Suite 2, 98 Morang Road, HAWTHORN 3122 (03) 98182000 www.acd.org.au
Draft National Disability Insurance Scheme Bill 2012
Submission to the Senate Standing Committee on Community Affairs
Introduction
Established in 1980, the Association for Children with a Disability (ACD) is a Victorian based non-profit community organisation representing children with a disability and their families living in Victoria. Our current membership includes over 2,000 families. ACD welcomes the opportunity to comment of the National Disability Insurance Scheme Bill 2012 as it has been actively involved in contributing to the development of the NDIS since early 2011.
General Comments
On every occasion that ACD has made formal submissions in relation to NDIS we have highlighted the importance of understanding the needs of children with a disability or developmental delay, in the context of their family.
Through our day-to-day contact with families working to support their children with a disability, we have a very clear understanding of the issues they are grappling with and the challenges they face in trying to achieve the best for their child and family. Young families have specific circumstances that impact on their caring capacities. Many are busy raising more than one child and the combined demands on them to support their whole family should not be underestimated. They are starting out, at the beginning of their journey as a family - establishing careers, often in the early stages of paying off a mortgage, working to sustain and enrich the relationship with their partner whilst nurturing and educating their children who are physically, emotionally and financially dependent on them … a juggle at the best of times! The statistics around disability and caring make for very sober reading. Children’s development hindered, parents’ careers put on hold or disbanded, siblings emotional wellbeing adversely affected, long term financial independence of family threatened, relationships destroyed. Having access to the right support at the right time is an investment in the whole family, ensuring that “disability” does not jeopardise the chance of each family member realising their full potential and participating as equal members of the community.
ACD supports the submission provided to the Senate Standing Committee by Early Childhood Intervention Australia, as to the importance of the NDIS legislation recognising the Convention of the Right of the Child particularly with regard to the needs of children with a disability. It is for this reason that ACD recommends the definition of “participant” be extended to include “participant child” (where a child is a minor) and the associated clarification of the role of their families. ACD is also a member of Disability Advocacy Network Australia and as such supports the comments and recommendations presented to the Senate Committee.
ACD believes that the tone of the draft Bill is quite risk averse and therefore contradicts the original intent of the NDIS. The Scheme should use principles of respectful engagement with people with a disability and their family carers. The overwhelming majority of eligible individuals are genuine and to become participants, will have already had their “credentials” scrutinised. Unless the legislation and accompanying documentation sets the right tone and approach an atmosphere of cynicism and distrust will permeate throughout the scheme and the relationships that develop between the Agency, participants and disability providers will become and remain toxic; a most unacceptable outcome, which undoubtedly be reflected in the level of reviews requested and appeals lodged against Agency decisions.
Other comments and recommendations by ACD are combined with those presented by DANA and outlined in bold below.
Section Comments / Recommendations
Part 2—Objects and principles
3 Objects of Act Replace 3(h) with the words used in 3(1)(b) Human Rights and Anti-discrimination Bill 2012
“in conjunction with other laws, to give effect to Australia’s obligations under the human rights instruments” listed in 3(2) And include Australia’s obligations under the Convention on the Rights of the Child Article 2 and 23.
The NDIS should be situated within a human rights framework through appropriate
reference, not only to the UNCRPD, but all ratified and relevant human rights conventions.
4 General principles These principles should be clearly located within a human rights framework through
guiding actions under beginning with: “People with disability have the same entitlement to realise their human this Act rights and fundamental freedoms as other members of Australian society” and continuing “This means, among other things that ………”
There needs to be included a clear statement of principle that is consistent with the National Disability Advocacy Framework, that establishes people’s entitlement to independent advocacy support i.e. a new paragraph “People with disabilities have a right to access independent advocacy support to promote, protect and ensure their full and equal enjoyment of all human rights enabling full community participation.”
4(2) Insert “political” recognising that this is another aspect of life for which people with disabilities should be entitle to access support to be included.
4(8) Replace reference to “best interests” with “interests”. The general population is not ordinarily required to make decisions in their “best interests”. Neither should people with disabilities be.
This principle needs to be revised so as to comply with Article 12 of the UNCRPD to confirm the right of people with disabilities to exercise choice and be the decision-maker (with support as required) in relation to their lives.
4(11)(b) Replace “employment” with “open employment” to move away from supporting
segregated settings.
5 General principles Principles contained in this clause should reflect the decision-making framework laid out in
guiding actions of Article 12 of the UNCRPD. people who may do The proposed principles should be strengthened to ensure that it is the wishes of the acts or things on person with disability that are given effect and that supportive relationships, friendships and behalf of others connections with others are fostered, not simply recognised.
6 Agency may provide 6(2) Legal assistance should be made available for people with disabilities to seek external
support and review of decisions made under the Act. assistance 7 Provision of notice, approved form or information under this Act etc. Part 3—Simplified outline 8 Simplified outline Part 4—Definitions
9 Definitions Include ‘early childhood intervention supports’ due to the role of family in early
childhood as outlined by ECIA. 10 Definition of host jurisdiction 11 Definitions relating to compensation Part 5—Ministerial
Council
12 Ministerial Council
functions etc. Chapter 2—Assistance for people with disability and others 13 Agency may provide coordination, strategic and referral services etc. to people with disability 14 Agency may provide funding to persons or entities
15 Agency may provide Agency needs to be more accountable. Change wording to include specific
information timelines to replace ”must use its best endeavours…” 16 Agency may assist in relation to doing things under Chapter
17 National Disability
Insurance Scheme
rules Additional Clauses All areas of government activity where advocacy is required to ensure that people with disabilities have rights and opportunities equal to others should contribute to the funding
pool for independent advocacy.
The Productivity Commission identified that advocacy would make an important contribution to the effective functioning of the NDIS and to the overall effectiveness of the NDIS in delivering on its key objectives.
Thus the NDIS legislation should make provision for an appropriate proportion of NDIS funding to be allocated to the provision of independent advocacy support to people with disabilities. In line with Productivity Commission recommendations however it should protect the independence of advocacy by providing the funding to another government agency to distribute and administer.
To allow for this there needs to be a new clause inserted into the NDIS legislation i.e. “ the Agency may provide funding to other government agencies, to be used for the purpose of ensuring that people with disabilities have access to independent disability advocacy.”
A further clause should also be included requiring the Agency to inform all potential and actual NDIS participants of their entitlement to independent support including independent advocacy support for any dealings that they may have with or related to the NDIS. This will assist in ensuring that the NDIS benefits those most disadvantaged and marginalised in its target group. Chapter 3—Participants and their plans Part 1—Becoming a participant
18 Person may make a request to become a participant
19 Matters relating to (2) When the CEO denies an access request, or makes any other decision, unfavourable to
access requests a person with disability, reasons for the decision should be provided to the person.
20 CEO must consider .
and decide access requests 21 When a person meets the access criteria
22 Age requirements The NDIS should not incorporate an age restriction.
The CRPD does not discriminate on the basis of age. The Draft Human Rights and Anti-discrimination Bill 2012 makes it unlawful to discriminate against a person on the basis of age in any area of public life.
23 Residence NDIS supports should be available to anyone who legally resides in Australia.
requirements Section 23 appears to be more restrictive than the similar Social Security Act restriction. Failure to provide reasonable and necessary supports is inhumane and will inhibit the capacity of the person and their family carers to contribute to Australian society. It is a restriction that is likely to cost society more in the end than it saves.
24 Disability This section too focussed on function rather than need.
requirements Section 24 appears to be more restrictive than the equivalent Social Security Act provision. To be consistent with the UNCRPD the impairment in (1)(b) should be or be likely to be “long-term” and the person’s support needs in 1(e) likely to continue “long-term”. Many, very significant impairments, are unknown in their duration.
Many people currently in receipt of disability supports may be unable to establish permanence.
The requirement in (1)(b) for the impairment to result in “substantially reduced functional capacity”, may lead to people, who would previously have accessed necessary HACC services like community transport or meals on wheels, not being eligible for the NDIS and hence not be funded to access these services.
It is important that those people with reduced functional capacity that is not regarded as “substantial” remain, post NDIS, in a position to access necessary services and supports that enable them to maintain their otherwise independent lifestyle and contribution to the community. If this does not occur they are likely to quickly move to a situation of “substantially reduced functional capacity”. 25 Early intervention requirements
26 Requests that the (1) (a) permits the CEO to request that “another person” provide information reasonably
CEO may make necessary for determining whether a person meets the access criteria and (3) says if that information is not forthcoming within a specified time the prospective participant is taken to have withdrawn the access request. The entitlement for a person to access the Scheme should not be able to depend on whether someone else provides requested information. A prospective participant cannot be responsible for the actions of another person. Many professions and a range of State legislation controls the information that third parties are legally permitted to provide to others. There are a variety of public policy reasons why people in certain professions (for example lawyers, medical practitioners, advocates, psychiatrists etc) should not be compelled to
provide information about their clients to third parties.
(1)(b)(ii) Provision should be made for acceptance, as far as possible of earlier medical reports rather than requiring people to undergo further unnecessary examinations. In most cases if a person’s plan is to address their functional support needs, the existence of their disability has been established for some other purpose, eg DSP so no additional medical assessment should be required.
27 National Disability The rules must enable the unique attributes and circumstances of each person to be given
Insurance Scheme due consideration in determining whether a person meets the “disability requirements”. rules relating to disability requirements and early intervention requirements 28 When a person becomes a participant
29 When a person (1)(b) Refer to Clause 22 comments.
ceases to be a It is unreasonable to remove the totality of a person’s reasonable and necessary supports participant because they choose to accept some part of these supports from the aged or community care system. A range of disability specific equipment and supports are not provided in the aged care or community care systems but a person’s need for these does not cease at age 65.
30 Revocation of Before taking a decision to revoke a person’s status as a participant in the NDIS the CEO
participant status should, in keeping with the principles of natural justice:
give notice of an intention to revoke and the reasons for this
offer the person the opportunity to present their case for continuation; and
give due consideration to the person’s case before making any revocation decision.
The removal of support funding could have serious consequences for a person, including in relation to any contractual arrangements they may have entered into for the provision of services, so it is vital that if revocation is to proceed sufficient notice of revocation occurs to allow for a proper winding up of any support and associated employment and contractual arrangements.
It is anomalous that the legislation provides for natural justice provisions to apply in relation to ceasing the registration of support providers [Section72] but not in relation to the revocation of participant status.
Part 2—Participants’ plans Division 1—Principles relating to plans
31 Principles relating to (k)This paragraph inappropriately assumes that a person’s plan will involve “disability
plans services” whereas it is likely that many people will look to other than specialist disability service providers to provide their funded supports.
Division 2—Preparing participants’ plans
32 CEO must facilitate Current wording is disempowering – Agency should support participants to prepare
preparation of their own plan. The plan belongs to the participant at all times. Alternatively participant’s plan participants might want to prepare their own plan.
33 Matters that must be The planning provisions appear to give ownership and authorship of a person’s support
included in a arrangements to the CEO. This will have the effect of removing from the person with participant’s plan disability, effective control and choice over key life decisions. It also has the potential to tie a person into support arrangements that are inflexible and inadequately responsive to the inevitable changes in a person’s wishes and life circumstances.
Government should seek as far as possible by its processes, to enable people with disabilities to exercise effective control over their supports through: Providing an indicative Budget that is capable of delivering reasonable and necessary support
Providing resources, as required, to enable support planning involving people of the person’s choosing
Approving a person’s Budget following consideration together with the person of whether the indicative Budget is sufficient to resource their desired support arrangements
Checking in that the person’s human rights are being respected and they are living as they wish.
Avoid decision-making about those aspects of a person’s life that would not ordinarily fall within the purview of government for people without disabilities.
It is important also that any front line agency person exercising delegated power from the CEO is knowledgeable about and is empowered to appropriately take account of any regional factors in their decision making. 33 (6) Consideration should be given to supports being provided by the participants’ person of choice as long as the Agency is satisfied that the participant’s wellbeing is not at risk.
34 Reasonable and While it is appropriate for the Scheme to specify those things that it will not fund as part of
necessary supports providing reasonable and necessary support (for example it should not fund support that operates in such a way as to breach a person’s human rights) it is not appropriate for it to limit innovation and creativity by determining for a person what will work best for them in their particular set of circumstances. Today’s good practice was yesterday’s innovation.
Nor should the Scheme prevent people from working within a Budget to save money in one area so as to be able to afford something of particular importance to them in another area.
(e) Reasonableness in this paragraph should have regard to: what is normative support provided by family etc. to people without disabilities.
the willingness of a person’s family or community to step up in this regard – adults with disabilities are not in a position to compel family or community members to provide them with support.
(f) The CEO should not assume that a “universal service obligation”, in relation to a person’s disability support needs, is in operation in another service system without ascertaining whether this is in fact correct.
The preferences of the person with disability about who delivers their personalised disability support should be respected and implemented in circumstances where more than one government agency has funding responsibility.
People with disabilities should not be deprived of access to their personalised disability supports (for example aids and equipment) simply because another service system (education, health, justice etc.) has become involved. The onus should not be on the participant to demonstrate why a requested support “is not more appropriately funded or provided through other general systems………..” Participants and family carers do not have the time to build justification to address this ‘qualification’.
35 National Disability (5) People with disabilities should not be penalised in terms of their access to the NDIS
Insurance Scheme because they gave up their right to compensation [ref comments at Chapter 5]. rules for statement of participant supports
36 Information and The agency should require only a level of information necessary to support the approval of
reports for the a personal budget and to assure itself that the planned support arrangements respect the purposes of person’s human rights, have the potential to deliver on the person’s goals and aspirations preparing and and do not involve the funding being used for prohibited purposes or activities. approving a [Ref comments at 26(1)(b)(ii)] participant’s plan 36(2)(b) The participant should have the right to select who will provide examinations that form documented evidence required for plan approval. Often practitioners who have no history of supporting a participant, are not in a position to provide a holistic assessment.
37 When plan is in (2) Participants should be able to flexibly use their personal Budget (to a prescribed limit)
effect to respond to their needs, with a requirement to inform the agency ahead of time only in specified circumstances.
38 Copy of plan to be provided 39 Agency must comply with the statement of participant supports
40 Effect of temporary NDIS supports should continue to be available, without CEO involvement, to people
absence on plans travelling overseas when they are undertaking a normative activity that does not affect their residency. For example young people commonly travel overseas for lengthy periods at the conclusion of their schooling; retirees commonly take lengthy overseas holidays and workers commonly take overseas posting for extended periods. The whole intent of NDIS is undermined by the restrictive nature of this section. The right to make life choices is undermined and shifts control back to the Agency. 41 Suspension of plans Division 3—Managing the funding for supports under participants’ plans 42 Meaning of managing the funding for supports under a participant’s
plan
43 Choice for the (1) People should be able to decide that their funding for supports will be managed by a
participant in relation non-registered person, for example a family member, friend or generic community service. to plan management (3) If the participant is prevented from managing their funding by the operation of section 44 they should still be permitted to specify someone else (not caught by section 44) do to it for them.
44 Circumstances in which participant must not manage plan to specified extent 45 Payment of NDIS amounts
46 Acquittal of NDIS (1) Acquittal of NDIS amounts should involve showing that the money was spent on
amounts reasonable and necessary support in line with the plan as varied from time to time by the participant. Division 4—Reviewing and changing participants’ plans
47 Participant may The participant should be at liberty to change their plan at any time, notifying the agency
change participant’s ahead of time only in specified circumstances or when a Budgetary change is required. statement of goals and aspirations at any time
48 Review of Where a participant is a child, there should be some explicit review times e.g. major
participant’s plan transitions times – early childhood-primary school-secondary-school-post school. These major transitions require much more investigation, thought and planning for both the child and the family. The Agency and the participant should be able to initiate a review of a participant’s personal budget. No review should take place however without the involvement of the participant.
49 Outcome of review
50 Information and The Agency should also be able to request information from the participant necessary to
reports for the assure itself of the matters detailed in section 36. purposes of reviewing a participant’s plan Chapter The process of providing to the Agency information, making requests, notifying 4—Administration changed circumstances need to be streamlined to avoid undue burden on participants and avoid labour intensive activities for Agency staff. Part 1—General matters Division 1—Participants I and prospective participants
51 Requirement to notify (1) (a) “plan” should change to “personal budget”
change of circumstances 52 Requirements relating to notices
53 Power to obtain “in accordance with the participant’s plan” should be replaced with “on reasonable and
information from necessary support” participants and prospective participants to ensure the integrity of the National
Disability Insurance
Scheme
54 Written notice of requirement Division 2—Other persons
55 Power to obtain Need to take account of a person’s right to privacy in relation to their personal information:
information from see Article 22 UNCRPD. other persons to ensure the integrity The Agency, though its information collection practices should not be in a position to of the National override the National Privacy Principles or the privacy requirements applying to the Disability Insurance professional practice of law, medicine, psychiatry, advocacy etc.
Scheme
56 Written notice of requirement
57 Offence—refusal or See above
failure to comply with requirement
Division 3—Interaction with other laws
58 Obligations not State and Territory laws with respect to privacy matters and human rights should not be
affected by State or overridden by the NDIS legislation. If they are it may give rise a breach of Article 22 Territory laws paragraph 2 UNCRPD. 59 Interaction with Commonwealth laws Part 2—Privacy
60 Protection of (2) (d)(i) “for the purposes of this Act” is too broad, given the wide purview of the Act
information held by objectives. The phrase should be replaced with a listing of the purposes which might be the Agency etc. considered necessary over and above those covered in (ii) and (iii). All purposes specified must additionally be consistent with the purposes of the Act.
(3)If protected information is to be released to others for the purposes specified in this paragraph it should be de-identified unless the participant has given their permission. 61
Offence—una
uthorised access to protected information 62
Offence—una
uthorised use or disclosure of protected information 63 Offence—soliciting
disclosure of protected information 64 Offence—offering to supply protected information
65 Protection of certain .
documents etc. from production to court etc.
66 Disclosure of This provision gives the CEO unusually wide disclosure powers in relation to the personal
information by CEO information of participants. Consideration should be given to whether this is in contravention of Article 22 UNCRPD and/or could be regarded as indirect discrimination on the basis that this kind of information is not ordinarily obtainable by government, without the person’s permission, about people other than those with a disability. It potentially puts people with a disability in the position of having very large numbers of government officials and others know very personal details about their lives.
67 National Disability
Insurance Scheme
rules for exercise of CEO’s disclosure powers 68 Part does not affect the operation of the
Freedom of
Information Act 1982
Part 3—Registered providers of supports
69 Application to be a The degree of complexity of the registration process imposed on the provider should be
registered provider of commensurate with the level of risk posed by the service to the other human rights of the supports particular person. It should not operate so as to unnecessarily limit the person’s choices about who delivers their services.
70 Registered providers Allowing a funding manager to also provide planned supports creates a conflict of interest
of supports that has strong potential to limit the choices and control of the person with disability. It was for this reason not approved by the Productivity Commission and should not be permitted. Recommended that this section be reconsidered as in its current form, undermines the integrity of the Scheme. 71 When a person or entity ceases to be a registered provider of supports 72 Revocation of approval as a registered provider of supports
73 National Disability
Insurance Scheme
rules for registered
providers of supports Part 4—Children
74 Children (1)(b) and (5) The removal of parental authority should not take place without Court or
Tribunal order.
(2) The person should be able to choose a non-registered plan manager. Legal and ethical considerations that relate to parental authority must be the same for all children – including children with a disability. 75 Definition of parental responsibility
76 Duty to children This section needs to give effect to the United Nations Convention on the Rights of the
Child
Requires criteria to guide determining what constitutes ‘reasonably believes’.
77 Revocation of determinations under section 74 Part 5—Nominees Division 1—Functions and responsibilities of nominees
78 Actions of plan (5) This provision makes the plan nominee (if appointed by the CEO) the person who
nominee on behalf of decides on the level of involvement a person with disability has in the determination and participant management of their plan. It gives the plan nominee power and control over a person’s life without an independent consideration having taken place by a properly constituted body of
all the relevant factors.
79 Actions of correspondence nominee on behalf of participant
80 Duty of nominee to The duty of the nominee should be to act on participant instructions or in accordance with
participant the framework established under Article 12 of the UNCRPD. 81 Giving of notices to correspondence nominee 82 Compliance by correspondence nominee 83 Nominee to inform Agency of matters affecting ability to act as nominee 84 Statement by plan nominee regarding disposal of money 85 Right of nominee to attend with participant
Division 2—Appointment and cancellation or suspension of appointment
86 Appointment of plan Nominee appointments that occur, other than at the participant’s request, should be made
nominee by an independent body (not the Agency) having taken into account the views and interests of the person with disability.
87 Appointment of Nominee appointments that occur other than at the participant’s request should be made
correspondence by an independent body (not the Agency) having taken into account the views and interests nominee of the person with disability.
88 Provisions relating to (4) If the decision-making power of a person is to be removed then this should occur only in
appointments accordance with State/TerritoryGuardianship arrangements. 89 Circumstances in which the CEO must cancel appointment of nominees
90 General Cancellation or suspension of a nominee appointment when the appointment was made by
circumstances in independent body should only be done by the independent body after considering the which CEO may views of the participant and the nominee. cancel or suspend appointment of nominees 91 Suspension etc. of appointment of nominees in cases of
severe physical, mental or financial harm 92 Other matters relating to cancellation or suspension of appointment
93 National Disability
Insurance Scheme
rules may prescribe requirements etc. 94 CEO’s powers of revocation Division 3—Other matters relating to nominees 95 CEO’s powers to give notices to participant
96 Notification of It is not clear why the CEO is permitted to choose not to give the correspondence nominee
nominee where a notice that is provided to a participant – particularly in circumstances where the notice is given to correspondence nominee is appointed at the participant’s request. participant 97 Protection of
participant against liability for actions of nominee 98 Protection of nominee against criminal liability Part 6—Review of decisions
99 Reviewable All decisions of the CEO affecting the rights or interests of a person with disability should
decisions be subject to merits review, not simply those listed in this section. This is because each decision has the potential to dramatically influence the life opportunities and choices available to the person with disability. All CEO decisions unfavourable to the person with disability should have reasons provided with the decision.
100 Review of reviewable The Act should permit a broader group of people to request the review of a reviewable
decisions decision including those representing the interests of a person with disability and those representing the interests of a class of affected or potentially affected people with disability. A copy of the written record must be provided to the participant. 100(6) Need to define timeline. “as soon as reasonably practical” is unacceptable. 101 Variation of reviewable decision before review completed 102 Withdrawal of
request for review
103 Applications to the The reviewing Tribunal should be some variation on the SSAT or Veterans Review Board.
Administrative The Tribunal decision-makers should include people with relevant disability knowledge and Appeals Tribunal experience. The AAT involves a very formal legalistic process not well suited to people with disabilities or their usual financial circumstances.
Chapter
5—Compensation payments Part 1—Requirement to take action to obtain compensation
104 CEO may require A person should not be obliged to take action to obtain compensation in order to access
person to take action NDIS supports. Compensation actions are commonly all-consuming and life altering, to obtain draining of the emotional, financial and other personal resources of the person and their compensation loved ones. They can require the person to emphasis their disability, downplay their capacities and continually relive traumatic events in ways that negatively impact on their capacity to rebuild their life with disability. Additionally such actions require the attribution of blame. An intention of the Scheme was to disconnect any considerations of fault from the entitlement to support.
To take legal action is to incur significant costs, some of which need to be paid at the time they are incurred and some at the conclusion. Costs incurred include costs associated with investigation for probity, legal representation, medical reports, IT support, Application fees, Hearing fees, Barristers fees, and Accountants fees for economic loss assessment. When a person takes legal action they also run the risk of being required to pay the costs of the
other party.
If legal action is taken the person needs to seek an Award amount to cover all their future costs including medical expenses, loss of future earnings etc. because a payout triggers activity on the part of other agencies like Medicare and the Taxation Office.
Most people with disabilities, eligible for the NDIS, will have limited financial resources with which to pay the ongoing costs of legal action and may be unwilling to risk the loss of any existing assets to cover cost orders. This means that action, in many cases would only be possible if Legal Aid or Community Legal Centres were to provide the necessary legal representation. At present, given the level of demand on their services, this is not likely without these agencies receiving dedicated funding for this purpose.
Query: What is the relationship between this provision and the NIIS? Does the existence of insurance coverage or the success of an insurance claim situate the person within the NIIS rather than the NDIS?
Query: Rather than require the person to take action, the action could instead be taken on their behalf by the NDIA as per section 50 Safety Rehabilitation and Compensation Act
- The possible impact on people with disabilities of this approach needs to be explored.
105 Consequences of failure to comply with a requirement to take action to obtain
compensation Part 2—Agency may recover compensation fixed after NDIS amounts have been paid 106 Recovering past NDIS amounts from certain judgements 107 Recovering 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 The Agency function must be to:
Agency deliver on the objects of the Act as detailed in Section 3
to report on the Agency’s success in achieving the objects
advise on improvements to legislation, rules and policy which would assist in achieving the objects.
The first role of the Agency should be to improve the quality of life of people with a disability and their families. To state in 118(1)(a) deliver the NDIS is too broad and a statement about outcomes for the people it is designed to assist should be front and centre.
118(1)(d) needs to be more explicit including acknowledgement that
mainstream/universal services have a requirement to support all people including people with a disability. Also it is important to recognise that unless there are incentives for mainstream to support people with a disability or conversely, consequences if they do not, then the likelihood of improved responses by mainstream/universal services are unlikely.
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
124 Functions of the (1)(b) should be “to determine objectives, strategies and policies to be followed by the
Board Agency in implementing the objects of the Act.” It is important to link the work of the agency at every point to the overarching goals sought to be achieved by the legislation.
125 Minister may give the Board a statement setting out strategic guidance for the
Agency
Division 2—Members of the Board 126 Membership
127 Appointment of Board membership should include a minimum of 2 people with lived experience of
Board members impairment/s resulting in substantially reduced functional capacity. Prior to appointment Board members should make full disclosure of any potential conflicts of interest in carrying out their Board work. 128 Term of appointment 129 Acting appointments 130 Remuneration and allowances 131 Leave of absence
132 Outside employment A Board member should not be able to hold any position (paid or unpaid) that may involve
a conflict of interest in carrying out their duties as a Board member. This would capture, for example, governance roles in service-providing organisations. 133 Resignation of Board members 134 Termination of appointment of Board members
135 Other terms and conditions of Board members Division 3—Meetings of the Board 136 Convening meetings 137 Presiding at meetings 138 Quorum 139 Voting at meetings 140 Conduct of meetings 141 Minutes 142 Decisions without meetings Part 3—Independent
Advisory Council
Division
1—Establishment and function 143 Establishment
144 Function of the The Advisory Council’s function should include providing advice to the Board about the way
Advisory Council the Agency meets the Section 3 objects including UNCRPD compliance.
(f) “Innovation” is not valuable for its own sake. What is important is the promotion of the provision of high quality supports, innovative or otherwise.
(3)(c) and (d) should be deleted because these are matters about which the Board needs sources of advice, independent of the Agency, to allow it to manage risk and make good strategic decisions. 145 Advice of the
Advisory Council
Division 2—Members of the Advisory
Council
146 Membership
147 Appointment of At least half the membership of the Advisory Council should be people with lived
members of the experience of impairment/s resulting in substantially reduced functional capacity. Advisory Council Members of the Advisory Council should be appointed having regard to their capacity to represent on the Council the views and experiences of a broad constituency of people affected by the NDIS.
148 Term of appointment 149 Acting appointments 150 Remuneration and allowances 151 Leave of absence 152 Disclosure of interests to the
Minister
153 Disclosure of
interests to the
Advisory Council
154 Resignation of members of the
Advisory Council
155 Termination of (2)(d)The inclusion of this provision is not supported. It gives the Minister an unreasonably
appointment of wide discretion to terminate the appointment of someone to the Advisory Council. members of the Appropriate reasons for termination are covered in other parts of the section.
Advisory Council
156 Other terms and conditions of members of the
Advisory Council
Division 3—Procedures of the Advisory
Council
157 Procedures of the
Advisory Council
Part 4—Chief Executive
Officer and staff etc. Division 1—Chief
Executive Officer
158 Establishment 159 Functions of the
CEO
160 Appointment of the
CEO
161 Acting appointments 162 Remuneration and allowances 163 Leave of absence 164 Outside employment 165 Disclosure of interests 166 Resignation of the
CEO
167 Termination of appointment of the
CEO
168 Other terms and conditions of the
CEO
Division 2—Staff etc. 169 Staff 170 Services of other persons to be made available to the
Agency
171 Consultants
Part 5—Reporting and planning Division 1—Reporting Subdivision A—Reporting by Board members
172 Annual report The Agency should report in their Annual Report on the achievement of the Section 3
objects of the Act and on participant satisfaction with the performance of the Agency. The Annual Report should be a public document, made broadly available and in a wide variety of formats 173 Giving certain information to the
Ministerial Council
174 Quarterly report to the Ministerial
Council
Subdivision B—Reporting by the Agency 175 Giving information requested by
Commonwealth,
State or Territory
Ministers
Subdivision C—Reporting by the Minister 176 Giving certain
information to the
Ministerial Council
Division 2—Planning
177 Corporate plan (4) The Corporate Plan should show how it is that the objectives, strategies and policies to
be followed by the Agency and the performance indicators for the assessment of Agency performance link to the achievement of the Section 3 objectives. Part 6—Finance 178 Payments to the Agency by the
Commonwealth
179 Payments to the Agency by the host jurisdictions 180 Application of money by the Agency Part 7—Miscellaneous 181 Taxation Chapter 7—Other matters Part 1—Debt recovery Division 1—Debts
182 Debts due to the A debt should be incurred to the Agency to the extent only that a person’s budget was
Agency knowingly spent on supports that could not be regarded as reasonable or necessary.
Division 2—Methods of recovery
183 Legal proceedings The time period in which to commence legal proceedings for debt recovery should not
extend beyond 6 years after the debt was incurred. Extended time periods create long term stress that negatively impacts on a person’s health and well-being.
184 Arrangement for Replace the existing provision with something like “A debtor should not be taken to have
payment of debt capacity to repay the debt if recovery would result in “financial hardship” or in an inability to access reasonable and necessary support .” 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 Ref to earlier comments about s 55.
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 191 Power to waive Agency’s right to recover debt 192 Waiver of debt arising from error 193 Waiver of small debt 194 Waiver in relation to settlements
195 Waiver in special (b) financial hardship and the disability of the debtor should not be excluded from the
circumstances special circumstances that can be considered for the purposes of waiver of a debt. Part 2—General matters 196 Method of notification by CEO 197 CEO not required to make a decision 198 Protection of participant against liability for actions of persons 199 Protection against criminal liability 200 Evidentiary effect of
CEO’s certificate 201 Delegation by the
Minister
202 Delegation by the
CEO
203 Application of Act to unincorporated bodies 204 Time frames for decision making Part 3—Constitutional matters 205 Act binds Crown 206 Alternative constitutional basis 207 Concurrent operation of State laws Part 4—Review of the Act
208 Review of operation The review must involve seeking the views of the Scheme participants, people with
of Act disabilities, and their consumer and advocacy organisations. The Terms of Reference for the Review should be co-designed with consumer and advocacy organisation representatives.
Part 5—Legislative instruments
209 The National The Rules will be in the form of a disallowable instrument.
Disability Insurance
Scheme rules 210 Regulations
Additional Notes The Bill does not establish independent complaints handling mechanisms in relation to the actions of service providers. This means that participants seeking to use an independent mechanism will need to rely on existing State and Territory mechanisms which are variable in their application and efficacy. State and Territory mechanisms will not be available to participants who wish to complain about the NDIA unless the NDIA agrees to submit to the jurisdiction of the State/Territory agency for this purpose.
There is a potential for conflict in the role of the NDIA if they are simultaneously a service provider (possible if a participant elects to have the NDIA manage their fund) and a system manager.
The Bill does not rule out the future use of means testing and/or co-payment mechanisms which is of concern in an environment of fiscal restraint.