Victoria’s proposed amendments to the NDIS Bill
Provisions for decision-making by participants need to be strengthened
Clause Proposed amendment Rationale
4 Delete the phrase ‘be able to determine their own best interests, The reference to ‘best interests’ in subclause 4(8) is inconsistent with amendments
including the right to’ in subclause 4(8) so that it reads: ‘People with to other sections of the Bill, in particular the section on nominees and the principles disability have the same right as other members of Australian society for guiding decision-making by others on behalf of participants (see other comments to exercise informed choice and engage as equal partners in decisions below). that will affect their lives…’
5 Insert new subclause 5(a) explicitly stating that people with The inclusion of principles to guide actions (primarily decision-making) by others
disability are presumed to have capacity to make decisions on behalf of people with disability is positive.
Amend current subclause 5(a) [new subclause 5(b)] to read However, there is currently no explicit presumption of capacity – current ‘people with disability should participate actively in in decisions subclause 5(a) states only that people with disability should be involved in that affect their lives, and be supported where necessary to decision-making processes that affect them, and where possible make decisions enable this to occur’ for themselves. The principle of presumption of capacity is articulated in Article 12(2) of the UN Convention on the Rights of Persons with Disabilities (to which Insert new subclause 5(c): ‘People who may undertake actions for the Bill makes explicit reference in clause 3(1)(h)) and should be explicitly people with a disability must have regard to the wishes of the included in the Bill. person with a disability and the personal and social wellbeing of the person’ The principles are primarily concerned with substitute decision-making, and do not make clear that a person should, in the first instance, be supported to make Amend current subclause 5(c) [new subclause 5(d)] to read their own decision, before any substitute decision can be made. ‘paramount regard should be had to the judgments and decisions that people with disability would have made for themselves, and As these principles apply to the whole Bill, it would be useful to include a those judgments and decisions should be given effect where requirement for a substitute decision-maker to have regard to the wishes of the possible’ person with disability and their personal and social wellbeing, consistent with the requirements for nominees in Chapter 4, Part 5.
Consistent with contemporary approaches to substitute decision-making, current subclause 5(c) should be strengthened to ensure the decision that would have been made by the person is paramount, and is given effect where possible.
66(3) Insert an additional paragraph into subclause (3) to ensure The disclosure power in clause 66(3) is broad, and requires limitation to ensure
information can be provided to the nominee only when it is necessary participants’ privacy is protected.
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for the nominee to perform his/her role.
78 Amend the final phrase of clause 78(5) to read: ‘if the nominee While clause 80 includes a power to make rules requiring the nominee to support
considers that the participant is not capable of doing, or being decision-making by the participant personally, this should be a substantive supported to do, the act. requirement in the Act, as it is a fundamental right set out in the UN Convention on the Rights of Persons with Disabilities. The proposed amendment to this clause would ensure the plan nominee is required to support a participant to make their own decision before deciding to make a substitute decision. The same requirements should apply to correspondence nominees.
80 Amend subclause 80(1) to read: ‘It is the duty of a nominee of a The proposed amendment would assist nominees to understand how they are to
participant to ascertain the wishes of the participant and to act in a perform their duties. manner that promotes the personal and social wellbeing of the participant and gives effect to the principles in [section] 5.’
82 At the beginning of subsection 82(1), insert the words: ‘Where a If a correspondence nominee fails to satisfy a request for information, the
person is appointed to be the correspondence nominee of a participant is taken not to have complied with the request. While the participant is participant at the request of the participant under [section] 87(2)(a) protected under clause 97 against criminal liability for the actions of their nominee, and…’ the participant may otherwise be disadvantaged. The participant should not be disadvantaged because a nominee has not met this obligation on their behalf, particularly if the nominee is appointed by the CEO.
86, 87 Clarify that a plan or correspondence nominee is only able to be Where a person is unable to make decisions, the person should, in the first
appointed by the CEO where a person is unable to request their instance, choose their own nominee. The rules under clause 88 would ensure own nominee that an inappropriate person is not appointed.
Consider whether a parallel clause to 86(3) should be included in It is unclear why the power to limit the scope of a nomination does not apply to clause 87 the appointment of a correspondence nominee.
88(4) Replace the words ‘has guardianship of’ with ‘is a substitute The term ‘guardianship’ is not sufficiently broad to encompass the range of
decision-maker for’ to encompass all terms used in State and substitute decision-makers who may be appointed under State laws. For Territory legislation. example, in some States, an administrator is appointed to make financial decisions. Clarify what action the CEO is required to take where a substitute decision-maker is already appointed under State or Territory law. The requirement for the CEO to ‘have regard’ to guardianship of a person under State or Territory laws does not direct the action the CEO is to take when a
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participant has a substitute decision-maker under State or Territory law, nor does it cover the potential overlap between the powers of a nominee and another substitute decision-maker.
89 Insert an additional part to enable the CEO to review and, if The proposed amendment is consistent with clause 88(4) (and proposed
necessary, cancel a nominee appointment where a substitute amendments to that clause). decision-maker is subsequently appointed under a State or Territory law and the duties of that decision-maker overlap or are inconsistent with the duties of the nominee.
91 Delete ‘severe’ The CEO should have the power to suspend a nominee appointment where he/she
has reasonable grounds to believe the nominee has caused, or is likely to cause, any physical, mental or financial harm to the participant. Where the CEO is aware of harm being caused, or likely to be caused, to a participant, the CEO should err on the side of caution. It would be imprudent for the CEO to wait until this harm was ‘severe’. The CEO would retain the discretion to decide whether or not to suspend an appointment (the CEO ‘may’, not ‘must’) and the appointee is given an opportunity to explain the situation under subclause (2).
Existing service users should not be disadvantaged
21(2) This clause needs to enable the CEO to deem some people to be Amendments to this ‘grandfathering’ clause are required to ensure it operates
participants in the scheme without their being required to make a effectively. For example: formal access request. The clause should also include a rule-making the current drafting requires all existing clients to formally make a request for
power to detail the circumstances in which the CEO may deem a access to the NDIS. It is unclear whether this is intended. Formal access
person to be a participant. requests will be costly for the scheme, stressful for clients, and may result in delays in accessing support. For example, it would mean that a person who has been receiving support for 30 years or more in a supported residential service could be required to have their eligibility reassessed;
it is also unclear how this clause would operate in practice. At the time of transfer of State funding to the NDIS, will a client have to make an access request to become a participant? If the client’s funding is transferred to the NDIS and a request is not made, will their supports continue? The client may
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potentially have no status as an NDIS participant and no status under State law.
Individuals should not be compelled to seek compensation
104, 105 Replace clauses 104 and 105 with an alternative mechanism or Further consideration needs to be given to alternative mechanisms that would
mechanisms to enable the NDIS to recoup its costs, while avoiding enable the NDIS to recoup its costs without imposing undue financial or personal the imposition of onerous obligations on the individual and impacts on NDIS participants or prospective participants or resulting in unintended unintended impacts on existing schemes. consequences for existing schemes. A person with disability should not be compelled to take action to obtain compensation where no provision is made for the person to recover their costs from the scheme (and there are potentially severe consequences for failing to comply e.g. suspension of funded supports), nor should a person be compelled to exercise their rights under a voluntary scheme (e.g. the Transport Accident Commission (TAC) scheme). Victoria also queries the appropriateness of the CEO determining the legal question of whether an agreement is void, ineffective or unenforceable under cl 104(6). Possible alternatives to clauses 104 and 105 include:
a provision similar to section 107 of the Transport Accident Act 1986 (Vic), which would enable the Agency to take over the conduct of proceedings against a third party initiated by an NDIS participant or prospective participant (a subrogation); a provision similar to section 104 of the Transport Accident Act 1986 (Vic) and section 138 of the Accident Compensation Act 1985 (Vic), which would enable the Agency to initiate an action in its own name to recover compensation (an indemnity), provided there is a legal liability that can be pursued; an approach similar to that taken in the Health and Other Services Compensation Act 1995 (Cth), which would enable the NDIS to create a statutory charge over any damages arising from a participant’s successful claim for compensation; or other mechanisms may also be available.1 The appropriate mechanism(s) may differ depending on the context (for example,
1 See, for example, WorkCover Queensland v AMACA Pty Ltd [2012] QCA 240.
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depending on whether there is a statutory or common law liability, or whether the compensation scheme in question is fault-based or no-fault).2 In order to ensure the impact of the NDIS on existing schemes is neutral, it will also be important to limit the Agency’s incentives to undertake ‘speculative litigation’ (that is, where the Agency initiates an action, but the individual would not otherwise have done so). A suite of mechanisms is therefore likely to be required to enable the Agency to adapt its approach to cost recovery to the relevant context. If an alternative mechanism(s) is adopted, consequential amendments to the remainder of Chapter 5 are likely to be required.
Decision-making arrangements for NDIS rules require amendment
208 Amend subclause 208(1) to read ‘the Minister must cause an Given the critical importance of the NDIS rules to the operation of the primary NDIS
independent review of the operation of the Act and subordinate legislation, it would be appropriate for the rules to be reviewed together with the instruments to be undertaken commencing on the second legislation. Victoria understands that subordinate instruments would not necessarily anniversary of the commencement of Chapter 3’ be reviewed as part of the review of the primary legislation, unless this is specified.
209 The following NDIS rules currently listed in subclause 209(8) as While Victoria agrees that not all of the NDIS rules require the agreement of all host
Category B, C or D rules should be re-categorised as Category A rules: jurisdictions, we consider that a number of the rules currently listed in Categories B, C and D do require the agreement of all host jurisdictions (and the Commonwealth) Rules relating to additional age requirements, other than and should be reclassified as Category A rules. those relating to specific launch sites (subclause 22(1)); All rules that relate to scheme policy, present a risk to participant rights or outcomes Rules relating to criteria for registered providers of supports or a fiscal risk to governments, or have implications for State laws, services and (clauses 70 and 73); schemes should be Category A. Rules that prescribe matters that must not be managed by a Specifically, Victoria considers that the rules below should be reclassified as participant and rules that prescribe criteria the CEO is to Category A for the following reasons: consider in relation to circumstances in which the participant must not manage their plan (clause 44); Subclause 22(1) (Rules relating to additional age requirements): While age requirements that relate to particular launch sites are appropriately classified as Rules relating to payment of NDIS amounts (clause 45); and Category B, wider age requirements (which appear to be contemplated under Rules on any circumstances in which the CEO must review a subclause 22(1)) will have broader implications for scheme design and scope and
2 Both the subrogation and statutory charge approaches, for example, require a person to commence a claim on his or her own initiative (and in the case of a statutory charge, for the claim to be successful). The indemnity approach, on the other hand, would allow the Agency to initiate its own action, but usually involves a cap on the amount able to be recovered.
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participant’s plan (clause 48). should be agreed with all host jurisdictions.
Clauses 70 and 73 (Rules relating to criteria for registered providers of supports): The criteria that service providers are required to fulfil to be able to be registered to provide NDIS supports will have potentially significant implications both for participants and existing service providers. It will also be essential to ensure that there is no diminution in current safeguards for Victorians with disability. For example, people with disability living in residential services in the Barwon launch site currently have a right to access to Victoria’s Community Visitors program, and people with disability accessing supports under the Disability Act 2006 (Vic) can make complaints to the Victorian Disability Services Commissioner. This cannot be guaranteed unless these rules are agreed with all host jurisdictions. Clause 44 (Rules that prescribe matters that must not be managed by a participant and circumstances in which the participant must not manage their plan): Governments have agreed that choice and control for people with disability over their supports is a fundamental objective of an NDIS (see paragraph 5(c) of the COAG Principles). Choice and control is also a critical element of the current Victorian disability service system. There should be no reduction in the degree of choice and control able to be exercised by Victorians with disability under an NDIS. This cannot be guaranteed unless this rule is agreed by all host jurisdictions. Clause 45 (Rules relating to payment of NDIS amounts): To ensure the flexibility currently available to Victorian clients is not compromised by the possible introduction of mechanisms such as vouchers or payments in arrears, this rule should be agreed by all host jurisdictions. Clause 48 (Rules on circumstances in which the CEO must review a participant’s plan): This rule is likely to have significant implications for the rights and obligations of participants, and should be agreed by all host jurisdictions to ensure the nominated circumstances are appropriate. A common criticism of current systems across Australia is that some people are subject to frequent and unnecessary reassessment.
The Bill should include a flexible mechanism to manage conflicts with State laws
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58 Include a flexible mechanism within the Bill to deal with unintended The mechanism for excluding State laws from the operation of clause 58 remains
consequences arising from interaction with State laws problematic. While it will be useful to have a rule-making power (Category B) to exclude specified laws, the rule-making power in clause 58 will not address the broader concern that other provisions in the Bill may interfere with the operation of State laws, and further amendments to the Commonwealth Bill will be required to address them. Victoria considers a flexible mechanism modelled on provisions in the Corporations Act 2001 (Cth) is required to deal with any unintended consequences arising from the interaction between the Bill and State laws. The following options are not mutually exclusive: Option 1: section 5F of the Corporations Act 2001 (Cth) Based on this example, there could be a mechanism in the Bill to enable States to exclude ‘matters’ from the application of the Bill by making an express declaration to that effect in State law. This would ensure that the interaction between the Bill and State laws can be clarified at a later stage, as necessary, so that State laws can continue to operate. The Intergovernmental Agreement (IGA) supporting the Corporations Act 2001 provides for consultation and approval processes that need to be followed before a declaration excluding matters can be made in State law. Option 2: section 5I of the Corporations Act 2001 (Cth) This mechanism enables regulations to be made to modify the operation of the Commonwealth legislation so that:
provisions of the legislation do not apply to a matter that is dealt with by a law of a State or Territory specified in the regulations; or
no inconsistency arises between the operation of a provision of the Commonwealth legislation and the operation of a provision of a State or Territory law specified in the regulations. The consultation and process requirements for making regulations pursuant to s 5I are set out in the relevant IGA (see paragraph 515 of the Corporations Agreement 2002). Regulations have been made pursuant to this section (for example, the Corporation (Change of Incorporation) Regulation 2002).
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65, 66 Include a flexible mechanism within the Bill to deal with unintended The Bill appears to prohibit an officer of the Agency from providing information that
consequences arising from interaction with State laws a State court (for example) has ordered be provided. It is inappropriate for the discretion to disclose information to a State court, Ombudsman, etc to lie with the CEO of the Agency. Victoria notes that the public interest test does not appear to apply to disclosure of information to a wide range of government agencies under subclause 66(1)(b). Clause 66 is also limited to information disclosure and does not address the broader concern that other provisions in the Bill may interfere with the operation of State laws, and further amendments to the Commonwealth Bill will be required to address them. Victoria considers a flexible mechanism modelled on provisions in the Corporations Act 2001 (Cth) is required to deal with any unintended consequences arising from the interaction between the Bill and State laws. See comments on clause 58 above.
Protocols are required to manage the complex interface between the NDIS and other schemes
11 Reconsider drafting of clause 11(3) and Chapter 5 to ensure Both the terms ‘insurer’ and ‘authority’ are used in Chapter 5. Consistent
consistency in use of terms ‘insurer’ and ‘authority’. terminology should be used, and should be reflected in the definitions: the Transport Accident Commission (TAC) does not consider itself an ‘insurer’ and there is no contract of insurance (other than in respect of interstate trailers in Part 5 of the Transport Accident Act 1986).
on the other hand, the term ‘authority’ is not used sufficiently broadly in the Bill. For example, Comcare would not be included within the meaning of ‘authority of a State or Territory’ in cl 111(1)(b)(ii), but arguably this provision should also apply to it.
110 Clarify when a compensation payer or insurer ‘becomes liable’, It is unclear when a compensation payer ‘becomes liable’. An insurer or
especially in relation to liability under common law statutory agency generally becomes liable at the point of accepting a claim (or Substitute ‘28 days’ for ‘7 days’ on the date a tribunal makes an order). However, it is not clear at what point a party subject to a common law claim for compensation ‘becomes liable’ for the purposes of this clause. It should be clarified whether this is, for example, the point at which the injury giving rise to the impairment is caused or the impairment arises.
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The current timeframe is too short, particularly given the significant penalty. For example, s 70 of the Transport Accident Act 1986 (Vic) provides that a claim must be accepted or rejected (or further information sought) within 21 days. Consequently, 28 days would be a more reasonable timeframe for inclusion in clause 110.
111 Redraft clause 111(2) in such a way that the insurer’s liability does As currently drafted, there is no capacity for a compensation payer or insurer to
not exceed the insured’s liability contest the amount they are liable to pay to the Agency. This may allow the Agency Provide for the amount the compensation payer or insurer is to require a compensation payer or insurer to pay an amount which is greater than liable to pay to the Agency to be contestable the compensation payer’s/insurer’s liability or that relates to supports that are Clarify operation of clause 111(4) beyond the scope of their statutory obligations. The amount should be contestable. For example:
Under cl 111(1), the CEO can give a notice to the compensation payer if the compensation payer has “any liability” in relation to the impairment. This may have unintended consequences. For example, a statutory scheme might have agreed to pay some minor medical expenses (e.g. where it is initially considered that the TAC is liable because the disability arises from a motor vehicle accident) and then be obliged to pay the NDIS amount in full as a debt, even if it is ultimately determined that the TAC is not liable under the Transport Accident Act 1986 (Vic) (e.g. because the accident was not ‘directly caused’ by the driving of a motor vehicle, for instance, where a cyclist crashes into a parked car). Note that cl 111(4)(b) does not seem to operate in relation to scheme liabilities.
Cl 111(2) could have the unintended consequence of rendering an insurer liable even if the insured is not. This is because the compensation payer has to be “liable to pay compensation”, whereas the insurer need only be “liable, under a contract of insurance, to indemnify the compensation payer against any liability……”. An insurer is liable to indemnify under a contract even if the insured isn’t yet liable for damages. In addition, the use of the term “any liability arising from a claim” in cl 111(2)(b) suggests that even if an insurer is not liable for damages in the nature of NDIS benefits, it becomes liable to pay the NDIS amount because of the “any liability” provision.
Cl 111(4)(b) bases the lower limit on a recoverable amount which is referrable to
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a judgement or settlement, but both cll 111(1) and (2) refer to liabilities which might arise other than as a result of a judgement or settlement. For example, the liability might be statutory or under a contract of insurance.
Cl 111 does not address the situation where there may be dual liability (for example, where a person with disability accessing NDIS supports is subsequently involved in a transport accident).
112 Amend so that the NDIS must provide any interim support The effect of clause 112 appears to be that a compensation payer or insurer may not
required for a person while a notice has effect make any payments to a person while a notice is in effect. This could place a Clarify period during which notice has effect compensation payer or insurer in breach of State law, for example, where a court has directed a compensation payer/insurer to pay damages, or where an agency such as the TAC has a statutory obligation to pay compensation to a person. This reinforces Victoria’s concerns regarding the interaction of the Bill with State laws and the need for a flexible mechanism to address such issues. If the NDIS has issued a notice which would preclude a compensation payer/insurer from providing compensation, the NDIS should be required to provide any interim support while the notice has effect. (Any interim supports provided by the NDIS should not affect the person’s right to claim compensation under the other scheme.) It is also unclear for how long a notice has effect. A compensation payer or insurer may be unable to pay a person for an indefinite period if the NDIS does not ultimately seek to recover from the compensation payer/insurer.
Chap 5, Safeguards need to be put in place to ensure a person is supported There are a number of circumstances in which a person might fall between the NDIS
(general) where there is a risk that they may fall between two schemes, and another scheme. This could be due to statutory time limitations (see, for
including through the provision of interim supports where there is example, section 68 of the Transport Accident Act 1986 (Vic)), a gap between the uncertainty as to the person’s eligibility for one or other scheme. Any eligibility requirements of the two schemes (meaning that the person is unable to interim supports provided by the NDIS should not affect the person’s access support from either), or uncertainty as to which scheme is person is eligible right to claim compensation under the other scheme. to access. As an example of the potential implications of the third scenario, there is a risk that if a person who would otherwise be eligible for compensation from the TAC becomes an NDIS participant, section 42 of the Transport Accident Act 1986 (Vic) may extinguish the person’s right to claim compensation from the TAC.
Other issues requiring attention
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Strengthen the principles to protect and promote the rights of people with disability
3(1) Include an additional paragraph within clause 3(1): ‘protect and While the rights of people with disability under the Bill are set out in clause 4, it
promote the rights of people with disability through a National would be beneficial also to include the protection and promotion of the rights of Disability Insurance Scheme’ people with disability as an object of the Bill.
4 Amend subclause 4(4) to read: ‘People with disability and their Given that clause 44 allows for restrictions to be placed on a person’s
families and carers should be supported to exercise choice and management of their funding and supports, it is desirable to include a principle control in the pursuit of their goals and the planning and delivery that any limitations on choice and control should be the least restrictive of their supports, in a way which is the least restrictive of the possible. person possible in the circumstances’ ‘Access’ is preferable to ‘receive’ as ‘receive’ suggests participants will be Replace ‘receive’ with ‘access’ in subclause 4(5) passive recipients of supports rather than active in choosing and planning their supports. Insert an additional principle: ‘People with disability have the right to access information and communicate in a manner appropriate The proposed additional principle on communication would strengthen the to their communication and cultural needs’ requirement in clause 7.
40 Replace ‘grace period’ terminology with more appropriate language Contrary to the principles in clause 4, the expression ‘grace period’ suggests a
e.g. ‘period of temporary absence’ participant does not have the same right to travel as other persons (it is only due to the ‘generosity’ of the CEO/Agency).
Make provision for complaints processes for Agency services
Chapter 2 Provide for the Agency to have complaint processes in respect of Given that Chapter 2 outlines a service provision role for the Agency (in terms of
services provided by the Agency (e.g. coordination, referral, provision of ‘general supports’), it is important that the Bill and rules provide for assessment, planning, funds management etc). The Bill or rules complaints processes, other safeguards and quality assurance processes in should also set out other safeguards, quality assurance standards respect of Agency services. and procedures, and associated compliance requirements, to It is unclear how the general supports outlined in Chapter 2, such as referrals, which the Agency is subject (under clause 73 or elsewhere). support coordination and case management will operate under the scheme. It is In clause 13, define or otherwise clarify the meaning of also unclear what ‘strategic services’ are. ‘coordination, strategic or referral service or activity’.
Include timeframes for some Agency decisions
20 Provide for a definitive timeframe within which the CEO must decide Victoria is concerned that there is no definite timeline for the CEO to decide an
an access request access request, as the CEO can continue to request more information under cl 26(2)(d). This contradicts the principles set out in the Bill, which are intended to
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promote certainty and control for people with disability.
21(3) Amend to provide for a person to be deemed to become a participant We question the default determination that the CEO has decided that a prospective
where the CEO does not take the actions required under clause 21(3) participant does not meet the access criteria if the agency has failed to perform its within the time limits. obligations within the time periods specified (cl 21(3)(a) and (b)). To do so may create an incentive for the agency to delay decision-making (noting, however, that if the CEO fails to decide, this appears to be automatically a reviewable decision). We propose that the person be deemed to be a participant of the scheme if the Agency fails to exercise its power to ask for more information or reject an access request in time.
100(5) Include a timeframe for a reviewer to commence a review of a It would be appropriate to include a timeframe within which the internal reviewer is
reviewable decision (14 days would be appropriate). required to commence the review of a reviewable decision. (It is appropriate for the
reviewer to be required to make a decision, i.e. complete the review, ‘as soon as reasonably practicable’, as set out in cl 100(6).)
Refinement of the definition of ‘reasonable and necessary supports
34(d) Add ‘and available evidence’ at the end of this subclause The Productivity Commission was very clear that supports should align with
‘evidence-based practice’ (pages 225, 259). While the Agency should not be prevented from providing supports where there is not yet evidence (this is important to ensure it is able to test innovative approaches), where evidence is available, it should be considered.
34(e) Amend to read: ‘the funding or provision of support takes account of The current phrasing regarding what it is reasonable to ‘expect’ families and carers
what families, carers, informal networks and the community can (among others) to provide is subjective, and may be interpreted as importing a reasonably provide’ ‘means testing’ approach. It would be preferable for this clause to be reframed to refer to what informal support families, carers etc are able to provide, rather than what informal support the Agency has the right to demand.
Amend provisions relating to management of a person’s plan to ensure they do not unnecessarily restrict choice and control
33 Provide for rules specifying how ‘the operation and effectiveness It is unclear whether the rules under subclause 33(7) (or any other rules) will
of any previous plans of the participant’ under subclause specify how the operation and effectiveness of a participant’s previous plans will 33(5)(f)will be assessed. be assessed. If not, provision for such a rule should be included in the Bill.
Delete clause 33(6), and outline circumstances in which a person Subclause 33(6) specifies that, where the plan is managed by the Agency, the may be required to use a registered service provider in rules plan must provide for supports to be provided by a registered service provider.
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This is unnecessarily restrictive, as it applies to all funded supports regardless of the type of support and risk to the person. It is also unclear whether a person who self-manages their plan is able to use a non-registered service provider. It would be preferable to delete this subclause and set out the circumstances in which a person may be required to use a registered service provider in the rules; this would allow for a more nuanced, risk-based approach.
Whether a person should be able to use non-registered service providers will also depend on the meaning of, and requirements for, registration. If these requirements are akin to an accreditation or approval process or are otherwise burdensome, the number of registered providers is likely to be small and limiting participants to use of registered providers, regardless of the type of support or risk to the person, would unduly restrict their ability to exercise choice.
99 Include decisions under clause 44 as a reviewable decision While decisions made under clause 44 (that self-management would present an
‘unreasonable risk’ to the participant) may be reviewable as part of the Agency’s broader decision under clause 33(2), it would be clearer to specify that a decision under clause 44 is itself a reviewable decision.
Provisions relating to children
75(2) Amend subclause 75(2) to include reference to the situation The proposed amendment would clarify that a person who is entitled to
where a child is the subject of a custody order and remove the custody of a child under a law of the Commonwealth, a State or Territory should CEO’s discretion: ‘Despite subsection (1), if, under a law of the also be considered to have parental responsibility for a child. Commonwealth, a State or a Territory, a person has guardianship In addition, it is inappropriate that the CEO should be given the power to or custody of a child, that person has parental responsibility for determine parental responsibility in respect of a child who is the subject of a the child.’ custody or guardianship order made by a court. Insert a new subclause 75(3), stating: ‘Where parental responsibility for a child is not specified under a law of the Commonwealth, a State or a Territory, the CEO may determine that one or more of the persons referred to in subsection (1) instead have parental responsibility for the child.’
76 Replace references to the ‘personal and social wellbeing’ of children While it is appropriate to require people undertaking actions on behalf of adults
in subclauses 76(2)(b) and 76(3)(b) with references to ‘best interests’ with disability to promote their personal and social wellbeing, ‘best interests’ is the
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principle used for children (see e.g. Family Law Act 1975 (Cth); Children, Youth and Families Act 2005 (Vic)).
Other matters
14 Clarify whether clause 14 enables the Agency to provide funding It is unclear whether this provision is intended to enable the Agency to provide
to support carers of people with disability. funding to carers of people with disability. There is no other provision in the Bill that would enable the Agency to provide support or funding to carers. Clarify (or, if necessary, extend) the Agency’s power to enable it to provide an amount of funding (prescribed in rules) directly to The NDIS should have the capacity to provide small amounts of one-off funding people with disability without an access request having to be for people with disability who do not require ongoing or long-term support, or made. who are in crisis (as currently occurs in Victoria). The capacity to provide this funding in limited circumstances reduces the need for costly assessments and planning processes. It is unclear whether clause 14 enables the Agency to provide such funding.
31 In subclause 31(d), delete ‘who are children’. We support the inclusion of the planning principles in clause 31. However, these
have been adopted from Victoria’s Disability Act 2006 and require minor Delete the first phrase of subclause 31(k) and amend the amendment in the context of the NDIS e.g.: remainder to read simply: ‘coordinate the planning of supports where there is more than one support provider’. Subclause (d) should be broadened to apply to the families and carers of all people with disability, not just children.
The intention of subclause (k) is to facilitate support coordination; the terms ‘disability service’ and ‘disability service provider’ are not meaningful in the context of this Bill (they have specific meanings within the Disability Act 2006 (Vic)).
48 Include criteria for when the CEO may initiate a review of a A common criticism of current disability service systems across Australia is that
participant’s plan; and/or some people with disability are required to undergo frequent reassessments. It is important that there be transparent criteria for when the CEO may initiate a review Elevate the rule in subclause 48(6) to category A (see hierarchy of of a participant’s plan e.g. the supports no longer meet the criteria in clause 34. rules in clause 209)
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