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National Disability Insurance Scheme Bill 2013

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2010-2011-2012-2013

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

National DISABILITY INSURANCE SCHEME Bill 2012

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the

Minister for Families, Community Services and Indigenous Affairs, the Hon Jenny Macklin MP)



 



National DISABILITY INSURANCE SCHEME Bill 2012

 

Amendments to be moved on behalf of the Government

 

 

OUTLINE

 

These amendments are designed to give effect to:

 

·          decisions made by the Council of Australian Governments (COAG) on 7 December 2012, and content of a report on outstanding legislative issues considered by COAG Senior Officials on 15 February 2013;

·          bilateral intergovernmental agreements made between the Commonwealth and New South Wales, Victoria, South Australia, Tasmania and the ACT respectively;

·          advice of the NDIS Advisory Group and further engagement with disability stakeholders, including people with disability, their families and carers; and

·          issues raised in submissions to the Senate Community Affairs Committee in its inquiry into the Bill.

Refinements are made to the principles and objects guiding the National Disability Insurance Scheme, including amendments that give greater emphasis to ensuring that people with disability are supported to exercise choice over the care and support they receive.

 

Amendments to the National Disability Insurance Scheme access provisions are also made to clarify the approach to early intervention, including the focus on impairment, permanence or likely permanence for adults, a focus on the person and their likely benefit from the supports provided by the National Disability Insurance Scheme, and clarification that people with degenerative conditions not better supported by another system are eligible.

 

Other amendments will relate to the Chief Executive Officer’s discretion to revoke an instrument approving a person or entity as a registered provider of supports.  T he compensation provisions will be adjusted to allow the Agency to institute an action for damages or take over the conduct of proceedings already commenced.

 

Lastly, amendments to the governance provisions will be made, including changes to the arrangements for States and Territories agreeing to the appointment of Board members and Advisory Council members.

 

Financial impact statement

 

These amendments will not alter the financial impact of the first stage of the National Disability Insurance Scheme, which will have a cost to the Commonwealth of $1 billion over four years from 2012-13.

 



National DISABILITY INSURANCE SCHEME Bill 2012

 

Amendments to be moved on behalf of the Government

 

 

SUMMARY OF AMENDMENTS

 

Principles and objects

 

The amendments change the objects clause to give greater emphasis to the objects of giving effect to certain obligations that Australia has as a party to the Convention on the Rights of Persons with Disabilities, and maximising independent lifestyles and full inclusion in the mainstream community for people with disability.  The amendments to the objects clause also recognise the broader context for disability reform provided through the National Disability Strategy 2010-2020 and the Carer Recognition Act 2010 .

 

The amendments change the general principles guiding actions of people who may do acts or things on behalf of people with disability, to ensure that, if the person with disability is a child, the best interests of the child are paramount.

 

The amendments make changes to the principles relating to plans and the functions of the Agency to make more explicit that, in the National Disability Insurance Scheme (NDIS) , people with disability will be assumed, as far as reasonably practicable, to have the capacity to determine their own best interests and make decisions that affect their own lives.  It will be made clear that the Agency will support individuals with disability to maximise their capacity to exercise choice and control.

 

Operation of the NDIS

 

The early intervention requirements are clarified to focus more on the individuals who might benefit from early intervention, their condition and its likely trajectory, and the benefits early intervention might provide to them. 

 

An amendment is made to ensure that a participant who has entered permanent residential aged care or community aged care before they are 65 years of age does not automatically cease to be a participant after turning 65. 

 

The amendments provide a mechanism to phase entry to the NDIS to reflect its roll-out across launch sites. 

 

The amendments make changes to the CEO’s power to revoke an instrument approving a person or entity as a registered provider of supports, so that the CEO has a discretion to revoke the instrument, as opposed to being required to revoke it, in certain specified circumstances.  In addition to the circumstances specified in the Bill currently, the CEO’s discretion would be triggered if the CEO is satisfied that a circumstance prescribed by the rules exists and the circumstance gives rise to an unreasonable risk to a participant.  The amendments will give the Minister the power to make rules for this purpose.  This reflects the need for the CEO to have the power to revoke the registration of a registered provider of supports but only where this is in the interests of participants.

 

Where a State or Territory Minister has been appointed as a child’s guardian, the CEO would be required to seek the written agreement of the State or Territory Minister prior to making a determination that another person is to have parental responsibility for the child or to be the child’s representative for purpose of the Act.

 

Minor amendments are made to the disability requirements.

 

Governance arrangements

 

The amendments make changes to the appointment of Board members and Advisory Council members.  The Commonwealth and all States and Territories must agree to the appointment of a Board or Advisory Council member, unless the agreement cannot be reached for 90 days, in which case the Minister may make the appointment.  The acting appointment provisions for Board and Advisory Council members are amended so that the Minister may make an acting appointment where a vacancy arises.  The amendments also provide for an additional ground of termination for Board members.

 

The amendments make provision for transitional arrangements for staff of the Agency, the detail of which is set out in Schedule 1 to the Act, including a power for the Minister to make a legislative instrument for other staffing matters of a transitional nature for staff of the Agency, but the effect of such an instrument would be prospective only, and could not detract from the terms and conditions that would apply under the Agency’s agreement, as created by Schedule 1.

 

The amendments strengthen the role of actuaries in the NDIS, making explicit requirements for the Board and Agency to appoint actuaries and to consider their advice in making decisions.

 

Other matters

 

The amendments allow the Agency to institute proceedings or take over the conduct of proceedings that have already been commenced to recover compensation for personal injury that may be owed to a participant or prospective participant.  Where the Agency elects to institute or take over proceedings, the Agency would be liable to pay the plaintiff’s reasonable costs in relation to the proceedings.  The CEO would take over the entire proceedings, and, when and if damages are awarded, the CEO would recover the outstanding NDIS amounts and incidental costs and return the rest to the participant. 

 

The amendments clarify that, for an individual, a tendency to incriminate the individual or expose them to a penalty would amount to a reasonable excuse for not complying with a requirement to give information or produce a document.

 

The amendments make some technical changes to the Bill to clarify the alternate constitutional bases of the Act, provide for a regulation-making power to specify the kinds of State and Territory laws that are intended to operate concurrently with the legislation, and make changes to the level of host jurisdictions agreement required for the Minister to make some NDIS rules. 

 



 

NOTES ON AMENDMENTS

 

Amendment 1 omits and substitutes new subclause 3(1).  The amendment elevates paragraph 3(1)(h) to become new paragraph 3(1)(a), and re-orders other paragraphs in subclause 3(1) accordingly.  This is intended to give greater prominence to the object of giving effect to certain obligations that Australia has as a party to the Convention on the Rights of Persons with Disabilities.  The amendment also changes paragraph 3(1)(f) to include a specific reference to the object of maximising independent lifestyles and full inclusion in the mainstream community for people with disability.

 

Amendment 2 adds new paragraph 3(3)(c), which specifies matters to which regard must be had in giving effect to the objects of the Act, to recognise the broader context for disability reform provided through the National Disability Strategy 2010-2020 and the Carer Recognition Act 2010 .

 

Amendment 3 replaces the words ‘and control’ with ‘, including in relation to taking reasonable risks,’.

 

Amendment 4 replaces the words ‘informed choice and’ with ‘choice and control, and to’ in clause 4 and makes consequential changes to ensure that this language is consistent throughout the Bill. 

 

Amendment 5 adds to the existing general principles guiding actions under the Act in clause 4 to clarify that reasonable and necessary supports under the Act should support people with disability to live independently and as fully participating citizens.

 

Amendment 6 adds an additional general principle guiding actions under the Act in clause 4 to acknowledge the outcomes particularly important for children and young people with disability - namely, positive personal and social development. 

 

Amendment 7 adds new paragraph 5(f), which specifies general principles guiding actions of people who may do acts or things on behalf of people with disability, to ensure that, if the person with disability is a child, the best interests of the child are paramount.  This is intended to ensure the Bill is relevant for children.

 

Amendment 8 replaces the words ‘(1) The’ with ‘To support people with disability to exercise choice and control in the pursuit of their goals, the’ to clause 6 to clarify the purpose for which the Agency may provide support and assistance. 

 

Amendment 9 omits subclause 6(2) to take account of amendment 62.

 

Amendment 10 amends clause 9 to insert a definition of annual financial sustainability report , which refers to the provision detailing the content of the report. 

 

Amendment 11 inserts a definition of the term cover .  The definition will import the meaning of that term as it is used in relation to an ‘enterprise agreement’ in the Fair Work Act 2009 .  The definition will ensure that the Commonwealth, non-SES APS employees of the Agency and relevant unions are covered by, and subject to, the Agency’s enterprise agreement as created by Schedule 1.

 

Amendment 12 inserts a definition of the term enterprise agreement .  This definition will have the same meaning that it has in the Fair Work Act 2009

 

Amendment 13 inserts a provision that defines the term FaHCSIA agreement .  This term would mean 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.  This is an objective description which would readily allow the instrument to be identified and accessed by a member of the public.

 

Amendment 14 amends clause 9 to insert definitions of reviewing actuary and scheme actuary , which refer to the nomination provisions for each of these roles within the scheme.

 

Amendment 15 inserts a new clause 17A to set out principles relating to the participation of people with disability.  These principles are that:

 

·          people with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interest and make decisions that affect their own lives;

·          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; and

·          the NDIS is to:

o    respect the interests of people with disability in exercising choice and control about matters that affect them; and

o    support people with disability to make decisions that will affect their lives, to the extent of their capacity; and

o    support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.

It is necessary to include the phrase ‘so far as is reasonable in the circumstances’ to take account of the provisions on nominees and children in the Bill. 

 

Amendment 16 replaces paragraph 24(1)(e) with a new paragraph which focuses on whether the person with disability is likely to require lifetime support under the NDIS, rather than whether the person’s support needs are likely to continue for their lifetime.  This is one of the conditions that need to be met for a person to satisfy the disability requirements.

 

Amendment 17 makes a consequential change to the wording of subclause 24(2) to reflect the change to paragraph 24(1)(e).

 

Amendment 18 recasts clause 25, which sets out the early intervention requirements. 

 

New subclause 25(1) sets out the criteria that need to be met for a person to satisfy the early intervention requirements.

 

Firstly, the person must have an identified impairment (intellectual, cognitive, neurological, sensory or physical or a psychiatric condition) that is, or is likely to be, permanent, or be a child with developmental delay.  The focus is on the person’s impairment rather than disability, and the requirement for the impairment to be permanent or likely to be permanent has been added.

 

Secondly, the CEO needs to be satisfied that the provision of early intervention supports is likely to benefit the person by reducing their future needs for support in relation to disability.  The focus is on benefits to the person of the provision of early intervention supports.

 

Thirdly, the CEO needs to be satisfied that the provision of early intervention supports is likely to benefit the person by mitigating or alleviating the impact of the person’s impairment on their functional capacity, or by preventing the deterioration of, or improving, their functional capacity, or by strengthening the sustainability of their informal supports (including through building the capacity of the person’s carer).  The focus is on benefits to the person of early intervention supports, and consideration of whether the provision of early intervention supports is likely to benefit the person by improving their functional capacity has been added.

 

A note at the end of subclause 25(1) indicates to the reader that people with degenerative conditions may meet the early intervention requirements.

 

New subclause 25(2) deems the requirements in paragraphs 25(1)(b) and (c) (the second and third criteria mentioned above) to be satisfied if the person has an impairment that is prescribed under the NDIS rules for the purposes of this provision.  The rules can then specify types of impairments that are known to respond positively to early intervention supports such that a person with the impairment would be likely to benefit from early intervention supports, as set out in paragraphs 25(1)(b) and (c).  These rules would be Category A rules for the purposes of clause 209 (amendment 69 refers).

 

New subclause 25(3) ensures that a person cannot satisfy the early intervention requirements if early intervention supports for the person are more appropriately funded or provided through other systems of service delivery or support services than through the NDIS. 

 

Amendments 19 and 20 make consequential changes to the rule-making provisions in clause 27, which flow from new clause 25. 

 

Paragraph 27(1)(a) is amended to allow the NDIS rules to prescribe circumstances in which, or criteria to be applied in assessing whether, impairments are, or are likely to be, permanent for the purposes of new subparagraphs 25(1)(a)(i) and (ii). 

 

There are also changes to the way in which the rule-making powers are described, which reflect the changed wording in new clause 25.

 

Amendment 21 replaces existing paragraph 29(1)(b) with a new paragraph.  Under this new provision, a person ceases to be a participant in the NDIS if the person enters a residential aged care service on a permanent basis or starts being provided with community aged care on a permanent basis, and this occurs for the first time after the person turns 65 years of age.  This ensures that a participant who has entered permanent residential aged care or community aged care before they are 65 years of age does not automatically cease to be a participant after turning 65. 

 

Amendment 22 inserts a new subclause 31(da).  New subclause 31(da) inserts a further principle that should, so far as reasonably practicable, be taken into account in the preparation, review and replacement of a participant’s plan. 

 

Amendment 23 modifies clause 32 to allow for the phasing of participants into the scheme.  The effect of the amendment is that the CEO will commence the facilitation of a participant’s plan in accordance with the NDIS rules.  This would replace the requirement on the CEO to commence facilitation of a participant’s plan within 14 days.  If the rules do not require the CEO to commence facilitating the preparation of a participant’s plan within a prescribed period or in prescribed circumstances, then the CEO is required to facilitate the preparation of the plan as soon as reasonably practical, having regard to the obligation of the CEO under the rules to commence facilitating the preparation of other plans. 

 

Amendment 24 inserts a new clause 32A, which provides further information about the NDIS rules made under the modified clause 32. 

 

Subclause 32A(1) says that rules may describe participants in a class by reference to a period of time or prescribed circumstances.  Subclause (2) sets out a non-exhaustive list of the categories by which participants may be phased and reflects proposed phasing arrangements for host jurisdictions.  Subclauses (3) to (5) relate to the CEO making a decision to commence facilitating a person’s plan at a particular time other than as described in the rules, because of the urgency of the circumstances.  Further rules may be made that set out the matters to which the CEO is to have regard in making such a decision.  Subclause (6) provides that rules on the facilitation of a participant’s plan may operate by reference to the CEO being satisfied on a matter.  Finally, subclause (7) makes clear that the CEO does not have a duty to consider whether to exercise a discretion conferred by the CEO by subclause (3) or the rules made for the purposes of subclause 32(2) or 32A(6).

 

Amendment 25 omits the words ‘the reasonable and necessary supports that will be funded and the manner in which they’ and substitutes ‘the manner in which the reasonable and necessary supports’.  This amendment will clarify the operation of paragraph 33(5)(d).

 

Amendment 26 inserts a new subclause 57(3).  Existing subclause 57(1) creates an offence relating to a refusal or failure to comply with a requirement to give information or produce documents under clause 55 of the Bill.

 

Existing subclause 57(2) provides that the offence does not apply where a person has a reasonable excuse.  The burden of proving whether a person has a reasonable excuse is on the defendant, by virtue of subsection 13.3(3) of the Criminal Code Act 1995 .  This provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the offence bears an evidential burden in relation to that matter.  It is appropriate that the defendant bears the evidential burden for these matters, as they are peculiarly within the defendant’s knowledge.  A ‘reasonable excuse’ may include an emergency situation or unavoidable delay.

 

The amendment would insert new subclause 57(3), which would provide that, for an individual, a tendency to incriminate the individual or expose them to a penalty would also amount to a reasonable excuse. 

 

Amendments 27, 28 and 29 relate to the CEO's power under clause 72 to revoke an instrument approving a person or entity as a registered provider of supports.

 

Amendment 27 makes an amendment to the CEO’s power to revoke an instrument approving a person or entity as a registered provider of supports to make clear that the CEO’s power is discretionary.

 

Amendment 28 adds new paragraph 72(1)(c), which provides a further basis on which the CEO may revoke an instrument approving a person or entity as a registered provider of supports.  The CEO will also have a discretion to revoke the instrument if the CEO is satisfied that a circumstance prescribed by the rules exists and the circumstance gives rise to an unreasonable risk to a participant. 

 

Amendment 29 relates to the Minister’s power to make rules for the purpose of new paragraph 72(1)(c).  It outlines, without limitation, some of the circumstances that may be prescribed for the purposes of paragraph 72(1)(c). 

 

Amendment 30 m akes an amendment to clause 74 by inserting a new subclause (1A).  The effect of this amendment is that, if a State or Territory Minister has parental responsibility for the child, the CEO must not make a determination under paragraph 74(1)(b) unless the State or Territory Minister has agreed in writing to the making of the determination.  A person who is the subject of a determination by the CEO under paragraph 74(1)(b) is able to do the things to be done by, or in relation to, a child as required or permitted under the Act.

 

Amendment 31 m akes an amendment to clause 75 by inserting a new subclause (3A).  The effect of this amendment is that, if a State or Territory Minister has guardianship of a child, the CEO must not make a determination under subclause 75(2) or 75(3) unless the State or Territory Minister has agreed in writing to the making of the determination.  A determination under subclause 75(2) provides that, despite subclause 75(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.  A determination under 75(3) provides that, if subclause 75(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.

 

Amendment 32 makes an amendment to subclause 76(1) by replacing the words ‘in a manner that promotes the personal and social wellbeing of that child’ with the words ‘in the best interests of the child’.  The amendment will have the effect of making it the duty of a person who may do a thing because of clause 74 to act in the best interests of the child.  Clause 76 also makes it a duty for the person to ascertain the wishes of the child concerned. 

 

Amendment 33 makes an amendment to subclause 76(2) by replacing the words ‘promotes the personal and social wellbeing of the child’ with the words ‘is in the best interests of the child’.  This subclause concerns when a person does not breach the duty imposed by subclause 76(1).

 

Amendment 34 makes an amendment to subclause 76(3) by replacing the words ‘promotes the personal and social wellbeing of the child’ with the words ‘is in the best interests of the child’.  This subclause concerns when a person does not breach the duty imposed by subclause 76(1) by refraining from doing a thing.

 

Amendment 35 inserts a new subclause 84(7A).  Existing subclause 84(6) creates an offence where a person who is a plan nominee refuses or fails to comply with a notice requirement under subclause 84(1).

 

Existing subclause 84(7) provides that the offence does not apply where a person has a reasonable excuse.  The burden of proving whether a person has a reasonable excuse is on the defendant, by virtue of subsection 13.3(3) of the Criminal Code Act 1995 .  This provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the offence bears an evidential burden in relation to that matter.  It is appropriate that the defendant bears the evidential burden for these matters, as they are peculiarly within the defendant’s knowledge.  A ‘reasonable excuse’ may include an emergency situation or unavoidable delay.

 

The amendment would insert new subclause 84(7A), which would provide that, for an individual, a tendency to incriminate the individual or expose them to a penalty would also amount to a reasonable excuse.

 

Amendment 36 m akes an amendment to clause 86 by inserting new subclauses (4) and (5). 

 

New subclause (4) enables an appointment of a person as a plan nominee to provide that it has effect for a specified term.

 

New subclause (5) makes it clear that the term of appointment can be specified by reference to the expiry of a specified period or occurrence of a specified event.

 

Amendment 37 m akes an amendment to clause 87 by inserting new subclauses (3) and (4). 

 

New subclause (3) enables an appointment of a person as a correspondence nominee to provide that it has effect for a specified term.

 

New subclause (4) makes it clear that the term of appointment can be specified by reference to the expiry of a specified period or occurrence of a specified event.

 

Amendment 38 m akes an amendment to subclause 88(4), and adds to those persons to whom the CEO must have regard when appointing a nominee for a participant either under clause 86 or under clause 87.  The effect of this amendment is that the CEO must have regard to any persons who, under a law of the Commonwealth, a State or a Territory, has guardianship of the participant or is a person who has been appointed by a court, tribunal, board or panel (however described) and who has the power to make decisions for the participant.  This amendment clarifies that the CEO should have regard to guardians as well as other persons who have powers to make decisions for the participant and whose responsibilities in relation to the participant are relevant to the duties of a nominee.

 

Amendment 39 m akes a consequential amendment to the heading of clause 91 by removing the word ‘severe’ to reflect the amendment to the clause.

 

Amendment 40 m akes an amendment to clause 91 by removing the word ‘severe’.  The removal of this word will strengthen the CEO’s ability to suspend the appointment of a nominee in cases where the CEO has reasonable grounds to believe that the person has, or is likely to, cause physical, mental or financial harm. 

 

Amendment 41 omits clause 105 and substitutes new clauses 105, 105A and 105B. 

 

New clause 105 requires a person who has been given a notice under clause 104 to take the required action to claim or obtain compensation within the specified period, and sets out the consequences of a failure to take the action.

 

If a participant does not take the required action within the prescribed period to make a claim under a Commonwealth, State or Territory compensation scheme and a plan is in effect for a participant, the plan is suspended from the end of the specified period until the required action is taken (new paragraph 105(2)(a)).  Clause 41 sets out the effect of a suspension on a participant’s plan.

 

A failure to take the required action would not affect the requirement in clause 32 that the CEO is to facilitate the preparation of the participant’s plan, but the plan will not come into effect until the participant has taken the required action (new paragraph 105(2)(b)).

 

Example

If the CEO issues a notice under clause 104 which requires the participant to lodge a claim for compensation from a Commonwealth, State or Territory compensation scheme within 28 days and the participant fails to lodge the notice within that period, the participant’s plan will be suspended until the participant informs the CEO that the claim has been lodged.  Once a participant has complied with the requirement of the notice, the participant’s plan will either remain in effect or come back into effect, and NDIS amounts will continue to be paid (if any) while the participant’s claim for compensation from the Commonwealth, State or Territory compensation scheme is being determined.

 

A failure to take the required action would not affect the CEO’s capacity to consider an access request or to facilitate the preparation of the participant’s plan, but the plan would not come into effect until the required action was taken by the participant (new subclause 105(3)).

 

If a notice requires the participant to make a claim that is not a claim under a Commonwealth, State or Territory compensation scheme and the participant fails to take the required action within in the time specified, the CEO may take action to claim or obtain compensation in the name of the participant or prospective participant or take over the conduct of an existing claim (new subclause 105(4)).

 

New clause 105A sets out matters which are relevant to the CEO taking action to make a claim or obtain compensation or take over an existing claim.  The Agency is responsible for all costs of and incidental to a claim that would have been payable by a participant if the participant had made the claim.  The Agency will not be responsible for any costs unreasonably incurred by a person (new subclause 105A(1)).

 

The actions the CEO may take in relation to a claim include:

 

·          whatever steps are appropriate to bring the claim to a conclusion;

·          if the claim is before a court - steps to settle the proceedings either with or without obtaining a judgement;

·          if the claim is before a court and judgement has been obtained in favour of the plaintiff - any necessary steps to enforce the judgement (new subclause 105A(2)).

The participant or prospective participant must assist the CEO by signing any documents relevant to the claim or proceedings arising out of the claim, including settlement of claim (new subclause 105A(3)).

 

If a participant or prospective participant does not sign a document which the CEO requires signed:

·          if the claim is not before a court or tribunal at the time - the CEO may make an application to the Federal Court of Australia to direct that the document is signed on behalf of the participant or prospective participant by a person appointed by the CEO;

·          otherwise - the CEO make an application to the court or tribunal where the proceedings in relation to the claim are being heard (new subclause 105A(4)).

If the CEO proposes making an application under subclause (4), the CEO must notify the participant or prospective participant.  The participant or prospective participant has a right of representation in the hearing of the application (new subclause 105A(5)).

 

New clause 105B provides that any amount obtained as a result of a claim (including amounts payable as a result of a settlement) must be paid to the participant or prospective participant after the Agency has deducted:

·          all NDIS amounts paid to the participant before the amount was paid to the Agency; and

·          any costs incidental to the claim paid by the Agency.

 

Amendment 42 adds new subparagraphs to paragraph 118(1)(a).  These additional subparagraphs set out the outcomes the Agency is to fulfil in carrying out its function of delivering the NDIS.  The Agency will deliver the NDIS so as to:

·          support the independence, and social and economic participation, of people with disability; and

·          enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

·          ensure that the decisions and preferences of people with disability are respected and given appropriate priority; and

·          promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and inclusion in the mainstream community; and

·          ensure that a reasonable balance is achieved between safety and the right of people with disability to choose to participate in activities involving risk .

 

Amendment 43 amends clause 118 to make an amendment to the functions of the Agency to include the consideration of actuarial advice, including advice from the scheme actuary and reviewing actuary.

 

Amendment 44 inserts a new clause 125A, which adds a requirement on the Board to consider actuarial advice when performing its function of managing, advising and reporting on the financial sustainability of the scheme.

 

Amendment 45 makes an amendment to clause 127 to change the way that the Chair of the Board of the Agency is appointed.  It replaces ‘all host jurisdictions’ with ‘all States and Territories’ so that the Minister must consult all States and Territories about the appointment of the Chair.

 

Amendment 46 makes an amendment to clause 127 to change the way Board members, other than the Chair, are appointed.  It replaces ‘all host jurisdictions’ with ‘all States and Territories’ so that the Minister must seek the support of all States and Territories before appointing a member, as well as the requirements detailed in amendment 45.

 

Amendment 47 makes an amendment to clause 127 to change the way that Board members, other than the Chair, are appointed.  It replaces paragraph 127(4)(b) so that the Minister must be satisfied that an appointment is supported by the Commonwealth, States and Territories. 

 

Amendment 48 adds a new subclause 127(4A).  The new subclause provides that, if 90 days have passed since the Minister sought the support of the States and Territories for a proposed appointment, and the Minister is satisfied that it is not possible to make the appointment as required by subclause 127(4), or it is not known whether the appointment can be made, the Minister may appoint a person to be a board member despite subclause 127(4). 

 

Amendment 49 makes an amendment to clause 129 to change the acting appointment provisions for Board members, other than the Chair, which are to be used if a vacancy arises.  It replaces subclause 129(2) so that the Minister may make an acting appointment for up to 150 days.  The Minister must consult States and Territories about the acting appointment. 

 

Amendment 50 amends clause 134 to provide for the Minister to terminate an appointment of a Board member if the Minister does not have confidence in the member.  The capacity for the Minister to exercise this power reflects the scheme’s unique cooperative funding arrangements between the Commonwealth and States and its shared governance model.  The power is intended to allow all participating governments and the Commonwealth to respond to a shared loss of confidence in a member of the board.

 

It is expected that the Minister will exercise this power only in exceptional circumstances.  Before exercising this power to terminate the appointment of the Chair, the Minister must consult host jurisdictions, and, before terminating the appointment of board members, the Minister must be satisfied that the termination is supported by the Commonwealth and a majority of the group consisting of the Commonwealth and host jurisdictions.

 

Amendment 51 makes an amendment to clause 147 to change the way that the Principal Member of the Advisory Council is appointed.  It replaces ‘all host jurisdictions’ with ‘all States and Territories’ so that the Minister must consult all States and Territories about the appointment of the Principal Member.

 

Amendment 52 makes an amendment to clause 147 to change the way Advisory Council members, other than the Principal Member, are appointed.  It replaces ‘all host jurisdictions’ with ‘all States and Territories’ so that the Minister must seek the support of all States and Territories before appointing a member, as well as the requirements detailed in amendment 51.

 

Amendment 53 makes an amendment to clause 147 to change the way that Advisory Council members, other than the Principal Member, are appointed.  It replaces paragraph 147(3)(b) so that the Minister must be satisfied that an appointment is supported by the Commonwealth, States and Territories. 

 

Amendment 54 adds a new subclause 147(3A).  The new subclause provides that, if 90 days have passed since the Minister sought the support of the States and Territories for a proposed appointment, and the Minister is satisfied that it is not possible to make the appointment as required by subclause 147(3), or it is not known whether the appointment can be made, the Minister may appoint a person to be an Advisory Council member despite subclause 147(3). 

 

Amendment 55 amends clause 149 to change the acting appointment provisions for Advisory Council members, other than the Principal Member, which are to be used if a vacancy arises.  It replaces subclause 149(2) so that the Minister may make an acting appointment for up to 150 days.  The Minister must consult States and Territories about the acting appointment. 

 

Amendment 56 adds a new subclause to clause 159, which requires the CEO to give the Board a copy of any significant actuarial report of advice received, so that the Board remains informed.

 

Amendment 57 inserts a new provision to give effect to Schedule 1 to the Bill, which will contain transitional provisions for staff of the Agency.

 

Amendments 58 and 59 work together to amend clause 172, relating to the description of actuarial content in the Annual report, so that that content includes a summary of the annual financial sustainability report, which is a comprehensive, technical actuarial report on the scheme. 

 

Amendment 60 inserts a new Part 6A (clauses 180A - 180F) to the Bill, which sets out the nomination process for the scheme and the reviewing actuary and their specific duties. 

 

The scheme actuary’s role is to develop and provide actuarial advice.  The scheme actuary must prepare input each time an annual report on the Agency is prepared.

 

The scheme actuary is required to report significant concerns about the financial sustainability of the scheme, or the risk management processes of the Agency, to the Board as soon as reasonably practicable. 

 

The scheme actuary is also required to make quarterly estimates of the future expenditure of the scheme and advise the CEO of these estimates.  These estimates are not intended to have a material bearing on the accounting treatment that applies to the Agency.

 

The reviewing actuary’s role is to provide the Board with a second opinion on advice prepared by the scheme actuary.  The reviewing actuary is required to report significant concerns about the financial sustainability of the scheme, or the risk management processes of the Agency, to the Board as soon as reasonably practicable.

 

For the first three years, the Australian Government Actuary is to be appointed by the Board to the position of the reviewing actuary. 

 

New clause 180C includes an instrument-making power for the Minister administering the Insurance Act 1973 to determine further issues that the scheme actuary must consider in performing this role and identify professional standards that the scheme actuary must comply with. 

 

New clause 180F requires the Agency to assist both the scheme and reviewing actuaries to perform their roles, such as by providing access to data or information.  To assist readers, proposed new subclause 180D(6) provides that the instrument of nomination of the reviewing actuary is not a legislative instrument (within the meaning of section 5 of the Legislative Instruments Act 2003 ).  This is merely declaratory of the law.

 

Amendment 61 inserts a new subclause 189(3).  Existing subclause 189(1) creates an offence if a person refuses or fails to comply with a requirement to give information or produce a document under Division 3, Part 1, Chapter 7 of the Bill.

 

Existing subclause 189(2) provides that the offence does not apply where a person has a reasonable excuse.  The burden of proving whether a person has a reasonable excuse is on the defendant, by virtue of subsection 13.3(3) of the Criminal Code Act 1995 .  This provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the offence bears an evidential burden in relation to that matter.  It is appropriate that the defendant bears the evidential burden for these matters, as they are peculiarly within the defendant’s knowledge.  A ‘reasonable excuse’ may include an emergency situation or unavoidable delay.

 

The amendment would insert new subclause 189(3), which would provide that, for an individual, a tendency to incriminate the individual or expose them to a penalty would also amount to a reasonable excuse.

 

Amendment 62 inserts a new clause 200A.  The effect of this amendment is, in conjunction with amendment 9, to move the text currently at clause 6 to the new clause, as a better reflection that this is a general matter in the legislation. 

 

Amendment 63 removes subclause (3) from clause 206 to clarify the alternate constitutional basis of the Act.

 

Amendment 64 removes subclause (6) from clause 206 to clarify the alternate constitutional basis of the Act.

 

Amendment 65 makes an editorial change to clause 207 by inserting the number 1 at the start of the clause to make the clause into a subclause.  This takes account of amendment 66 below, which inserts a new subclause 207(2).

 

Amendment 66 amends clause 207 to provide for regulations to be made to prescribe the kinds of State and Territory laws which can operate concurrently with the Bill.  For clarity, it includes a note highlighting that paragraph 210(2)(b) will apply to the making of regulations, so that all host jurisdictions must agree to the making of the regulations. 

 

Amendment 67 inserts a new subclause 209(2A), which allows the rules to provide for the CEO to issue assessment tools that would be used to assess a person for the purposes of the Act or rules. 

 

Amendment 68 amends clause 209 to amend the description of Category B rules to refer to the rules made about the commencement of the facilitation of the preparation of plans of participants (see amendment 23).  The effect of this amendment is that a host jurisdiction must agree to those rules that are identified wholly or partly and directly or indirectly, by reference to that host jurisdiction. 

 

Amendment 69 adds a reference to section 25 into the first row of the table in clause 209.  The effect of this amendment is that rules made for the purposes this provision are Category A rules and the Minister must not make the rules unless the Commonwealth and each host jurisdiction have agreed to the making of the rules.

 

Amendment 70 adds a reference to sections 44 and 48 into the first row of the table in clause 209.  The effect of this amendment is that rules made for the purposes of those provisions are Category A rules and the Minister must not make the rules unless the Commonwealth and each host jurisdiction have agreed to the making of the rules. 

 

Amendment 71 adds a reference to sections 70 and 73 and subparagraph 72(1)(c)(i) into the first row of the table in clause 209.  The effect of this amendment is that rules made for the purposes of those provisions are Category A rules and the Minister must not make the rules unless the Commonwealth and each host jurisdiction have agreed to the making of the rules. 

 

Amendment 72 adds a reference to section 32 into row 2 of the table in clause 209.  The effect of this amendment is that rules made for the purpose of this provision are Category B rules.

 

Amendment 73 adds a reference to subsection 32A(4) and sections 45 and 204 into the third row of the table in clause 209.  The effect of this amendment is that rules made for the purposes of those provisions are Category C rules and the Minister must not make the rules unless the Commonwealth and a majority of host jurisdictions have agreed to the making of the rules. 

 

Amendment 74 removes paragraphs (b) and (c) from the fourth row of the table in clause 209 to take account of amendments 70 and 73.

 

Amendments 75 removes paragraph (e) from the fourth row of the table in clause 209 to take account of amendment 70.

 

Amendment 76 removes paragraphs (i) and (j) from the fourth row of the table in clause 209 to take account of amendment 73, and makes an editorial change to ensure that the paragraphs are in alphabetical order. 

 

Amendment 77 adds new Schedule 1 to the Bill.

 

SCHEDULE 1 - TRANSITIONAL PROVISIONS FOR STAFF OF THE AGENCY

 

Clause 1 - FaHCSIA agreement covers staff of the Agency

 

Subclause 1(1) provides that the FaHCSIA agreement (as defined in clause 9 of the Bill) covers the Commonwealth, relevant unions and APS employees (except SES employees) in relation to employment in the Statutory Agency.  This provision ensures that non-SES APS employees in the Statutory Agency will enjoy the same terms and conditions of employment as those enjoyed by non-SES APS employees in the Department of Families, Housing, Community Services and Indigenous Affairs.  The default conditions set by the Australian Public Service Award will not apply. 

 

The ‘Statutory Agency’ is expressed to be established by subsection 169(2) of the Act.  This ensures that the Agency’s enterprise agreement does not apply to officers or employees made available to assist the Agency in the performance of its functions under clause 170 of the Bill. 

 

Subcause 1(2) is a ‘reading provision’.  This clause sets out the effect of the FaHCSIA agreement in, and aid its translation to, the Agency.  Upon the establishment of the Agency, the FaHCSIA agreement will have effect as if it had been made by the Chief Executive Officer (CEO) of the Agency on behalf of the Commonwealth.  The FaHCSIA agreement will also have effect as if any references in the agreement to the Secretary were references to the CEO.  In addition, references to the Department or FaHCSIA should be read as though they were references to the Agency. 

 

The ‘Statutory Agency’ will be expressed to be established by subsection 169(2) of the Act as the Agency’s enterprise agreement will not apply to officers or employees made available to assist the Agency in the performance of its functions under clause 170 of the Bill. 

 

Subclause 1(3) provides that the agreement created by this Schedule has effect as if it were a separate enterprise agreement.  Accordingly, there will be no ongoing linkage between the FaHCSIA agreement and the Agency’s agreement.  Parties to the Agency’s agreement will be required to observe and deal with the agreement as if it had been made under the Fair Work Act. 

 

Subclause 1(4) will apply to the Agency any guidelines and policies that were in effect immediately before the commencement of this Schedule and linked to the FaHCSIA agreement.  This means that those linked guidelines and policies will apply separately to the Agency for the purposes of the Agency’s agreement, as created by this Schedule.

 

Subclause 1(5) is a ‘reading provision’.  This clause sets out the effect of guidelines and policies linked to the FaHCSIA agreement and aid their translation to the Agency.  Subclause 1(4) will apply certain FaHCSIA guidelines and policies to the Agency’s agreement.  Under this subclause, those policies and guidelines will have effect as if references to the Secretary were references to the CEO.  Similarly, references to the Department or FaHCSIA will have effect as if they were references to the Agency.

 

The ‘Statutory Agency’ will be expressed to be established by subsection 169(2) of the Act as the Agency’s enterprise agreement will not apply to officers or employees made available to assist the Agency in the performance of its functions under clause 170 of the Bill. 

 

Subclause 1(6) clarifies that the guidelines and policies applied to the Agency under subclause 1(4) of this Schedule could be altered or revoked by the CEO or her or his delegate.  By clause 202 of the Bill, the CEO of the Agency will have the requisite powers of delegation.  This subclause would not prevent the CEO from making other guidelines and policies for the Agency.

 

Subclause 1(7) will provide that the FaHCSIA agreement will cease to cover the Commonwealth, unions and APS employees if another enterprise agreement is made by the CEO on behalf of the Commonwealth and which covers the Commonwealth and APS employees in the Statutory Agency.

 

Subclause 1(8) provides that subclause 1(7) has effect subject to section 58 of the Fair Work Act, which provides among other things that only one enterprise agreement can apply to an employee at a particular time.  If, as envisaged by subclause 1(7), another enterprise agreement is made by the CEO of the Agency before the nominal expiry date of the FaHCSIA agreement (on 30 June 2014), the FaHCSIA agreement will continue to have effect until that date (after which the Agency’s new agreement will take effect).

 

Clause 2 - Instruments about transitional staffing matters

 

Clause 2 allows the Minister to make a legislative instrument that provides for matters of a transitional nature in relation to the staff of the Agency.  To provide an appropriate safeguard, the Minister will have the ability to make a legislative instrument, and the effect of such instruments will be prospective only.  Further, a legislative instrument made by the Minister cannot detract from the terms and conditions that will apply under the Agency’s agreement as created by this Schedule.  A legislative instrument cannot alter the terms of an Act of Parliament without clear and unambiguous words.