3) or 47A(5) or 48(4); Deleted: 48(2) the decision-maker must cause the reviewable decision to be reviewed by a person (the reviewer): (c) to whom the decision-maker’s powers and functions under this section are delegated; and (d) who was not involved in making the reviewable decision.

(6) The reviewer must make a decision: Deleted: , as soon as reasonably practicable, (a) confirming the reviewable decision; or (b) varying the reviewable decision; or (c) setting aside the reviewable decision and substituting a new decision.

     (6A) The reviewer must make the decision under subsection (6):

            (a) within the period worked out in accordance with the National
               Disability Insurance Scheme rules prescribed for the
           purposes of this paragraph; or

          (b) if there are no such rules—within the period of 90 days
           beginning on:
                                        (i) if paragraph (5)(a) applies—the day the request is
              received; or
                                         (ii) if paragraph (5)(b) applies—the day after the end of the
                            period applicable under paragraph 21(3)(a) or (b) or
                             subsection 47A(5) or 48(4) (as appropriate).

(7) A request for review of a reviewable decision, or a requirement to review a reviewable decision that the decision-maker is taken to have made, does not affect the operation of the decision or prevent the taking of action to implement the decision.

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Chapter 4 Administration

Part 6 Review of decisions

Section 101

(8) A failure of the decision-maker to comply with subsection (1) does not affect the validity of the reviewable decision or the right of a person directly affected to request review of the decision.

101 Effect of later decisions before review completed Deleted: Variation of reviewable decision before review

                                                                                                         completed…

(1) If: (a) a request is made for review of a reviewable decision; and (b) before a decision on the review is made, the reviewable decision is varied; the request for review is taken to be for review of the reviewable decision as varied.

(2) If: (a) a request is made for review of:

          (i) a decision under subsection 33(2) to approve the statement
    of participant supports in a participant’s plan; or
           (ii) a decision under subsection 47A(1) to vary a Participant’s
     plan, where the variation is a change to the statement of
      participant supports; and

       (b) before a decision on the review is made:

               (i) the CEO varies the plan under subsection 47A(1) and the
     variation is a change to the statement of participant supports; or

                (ii) a new plan for the participant comes into effect under
       section 37; then:

        (c) if subparagraph (b)(i) applies—the request is also taken to be a
    request for review of the decision to make the variation covered by
       that subparagraph; or

         (d) if subparagraph (b)(ii) applies—the request is also taken to be a
    request for review of the decision to approve the statement of
      participant supports in the new plan.

Administration Chapter 4

Review of decisions Part 6

Section 102

102 Withdrawal of request for review

(1) A request for review of a reviewable decision may be withdrawn by: (a) sending or delivering a written notice to the decision-maker; or (b) contacting the decision-maker and withdrawing the request orally, whether in person, by telephone or by other means.

(2) If a request is withdrawn in accordance with paragraph (1)(b), the person receiving the oral withdrawal must make a written record of the details of the withdrawal and note on the record the day the withdrawal is made.

103 Applications to the Administrative Appeals Tribunal

(1) Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).

Note: Under the Administrative Appeals Tribunal Act 1975, notice must given to persons whose interests are affected by a decision of the reviewer.

(2) If: (a) an application is made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6); and

(b) the decision relates to a statement of participant supports in a
participant’s plan; and

(c) before a decision on the review is made and despite subsection

26(1) of the Administrative Appeals Tribunal Act 1975:

(i) the CEO varies the plan under subsection 47A(1) of this Act

and the variation is a change to that statement; or (ii) a new plan for the participant comes into effect under section 37 of this Act; then:

Chapter 4 Administration

Part 6 Review of decisions

Section 103

(d) if subparagraph (c)(i) applies—the application is also taken to be an application for review of the decision to make the variation covered by that subparagraph; or

(e) if subparagraph (c)(ii) applies—the application is also taken to be an application for review of the decision to approve the statement of participant supports in the new plan.

redacted: s22(1)(a)(ii) - irrelevant material

158 National Disability Insurance Scheme Act 2013 Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Compensation payments Chapter 5

Requirement to take action to obtain compensation Part 1

Section 104

Chapter 5—Compensation payments

Part 1—Requirement to take action to obtain compensation

104 CEO may require person to take action to obtain compensation

(1) This section applies if: (a) a participant or a prospective participant is, or in the CEO’s opinion may be, entitled to compensation in respect of a personal injury; and (b) the participant or prospective participant: (i) has taken no action to claim or obtain the compensation; or (ii) has taken no reasonable action to claim or obtain the compensation.

(2) The CEO may, by written notice, require the participant or prospective participant to take the action specified in the notice within the period specified in the notice. The action must be action that is reasonable to enable the person to claim or obtain the compensation.

(3) In considering whether it is reasonable to require a participant or prospective participant to take an action, the CEO must have regard to the following: (a) the disability of the participant or prospective participant; (b) the circumstances which give rise to the entitlement or possible entitlement to compensation; (c) any impediments the participant or prospective participant may face in recovering compensation; (d) any reasons given by the participant or prospective participant as to why he or she has not claimed or obtained compensation;

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Part 1 Requirement to take action to obtain compensation

Section 105

(e) the financial circumstances of the participant or prospective participant; (f) the impact of the requirement to take the action on the participant or prospective participant and his or her family or carers.

(4) The CEO must not give a notice under subsection (2) requiring a participant or prospective participant to take action to claim or obtain compensation unless the CEO is satisfied that the participant or prospective participant has reasonable prospects of success in claiming or obtaining the compensation.

(5) The period specified by the CEO must be a period of at least 28 days after the day on which the notice is given.

(5A) The CEO may, on application by the participant or prospective participant, extend the specified period.

(6) Even though a participant or a prospective participant has entered into an agreement to give up his or her right to compensation, the CEO may form the opinion that the participant or prospective participant may be entitled to compensation if the CEO is satisfied that the agreement is void, ineffective or unenforceable.

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

Compensation payments Chapter 5

Requirement to take action to obtain compensation Part 1

Section 105

(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. (5) Before taking action to claim or obtain compensation, or taking over the conduct of an existing claim, the CEO must have regard to the following: (a) the disability of the participant or prospective participant; (b) the circumstances which give rise to the entitlement or possible entitlement to compensation; (c) any impediments the CEO may face if the CEO takes the action or takes over the conduct of the claim; (d) any reasons given by the participant or prospective participant as to why he or she has not claimed or obtained compensation (including in response to a notice under subsection 104(2)); (e) the impact (including any financial impact), of the CEO taking the action or taking over the conduct of the claim, on the participant or prospective participant and his or her family;

Chapter 5 Compensation payments

Part 1 Requirement to take action to obtain compensation

Section 105A

(f) any other matter the CEO considers relevant, having regard to the objects and principles set out in Part 2 of Chapter 1 of this Act.

(6) The CEO must not take any action to claim or obtain compensation, or take over the conduct of an existing claim, unless: (a) the CEO has notified the participant or prospective participant, in writing, that the action is being considered; and (b) 28 days have passed since the notice was given.

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):

Compensation payments Chapter 5

Requirement to take action to obtain compensation Part 1

Section 105B

(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.

Chapter 5 Compensation payments

Part 2 Agency may recover compensation fixed after NDIS amounts have been paid

Section 106

Part 2—Agency may recover compensation fixed after NDIS amounts have been paid

106 Recovering past NDIS amounts from certain judgements

(1) This section applies if: (a) an amount of compensation is fixed under a judgement (other than a consent judgement) given in respect of a personal injury that has caused, to any extent, a participant’s impairment (whether or not the participant was a participant at the time of the injury); and (b) before the day of the judgement, NDIS amounts (the past NDIS amounts) had been paid in respect of supports in relation to the participant’s impairment; and (c) the judgement specifies a portion (the past NDIS support component) of the amount of compensation to be a component for supports of a kind funded or provided under the National Disability Insurance Scheme.

(2) An amount (the recoverable amount) is payable by the participant to the Agency. The recoverable amount is an amount equal to: (a) unless subsection (4) or (5) applies—the sum of the past NDIS amounts, reduced as mentioned in subsection (3) (if applicable); or (b) if subsection (4) or (5) applies—the amount worked out in accordance with whichever of those subsections is applicable.

(3) If: (a) the judgement fixes the amount of compensation on the basis that liability for the injury should be apportioned between the participant and another person; and (b) as a result, the amount of compensation is less than it would have been if liability had not been so apportioned;

Compensation payments Chapter 5

Agency may recover compensation fixed after NDIS amounts have been paid Part 2

Section 107

The sum of the past NDIS amounts is to be reduced by the proportion corresponding to the proportion of liability that is apportioned to the participant by the judgment.

(4) If the recoverable amount would, apart from this subsection, exceed the past NDIS support component, the recoverable amount is taken to be the lesser of the sum of the past NDIS amounts and the past NDIS support component.

(5) If the recoverable amount would, apart from this subsection, exceed the difference (if any) between: (a) the amount of compensation fixed by the judgment; and (b) the sum of the amounts (if any) payable in respect of the amount of compensation under the following: i) the Health and Other Services (Compensation) Act 1995; ii) the Health and Other Services (Compensation) Care Charges Act 1995; iii) Part 3.14 of the Social Security Act 1991; iv) a law of the Commonwealth, a State or a Territory, prescribed by the National Disability Insurance Scheme rules; The recoverable amount is taken to be the amount of the difference.

107 Recovering past NDIS amounts from consent judgments and settlements

(1) This section applies if: a) an amount of compensation is fixed under a consent judgment or settlement in respect of a personal injury that has caused, to any extent, a participant’s impairment (whether or not the participant was a participant at the time of the injury); and b) before the day of the consent judgment or settlement, NDIS amounts (the past NDIS amounts) had been paid in respect of supports in relation to the participant’s impairment.

Chapter 5 Compensation payments

Part 2 Agency may recover compensation fixed after NDIS amounts have been paid

Section 107

(2) An amount (the recoverable amount) is payable by the participant to the Agency. The recoverable amount is an amount equal to: (a) unless subsection (4) applies—the sum of the past NDIS amounts, reduced as mentioned in subsection (3) (if applicable); or (b) if subsection (4) applies—the amount worked out in accordance with that subsection.

(3) If: (a) the consent judgement or settlement fixes the amount of compensation on the basis that liability for the injury should be apportioned between the participant and another person; and (b) as a result, the amount of compensation is less than it would have been if liability had not been so apportioned; The sum of the past NDIS amounts is to be reduced by the proportion corresponding to the proportion of liability that is apportioned to the participant by the consent judgement or settlement.

(4) If the recoverable amount would, apart from this subsection, exceed the difference (if any) between: (a) the amount of compensation fixed under the consent judgement or settlement; and (b) the sum of the amounts (if any) payable in respect of the amount of compensation under the following: i) the Health and Other Services (Compensation) Act 1995; ii) the Health and Other Services (Compensation) Care Charges Act 1995; iii) Part 3.14 of the Social Security Act 1991; iv) a law of the Commonwealth, a State or a Territory, prescribed by the National Disability Insurance Scheme rules; The recoverable amount is taken to be the amount of the difference.

Compensation payments Chapter 5 Agency may recover compensation fixed after NDIS amounts have been paid Part 2

                                                                   Section 108

       108 Debts resulting from section 106 or 107

              An amount payable by a person under section 106 or 107 is a debt
                   due by the person to the Agency.

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Chapter 5 Compensation payments

Part 3 Recovery from compensation payers and insurers

Section 109

Part 3—Recovery from compensation payers and insurers

109 CEO may send preliminary notice to potential compensation payer or insurer

(1) If: (a) a participant or prospective participant makes a claim against another person (the potential compensation payer) for compensation; and (b) the claim relates to the participant’s or prospective participant’s impairment; The CEO may give written notice to the potential compensation payer, stating that the CEO may wish to recover an amount from the potential compensation payer.

(2) If: (a) a participant or prospective participant makes a claim against another person (the potential compensation payer) for compensation; and (b) the claim relates to the participant’s or prospective participant’s impairment; and (c) an insurer may be liable, under a contract of insurance, to indemnify the potential compensation payer against any liability arising from the claim for compensation; The CEO may give written notice to the insurer, stating that the CEO may wish to recover an amount from the insurer.

(3) A notice under subsection (1) or (2) must contain: (a) a statement of the potential compensation payer’s or insurer’s obligation under subsection 110(1) or (2), as the case requires; and (b) a statement of the effect of section 111 (recovery) so far as it relates to the notice.

Compensation payments Chapter 5

Recovery from compensation payers and insurers Part 3

Section 110

110 Offence—potential compensation payer or insurer

(a) the potential compensation payer is given a notice under subsection 109(1) in relation to a participant or prospective participant; and (b) before or after receiving the notice, the potential compensation payer becomes liable to pay compensation to the participant or prospective participant; and c) the potential compensation payer does not give written notice to the CEO of the liability within 7 days after becoming liable or receiving the notice, whichever is later.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

Note: If a body corporate is convicted of an offence against this section, s subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

(2) An insurer commits an offence if: a) the insurer is given a notice under subsection 109(2) in relation to a claim by a participant or prospective participant; and b) before or after receiving the notice, the insurer becomes liably to indemnify the potential compensation payer, either wholly or partly, in relation to the claim; and c) the insurer does not give written notice to the CEO of the liability within 7 days of becoming liable or receiving the notice, whichever is later.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

Note: If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

National Disability Insurance Scheme Act 2013 169 Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Chapter 5 Compensation payments

Part 3 Recovery from compensation payers and insurers

Section 111

111 CEO may send recovery notice to compensation payer or insurer

(1) If: (a) one or more NDIS amounts have been paid to a person in respect of a participant’s impairment; and (b) a person (the compensation payer): (i) is liable to pay compensation to the participant in relation to the impairment; or (ii) if the compensation payer is an authority of a State or Territory—has determined that a payment by way of compensation is to be made to the participant in relation to the impairment; the CEO may give written notice to the compensation payer that the CEO proposes to recover from the compensation payer the amount specified in the notice.

(2) If: (a) one or more NDIS amounts have been paid to a person in respect of a participant’s impairment; and (b) an insurer is liable, under a contract of insurance, to indemnify the compensation payer against any liability arising from a claim of the participant for compensation; the CEO may give written notice to the insurer that the CEO proposes to recover from the insurer the amount specified in the notice.

(3) If a compensation payer or insurer is given notice under subsection (1) or (2), the compensation payer or insurer is liable to pay to the Agency the amount specified in the notice.

(4) The amount to be specified in the notice is the lesser of the following: (a) an amount equal to the sum of the NDIS amounts referred to in paragraph (1)(a) or (2)(a);

Compensation payments Chapter 5

Recovery from compensation payers and insurers Part 3

Section 112

(b) an amount equal to the recoverable amount in relation to the judgement, consent judgement or settlement to which the liability relates.

(5) A notice under this section must contain a statement of the effect of section 114 (offences) so far as it relates to such a notice.

(6) This section applies to an amount payable by way of compensation in spite of any law of the Commonwealth, a State or Territory however expressed under which the compensation is inalienable.

(7) If the CEO gives a person a notice under this section that the CEO proposes to recover a specified amount from the person, the specified amount is a debt due by the person to the Agency.

112 Preliminary notice or recovery notice suspends liability to pay compensation

(1) If a person (the compensation payer) has been given a notice under subsection 109(1) or 111(1) in relation to the compensation payer’s liability, or possible liability, to pay compensation, the compensation payer is not liable to pay that compensation while the notice has effect.

(2) If an insurer has been given a notice under subsection 109(2) or 111(2) in relation to the insurer’s liability, or possible liability, to indemnify a compensation payer against a liability arising from a claim for compensation: (a) the insurer is not liable to so indemnify the compensation payer; and (b) the compensation payer is not liable to pay that compensation; while the notice has effect.

Chapter 5 Compensation payments

Part 3 Recovery from compensation payers and insurers

Section 113

113 Compensation payer’s or insurer’s payment to Agency discharges liability to participant

(1) Payment to the Agency of an amount that a compensation payer is liable to pay under section 111 in relation to a participant operates, to the extent of the payment, as a discharge of:

• (a) the compensation payer’s liability to pay compensation to the participant; and
• (b) the participant’s liability to pay the Agency.

(2) Payment to the Agency of an amount that an insurer is liable to pay under section 111 in relation to a participant operates, to the extent of the payment, as a discharge of:

• (a) the insurer’s liability to the compensation payer; and
• (b) the compensation payer’s liability to pay compensation to the participant; and
• (c) the participant’s liability to pay the Agency.

114 Offence—making compensation payment after receiving preliminary notice or recovery notice

(1) A person (the potential compensation payer) commits an offence if:

• (a) the potential compensation payer has been given a notice under subsection 109(1) or 111(1) in relation to the payment of compensation to a participant or prospective participant; and
• (b) the potential compensation payer makes the compensation payment to the participant or prospective participant.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

Note: If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

(2) Subsection (1) does not apply if:

Compensation payments Chapter 5

Recovery from compensation payers and insurers Part 3

Section 115

(a) in the case of a notice under section 109—the CEO has given the potential compensation payer written notice that the notice is revoked; or (b) in the case of a notice under section 111—the potential compensation payer has paid to the Agency the amount specified in the notice; or c) the CEO has given the potential compensation payer written permission to pay the amount. (3) An insurer commits an offence if: (a) the insurer has been given a notice under subsection 109(2) or 111(2) in relation to a liability to indemnify a person; and b) the insurer makes a payment in relation to that liability. Penalty: Imprisonment for 12 months or 60 penalty units, or both. Note: If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above. (4) Subsection (3) does not apply if: a) in the case of a notice under section 109—the CEO has given the insurer written notice that the notice is revoked; or b) in the case of a notice under section 111—the insurer has paid to the Agency the amount specified in the notice; orc) the CEO has given the insurer written permission to pay the amount.

115 Liability to pay the Agency if there is a contravention of

section 114 (1) A potential compensation payer or insurer who contravenes section 114 is, in addition to being liable under that section, liable to pay to the Agency: a) if the contravention relates to a notice under section 109—an amount determined by the CEO; orb) if the contravention relates to a notice under section 111—the amount specified in the notice.

Chapter 5 Compensation payments

Part 3 Recovery from compensation payers and insurers

Section 115

(2) The amount determined by the CEO under paragraph (1)(a) must not be more than the amount that would have been specified in a notice under section 111 if one had been given.

(3) This section applies in relation to a payment by way of compensation in spite of any law of the Commonwealth, a State or Territory (however expressed) under which the compensation is inalienable.

(4) The amount determined by the CEO under paragraph (1)(a) or specified in the notice under section 111 is a debt due by the compensation payer or the insurer to the Agency.

Compensation Payments

Chapter 5

CEO May Disregard Certain Payments - Part 4

Section 116

CEO May Disregard Certain Payments

For the purposes of this Chapter, the CEO may treat the whole or part of a compensation payment as not having been fixed by a judgment (including a consent judgment) or settlement, if the CEO thinks it is appropriate to do so in the special circumstances of the case.

National Disability Insurance Scheme Act 2013 Compilation No.: 13 Compilation Date: 27/11/2020 Registered: 15/12/2020

Chapter 6—National Disability Insurance Agency

Part 1—National Disability Insurance Agency

Section 117

Chapter 6—National Disability Insurance Agency redacted

Part 1—National Disability Insurance Agency redacted

117 National Disability Insurance Agency redacted

(1) The body that was established by this section as previously in force redacted by the name National Disability Insurance Scheme Launch Transition Agency is established by this section Transition Agency is now to be known as the National Disability Insurance Agency.

Note: Subsection 25B(1) of the Acts Interpretation Act 1901 Provides that a 6 body whose name is altered by an Act continues in Existence under the 7 new name so that its identity is not affected.

(2) The Agency: (a) is a body corporate; and (b) must have a seal; and (c) may acquire, hold and dispose of real and personal property; and d) may sue and be sued.

Note: The Public Governance, Performance and Accountability Act 2013 Applies to the Agency. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources.

(3) The seal of the Agency is to be kept in such custody as the Board directs and must not be used except as authorised by the Board.

118 Functions of the Agency

(1) The Agency has the following functions: 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

Chapter 6

Part 1

Section 118

(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 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; (b) to manage, and to advise and report on, the financial sustainability of the National Disability Insurance Scheme including by: (i) regularly making and assessing estimates of the current and future expenditure of the National Disability Insurance Scheme; and (ii) identifying and managing risks and issues relevant to the financial sustainability of the National Disability Insurance Scheme; and (iii) considering actuarial advice, including advice from the scheme actuary and the reviewing actuary; (c) to develop and enhance the disability sector, including by facilitating innovation, research and contemporary best practice in the sector; (d) to build community awareness of disabilities and the social contributors to disabilities; (e) to collect, analyse and exchange data about disabilities and the supports (including early intervention supports) for people with disability; (f) to undertake research relating to disabilities, the supports (including early intervention supports) for people with disability and the social contributors to disabilities;

Chapter 6 National Disability Insurance Agency

Part 1 National Disability Insurance Agency

Section 119

(g) any other functions conferred on the Agency by or under this Act, the regulations or an instrument made under this Act; (h) to do anything incidental or conducive to the performance of the above functions.

(2) In performing its functions, the Agency must use its best endeavours to: (a) act in accordance with any relevant intergovernmental agreements; and (b) act in a proper, efficient and effective manner.

119 Powers of the Agency

(1) The Agency has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

(2) The Agency’s powers include, but are not limited to, the following powers: (a) the power to enter into contracts; (b) the power to accept gifts, devises, bequests and assignments.

120 Charging of fees

(1) The Agency may charge fees in accordance with an instrument made under subsection (2).

(2) The Minister may, by legislative instrument, prescribe: (a) the things that the Agency does in the performance of its functions for which it may charge fees; and (b) the amount, or a method of working out the amount, of those fees.

(3) An instrument made under subsection (2) must not allow: (a) a fee to be charged in relation to an access request; or (b) a participant to be charged a fee.

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(4) The Minister must not make an instrument under subsection (2) unless the Commonwealth and each host jurisdiction agree to the making of the instrument.

Process for seeking agreement

(4A) The Minister must: (a) give a notice (the original notice) in writing to one host jurisdiction Minister for each host jurisdiction seeking the agreement of that host jurisdiction to the making of the instrument and requesting the agreement be given before the end of 28 days beginning on the day the notice is given; and (b) provide a copy of the proposed instrument to that host jurisdiction Minister.

(4B) If, immediately before the end of that 28-day period: (a) no host jurisdiction Minister for a host jurisdiction has informed the Minister whether that host jurisdiction agrees to the making of the instrument; and (b) no host jurisdiction Minister for that host jurisdiction has made a request under subsection (4C); than at the end of that period, that host jurisdiction is taken to have agreed to the making of the instrument.

(4C) If, before the end of that 28-day period, a host jurisdiction Minister for a host jurisdiction gives a notice in writing to the Minister requesting a longer period within which that host jurisdiction may agree to the making of the instrument: (a) that host jurisdiction may give that agreement before the end of 90 days beginning on the day the original notice was given; and (b) if, immediately before the end of that 90-day period, no host jurisdiction Minister for that host jurisdiction has informed the Minister whether that host jurisdiction agrees to the making of the instrument, then, at the end of that period, that host jurisdiction is taken to have so agreed.

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Fee must not amount to taxation

(5) A fee must not be such as to amount to taxation.

121 Minister may give directions to the Agency

(1) The Minister may, by legislative instrument, give directions to the Agency about the performance of its functions.

Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).

(2) A direction given under subsection (1): (a) must not relate to a particular individual; and (b) must not be inconsistent with: (i) this Act, the regulations or an instrument made under this Act; or (ii) the Public Governance, Performance and Accountability Act 2013, or any instrument made under that Act.

(3) The Minister must not give a direction under subsection (1) unless the Commonwealth and each host jurisdiction agree to the giving of the direction.

Process for seeking agreement

(3A) The Minister must: (a) give a notice (the original notice) in writing to one host jurisdiction Minister for each host jurisdiction seeking the agreement of that host jurisdiction to the giving of the direction and requesting the agreement be given before the end of 28 days beginning on the day the notice is given; and (b) provide a copy of the proposed direction to that host jurisdiction Minister.

(3B) If, immediately before the end of that 28-day period:

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(a) no host jurisdiction Minister for a host jurisdiction has informed the Minister whether that host jurisdiction agrees to the giving of the direction; and (b) no host jurisdiction Minister for that host jurisdiction has made a request under subsection (3C); thenthat host jurisdiction is taken to have agreed to the giving of the direction. (3C) If, before the end of that 28-day period, a host jurisdiction Minister for a host jurisdiction gives a notice in writing to the Minister requesting a longer period within which that host jurisdiction may agree to the giving of the direction: (a) that host jurisdiction may give that agreement before the end of 90 days beginning on the day the original notice was given; and (b) if, immediately before the end of that 90-day period, no host jurisdiction Minister for that host jurisdiction has informed the Minister whether that host jurisdiction agrees to the giving of the direction, then, at the end of that period, that host jurisdiction is taken to have so agreed. Agency must comply with direction (4) The Agency must comply with a direction given under subsection (1). 122 Agency does not have privileges and immunities of the Crown The Agency does not have privileges and immunities of the Crown in right of the Commonwealth.

Chapter 6 National Disability Insurance Agency

Part 2—Board of the Agency

Division 1—Establishment and functions

Section 123

Part 2—Board of the Agency

Division 1—Establishment and functions

123 Board of the National Disability Insurance Agency

Deleted: Establishment

The body that was established by this section as previously in Deleted: The Board of the Agency is established by this section.… The Board of the National Disability Insurance Scheme Launch Transition Agency is now to be known as the Board of the National Disability Insurance Agency.

Note: Subsection 25B(1) of the Acts Interpretation Act 1901 provides that a body whose name is altered by an Act continues in existence under the new name so that its identity is not affected.

124 Functions of the Board

(1) The Board has the following functions: (a) to ensure the proper, efficient and effective performance of the Agency’s functions; (b) to determine objectives, strategies and policies to be followed by the Agency; (c) any other functions conferred on the Board by or under: (i) this Act, the regulations or an instrument made under this Act; or (ii) any other law of the Commonwealth.

(2) The Board has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

(3) Anything done in the name of, or on behalf of, the Agency by the Board, or with the authority of the Board, is taken to have been done by the Agency.

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Establishment and functions Division 1

Section 125

125 Minister may give the Board a statement setting out strategic guidance for the Agency

(1) The Minister may give the Board a written statement setting out strategic guidance for the Agency.

(2) A statement given under subsection (1):

• must be of a general nature only;
• must not relate to a particular individual;
• must not be inconsistent with:
  • this Act, the regulations or an instrument made under this Act; or
  • the Public Governance, Performance and Accountability Act 2013, or any instrument made under that Act.

(3) The Minister must not give a statement under subsection (1) unless the Commonwealth and each host jurisdiction agree to the giving of the statement.

Process for seeking agreement

(3A) The Minister must:

• give a notice (the original notice) in writing to one host jurisdiction Minister for each host jurisdiction seeking the agreement of that host jurisdiction to the giving of the statement and requesting the agreement be given before the end of 28 days beginning on the day the notice is given; and
• provide a copy of the proposed statement to that host jurisdiction Minister.

(3B) If, immediately before the end of that 28-day period:

• no host jurisdiction Minister for a host jurisdiction has informed the Minister whether that host jurisdiction agrees to the giving of the statement; and
• no host jurisdiction Minister for that host jurisdiction has made a request under subsection (3C);

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then, at the end of that period, that host jurisdiction is taken to have agreed to the giving of the statement.

(3C) If, before the end of that 28-day period, a host jurisdiction Minister for a host jurisdiction gives a notice in writing to the Minister requesting a longer period within which that host jurisdiction may agree to the giving of the statement: (a) that host jurisdiction may give that agreement before the end of 90 days beginning on the day the original notice was given; and (b) if, immediately before the end of that 90-day period, no host jurisdiction Minister for that host jurisdiction has informed the Minister whether that host jurisdiction agrees to the giving of the statement, then, at the end of that period, that host jurisdiction is taken to have so agreed.

Board must have regard to statement

(4) In performing its functions, the Board must have regard to a statement given under subsection (1).

Statement not a legislative instrument

(5) A statement given under subsection (1) is not a legislative instrument.

125A Matters to be considered in performing functions

In performing its functions, the Board must have regard to: (a) relevant actuarial analysis and advice; and (b) relevant advice and reports provided by the audit committee for the Agency.

Note: See section 45 of the Public Governance, Performance and Accountability Act 2013 (which deals with audit committees for Commonwealth entities).

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125B Rules about management of risk and performance of Board’s functions

The Minister administering the Insurance Act 1973 may, by legislative instrument, determine rules that: (a) relate to the management of risks, whether financial or not, thats likely to be faced by the Agency; and (b) must be complied with by the Board in performing its functions.

Chapter 6

National Disability Insurance Agency

Part 2 Board of the Agency

Division 2 Members of the Board

Section 126

Division 2—Members of the Board

126 Membership

The Board consists of the Chair and up to 11 other members.

127 Appointment of Board members

(1) The Board members are to be appointed by the Minister, by written instrument, on a part-time basis.

(2) A person is eligible for appointment as a Board member only if the Minister is satisfied that the person is a person with disability, is a person that has lived experience with disability or is a person that has skills, experience or knowledge in at least one of the following fields: (a) the provision or use of disability services; (b) the operation of insurance schemes, compensation schemes or schemes with long-term liabilities; (c) financial management; (d) corporate governance.

Procedures relating to appointment

(3) The Minister must consult the host jurisdictions about the appointment of the Chair.

(4) Before the Minister appoints a Board member other than the Chair, the Minister must: (a) seek the support of all the host jurisdictions for the appointment; and (b) be satisfied that the appointment is supported by: i. the Commonwealth; and ii. a majority of the group consisting of the Commonwealth and the host jurisdictions.

(4A) The Minister must give a notice (the original notice) in writing to one host jurisdiction Minister for each host jurisdiction seeking the

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agreement of that host jurisdiction to the appointment covered by subsection (4) and requesting the agreement be given before the end of 28 days beginning on the day the notice is given. (4B) If, immediately before the end of that 28-day period: (a) no host jurisdiction Minister for a host jurisdiction has informed the Minister whether that host jurisdiction agrees to the appointment; and (b) no host jurisdiction Minister for that host jurisdiction has made a request under subsection (4C); thent at the end of that period, that host jurisdiction is taken to have agreed to the appointment. (4C) If, before the end of that 28-day period, a host jurisdiction Minister for a host jurisdiction gives a notice in writing to the Minister requesting a longer period within which that host jurisdiction may agree to the appointment: (a) that host jurisdiction may give that agreement before the end of 90 days beginning on the day the original notice was given; and (b) if, immediately before the end of that 90-day period, no host jurisdiction Minister for that host jurisdiction has informed the Minister whether that host jurisdiction agrees to the appointment, then, at the end of that period, that host jurisdiction is taken to have so agreed. (4D) Despite subsection (4), the Minister may appoint a person as a Board member other than the Chair if: (a) the appointment is not supported by a majority of the group consisting of the Commonwealth and the host jurisdictions; and (b) the period of 90 days beginning on the day the first notice was given under subsection (4A) in relation to that appointment has ended.

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         Section 128

                    Persons ineligible for appointment

                    (5) Despite subsection (2), a person is not eligible for appointment as a
                   Board member if the person is:
                            (a) a member (however described) of:
                                         (i) the Parliament of the Commonwealth or a State; or
                                         (ii) the legislature of a Territory; or
                                         (iii) a local government authority; or
                          (b) an employee of the Commonwealth, a State, a Territory or a
                               local government authority; or
                            (c) the holder of a full-time office under a law of the
                      Commonwealth, a State or a Territory.

                  Board members to have appropriate balance of characteristics.                Deleted: Balance of skills etc

                    (6)  In appointing the Board members, the Minister must ensure that               Deleted: In appointing the Board members, the Minister must
                       the Board members collectively possess an appropriate balance of                ensure that the Board members collectively possess an
                                                                                                                                          appropriate balance of skills, experience or knowledge in the
                         characteristics mentioned in subsection (2).                                                     fields mentioned in subsection (2).

       128 Term of appointment

           A Board member holds office for the period specified in the
                      instrument of appointment. The period must not be more than 3
                        years.

                           Note:     For reappointment, see section 33AA of the Acts Interpretation Act
                                     1901.

       129 Acting appointments

                    Appointment to act during vacancy

                    (1) The Minister may, by written instrument, appoint a person to act as
                       the Chair, for a specified period of not more than 12 months,
                      during a vacancy in the office of the Chair, whether or not an
                     appointment has previously been made to the office.

                    (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

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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).

Appointment to act during absence etc.

(3) The Minister may, by written instrument, appoint a person to act as a Board member during any period, or during all periods, when a Board member: (a) is absent from duty or from Australia; or (b) is, for any reason, unable to perform the duties of the office.

Note: The Minister must tell the Ministerial Council as soon as practicable after the Minister appoints a person to act as the Chair or another Board member: see subsection 176(2).

Eligibility for appointment

(4) A person is eligible for appointment under subsection (1), (2) or (3) only if the Minister is satisfied that the person is a person with disability, is a person that has lived experience with disability or is a person that has skills, experience or knowledge in at least one of the fields mentioned in subsection 127(2).

(5) Despite subsection (4), a person is not eligible for appointment under subsection (1), (2) or (3) if the person is: (a) a member (however described) of: (i) the Parliament of the Commonwealth or a State; or (ii) the legislature of a Territory; or (iii) a local government authority; or (b) the holder of a full-time office under a law of the Commonwealth, a State or a Territory.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

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Division 2 Members of the Board

Section 130

130 Remuneration and allowances

(1) A Board member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the regulations.

(2) A Board member is to be paid the allowances that are prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

Section 131

131 Leave of absence

Chair

(1) The Minister may grant leave of absence to the Chair on the terms and conditions that the Minister determines.

(2) Before the Minister grants leave of absence to the Chair under subsection (1), the Minister must consult the host jurisdictions about the grant.

Other Board members

(3) The Chair may grant leave of absence to another Board member on the terms and conditions that the Chair determines.

(4) The Chair must notify the Minister if the Chair grants another Board member leave of absence for a period that exceeds 3 months.

Section 132

132 Outside employment

A Board member must not engage in any paid employment that, in the Minister’s opinion, conflicts or may conflict with the proper performance of the member’s duties.

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Section 133

133 Resignation of Board members

(1) A Board member may resign his or her appointment by giving the Minister a written resignation. (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day. (3) The later day specified in the resignation must not be more than 90 days after the day the resignation is received by the Minister.

Section 134 Termination of appointment of Board members

(1) The Minister may terminate the appointment of a Board member: (a) for misbehaviour; or (b) if the member is incapable of performing the duties of his or her office; or (c) if the Minister does not have confidence in the member. (2) The Minister may terminate the appointment of a Board member if: (a) the member: i. becomes bankrupt; or ii. applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or iii. compounds with his or her creditors; or iv. makes an assignment of his or her remuneration for the benefit of his or her creditors; or b. the member is absent, except on leave of absence, from 3 consecutive meetings of the Board; or c. the member engages in paid employment that, in the Minister’s opinion, conflicts or may conflict with the proper performance of the member’s duties (see section 132); or e. the Minister is satisfied that the performance of the member has been unsatisfactory for a significant period. Note: The appointment of a board member may also be terminated under section 30 of the Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an

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accountable authority, or a member of an accountable authority, for contravening general duties of officials).

Procedures relating to termination

(3) The Minister must consult the host jurisdictions about the termination of the appointment of the Chair.

(4) Before the Minister terminates the appointment of a Board member other than the Chair, the Minister must: (a) seek the support of all the host jurisdictions for the termination; and (b) be satisfied that the termination is supported by: (i) the Commonwealth; and (ii) a majority of the group consisting of the Commonwealth and the host jurisdictions.

(4A) The Minister must give a notice (the original notice) in writing to one host jurisdiction Minister for each host jurisdiction seeking the agreement of that host jurisdiction to the termination covered by subsection (4) and requesting the agreement be given before the end of 28 days beginning on the day the notice is given.

(4B) If, immediately before the end of that 28-day period: (a) no host jurisdiction Minister for a host jurisdiction has informed the Minister whether that host jurisdiction agrees to the termination; and (b) no host jurisdiction Minister for that host jurisdiction has made a request under subsection (4C); thent at the end of that period, that host jurisdiction is taken to have agreed to the termination.

(4C) if, before the end of that 28-day period, a host jurisdiction Minister for a host jurisdiction gives a notice in writing to the Minister requesting a longer period within which that host jurisdiction may agree to the termination: (a) that host jurisdiction may give that agreement before the end of 90 days beginning on the day the original notice was given; and

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(b) if, immediately before the end of that 90-day period, no host jurisdiction Minister for that host jurisdiction has informed the Minister whether that host jurisdiction agrees to the termination, then, at the end of that period, that host jurisdiction is taken to have so agreed.

Termination under the Public Governance, Performance and Accountability Act 2013 (5) Subsections (3) to (4C) are taken to apply in relation to the termination of the appointment of a Board member under section 30 of the Public Governance, Performance and Accountability Act 2013 in the same way as those subsections apply to a termination under this section.

135 Other terms and conditions of Board members (1) A Board member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

(2) Before the Minister determines terms and conditions on which a Board member holds office, the Minister must be satisfied that the Commonwealth and a majority of host jurisdictions agree to the terms and conditions.

Process for seeking agreement (3) The Minister must: (a) give a notice (the original notice) in writing to one host jurisdiction Minister for each host jurisdiction seeking the agreement of that host jurisdiction to the terms and conditions and requesting the agreement be given before the end of 28 days beginning on the day the notice is given; and (b) provide a copy of the proposed terms and conditions to that host jurisdiction Minister.

(4) If, immediately before the end of that 28-day period:

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Section 135

(a) no host jurisdiction Minister for a host jurisdiction has informed the Minister whether that host jurisdiction agrees to the terms and conditions; and (b) no host jurisdiction Minister for that host jurisdiction has made a request under subsection (5); thent, at the end of that period, that host jurisdiction is taken to have agreed to the terms and conditions.

(5) If, before the end of that 28-day period, a host jurisdiction Minister for a host jurisdiction gives a notice in writing to the Minister requesting a longer period within which that host jurisdiction may agree to the terms and conditions: (a) that host jurisdiction may give that agreement before the end of 90 days beginning on the day the original notice was given; and (b) if, immediately before the end of that 90-day period, no host jurisdiction Minister for that host jurisdiction has informed the Minister whether that host jurisdiction agrees to the terms and conditions, then, at the end of that period, that host jurisdiction is taken to have so agreed.

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Board of the Agency Part 2

Meetings of the Board Division 3

Section 136

Division 3—Meetings of the Board

• 136 Convening meetings

  • (1) The Board must hold the meetings that are necessary for the efficient performance of its functions.
  • (2) Meetings are to be held at the times and places that the Board determines. Note: Section 33B of the Acts Interpretation Act 1901 contains further information about the ways in which Board members may participate in meetings.
  • (3) The Chair: a) may convene a meeting; and b) must convene at least 4 meetings each calendar year; and c) must convene a meeting within 30 days of receiving a written request to do so from another Board member.

• 137 Presiding at meetings

  • (1) The Chair must preside at all meetings at which he or she is present.
  • (2) If the Chair is not present at a meeting: a) a Board member nominated by the Chair presides; or b) if a Board member has not been nominated by the Chair to preside—the other Board members present must appoint one of themselves to preside.

• 138 Quorum

  • (1) At a meeting of the Board, a quorum is constituted by a majority of the Board members.
  • (2) However, if: a) a Board member is required by rules made for the purposes of section 29 of the Public Governance, Performance and

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Division 3 Meetings of the Board

Section 139

Accountability Act 2013 not to be present during the deliberations, or to take part in any decision, of the Board with respect to a particular matter; and (b) when the member leaves the meeting concerned there is no longer a quorum present; the remaining members at the meeting constitute a quorum for the purpose of any deliberation or decision at that meeting with respect to that matter.

139 Voting at meetings

(1) A question arising at a meeting is to be determined by a majority of the votes of the Board members present and voting.

(2) The person presiding at a meeting has a deliberative vote and, if the votes are equal, a casting vote.

140 Conduct of meetings

The Board may, subject to this Division, regulate proceedings at its meetings as it considers appropriate.

141 Minutes

The Board must keep minutes of its meetings.

142 Decisions without meetings

(1) The Board is taken to have made a decision at a meeting if: (a) without meeting, a majority of the Board members entitled to vote on the proposed decision indicate agreement with the decision; and (b) that agreement is indicated in accordance with the method determined by the Board under subsection (2); and (c) all the Board members were informed of the proposed decision, or reasonable efforts were made to inform all the members of the proposed decision.

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Section 142

(2) Subsection (1) applies only if the Board: (a) has determined that it may make decisions of that kind without meeting; and (b) has determined the method by which Board members are to indicate agreement with proposed decisions. (3) For the purposes of paragraph (1)(a), a Board member is not titled to vote on a proposed decision if the member would not have been entitled to vote on that proposal if the matter had been considered at a meeting of the Board. (4) The Board must keep a record of decisions made in accordance with this section.

Chapter 6 National Disability Insurance Agency

Part 3 Independent Advisory Council

Division 1 Establishment and function

Section 143

Part 3—Independent Advisory Council

Division 1—Establishment and function

143 Establishment

The Independent Advisory Council is established by this section.

144 Function of the Advisory Council

(1) The Advisory Council’s function is to provide, on its own initiative or at the written request of the Board, advice to the Board about the way in which the Agency:

• (a) performs its functions relating to the National Disability Insurance Scheme; and
• (b) supports the independence and social and economic participation of people with disability; and
• (c) provides reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and Deleted: launch
• (d) enables people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
• (e) facilitates the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
• (f) promotes the provision of high quality and innovative supports to people with disability; and
• (g) raises community awareness of the issues that affect the social and economic participation of people with disability, and facilitates greater community inclusion of people with disability.

(2) In providing advice, the Advisory Council must have regard to the role of families, carers and other significant persons in the lives of people with disability.

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(3) Advice provided by the Advisory Council must not relate to:

• (a) a particular individual; or
• (ba) the registration of a person or entity as a registered NDIS provider, or the variation, suspension or revocation of that registration; or
• (c) the corporate governance of the Agency or the Commission; or
• (d) the money paid to, or received by, the Agency.

(4) The Advisory Council has power to do all things necessary or convenient to be done for or in connection with the performance of its function.

145 Advice of the Advisory Council

If the Advisory Council provides advice to the Board under subsection 144(1), the Board must:

• (a) have regard to the advice in performing its functions; and
• (b) give the Ministerial Council a copy of the advice and a statement setting out what has been done, or is to be done, in response to the advice.

Chapter 6

National Disability Insurance Agency

Part 3 Independent Advisory Council

Division 2 Members of the Advisory Council

Section 146

Division 2—Members of the Advisory Council

146 Membership

The Advisory Council is to consist of the following members: (a) the Principal Member of the Council; (b) not more than 12 other members.

147 Appointment of members of the Advisory Council

(1) The members of the Advisory Council are to be appointed by the Minister, by written instrument, on a part-time basis.

Consultation

(2) The Minister must consult the host jurisdictions about the appointment of each member of the Advisory Council.

Principal member

(3) The Minister must not appoint a person as the Principal Member unless the person is a Board member.

Persons ineligible for appointment

(4) A person is not eligible for appointment as a member of the Advisory Council if the person is a member (however described) of: (a) the Parliament of the Commonwealth or a State; or (b) the legislature of a Territory; or c) a local government authority.

Membership requirements

(5) In appointing the members of the Advisory Council, the Minister must:

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(a) have regard to the desirability of the membership of the Advisory Council reflecting the diversity of people with disability; and (b) ensure that all members are persons with skills, experience or knowledge that will help the Advisory Council perform its function; and (c) ensure that: (i) a majority of the members are people with disability; and (ii) at least 2 of the members are carers of people with disability; and (iii) at least one of the members is a person who has skills, experien ce or knowledge in relation to disability in rural or regional areas; and (iv) at least one of the members is a person who has skills, exterience or knowledge in the supply of equipment, or the provision of services, to people with disability. Note: A particular member may meet one or more of the conditions in subparagraphs (5)(c)(ii), (iii) and (iv).

Section 148 Term of appointment A member of the Advisory Council holds office for the period specified in the instrument of appointment. The period must not exceed 3 years. Note: For reappointment, see section 33AA of the Acts Interpretation Act 1901.

Section 149 Acting appointments Appointment to act during vacancy (1) The Minister may, by written instrument, appoint a person to act as the Principal Member, for a specified period of not more than 12 months, during a vacancy in the office of the Principal Member, whether or not an appointment has previously been made to the office.

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Part 3 Independent Advisory Council

Division 2 Members of the Advisory Council

Section 150

(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).

Appointment to act during absence etc.

(3) The Minister may, by written instrument, appoint a person to act as a member of the Advisory Council during any period, or during all periods, when a member of the Advisory Council: (a) is absent from duty or from Australia; or (b) is, for any reason, unable to perform the duties of the office.

Note 1: The Minister must tell the Ministerial Council as soon as practicable after the Minister appoints a person to act as the Principal Member or another member of the Advisory Council: see subsection 176(2).

Note 2: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

Section 150 Remuneration and allowances

(1) A member of the Advisory Council is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the regulations.

(2) A member of the Advisory Council is to be paid the allowances that are prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

Chapter 6

Independent Advisory Council Part 3

Members of the Advisory Council Division 2

Section 151

Leave of absence

Principal Member

(1) The Minister may grant leave of absence to the Principal Member on the terms and conditions that the Minister determines. (2) Before the Minister grants leave of absence to the Principal Member under subsection (1), the Minister must consult the host jurisdictions about the grant.

Other members

(3) The Principal Member may grant leave of absence to another member of the Advisory Council on the terms and conditions that the Principal Member determines. (4) The Principal Member must notify the Minister if the Principal Member grants another member of the Advisory Council leave of absence for a period that exceeds 3 months.

Section 152 Disclosure of interests to the Minister

A member of the Advisory Council must give written notice to the Minister of all interests, pecuniary or otherwise, that the member has or acquires and that conflict or could conflict with the proper performance of the member’s functions.

Section 153 Disclosure of interests to the Advisory Council

(1) A member of the Advisory Council who has an interest, pecuniary or otherwise, in a matter being considered or about to be considered by the Council must disclose the nature of the interest to a meeting of the Council. (2) The disclosure must be made as soon as possible after the relevant facts have come to the member’s knowledge. (3) The disclosure must be recorded in the minutes of the meeting.

Chapter 6

National Disability Insurance Agency

Part 3 Independent Advisory Council

Division 2 Members of the Advisory Council

Section 154

(4) Unless the Advisory Council otherwise determines, the member: (a) must not be present during any deliberation by the Council on the matter; and (b) must not take part in any decision of the Council with respect to the matter.

(5) For the purposes of making a determination under subsection (4), The member: (a) must not be present during any deliberation of the Council for the purpose of making the determination; and (b) must not take part in making the determination.

(6) A determination under subsection (4) must be recorded in the minutes of the meeting of the Council.

154 Resignation of members of the Advisory Council

(1) A member of the Advisory Council may resign his or her appointment by giving the Minister a written resignation.

(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

(3) The later day specified in the resignation must not be more than 90 days after the day the resignation is received by the Minister.

155 Termination of appointment of members of the Advisory Council

(1) The Minister may terminate the appointment of a member of the Advisory Council: (a) for misbehaviour; or (b) if the member is incapable of performing the duties of his or her office.

(2) The Minister may terminate the appointment of a member of the Advisory Council if:

Chapter 6

Independent Advisory Council Part 3

Members of the Advisory Council Division 2

Section 156

(a) the member: (i) becomes bankrupt; or (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or (iii) compounds with his or her creditors; or (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or (b) the member is absent, except on leave of absence, from 3 consecutive meetings of the Council; or c(c) the member fails, without reasonable excuse, to comply with section 152 or 153 (which deal with the disclosure of interests); or d(d) the Minister is satisfied that the performance of the member has been unsatisfactory for a significant period; or e(e) in the case of the Principal Member—the Principal Member is not a Board member

Consultation (3) The Minister must consult the host jurisdictions about the termination of the appointment of a member of the Advisory Council.

156 Other terms and conditions of members of the Advisory Council (1) A member of the Advisory Council holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

Consultation (2) Before the Minister determines terms and conditions on which a member of the Advisory Council holds office, the Minister must consult the host jurisdictions about the terms and conditions.

National Disability Insurance Scheme Act 2013 205 Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Chapter 6

National Disability Insurance Agency

Part 3

Independent Advisory Council

Division 3

Procedures of the Advisory Council

Section 157

Division 3 — Procedures of the Advisory Council

157 Procedures of the Advisory Council

The Advisory Council may determine its own procedures.

Chapter 6

Chief Executive Officer and staff etc.

Part 4

Division 1—Chief Executive Officer

Section 158

Part 4—Chief Executive Officer and staff etc.

####### Division 1—Chief Executive Officer

158 Establishment There is to be a Chief Executive Officer of the Agency.

159 Functions of the CEO (1) The CEO is responsible for the day-to-day administration of the Agency.

(2) The CEO has power to do all things necessary or convenient to be done for or in connection with the performance of his or her duties.

(3) The CEO is to act in accordance with the objectives, strategies and policies determined by the Board under paragraph 124(1)(b).

(4) The Board may give written directions to the CEO about the performance of the CEO’s duties.

(5) The CEO must comply with a direction under subsection (4).

(6) A direction under subsection (4) is not a legislative instrument.

(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.

160 Appointment of the CEO (1) The CEO is to be appointed by the Board.

(2) The appointment is to be made by written instrument.

(3) The CEO holds office on a full-time basis.

(4) The CEO holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.

Chapter 6 National Disability Insurance Agency

Part 4 Chief Executive Officer and staff etc.

Division 1 Chief Executive Officer

Section 161

Note: For reappointment, see section 33AA of the Acts Interpretation Act 1901.

(5) The CEO must not be a member of the Board.

deleted: (6)! Despite subsection (1), the first CEO is to be appointed by the Minister.¶ ! (7)! Before the Minister makes an appointment under subsection (6), the Minister must consult the host jurisdictions about the appointment.¶

161 Acting appointments

The Board may, by written instrument, appoint a person (other than a Board member) to act as the CEO: (a) during a vacancy in the office of the CEO, whether or not an appointment has previously been made to the office; or (b) during any period, or during all periods, when the CEO: (i) is absent from duty or from Australia; or (ii) is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

162 Remuneration and allowances

(1) The CEO is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the CEO is to be paid the remuneration that is prescribed by the regulations.

(2) The CEO is to be paid the allowances that are prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

163 Leave of absence

(1) The CEO has the recreation leave entitlements that are determined by the Remuneration Tribunal.

Chapter 6

Chief Executive Officer and staff etc.

Part 4

Chief Executive Officer Division 1

Section 164

(2) The Board may grant the CEO leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Board determines.

164 Outside employment

The CEO must not engage in paid employment outside the duties of his or her office without the Board’s approval.

165 Disclosure of interests

(1) A disclosure by the CEO under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Board.

(2) Subsection (1) applies in addition to any rules made for the purposes of that section.

(3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the CEO is taken not to have complied with section 29 of that Act if the CEO does not comply with subsection (1) of this section.

166 Resignation of the CEO

(1) The CEO may resign his or her appointment by giving the Board a written resignation.

(2) The resignation takes effect on the day it is received by the Board or, if a later day is specified in the resignation, on that later day.

(3) The later day specified in the resignation must not be more than 90 days after the day the resignation is received by the Board.

167 Termination of appointment of the CEO

(1) The Board may terminate the appointment of the CEO: (a) for misbehaviour; or

Chapter 6

National Disability Insurance Agency

Part 4 Chief Executive Officer and staff etc.

Division 1 Chief Executive Officer

Section 168

(b) if the CEO is incapable of performing the duties of his or her office.

(2) The Board may terminate the appointment of the CEO if: (a) the CEO: (i) becomes bankrupt; or (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or (iii) compounds with his or her creditors; or (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or (b) the CEO is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or c) the CEO engages, except with the Board’s approval, in paid employment outside the duties of his or her office (see section 164); or (d) the CEO fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section; or (e) the Board is satisfied that the performance of the CEO has been unsatisfactory for a significant period.

(3) If the Board terminates the appointment of the CEO, the Board must notify the Minister of the termination.

Section 168 Other terms and conditions of the CEO The CEO holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Board.

Chapter 6

Chief Executive Officer and staff etc.

Part 4

Staff etc.

Division 2

Section 169

• Division 2—Staff etc.

• 169 Staff

  • (1) The staff of the Agency must be persons engaged under the Public Service Act 1999.

  • (2) For the purposes of that Act: (a) the CEO and the staff of the Agency together constitute a Statutory Agency; and (b) the CEO is the Head of that Statutory Agency.

• 170 Services of other persons to be made available to the Agency

  • (1) The Agency may arrange with: a) an Agency Head (within the meaning of the Public Service Act 1999) of an Agency (within the meaning of that Act); or b) a body established for a public purpose by or under a law of the Commonwealth; for the services of officers or employees of the Agency referred to in paragraph (a) or body to be made available to assist the Agency in the performance of its functions.

  • (2) The Agency may arrange with the appropriate authority of a State or Territory for the services of officers or employees of the following to be made available to assist the Agency in the performance of its functions: a) the Public Service of the State or Territory; b) a body established for a public purpose by or under a law of the State or Territory.

• 171 Consultants

The Agency may engage consultants to assist in the performance of its functions. redacted

National Disability Insurance Scheme Act 2013 211 Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Chapter 6 National Disability Insurance Agency

Part 5 Reporting and planning

Division 1 Reporting

Section 172

Part 5—Reporting and planning

Division 1—Reporting

Subdivision A—Reporting by Board members

172 Annual report

(1) The annual report prepared by the Board members and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 must include the things described in subsections (2) and (4).

(2) The annual report must include the following for the period to which the report relates:

• (a) details of any directions given under section 121 in the period;
• (b) details of any statements given under section 125 in the period;
• (c) information (including statistics) and analysis that relates to either or both of the following in the period:
  • (i) participants;
  • (ii) funding or provision of supports by the Agency.

(3) The Minister may, by legislative instrument, prescribe particular information, or analysis, described in paragraph (2)(c) that must be included in the annual report.

(4) The annual report must include:

• (a) the summary, that was prepared under section 180B when the annual report was being prepared, of the annual financial sustainability report prepared then; and
• (b) the report of the reviewing actuary’s review under subsection 180E(2) of the summary mentioned in paragraph (a).

Chapter 6

Reporting and planning Part 5

Reporting Division 1

Section 173

Prerequisite to making instrument under subsection (3)

(6) The Minister must not make an instrument under subsection (3) unless a majority of the members of the Ministerial Council agree to the making of the instrument. (7) The Minister must: (a) give a notice (the original notice) in writing to each member of the Ministerial Council who is a Minister of a State or Territory seeking the agreement of that member to the making of the instrument and requesting the agreement be given before the end of 28 days beginning on the day the notice is given; and (b) provide a copy of the proposed instrument to that member. (8) If, immediately before the end of that 28-day period, that member: (a) has not informed the Minister whether that member agrees to the making of the instrument; and (b) has not made a request under subsection (9); than at the end of that period, that member is taken to have agreed to the making of the instrument. (9) If, before the end of that 28-day period, that member gives a notice in writing to the Minister requesting a longer period within which that member may agree to the making of the instrument: (a) that member may give that agreement before the end of 90 days beginning on the day the original notice was given; and (b) if, immediately before the end of that 90-day period, that member has not informed the Minister whether that member agrees to the making of the instrument, then, at the end of that period, that member is taken to have so agreed.

Giving certain information to the Ministerial Council

(1) The Board members must give the Ministerial Council a copy of each of the following when, or as soon as practicable after, the Board members give the copy to the Minister or the Finance Minister:

Chapter 6 National Disability Insurance Agency

Part 5 Reporting and planning

Division 1 Reporting

Section 174

(a) information, a report or a document given to the Minister or the Finance Minister under paragraph 19(1)(b) of the Public Governance, Performance and Accountability Act 2013; (b) particulars of a decision or issue notified to the Minister under paragraph 19(1)(c), (d) or (e) of that Act; (c) an annual report given to the Minister under section 46 of that Act.

(1A) If the Board members inform the Minister of activities under paragraph 19(1)(a) of that Act, the Board members must also inform the Ministerial Council of the activities.

(2) The Board members must cause a copy of information the Agency gives the Minister or a host jurisdiction Minister under section 175 to be given to the Ministerial Council as soon as practicable after the Agency gives the information to that Minister.

(3) As soon as practicable after any of the following events happens to a person, the Board members must tell the Ministerial Council that the event has happened to the person: (a) appointment of the person as the CEO by the Board; (b) resignation of the person as the CEO; (c) termination of the person’s appointment as the CEO.

174 Quarterly report to the Ministerial Council

(1) The Board members must: (a) prepare a report on the operations of the Agency for each period of 3 months starting on 1 July, 1 October, 1 January or 1 April; and (b) give the report to the Ministerial Council within 42 days after Deleted: 1 month the end of the period to which the report relates.

(2) The report must include information (including statistics) that relates to either or both of the following in the period to which the report relates: (a) participants in each host jurisdiction;

Chapter 6

Reporting and planning Part 5

Reporting Division 1

Section 174

(b) funding or provision of supports by the Agency in relation to each host jurisdiction. (3) The report must also include information about matters prescribed Deleted: The Minister may, by legislative instrument, prescribe particular information described in subsection (2) that must be included in the report Prerequisite to making instrument under subsection (3) (4) The Minister must not make an instrument under subsection (3) unless a majority of the members of the Ministerial Council agree to the making of the instrument. (4A) The Minister must: (a) give a notice (the original notice) in writing to each member of the Ministerial Council who is a Minister of a State or Territory seeking the agreement of that member to the making of the instrument and requesting the agreement be given before the end of 28 days beginning on the day the notice is given; and (b) provide a copy of the proposed instrument to that member. (4B) If, immediately before the end of that 28-day period, that member: a) has not informed the Minister whether that member agrees to the making of the instrument; and b) has not made a request under subsection (4C); than at the end of that period, that member is taken to have agreed to the making of the instrument. (4C) If, before the end of that 28-day period, that member gives a notice in writing to the Minister requesting a longer period within which that member may agree to the making of the instrument: a) that member may give that agreement before the end of 90 days beginning on the day the original notice was given; and b) if, immediately before the end of that 90-day period, that member has not informed the Minister whether that member agrees to the making of the instrument, then, at the end of that period, that member is taken to have so agreed.

Chapter 6 National Disability Insurance Agency

Part 5 Reporting and planning

Division 1 Reporting

Section 175

First report

(5) If this section commences on a day other than a day (a quarter start day) mentioned in paragraph (1)(a): (a) the Board members are not required to prepare a report for the period ending immediately before the next quarter start day; and (b) the first report under this section must be for the period: (i) starting on the day this section commences; and (ii) ending immediately before the second quarter start day after the day this section commences.

Subdivision B—Reporting by the Agency

175 Giving information requested by Commonwealth, State or Territory Ministers

(1) The Agency must give the Minister information requested by the Minister about: (a) expenditure, relating to a particular host jurisdiction, of money received by the Agency from the Commonwealth or that host jurisdiction; or (b) activities of the Agency relating to a particular host jurisdiction.

(2) The Agency must give a Minister of a host jurisdiction who is a member of the Ministerial Council information requested by that Minister about: (a) expenditure of money received by the Agency from that jurisdiction; or (b) expenditure, relating to that jurisdiction, of money received by the Agency from the Commonwealth; or (c) activities of the Agency relating to that jurisdiction.

Chapter 6

Reporting and planning Part 5

Reporting Division 1

Section 176

Subdivision C—Reporting by the Minister

176 Giving certain information to the Ministerial Council

(1) As soon as practicable after giving a direction to the Agency under section 121 or a statement to the Board under section 125, the Minister must give a copy of the direction or statement to the Ministerial Council. (2) As soon as practicable after any of the following events happens to a person, the Minister must tell the Ministerial Council that the event has happened to the person: (a) appointment of the person as: (i) the Chair or another member of the Board; or (ii) the Principal Member or another member of the Advisory Council; Deleted: Council; or Deleted: (iii)! the first CEO; (b) appointment of the person to act as: (i) the Chair or another member of the Board; or (ii) the Principal Member or another member of the Advisory Council; (c) grant of leave of absence for the person for a period that exceeds 3 months under section 131 or 151; (d) resignation of the person as a Board member or a member of the Advisory Council; (e) termination of the person’s appointment as a Board member or a member of the Advisory Council.

Chapter 6

National Disability Insurance Agency

Part 5 Reporting and planning

Division 2 Planning

Section 177

Division 2—Planning

177 Corporate plan

(1) In preparing a corporate plan under section 35 of the Public Governance, Performance and Accountability Act 2013, the Board must have regard to a statement given under section 125 of this Act.

(2) The corporate plan must include details of the following: (a) the financial sustainability of the National Disability Insurance Scheme (including estimates of the current and future expenditure of the National Disability Insurance Scheme); (b) the risks and issues relevant to the financial sustainability of the National Disability Insurance Scheme and the management of those risks and issues.

(3) The Board must give a copy of the plan to the Ministerial Council before the start of the period covered by the plan.

(4) If the Board varies the plan, the Board must notify the Ministerial Council of the variation.

(5) Subsection 35(3) of the Public Governance, Performance and Accountability Act 2013 (which deals with the Australian government’s key priorities and objectives) does not apply to a corporate plan prepared by the Board.

Chapter 6

Finance Part 6

Section 178

Part 6—Finance

178 Payments to the Agency by the Commonwealth

(1) There is payable to the Agency such money as is appropriated by the Parliament for the purposes of the Agency. (2) The Finance Minister may give directions about the amounts in which, and the times at which, money payable under subsection (1) is to be paid to the Agency. (3) If a direction under subsection (2) is given in writing, the direction is not a legislative instrument.

179 Payments to the Agency by the host jurisdictions

The Agency may receive money paid to it by a host jurisdiction for the purpose of funding reasonable and necessary supports for participants in the National Disability Insurance Scheme who are deleted: launch in the host jurisdiction.

180 Application of money by the Agency

(1) The money of the Agency consists of: (a) money paid to the Agency under section 178; and (b) money received by the Agency under section 179; and (c) any other money paid to, or received by, the Agency. (2) Subject to subsection (3), the money of the Agency is to be applied only: (a) in payment or discharge of any expenses, charges and obligations incurred or undertaken by the Agency in the performance of its functions and the exercise of its powers; and (b) in payment of remuneration and allowances payable under this Act.

Chapter 6

National Disability Insurance Agency

Part 6 Finance

Section 180

(3) The money of the Agency that was received by the Agency under section 179 is to be applied only for the purpose mentioned in that section. (4) Subsections (2) and (3) do not prevent investment, under section 59 of the Public Governance, Performance and Accountability Act 2013, of money that is not immediately required for the purposes of the Agency.

Chapter 6

Part 6A—Actuarial assessment of financial sustainability

Division 1—Scheme actuary and annual financial sustainability report

Section 180A

Nomination of scheme actuary

(1) The Board must, in writing, nominate as scheme actuary an actary: (a) who is a Fellow of The Institute of Actuaries of Australia; and (b) who the Board considers is a fit and proper person, and has appropriate skills, experience or knowledge, to be the scheme actuary; and (c) who is not the reviewing actuary. (2) The Board must, in writing, revoke the nomination if the nominee ceases to be a Fellow of The Institute of Actuaries of Australia. (3) Subsection (2) does not limit subsection 33(3) of the Acts Interpretation Act 1901 (which deals with revocation and variation of instruments).

Section 180B Duties of scheme actuary

Duties relating to annual financial sustainability report (1) The scheme actuary must do all of the following each time an annual report is being prepared by the Board members under section 46 of the Public Governance, Performance and Accountability Act 2013: (a) assess: i. the financial sustainability of the National Disability Insurance Scheme; and ii. risks to that sustainability; and

Chapter 6 National Disability Insurance Agency

Part 6A Actuarial assessment of financial sustainability

Division 1 Scheme actuary and annual financial sustainability report

Section 180C

(iii) on the basis of information held by the Agency, any trends in provision of supports to people with disability; (b) consider the causes of those risks and trends; (c) make estimates of future expenditure of the National Disability Insurance Scheme; (d) prepare a report of that assessment, consideration and estimation; (e) prepare a summary of that report that includes the estimates described in paragraph (c).

Duty to make quarterly estimates of future expenditure

(2) At least once each quarter, the scheme actuary must make estimates of the future expenditure of the National Disability Insurance Scheme and advise the CEO of the estimates. For this purpose, quarter means a period of 3 months starting on 1 July, 1 October, 1 January or 1 April.

Note: The CEO must give the Board a copy of the advice under subsection 159(7).

Duty to provide information and advice on request

(3) The scheme actuary must, on request from the Board or the CEO, provide actuarial information or advice.

Duty to report concerns to Board

(4) If the scheme actuary has significant concerns about the financial sustainability of the National Disability Insurance Scheme, or the risk management processes of the Agency, he or she must report those concerns to the Board as soon as reasonably practicable.

180C Rules for performance of scheme actuary’s duties

The Minister administering the Insurance Act 1973 may, by legislative instrument, determine rules that the scheme actuary must comply with in performing his or her duties under section 180B.

Chapter 6

Part 6A — Actuarial assessment of financial sustainability

Division 2 — Reviewing actuary

Section 180D

Nomination of reviewing actuary

(1) The Board must, in writing, nominate as reviewing actuary an actuary:

• who is a Fellow of The Institute of Actuaries of Australia; and
• who the Board considers is a fit and proper person, and has appropriate skills, experience or knowledge, to be the reviewing actuary; and
• who is not the scheme actuary; and
• who is not a member of the staff of the Agency under section 169.

(2) The nomination has effect for 3 years or a shorter period specified in the nomination.

(3) The Board must, in writing, revoke the nomination if the nominee:

• ceases to be a Fellow of The Institute of Actuaries of Australia; or
• becomes a member of the staff of the Agency under section 169.

(4) Subsections (2) and (3) do not limit subsection 33(3) of the Acts Interpretation Act 1901 (which deals with revocation and variation of instruments).

Nominations and revocations are not legislative instruments redacted ! (5)! The Board must nominate the Australian Government Actuary under subsection (1) as the first reviewing actuary, as soon as reasonably practicable after the commencement of this section. The nomination has effect for 3 years, despite subsection (2) of this section and subsection 33(3) of the Acts Interpretation Act 1901, but subject to subsection (3) of this section.

Section 180E — Duties of reviewing actuary

(1) The reviewing actuary must, on request by the Board, review and report to the Board on actuarial reports and advice received by the Board.

Chapter 6 National Disability Insurance Agency

Part 6A Actuarial assessment of financial sustainability

Division 2 Reviewing actuary

Section 180E

(2) The reviewing actuary must review and report to the Board on each annual financial sustainability report and summary prepared under section 180B.

(3) The reviewing actuary must include in each of his or her reports under subsection (2) a statement whether he or she is satisfied that the Agency made all arrangements necessary for him or her to conduct the review to which the report relates.

(4) If the reviewing actuary has significant concerns about the financial sustainability of the National Disability Insurance Scheme, or the risk management processes of the Agency, he or she must report those concerns to the Board as soon as reasonably practicable.

224 National Disability Insurance Scheme Act 2013 Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

National Disability Insurance Agency

Chapter 6

Actuarial Assessment Of Financial Sustainability

Part 6A - Assistance Of Scheme Actuary And Reviewing Actuary

Division 3

Section 180F

Division 3 — Assistance of scheme actuary and reviewing actuary

180F Agency to assist scheme actuary and reviewing actuary

The Agency must make arrangements to enable: (a) the scheme actuary to perform his or her duties under section 180B; and (b) the reviewing actuary to perform his or her duties under section 180E.

Chapter 6

National Disability Insurance Agency

Part 7 — Miscellaneous

Section 181

Part 7 — Miscellaneous

181 Taxation

The Agency is not subject to taxation under any law of the Commonwealth or of a State or Territory.

Note: However, the Agency may be subject to taxation under certain laws (see, for example, section 177-5 of the A New Tax System (Goods and Services Tax) Act 1999 and section 66 of the Fringe Benefits Tax Assessment Act 1986).

Chapter 6A—NDIS Quality and Safeguards

Commission

Part 1—Commission establishment and functions

Section 181A

Establishment of the Commission

(1) The NDIS Quality and Safeguards Commission is established by this section.

Note: The Commission does not have a legal identity separate from the Commonwealth.

(2) The Commission consists of: (a) the Commissioner; and (b) the staff of the Commission.

(3) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013): (a) the Commission is a listed entity; and (b) the Commissioner is the accountable authority of the Commission; and (c) the following persons are officials of the Commission: i) the Commissioner; ii) the staff referred to in section 181U; iii) persons assisting the Commissioner referred to in section 181W; iv) consultants engaged under section 181V; and d) the purposes of the Commission include: i) the functions of the Commission referred to in section 181B; and ii) the functions of the Commissioner referred to in section 181D.

Chapter 6A NDIS Quality and Safegards Commission

Part 1 Commission establishment and functions

Section 181B

181B Commission’s functions

The Commission’s function is to assist the Commissioner in the performance of the Commissioner’s functions.

228 National Disability Insurance Scheme Act 2013

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NDIS Quality and Safeguards Commission Chapter 6A

NDIS Quality and Safeguards Commissioner Part 2

Section 181C

Part 2—NDIS Quality and Safeguards Commissioner

181C Commissioner

There is to be a Commissioner of the NDIS Quality and Safeguards Commission.

181D Commissioner’s functions and powers

(1) The Commissioner has the following functions:

• (a) the core functions;
• (b) the registration and reportable incident functions;
• (c) the complaints functions;
• (d) the behaviour support function;
• (e) such other functions that are conferred on the Commissioner by or under this Act or any other law of the Commonwealth;
• (f) to do anything incidental or conducive to the performance of any of the above functions.

(2) The Commissioner may, by notifiable instrument, make guidelines relating to the performance of any of the functions mentioned in subsection (1).

(3) In performing his or her functions, the Commissioner may:

• (a) consult and cooperate with other persons, organisations and governments on matters relating to those functions; and
• (b) consult and cooperate with other persons, organisations and governments on matters relating to the determination of the rights and interests of people receiving, or eligible to receive, supports or services under the National Disability Insurance Scheme; and
• (c) consult persons and groups with an interest in the supports or services provided under the National Disability Insurance Scheme; and

Chapter 6A NDIS Quality and Safeguards Commission

Part 2 NDIS Quality and Safegards Commissioner

Section 181E

(d) have regard to the interests and needs of persons receiving, or eligible to receive, supports or services under the National Disability Insurance Scheme.

(3A) In performing his or her functions, the Commissioner must acknowledge, recognise and respect the role of advocates (including independent advocates) in representing the interests of people with disability.

(3B) In performing his or her functions, the Commissioner must have due regard to procedural fairness.

(4) In performing his or her functions, the Commissioner must use his or her best endeavours to: (a) provide opportunities for people with disability to participate in matters that relate to them and to take into consideration the wishes and views of people with disability in relation to those matters; and (b) conduct compliance and enforcement activities in a risk responsive and proportionate manner; and c) support and maintain a diverse and sustainable NDIS market.

(5) The Commissioner has power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions.

181E Commissioner’s core functions

The Commissioner’s core functions are as follows: a) to uphold the rights of, and promote the health, safety and wellbeing of, people with disability receiving supports or services, including those received under the National Disability Insurance Scheme; b) to develop a nationally consistent approach to managing quality and safeguards for people with disability receiving supports or services, including those received under the National Disability Insurance Scheme;

NDIS Quality and Safeguards Commission

Chapter 6A

NDIS Quality and Safeguards Commissioner

Part 2

Section 181F

(c) to promote the provision of advice, information, education and training to NDIS providers and people with disability; (d) to secure compliance with this Act through effective compliance and enforcement arrangements, including through the monitoring and investigation functions conferred on the Commissioner by Division 8 of Part 3A of Chapter 4; (e) to promote continuous improvement amongst NDIS providers and the delivery of progressively higher standards of supports and services to people with disability; (f) to develop and oversee the broad policy design for a cationally consistent framework relating to the screening of workers involved in the provision of supports and services to people with disability; (g) to provide advice or recommendations to the Agency or the Board in relation to the performance of the Agency’s functions; (h) to engage in, promote and coordinate the sharing of information to achieve the objects of this Act; i) to provide NDIS market oversight, including: (i) by monitoring changes in the NDIS market which may indicate emerging risk; and (ii) by monitoring and mitigating the risks of unplanned service withdrawal.

181F Commissioner’s registration and reportable incident functions

The Commissioner’s registration and reportable incident functions are as follows: (a) the functions conferred on the Commissioner by Division 2 of Part 3A of Chapter 4 (about registered NDIS providers); (b) the functions conferred on the Commissioner by section 73U (about approved quality auditors); (c) to monitor registered NDIS provider compliance with their conditions of registration, including in relation to the screening of workers in accordance with the NDIS Practice Standards;

Chapter 6A NDIS Quality and Safeguards Commission

Part 2 NDIS Quality and Safeguards Commissioner

Section 181G

(d) to provide education, guidance and best practice information to NDIS providers in relation to compliance matters; (e) the functions relating to the notification and management of reportable incidents conferred on the Commissioner by the National Disability Insurance Scheme rules made for the purposes of section 73Z; (f) to support registered NDIS providers to develop and implement effective incident management systems and to build provider capability to prevent and manage incidents; (g) to collect, correlate, analyse and disseminate information relating to incidents, including reportable incidents, to identify trends or systemic issues.

181G Commissioner’s complaints functions

The Commissioner’s complaints functions are as follows: (a) the functions relating to the investigation, management, conciliation and resolution of complaints conferred on the Commissioner by the National Disability Insurance Scheme rules made for the purposes of section 73X; (b) to educate people about, and develop resources relating to, best practice in the handling of: i) complaints arising out of, or in connection with, the provision of supports or services by NDIS providers; and ii) matters arising from such complaints; (c) to build the capability of people with disability to pursue complaints in relation to the provision of supports or services by NDIS providers; (d) to build NDIS provider capability to develop a culture of learning and innovation to deliver high quality supports and services, prevent incidents and respond to complaints; (e) to collect, correlate, analyse and disseminate information relating to complaints arising out of, or in connection with, The provision of supports or services by NDIS providers.

Chapter 6A

Part 2

Section 181H

181H Commissioner’s behaviour support function

The Commissioner’s behaviour support function is to provide leadership in relation to behaviour support, and in the reduction and elimination of the use of restrictive practices, by NDIS providers, including by:

• (a) building capability in the development of behaviour support through:
  • (i) developing and implementing a competency framework for registered NDIS providers whose registration includes the provision of behaviour support assessments and developing behaviour support plans;
  • (ii) assessing the skills and experience of such providers against the competency framework; and
• (b) developing policy and guidance materials in relation to behaviour supports and the reduction and elimination of the use of restrictive practices by NDIS providers; and
• (c) providing education, training and advice on the use of behaviour supports and the reduction and elimination of the use of restrictive practices; and
• (d) overseeing the use of behaviour support and restrictive practices, including by:
  • (i) monitoring registered NDIS provider compliance with the conditions of registration relating to behaviour support plans; and
  • (ii) collecting, analysing and disseminating data and other information relating to the use of behaviour supports and restrictive practices by NDIS providers; and
• (e) undertaking and publishing research to inform the development and evaluation of the use of behaviour supports and to develop strategies to encourage the reduction and elimination of restrictive practices by NDIS providers; and
• (f) assisting the States and Territories to develop a regulatory framework, including nationally consistent minimum standards, in relation to restrictive practices:

Chapter 6A NDIS Quality and Safeguards Commission

Part 2 NDIS Quality and Safegards Commissioner

Section 181J

(i) in line with the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector; and (ii) consistent with the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006.

Note: The Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No. 12 ([2008] ATS 12) and could in 2017 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

181J Charging of fees by Commissioner

(1) The Commissioner may charge fees in accordance with an instrument made under subsection (2).

(2) The Minister may, by legislative instrument, determine: (a) the things that the Commissioner does in the performance of his or her functions for which he or she may charge fees; and (b) the amount, or a method of working out the amount, of those fees.

(3) A fee must not be such as to amount to taxation.

181K Minister may give directions to the Commissioner

(1) The Minister may, by legislative instrument, give directions to the Commissioner about the performance of his or her functions and the exercise of his or her powers.

Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).

(2) A direction given under subsection (1): (a) must not relate to a particular individual or provider; and (b) must not be inconsistent with this Act, the regulations or an instrument made under this Act.

NDIS Quality and Safeguards Commission Chapter 6A

NDIS Quality and Safegards Commissioner Part 2

Section 181L

(3) The Commissioner must comply with a direction given under subsection (1).

(4) Subsection (3) does not apply to the extent that the direction relates to the Commissioner’s performance of functions or exercise of powers under the following Acts in relation to the Commission: (a) the Public Service Act 1999; (b) the Public Governance, Performance and Accountability Act 2013.

181L Appointment of the Commissioner

(1) The Commissioner is to be appointed by the Minister, by written instrument, on a full-time basis.

(2) The Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.

Note: The Commissioner may be reappointed (see section 33AA of the Acts Interpretation Act 1901).

181M Acting appointments

The Minister may, by written instrument, appoint a person to act as the Commissioner: (a) during a vacancy in the office of Commissioner (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the Commissioner: i. is absent from duty or from Australia; or ii. is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

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Chapter 6A NDIS Quality and Safeguards Commission

Part 2 NDIS Quality and Safeguards Commissioner

Section 181N

181N Remuneration and allowances

(1) The Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Commissioner is to be paid the remuneration that is determined under paragraph (4)(a).

(2) The Commissioner is to be paid the allowances that are determined under paragraph (4)(b).

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

(4) The Minister may, by legislative instrument, determine: (a) remuneration for the purposes of subsection (1); and (b) allowances for the purposes of subsection (2).

181P Leave of absence

(1) The Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.

(2) The Minister may grant to the Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines in writing.

181Q Outside employment

The Commissioner must not engage in paid work outside the duties of his or her office without the Minister’s approval.

181R Other terms and conditions

The Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined, in writing, by the Minister.

NDIS Quality and Safeguards Commission Chapter 6A

NDIS Quality and Safegards Commissioner Part 2

Section 181S

181S Resignation

(1) The Commissioner may resign his or her appointment by giving the Minister a written resignation.

(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

Section 181T Termination of Appointment

181T Termination of appointment

(1) The Minister may terminate the appointment of the Commissioner: (a) for misbehaviour; or (b) if the Commissioner is unable to perform the duties of his or her office because of physical or mental incapacity.

(2) The Minister may terminate the appointment of the Commissioner if: (a) the Commissioner: i. becomes bankrupt; or ii. applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or iii. compounds with his or her creditors; or iv. makes an assignment of his or her remuneration for the benefit of his or her creditors; or (b) the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or (c) the Commissioner engages, without the Minister’s approval, in paid work outside the duties of his or her office (see section 181Q).

Note: The appointment of the Commissioner may also be terminated under section 30 of the Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials).

Chapter 6A NDIS Quality and Safeguards Commission

Part 3 Staff etc. of the Commission

Section 181U

Part 3—Staff etc. of the Commission

181U Staff of the Commission

(1) The staff of the Commission must be persons engaged under the Public Service Act 1999.

(2) For the purposes of that Act: (a) the Commissioner and the staff of the Commission together constitute a Statutory Agency; and (b) the Commissioner is the Head of that Statutory Agency.

181V Consultants

(1) The Commissioner may, on behalf of the Commonwealth, engage consultants to assist in the performance of the Commissioner’s functions.

(2) The consultants are to be engaged on the terms and conditions that the Commissioner determines in writing.

181W Persons assisting the Commissioner

The Commissioner may be assisted: (a) by employees of Agencies (within the meaning of the Public Service Act 1999); or (b) by officers or employees of a State or Territory; or (c) by officers or employees of authorities of the Commonwealth, a State or a Territory; whose services are made available to the Commissioner in connection with the performance of the Commissioner’s functions.

Chapter 6B—NDIS Worker Screening Database

Section 181X

Simplified Outline Of This Chapter

• The commissioner must establish, operate and maintain the ndis worker screening database.
• The database will keep a record of decisions made in relation to persons who have made an application for an assessment of whether they, in working, or seeking to work, with people with disability pose a risk to such people.
• One of the purposes of the database is to share information in the database with persons or bodies (including employers and potential employers) for the purposes of the national disability insurance scheme.

Section 181Y — Ndis Worker Screening Database

(1) The Commissioner Must Establish, Operate And Maintain A Database For The Purposes Of This Act, To Be Known As The NdIs Worker Screening Database. Note: as subsection (1) confers a function on the commissioner, section 55a allows the commissioner to gather information for inclusion in the database. (2) The NDIS worker screening database must be kept in electronic form. Purposes Of The Database (3) The purposes of the NDis worker screening database are the following:

Chapter 6B NDIS worker screening database

Section 181Y

(a) to maintain, for the purposes of the National Disability Insurance Scheme, an up-to-date record of persons who, under decisions made under NDIS worker screening laws, have been found, in working, or seeking to work, with people with disability not to pose a risk, or to pose a risk, to such people; (b) in relation to persons covered by paragraph (a)—to maintain an up-to-date record of other decisions that relate to the decisions covered by that paragraph; (c) to share information in the database with persons or bodies (including employers and potential employers) for the purposes of the National Disability Insurance Scheme; (d) any other purpose determined in an instrument under subsection (8).

(4) Paragraphs (3)(a) to (c) do not limit paragraph (3)(d).

Information in the database

(5) The NDIS worker screening database may include the following information for the purposes of subsection (3): (a) information relating to persons (each of whom is a screening applicant) who have made applications (each of which is a screening application) for an NDIS worker screening check and information relating to those applications; (b) information relating to each screening applicant in respect of whom a screening application is no longer being considered and the reasons for this; (c) information relating to each screening applicant in respect of whom a decision (a clearance decision) (however described) is in force, under an NDIS worker screening law, to the effect that the person, in working, or seeking to work, with people with disability does not pose a risk to such people and information relating to the decision; (d) information relating to any decisions made under an NDIS worker screening law, in relation to each screening applicant, while the screening applicant’s application is pending;

NDIS worker screening database Chapter 6B

Section 181Y

(e) information relating to each screening applicant in respect of whom a decision (an exclusion decision) (however described) is in force, under an NDIS worker screening law, to the effect that the person, in working, or seeking to work, with people with disability does pose a risk to such people and information relating to the decision; (f) if a clearance decision or an exclusion decision specifies the period for which the decision is in force—information setting out that period; (g) information relating to each person in respect of whom a decision (however described), under an NDIS worker screening law, suspending a clearance decision has been made and information relating to the suspension; (h) information relating to each person in respect of whom a decision (however described), under an NDIS worker screening law, revoking a clearance decision or an exclusion decision has been made and information relating to the revocation; i) information relating to employers or potential employers of persons who have made screening applications; j) any other information determined in an instrument under subsection (8).

(6) Paragraphs (5)(a) to (i) do not limit paragraph (5)(j).

Database may include personal information

(7) The information included under paragraphs (5)(a) to (j) may include personal information (within the meaning of the Privacy Act 1988).

Legislative instrument

(8) The Minister may, by legislative instrument, do either or both of the following: a) determine a purpose for the purposes of paragraph (3)(d); b) determine information for the purposes of paragraph (5)(j).

Chapter 6B NDIS worker screening database

Section 181Y

Database not a legislative instrument

(9) The NDIS worker screening database is not a legislative instrument.

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Other matters

Chapter 7

Debt recovery Part 1

Division 1—Debts

Section 182

Debts due to the Agency

(1) If: (a) a payment is made to a person that is, or purports to be, a payment of an NDIS amount to or in respect of a participant; and (b) the person is not entitled for any reason to the payment of the NDIS amount; the amount of the payment is a debt due to the Agency by the person and the debt is taken to arise when the person receives the payment.

(2) Without limiting paragraph (1)(b), a person is taken not to have been entitled to the payment of an NDIS amount if the payment should not have been made for one or more of the following reasons: (a) the payment was made as a result of a computer error or an administrative error; (b) the payment was made as a result of: (i) a contravention of this Act, the regulations or the National Disability Insurance Scheme rules; or (ii) a false or misleading statement or a misrepresentation; (c) the payment was made in respect of a service funded under a Deleted: the participant died before the payment was made participant’s plan and the participant died before the service was provided.

(3) If a person does not comply with subsection 46(1) in relation to an NDIS amount, an equal amount is a debt due to the Agency by the person.

Chapter 7 Other matters

Part 1 Debt recovery

Division 1 Debts

Section 182

(4) The National Disability Insurance Scheme rules may provide that, if records are not retained for the period prescribed as mentioned in subsection 46(2) in relation to an NDIS amount, an equal or lesser amount is a debt due to the Agency by the person.

Other matters Chapter 7

Debt recovery Part 1

Methods of recovery Division 2

Section 183

Division 2—Methods of recovery

183 Legal proceedings

(1) A debt under this Act is recoverable by the Agency by means of legal proceedings brought by the CEO on behalf of the Agency in a court of competent jurisdiction.

(2) Subject to subsections (3), (4) and (5), legal proceedings for the recovery of the debt are not to be commenced after the end of the period (the recovery period) of 6 years starting on the first day an Agency officer becomes aware, or could reasonably be expected to have become aware, of the circumstances that gave rise to the debt.

(3) If, within the recovery period, part of the debt is paid, legal proceedings for the recovery of the balance of the debt may be commenced within the period of 6 years starting on the day of payment.

(4) If, within the recovery period, the person who owes the debt acknowledges that he or she owes it, legal proceedings for the recovery of the debt may be commenced within the period of 6 years starting on the day of acknowledgement.

(5) If, within the recovery period, any of the following activities occurs: (a) a review of a file relating to action for the recovery of the debt; (b) other internal Agency activity relating to action for the recovery of the debt; action under this section for the recovery of the debt may be commenced within the period of 6 years after the end of the activity.

184 Arrangement for payment of debt

(1) The CEO may enter into an arrangement with a person under which the person is to pay a debt, owed by the person to the

Chapter 7 Other matters

Part 1 Debt recovery

Division 2 Methods of recovery

Section 185

(1) An arrangement entered into under this section between the Agency under this Act, or the outstanding amount of such a debt, in a way set out in the arrangement.

(2) An arrangement entered into under subsection (1) has effect, or is taken to have had effect, on and after the day specified in the arrangement as the day the arrangement commences (whether that day is the day the arrangement is entered into or an earlier or later day).

(3) If an arrangement entered into under subsection (1) does not specify a day as mentioned in subsection (2), it has effect on and after the day on which it is entered into.

(4) The CEO may terminate or alter an arrangement entered into under subsection (1): (a) at the debtor’s request; or (b) after giving 28 days’ notice to the debtor of the proposed termination or alteration; or (c) without notice, if the CEO is satisfied that the person has failed to disclose material information about his or her true capacity to repay the debt.

185 Recovery of amounts from financial institutions

(1) If: (a) an NDIS amount or NDIS amounts are paid to a financial institution for the credit of an account kept with the institution; and (b) the CEO is satisfied that the payment or payments were intended to be made to someone who was not the person or one of the persons in whose name or names the account was kept; The CEO may give a written notice to the institution setting out the matters mentioned in paragraphs (a) and (b) and requiring the institution to pay to the Agency, within a reasonable period stated in the notice, the lesser of the following amounts: (c) an amount specified in the notice, being an amount equal to the NDIS amount or the sum of the NDIS amounts;

Other matters Chapter 7

Debt recovery Part 1

Methods of recovery Division 2

Section 185

(d) the amount standing to the credit of the account when the notice is received by the institution.

(2) If: (a) an NDIS amount or NDIS amounts that are intended to be made to or in respect of a person (the first person) are made to a financial institution for the credit of an account that was kept with the institution by the first person or by the first person and one or more other persons; and (b) the first person died before the payment or payments were made; the CEO may give a written notice to the institution setting out the matters mentioned in paragraphs (a) and (b) and requiring the institution to pay to the Agency, within a reasonable period stated in the notice, the lesser of the following amounts: (c) an amount specified in the notice that is equal to the NDIS amount or the sum of the NDIS amounts; (d) the amount standing to the credit of the account when the notice is received by the institution.

(3) As soon as possible after issuing a notice under subsection (2), the CEO must inform the deceased estate in writing of: (a) the amount sought to be recovered from the deceased person’s account; and (b) the reasons for the recovery action.

(4) A financial institution must comply with a notice given to it under subsection (1) or (2).

Penalty: 300 penalty units.

(5) It is a defence to a prosecution of a financial institution for failing to comply with a notice given to it under subsection (1) or (2) if the financial institution proves that it was incapable of complying with the notice.

(6) If a notice is given to a financial institution under subsection (1) payment made to wrong account) or under subsection (2) (death of person in whose name the account was kept) in respect of an NDIS

Chapter 7 Other matters

Part 1 Debt recovery

Division 2 Methods of recovery

Section 185

amount or NDIS amounts, any amount recovered by the Agency from the institution in respect of the debt reduces any debt owed to the Agency by any other person in respect of the NDIS amount or NDIS amounts.

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Other matters Chapter 7

Debt recovery Part 1

Information relating to debts Division 3

Section 186

Division 3—Information relating to debts

186 Power to obtain information from a person who owes a debt to the Agency

The CEO may require a person who owes a debt to the Agency under this Act to do one or more of the following: (a) give to the Agency information that is relevant to the person’s financial situation; (b) produce to the Agency a document that the CEO has reasonable grounds to believe is in the person’s custody, or under the person’s control, and is relevant to the person’s financial situation; (c) if the person’s address changes—inform the Agency of the new address within 14 days after the change.

187 Power to obtain information about a person who owes a debt to the Agency

If the CEO has reasonable grounds to believe that a person has information, or has custody or control of a document: (a) that would help the Agency locate another person (the debtor) who owes a debt to the Agency under this Act; or (b) that is relevant to the debtor’s financial situation; The CEO may require the person to give the information, or produce the document, to the Agency.

188 Written notice of requirement

(1) A requirement under this Division must be made by written notice given to the person of whom the requirement is made.

(2) The notice must specify: (a) the nature of the information or document that is required to be given or produced; and (b) how the person is to give the information or produce the document; and

Chapter 7 Other matters

Part 1 Debt recovery

Division 3 Information relating to debts

Section 189

(c) the period within which the person is to give the information or produce the document to the Agency; and (d) the Agency officer to whom the information is to be given or the document is to be produced; and e) that the notice is given under this section.

(3) The period specified under paragraph (2)(c) must be a period of at least 14 days beginning on the day on which the notice is given.

(4) The notice may require the person to give the information by appearing before a specified Agency officer to answer questions.

(5) If the notice requires the person to appear before an Agency officer, the notice must specify a time and place at which the person is to appear. The time must be at least 14 days after the notice is given.

189 Offence—refusal or failure to comply with requirement

(1) A person must not refuse or fail to comply with a requirement under this Division to give information or produce a document.

Penalty: 30 penalty units.

Note: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

(2) Subsection (1) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.

(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.

Other matters Chapter 7

Debt recovery Part 1

Non-recovery of debts Division 4

Section 190

Division 4—Non-recovery of debts

190 CEO may write off debt

(1) Subject to subsection (2), the CEO may, on behalf of the Agency, decide to write off a debt, for a stated period or otherwise.

(2) The CEO may decide to write off a debt under subsection (1) if, and only if: (a) the debt is irrecoverable at law; or (b) the debtor has no capacity to repay the debt; or (c) the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or (d) it is not cost effective for the Agency to take action to recover the debt.

(3) For the purposes of paragraph (2)(a), a debt is irrecoverable at law if, and only if: (a) the debt cannot be recovered by means of deductions, or legal proceedings, because the relevant 6 year period mentioned in section 183 has elapsed; or (b) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or (c) the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or (d) the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.

(4) A decision made under subsection (1) takes effect: (a) if no day is specified in the decision—on the day the decision is made; or (b) if a day is specified in the decision—on the day so specified (whether that day is before, on or after the day the decision is made).

Chapter 7 Other matters

Part 1 Debt recovery

Division 4 Non-recovery of debts

Section 191

(5) Nothing in this section prevents anything being done at any time to recover a debt that has been written off under this section.

191 Power to waive Agency’s right to recover debt

(1) On behalf of the Agency, the CEO may waive the Agency’s right to recover the whole or a part of a debt from a debtor only in the circumstances described in section 192, 193, 194 or 195.

(2) A waiver takes effect: (a) on the day specified in the waiver (whether that day is before, on or after the day the decision to waive is made); or (b) if the waiver does not specify when it takes effect—on the day the decision to waive is made.

Note: If the CEO waives the Agency’s right to recover all or part of a debt, is a permanent bar to recovery of the debt or part of the debt and the debt or part of the debt effectively ceases to exist.

192 Waiver of debt arising from error

The CEO must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Agency if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt and: (a) the debt is not raised within 6 weeks from the first payment that caused the debt; or (b) if the debt arose because a person has complied with a notification obligation—the debt is not raised within 6 weeks from the end of the notification period; whichever is the later.

Note: This section does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).

193 Waiver of small debt

The CEO may waive the right to recover a debt if: (a) the debt is, or is likely to be, less than $200; and

Other matters Chapter 7

Debt recovery Part 1

Non-recovery of debts Division 4

Section 194

(b) it is not cost effective for the Agency to take action to recover the debt.

194 Waiver in relation to settlements

(1) If the Agency has agreed to settle a civil action against a debtor for recovery of a debt for less than the full amount of the debt, the CEO must waive the right to recover the difference between the debt and the amount that is the subject of the settlement.

(2) If the CEO has agreed to settle proceedings before the Administrative Appeals Tribunal relating to recovery of a debt on the basis that the debtor will pay less than the full amount of the debt, the CEO must waive the right to recover the difference between the debt and the amount that is the subject of the settlement.

(3) If: (a) the Agency has recovered at least 80% of the original value of a debt from a debtor; and (b) the Agency and the debtor agree that the recovery is in full satisfaction for the whole of the debt; and (c) the debtor cannot repay a greater proportion of the debt; the CEO must waive the remaining 20% or less of the value of the original debt.

(4) If the CEO and a debtor agree that the debtor’s debt will be fully satisfied if the debtor pays the Agency an agreed amount that is less than the amount of the debt outstanding at the time of the agreement (the unpaid amount), the CEO must waive the right to recover the difference between the unpaid amount and the agreed amount.

(5) The CEO must not make an agreement described in subsection (4) unless the CEO is satisfied that the agreed amount is at least the present value of the unpaid amount if it is repaid in instalments of amounts, and at times, determined by the CEO.

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Chapter 7 Other matters

Part 1 Debt recovery

Division 4 Non-recovery of debts

Section 195

(6) For the purposes of subsection (5), the present value of the unpaid amount is the amount worked out in accordance with the method prescribed by the National Disability Insurance Scheme rules.

195 Waiver in special circumstances

The CEO may waive the right to recover a debt if:

• (a) the debt did not arise in whole or part as a result of:
  • (i) a contravention of this Act, the regulations or the National Disability Insurance Scheme rules;
  • (ii) a false or misleading statement or a misrepresentation; and
• (b) there are special circumstances (other than financial hardship or the disability of the debtor) that the CEO is satisfied make waiver appropriate; and
• (c) the CEO is satisfied that waiver is more appropriate than writing off the debt.

Other matters Chapter 7

General matters Part 2

Section 196

Part 2—General matters

196 Method of notification by CEO

If this Act, the regulations or the National Disability Insurance Scheme rules require or permit the CEO to notify a person, the CEO may notify the person: (a) by sending the notice by prepaid post addressed to the person at his or her postal address last known to the CEO; or (b) by giving the notice to the person personally; or c) in any other way the CEO considers appropriate.

197 CEO not required to make a decision

(1) If this Act, the regulations or the National Disability Insurance Scheme rules require a request or application to be in a form approved by the CEO, the CEO is not required to make a decision on the request or application if it is not in that form. (2) If this Act, the regulations or the National Disability Insurance Scheme rules permit the CEO to require information or documents for the purposes of, or for purposes relating to, making a decision or doing a thing, the CEO is not required to make the decision or do the thing until the information or documents are provided. ####### 197A Method of notification by Commissioner If this Act, the regulations or the National Disability Insurance Scheme rules require or permit the Commissioner to notify a person, the Commissioner may notify the person: a) by sending the notice by prepaid post addressed to the person at his or her postal address last known to the Commissioner; or b) by giving the notice to the person personally; orc) in any other way the Commissioner considers appropriate.

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Part 2 General matters

Section 197B

197B Commissioner not required to make a decision

(1) If this Act, the regulations or the National Disability Insurance Scheme rules require a request or application to be in a form approved by the Commissioner, the Commissioner is not required to make a decision on the request or application if it is not in that form.

(2) If this Act, the regulations or the National Disability Insurance Scheme rules permit the Commissioner to require information or documents for the purposes of, or for purposes relating to, making a decision or doing a thing, the Commissioner is not required to make the decision or do the thing until the information or documents are provided.

198 Protection of participant against liability for actions of persons

Nothing in this Part renders a participant guilty of an offence against this Act in relation to any act or omission of a person who doos a thing because of section 74.

199 Protection against criminal liability

A person who does a thing because of section 74 is not subject to any criminal liability under this Act in relation to: (a) any act or omission of the participant concerned; or (b) anything done, or omitted to be done, in good faith, because of section 74.

200 Evidentiary effect of CEO’s certificate

(1) For the purposes of paragraph 21B(1)(c) of the Crimes Act 1914, as it applies in relation to an offence against Part 7.3 or 7.4 of the Criminal Code relating to the Agency or this Act, a certificate signed by the CEO is prima facie evidence of the matters specified in the certificate.

(2) The certificate may specify:

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General matters Part 2

Section 200A

(a) the person to whom, or in relation to whom, an NDIS amount has been paid because of an act or omission for which the person or another person has been convicted of an offence against Part 7.3 or 7.4 of the Criminal Code relating to the Agency or this Act; and (b) the amount paid; and (c) the act or omission. Note: Parts 7.3 and 7.4 of the Criminal Code deal with certain fraudulent conduct and false or misleading statements.

200A Legal assistance for review not funded

Nothing in this Act permits or requires the Agency to fund legal assistance for prospective participants or participants in relation to review of decisions made under this Act.

201 Delegation by the Minister to the CEO

(1) The Minister may, in writing, delegate to the CEO his or her powers under section 209. (2) The Minister must not delegate to the CEO his or her powers under section 209 unless each host jurisdiction has agreed to the delegation. Process for seeking agreement (2A) The Minister must: (a) give a notice (the original notice) in writing to one host jurisdiction Minister for each host jurisdiction seeking the agreement of that host jurisdiction to the delegation and requesting the agreement be given before the end of 28 days beginning on the day the notice is given; and (b) provide a copy of the proposed instrument of delegation to that host jurisdiction Minister. (2B) If, immediately before the end of that 28-day period:

Chapter 7 Other matters

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Section 201A

(a) no host jurisdiction Minister for a host jurisdiction has informed the Minister whether that host jurisdiction agrees to the delegation; and (b) no host jurisdiction Minister for that host jurisdiction has made a request under subsection (2C); then, at the end of that period, that host jurisdiction is taken to have agreed to the delegation.

(2C) If, before the end of that 28-day period, a host jurisdiction Minister for a host jurisdiction gives a notice in writing to the Minister requesting a longer period within which that host jurisdiction may agree to the delegation: (a) that host jurisdiction may give that agreement before the end of 90 days beginning on the day the original notice was given; and (b) if, immediately before the end of that 90-day period, no host jurisdiction Minister for that host jurisdiction has informed the Minister whether that host jurisdiction agrees to the delegation, then, at the end of that period, that host jurisdiction is taken to have so agreed.

CEO must comply with Ministerial directions

(3) When exercising powers under a delegation, the CEO must comply with any directions of the Minister.

Limit on delegation

(4) Despite subsection (1), the power to make National Disability Insurance Scheme rules for the purposes of the provisions listed in subsection 201A(1) may not be delegated to the CEO.

201A Delegation by the Minister to the Commissioner

(1) The Minister may, in writing, delegate to the Commissioner his or her powers under section 209 to make National Disability Insurance Scheme rules for the purposes of the following provisions:

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Section 202

(a) paragraph (b) of the definition of NDIS provider in section 9; (b) section 67F (NDIS rules for exercise of Commissioner’s disclosure powers); (c) subsection 73B(1) (requirement to be a registered NDIS provider); (d) paragraphs 73E(1)(d), (e) and (f) (registration as a registered NDIS provider); (e) section 73H (conditions determined by NDIS rules); (f) paragraphs 73N(1)(d), (e) and (f) (suspension of registration); (g) paragraphs 73P(1)(d), (e) and (f) (revocation of registration); (h) section 73Q (record keeping by registered NDIS providers); i) subsection 73T(1) (NDIS Practice Standards); j) subsection 73V(1) (NDIS Code of Conduct); k) paragraph 73W(b) (complaints management and resolution system); l) subsection 73X(1) (complaints management and resolution); m) paragraph 73Y(b) (incident management system); n) subsections 73Z(1) and (5) (reportable incidents); o) paragraph 73ZM(2)(h) (compliance notices); p) paragraphs 73ZS(2A)(d), (2B)(d), (3)(l), (4)(h) and (5)(f) and subsection 73ZS(7) (NDIS Provider Register); (q) subsection 99(2) (reviewable decisions).

(1A) The Minister may, in writing, delegate to the Commissioner the Minister’s power under subsection 181Y(8).

(2) When exercising powers under a delegation, the Commissioner must comply with any directions of the Minister.

202 Delegation by the CEO

(1) The CEO may, in writing, delegate to an Agency officer any or all of his or her powers or functions under this Act, the regulations or the National Disability Insurance Scheme rules.

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(2) Despite subsection (1), the CEO may delegate the CEO’s powers under Part 2 of Chapter 4 (privacy) only to an Agency officer who is a member of staff of the Agency under section 169.

(3) A person exercising powers or functions under a delegation under this section must comply with any directions of the CEO.

202A Delegation by the Commissioner

(1) Subject to subsection (2) and section 202B, the Commissioner may, in writing, delegate to a Commission officer any or all of his or her powers or functions under this Act, the regulations or the National Disability Insurance Scheme rules.

Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

(2) Despite subsection (1), the Commissioner may delegate the Commissioner’s powers and functions under Part 2 of Chapter 4 (privity) only to a member of staff of the Commission (see section 181U).

(3) A person exercising powers or functions under a delegation under this section must comply with any directions of the Commissioner.

Section 202B Delegation of regulatory powers

(1) The Commissioner may, in writing, delegate the powers and functions mentioned in subsection (2), to an SES employee, or an acting SES employee, in the Commission.

Note 1: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

Note 2: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

(2) The powers and functions that may be delegated are the powers and functions under Division 8 of Part 3A of Chapter 4 (compliance and enforcement), including: (a) powers under the Regulatory Powers Act in relation to the provisions of this Act; and

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(b) powers and functions under the Regulatory Powers Act that are incidental to a power mentioned in paragraph (a). (3) A person exercising powers or performing functions under a delegation under subsection (1) must comply with any directions of the Commissioner.

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(b) in any other case—any member of the committee of management of the entity.

(5) An offence against this Act that would otherwise be committed by the entity is taken instead to have been committed by: (a) if the entity is a partnership—any partner: i) who was knowingly concerned in, or party to, the act or omission constituting the offence; or ii) who aided, abetted, counselled or procured that act or omission; or (b) in any other case—any member of the committee of management of the entity: i) who was knowingly concerned in, or party to, the act or omission constituting the offence; or ii) who aided, abetted, counselled or procured that act or omission.

(6) This section applies to a contravention of a civil penalty provision in a corresponding way to the way in which it applies to an offence.

(7) For the purposes of this Act, a change in the composition of a partnership does not affect the continuity of the partnership.

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General matters Part 2

Section 204A Report by Commonwealth Ombudsman

a report about some or all of the matters prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

(2) The report must not include personal information (within the meaning of the Privacy Act 1988).

(3) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.

Exercise of Commonwealth Ombudsman’s powers

(4) The Commonwealth Ombudsman’s powers under the Ombudsman Act 1976 extend to the preparation of a report by the Ombudsman under this section as if the preparation of the report were an investigation by the Ombudsman under that Act.

(5) The exercise of those powers in relation to the preparation of a report by the Ombudsman under this section is taken, for all purposes, to be an exercise of powers under the Ombudsman Act 1976.

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Chapter 7 Other matters

Part 3 Constitutional matters

Section 205

Part 3—Constitutional matters

205 Act binds Crown

(1) This Act binds the Crown in each of its capacities.

(2) However, this Act does not make the Crown liable to be prosecuted for an offence.

(3) To avoid doubt, subsection (2) does not prevent the Crown from being liable to pay a pecuniary penalty under section 73ZK or 73ZL.

Note: Section 73ZK deals with civil penalty orders and section 73ZL deals with infringement notices.

206 Alternative constitutional basis

(1) Without limiting its effect apart from this subsection, this Act also has the effect it would have if its operation were expressly confined to: (a) the provision of pharmaceutical, sickness or hospital benefits; or (b) the provision of medical services or dental services (without any form of civil conscription).

(2) Without limiting its effect apart from this subsection, this Act also has the effect it would have if its operation were expressly confined to acts, matters or things occurring in, or in relation to, a Territory or a place acquired by the Commonwealth for a public purpose.

(4) Without limiting its effect apart from this subsection, this Act also has the effect it would have if its operation were expressly confined to acts, matters or things in relation to communication by means of a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).

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Section 207

(5) Without limiting its effect apart from this subsection, this Act also has the effect it would have if its operation were expressly confined to acts, matters or things in relation to census and statistics (within the meaning of paragraph 51(xi) of the Constitution).

(7) Without limiting its effect apart from this subsection, this Act also has the effect it would have if its operation were expressly confined to acts, matters or things in relation to:

• (a) the Commonwealth; or
• (b) an authority of the Commonwealth.

207 Concurrent operation of State laws

(1) It is the intention of the Parliament that this Act is not to apply to the exclusion of a law of a State or Territory to the extent that that law is capable of operating concurrently with this Act.

(2) The regulations may prescribe kinds of laws of States and Territories as examples of laws to which subsection (1) applies.

Note: Before the regulations can be made, the Minister must be satisfied that the Commonwealth and all the host jurisdictions agree: see paragraph 210(2)(b).

! (1)! The Minister must cause an independent review of the operation second anniversaryof this Actoftothebe commencementundertaken commencingon Chapter3.¶

! (2)! The review is to be undertaken by a person or persons chosen by the Minister with the agreement of the Ministerial Council.¶

! (3)! The terms of reference of the review must be agreed by the Ministerial Council.¶

! (4)! The person or persons undertaking the review must give the Minister a written report of the review within 6 months of the commencement of the review.¶

208 Review of operation of Act

207A State or Territory agreement required in relation to certain delegations under this Act

(1) The CEO may not delegate a power or function under this Act to an officer or employee of a State or Territory, or an officer or employee of a body established for a public purpose by or under a law of the State or Territory, without the written agreement of the relevant Minister of the State or Territory.

(2) The Commissioner may not delegate a power or function under this Act to an officer or employee of a State or Territory, or an officer or employee of an authority of a State or a Territory, without the written agreement of the relevant Minister of the State or Territory.

Note: Deleted: Part 4—Review of the Act¶

! (5)! Upon receiving the report, the Minister must give a copy to the Ministerial Council and ask the Ministerial Council to:

• (a) make recommendations in response to the report; and
• (b) obtain COAG’s response to the report within the period of 6 months after giving the copy of the report to the Ministerial Council.¶

! (6)! The Minister must consider the report.¶

! (7)! The Minister must cause copies of the report to be tabled in each House of the Parliament within 15 sitting days of that House after receiving the report.¶

! (8)! The Minister must cause copies of COAG’s response to the report to be tabled in each House of the Parliament within 6 months of giving the copy of the report to the Ministerial Council.¶

!(9)! If the Minister fails to cause copies of the response to be tabled in each House of the Parliament within the period referred to in subsection (8), the Minister must cause an explanation of the failure to be tabled in each House of the Parliament within 15 sitting days of that House after the end of that period.

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Chapter 7 Other matters

Part 5 Legislative instruments

Section 209

Part 5—Legislative instruments

209 The National Disability Insurance Scheme rules

(1) The Minister may, by legislative instrument, make rules called the National Disability Insurance Scheme rules prescribing matters: (a) required or permitted by this Act to be prescribed by the National Disability Insurance Scheme rules; or (b) necessary or convenient to be prescribed in order to carry out or give effect to this Act.

(1A) Without limiting subsection 33(3A) of the Acts Interpretation Act 1901, rules made for the purposes of subsection (1) of this section: (a) may be of general application or may be limited as provided in the rules; and (b) may make different provision in relation to different kinds of providers, supports, services, circumstances or any other matter.

(2) Despite section 14 of the Legislation Act 2003, National Disability Insurance Scheme rules 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.

(2A) The National Disability Insurance Scheme rules may provide for: (a) the CEO to specify assessment tools; and (b) the circumstances in which the CEO is to use the tools; and (c) matters relating to how the Agency, the CEO and other specified persons are to engage with participants or prospective participants; and (d) matters relating to how participants or prospective participants are to engage with the Agency, the CEO and other specified persons.

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Section 209

(3) When making National Disability Insurance Scheme rules, the Minister must have regard to:

(a) the objects and principles of this Act; and (b) the need to ensure the financial sustainability of the National Disability Insurance Scheme.

Deleted: When making National Disability Insurance Scheme ules, the Minister must have regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.

(4) The Minister must not make Category A National Disability Insurance Scheme rules unless the Commonwealth and each host jurisdiction have agreed to the making of the rules.

(5) The Minister must not make Category B National Disability Insurance Scheme rules relating to an area, law or program of a host jurisdiction unless the host jurisdiction has agreed to the making of the rules.

Deleted: The Minister must not make Category B National Disability Insurance Scheme rules relating to:¶

(6) The Minister must not make Category C National Disability Insurance Scheme rules unless the Commonwealth and a majority of host jurisdictions have agreed to the making of the rules.!! (b)!!(a)! anthearea,commencementlaw or programof theof facilitationa host jurisdiction;of the preparationor¶ of plans of participants who are identified (wholly or partly, and directly or indirectly) by reference to a host jurisdiction;¶ unless the host jurisdiction has agreed to the making of the rules

(7) The Minister must not make Category D National Disability Insurance Scheme rules unless each host jurisdiction has been consulted in relation to the making of the rules.

(8) The following table sets out the categories of National Disability Insurance Scheme rules for the purposes of this section.

Deleted: (b) paragraph 23(1)(c), except to the extent that the rules are of a kind mentioned in subsection 23(3);¶

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Categories of National Disability Insurance Scheme rules

Item 2: Category B National Disability Insurance Scheme rules Rules made for the purposes of any of the following provisions: (a) paragraph 21(2)(b) and (d); deleted: (b) section 22; (c) subsection 23(3); (d) section 58; deleted: (ca) section 32; e) section 73H, to the extent that the rules deal with conditions on classes of registration relating to behaviour support; f) subsection 73T(1), to the extent that the NDIS Practice Standards deal with the screening of workers involved in the provision of supports or services to people with disability under the National Disability Insurance Scheme.

Item 3: Category C National Disability Insurance Scheme rules Rules made for the purposes of either of the following provisions: deleled: (a) subsection 32A(4); (b) paragraph 20(2)(b); (c) paragraph 33(4)(a); (d) paragraph 47A(8)(a); (e) paragraph 48(8)(a); (f) subsection 49(2); g) section 50J; h) paragraphs 89(1)(c) and (3)(c);

Other matters Chapter 7

Legislative instruments Part 5

Section 209

Categories of National Disability Insurance Scheme rules

Item Category of rules Description (h) subparagraph 90(3)(a)(ii); (i) paragraph 100(6A)(a); j) subsection 174(3); k) section 204; l) subsection 204A(1); m) paragraphs (2A)(c) and (d) of this section. 4 Category D Rules made for the purposes of any of the following National Disability provisions: Insurance Scheme (a) paragraph (b) of the definition of NDIS provider rules in section 9; aa) subsection 14(3); b) section 40; da) section 45; c) section 46; cia) paragraphs 47A(1)(a) and (c) and subsection 47A(6); cab) subsection 48(5); ca) section 67; d) section 67F; e) subsection 73B(1); f) paragraphs 73E(1)(d), (e) and (f); g) section 73H, other than to the extent covered by table item 2; h) paragraphs 73N(1)(d), (e) and (f); i) paragraphs 73P(1)(d), (e) and (f); j) section 73Q; k) subsection 73T(1), other than to the extent covered by table item 2; l) subsection 73V(1); m) paragraph 73W(b) n) subsection 73X(1); o) paragraph 73Y(b);

Chapter 7 Other matters

Part 5 Legislative instruments

Section 209

Categories of National Disability Insurance Scheme rules

(8A) In seeking the agreement of a host jurisdiction to the making of ules under this section, the Minister must: (a) give a notice (the original notice) in writing to one host jurisdiction Minister for that host jurisdiction seeking the agreement of that host jurisdiction to the making of the rules and requesting the agreement be given before the end of 28 days beginning on the day the notice is given; and (b) provide a copy of the proposed rules to that host jurisdiction Minister.

(8B) If, immediately before the end of that 28-day period: (a) no host jurisdiction Minister for a host jurisdiction has informed the Minister whether that host jurisdiction agrees to the making of the rules; and (b) no host jurisdiction Minister for that host jurisdiction has made a request under subsection (8C); then, at the end of that period, that host jurisdiction is taken to have agreed to the making of the rules.

(8C) If, before the end of that 28-day period, a host jurisdiction Minister for a host jurisdiction gives a notice in writing to the Minister requesting a longer period within which that host jurisdiction may agree to the making of the rules:

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Section 210

(a) that host jurisdiction may give that agreement before the end of 90 days beginning on the day the original notice was given; and (b) if, immediately before the end of that 90-day period, no host jurisdiction Minister for that host jurisdiction has informed the Minister whether that host jurisdiction agrees to the making of the rules, then, at the end of that period, that host jurisdiction is taken to have so agreed. (9) To avoid doubt, the National Disability Insurance Scheme rules may not do the following: (a) create an offence or civil penalty; (b) provide powers of: i) arrest or detention; or ii) entry, search or seizure; c) impose a tax; d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act; e) directly amend the text of this Act. (10) National Disability Insurance Scheme rules that are inconsistent with the regulations have no effect to the extent of the inconsistency, but National Disability Insurance Scheme rules are taken to be consistent with the regulations to the extent that the National Disability Insurance Scheme rules are capable of operating concurrently with the regulations. 210 Regulations (1) The Governor-General may make regulations prescribing matters: a) required or permitted by this Act to be prescribed; or) necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) Before the Governor-General makes regulations under subsection (1), the Minister must:

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Section 210

(a) if the regulations are for the purposes of section 130, 150 or 162 (which relate to the remuneration and allowances of Board members, members of the Advisory Council and the CEO)—consult the host jurisdictions about the making of the regulations; or (b) otherwise—be satisfied that the Commonwealth and each host jurisdiction have agreed to the making of the regulations.

Process for seeking agreement of host jurisdiction

(3) In seeking the agreement of a host jurisdiction to the making of regulations under this section, the Minister must: (a) give a notice (the original notice) in writing to one host jurisdiction Minister for that host jurisdiction seeking the agreement of that host jurisdiction to the making of the regulations and requesting the agreement be given before the end of 28 days beginning on the day the notice is given; and (b) provide a copy of the proposed regulations to that host jurisdiction Minister.

(4) If, immediately before the end of that 28-day period: (a) no host jurisdiction Minister for a host jurisdiction has informed the Minister whether that host jurisdiction agrees to the making of the regulations; and (b) no host jurisdiction Minister for that host jurisdiction has made a request under subsection (5); then, at the end of that period, that host jurisdiction is taken to have agreed to the making of the regulations.

(5) If, before the end of that 28-day period, a host jurisdiction Minister for a host jurisdiction gives a notice in writing to the Minister requesting a longer period within which that host jurisdiction may agree to the making of the regulations: (a) that host jurisdiction may give that agreement before the end of 90 days beginning on the day the original notice was given; and

Other matters

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Section 210

(b) if, immediately before the end of that 90-day period, no host jurisdiction Minister for that host jurisdiction has informed the Minister whether that host jurisdiction agrees to the making of the regulations, then, at the end of that period, that host jurisdiction is taken to have so agreed.

Clause

Deleted: Schedule 1—Transitional provisions for staff of

the Agency Note:! See section 171A.

1 FaHCSIA agreement covers staff of the Agency

! (1)! The FaHCSIA agreement covers the Commonwealth, APS employees (except SES employees), the Community and Public Sector Union and the Media, Entertainment and Arts Alliance in relation to the APS employees’ employment in the Statutory Agency established by subsection 169(2). Note:! For APS employee and SES employee, see section 2B of the Acts Interpretation Act 1901. ! (2)! The FaHCSIA agreement has effect under subclause (1) as if: ! (a)! it had been made by the CEO on behalf of the Commonwealth; and ! (b)! references in the agreement to the Secretary were references to the CEO; and ! (c)! references in the agreement to the Department or FaHCSIA were references to the Statutory Agency established by subsection 169(2). ! (3)! For the purposes of the Fair Work Act 2009, the FaHCSIA agreement as it has effect under this clause is taken to be an eenterprise agreement separate from the FaHCSIA agreement as it has effect apart from this clause. ! (4)! Guidelines and policies relating to employment conditions, administrative process and other employment-related matters that had effect for the purposes of the FaHCSIA agreement immediately before the commencement of this clause also have effect for the purposes of that agreement as it has effect under this clause. ! (5)! Guidelines and policies have effect under subclause (4) as if: ! (a)! references in them to the Secretary were references to the CEO; and ! (b)! references in them to the Department or FaHCSIA were references to the Statutory Agency established by subsection 169(2). ! (6)! Subclause (4) does not prevent the alteration or revocation of the guidelines and policies, as they have effect under that subclause, by the CEO or a delegate of the CEO. End of coverage by FaHCSIA agreement ! (7)! The FaHCSIA agreement ceases to cover the Commonwealth, APS employees, the Community and Public Sector Union and the Media, Entertainment and Arts Alliance under subclause (1) on the coming into operation of another eenterprise agreement that: ! (a)! is made by the CEO on behalf of the Commonwealth; and ! (b)! covers the Commonwealth and the APS employees (or the APS employees except SES employees) employed in the Statutory Agency established by subsection 169(2).¶ … [3]

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

• Endnote 1—About the endnotes
• Endnote 2—Abbreviation key
• Endnote 3—Legislation history
• Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Council.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can

Endnotes

Endnote 1—About the endnotes

be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

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Endnotes

Endnote 2—Abbreviation key

ad = added or inserted o = order(s) am = amended Ord = Ordinance amdt = amendment orig = original c = clause(s) par = paragraph(s)/subparagraph(s) C[x] = Compilation No. x /sub-subparagraph(s) Ch = Chapter(s) pres = present def = definition(s) prev = previous Dict = Dictionary (prev…) = previously disallowed = disallowed by Parliament Pt = Part(s) Div = Division(s) r = regulation(s)/rule(s) ed = editorial change reloc = relocated exp = expires/expired or ceases/ceased to have renum = renumbered effect rep = repealed F = Federal Register of Legislation rs = repealed and substituted gaz = gazette s = section(s)/subsection(s) LA = Legislation Act 2003 Sch = Schedule(s) LIA = Legislative Instruments Act 2003 Sdiv = Subdivision(s) (md) = misdescribed amendment can be given SLI = Select Legislative Instrument effect SR = Statutory Rules (md not incorp) = misdescribed amendment Sub-Ch = Sub-Chapter(s) cannot be given effect SubPt = Subpart(s) mod = modified/modification underlining = whole or part not No. = Number(s) commenced or to be commenced

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Endnotes

Endnote 3—Legislation history

Act Number Assent Commencement Application,

                                saving and

terminational provisions

National Disability 20, 2013 28 Mar 2013 s 3–12, 55–73 and Insurance Scheme Act 117–210: 29 Mar 2013 2013 (s 2(1) items 2, 5, 6, 9) s 13–54 and 74–116: 1 July 2013 (s 2(1) items 3, 4, 7, 8) Remainder: 28 Mar 2013 (s 2(1) item 1)

National Disability 44, 2013 28 May 2013 Sch 1 (items 1–19, Sch 1 (items 28, 46, Insurance Scheme 21–26, 33–43, 46, 55) Legislation Amendment 56–58): 1 July 2013 Act 2013 (s 2(1) items 2, 4, 6, 7, 9, 11) Sch 1 (items 20, 27– 32, 44, 45, 47–55): 29 May 2013 (s 2(1) items 3, 5, 8, 10)

Aged Care (Living 76, 2013 28 June 2013 Sch 4 (items 5A– — Longer Living Better) 5D): 1 Aug 2013 (s Act 2013 2(1) item 5)

Social Services and 14, 2014 31 Mar 2014 Sch 12 (items 27, Sch 12 (item 28) Other Legislation 28): 1 Apr 2014 (s Amendment Act 2014 2(1) item 8)

Public Governance, 62, 2014 30 Jun 2014 Sch 10 (items 36– Sch 14 Performance and 53) and Sch 14: Accountability 1 July 2014 (s 2(1) (Consequential and items 6, 14) Transitional Provisions) Act 2014

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Endnotes

Endnote 3—Legislation history

| Act | Number and year | Assent | Commencement | Application, saving and transitional provisions | | — | — | — | — | — | | as amended by | | | |
| Public Governance and Resources Legislation Amendment Act (No. 1) 2015 | 36, 2015 | 13 Apr 2015 | Sch 2 (items 7–9) and Sch 7: 14 Apr 2015 (s 2) | Sch 7 | | | | | |
| as amended by | | | |
| Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015 | 126, 2015 | 10 Sept 2015 | Sch 1 (item 486): 5 Mar 2016 (s 2(1) item 2) | — | | | | | |
| Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015 | 126, 2015 | 10 Sept 2015 | Sch 1 (item 495): 5 Mar 2016 (s 2(1) item 2) | — | | | | | |
| Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015 | 126, 2015 | 10 Sept 2015 | Sch 1 (items 395– 397): 5 Mar 2016 (s 2(1) item 2) | — | | | | | |
| National Disability Insurance Scheme Amendment Act 2016 | 51, 2016 | 5 May 2016 | Sch 1: 1 July 2016 (s 2(1) item 2) | — | | | | | |
| Statute Update Act 2016 | 61, 2016 | 23 Sept 2016 | Sch 3 (item 31): 21 Oct 2016 (s 2(1) imt 1) | — |

National Disability Insurance Scheme Act 2013

Compilation No. 13

Compilation date: 27/11/2020 Registered: 15/12/2020

Endnotes

Endnote 3—Legislation history

| Act | Number and year | Assent | Commencement | Application, saving and transitional provisions | | — | — | — | — | — | | National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Act 2017 | 131, 2017 | 13 Dec 2017 | Sch 1: 1 July 2018 | Sch 1 (item 81) (s 2(1) item 2) | | National Disability Insurance Scheme Amendment (Worker Screening Database) Act 2019 | 82, 2019 | 2 Oct 2019 | 3 Oct 2019 (s 2(1) — item 1) | — | | National Disability Insurance Scheme Amendment (Streamlined Governance) Act 2019 | 113, 2019 | 9 Dec 2019 | 10 Dec 2019 (s 2(1) item 1) | Sch 1 (item 26) and Sch 2 (item 4) | | National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Act 2020 | 103, 2020 | 20 Nov 2020 | 21 Nov 2020 (s 2(1) item 1) | Sch 1 (items 7, 8) | | Social Services and Other Legislation Amendment (Omnibus) Act 2020 | 107, 2020 | 26 Nov 2020 | Sch 3 (item 10): 27 nov 2020 (s 2(1) item 3) | — |

Compilation No. 13

Compilation date: 27/11/2020 Registered: 15/12/2020

Endnotes

Endnote 4—Amendment history

Endnote 4—Amendment history

                  No 113, 2019 |

| s 10 | am No 126, 2015 | | s 10A | ad No 131, 2017 | | s 10B | ad No 82, 2019 | | s 11A | ad No 131, 2017 |

Chapter 3

Part 1

s 22 ………………………………….. am No 44, 2013 s 23 ………………………………….. am No 44, 2013 s 24 ………………………………….. am No 44, 2013 s 27 ………………………………….. am No 44, 2013 s 29 ………………………………….. am No 76, 2013

Part 2

Division 2

s 33 ………………………………….. am No 44, 2013; No 131, 2017 s 34 ………………………………….. am No 44, 2013 s 35 ………………………………….. am No 44, 2013 s 40 ………………………………….. am No 44, 2013

Division 3

s 44 ………………………………….. am No 44, 2013 s 46A ……………………………….. ad No 14, 2014

National Disability Insurance Scheme Act 2013 281 Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Endnotes

Endnote 4—Amendment history

National Disability Insurance Scheme Act 2013 Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Endnotes

Endnote 4—Amendment history

National Disability Insurance Scheme Act 2013

Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Endnotes

Endnote 4—Amendment history

am No 103, 2020

Endnotes

Endnote 4—Amendment history

Chapter 5 Part 1 s 104 | am No 44, 2013 | s 105 | am No 44, 2013 |

Chapter 6 Part 1 National Disability Insurance Scheme Act 2013 285 Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Endnotes

Endnote 4—Amendment history

Part 2

Division 1

• s 125: am No 62, 2014; No 113, 2019
• s 125A: rs No 44, 2013;
  • am No 62, 2014
• s 125B: ad No 44, 2013

Division 2

• s 126: am No 51, 2016
• s 127: am No 113, 2019
• s 134: am No 62, 2014; No 113, 2019
• s 135: am No 113, 2019

Division 3

• s 138: am No 62, 2014; No 51, 2016

Part 3

Division 1

• s 144: am No 131, 2017

Division 2

• s 147: am No 113, 2019
• s 155: am No 113, 2019
• s 156: am No 113, 2019

Part 4

Division 1

• s 165: rs No 62, 2014
• s 167: am No 62, 2014

Part 5

Division 1

Subdivision A

Endnotes

Endnote 4—Amendment history

National Disability Insurance Scheme Act 2013

Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Endnotes

Endnote 4—Amendment history

National Disability Insurance Scheme Act 2013 Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020

Endnotes

Endnote 4 — Amendment history

      2020 |

| s 210 | am No 113, 2019 |

National Disability Insurance Scheme Act 2013 289

Compilation No. 13 Compilation date: 27/11/2020 Registered: 15/12/2020