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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

 

 

 

 

 

SENATE

 

 

 

 

 

 

 

National DISABILITY INSURANCE SCHEME Bill 2013

 

 

 

 

 

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, Minister for Disability Reform, the Hon Jenny Macklin MP)



 



 

National DISABILITY INSURANCE SCHEME Bill 2013

 

Amendments to be moved on behalf of the Government

 

 

OUTLINE

 

The amendments respond to recommendations made by the Senate Community Affairs Legislation Committee (the Committee) in its report on the inquiry into the provisions of this Bill.  The Committee tabled its report on 13 March 2013.

 

The amendments address key areas to improve the operation of the Bill - namely, the objects and general principles of the Bill, examinations by professionals, registered providers of supports, and Advisory Council membership.

 

The amendments will improve the focus of the objects of the Bill to give effect, in conjunction with other laws, to relevant international human rights instruments.  The amendments will insert a new general principle to guide actions under the Bills so that, once enacted, the role of advocates in representing the interests of people with disability will be acknowledged and respected.   An amendment will also provide that people who are authorised or required to do things or acts on behalf of a person with disability are guided by the need to take account, so far as practicable, of the person’s gender.

 

Amendments will enable the CEO to request a person to undergo an examination, which could be conducted by a medical, psychiatric, psychological or other appropriate professional (for example, an allied health professional).  The powers will enable the CEO to obtain information in the form of a report by the person conducting the examination, relevant for the purposes of deciding whether a prospective participant meets the access requirements or in preparing and approving or reviewing a participant’s plan.

 

The rule-making powers in the Bill will be amended to allow expressly for the prescription of approval criteria, or imposing obligations, relating to the handling of actual or perceived conflicts of interest by registered providers of supports.  The amendment is a positive measure for registered providers, and has a protective effect for NDIS participants.

 

Finally, the amendments will strengthen the representation of people with disability on the Advisory Council, while ensuring broad representation of diverse disability and caring experience on the Advisory Council.

 

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 2013

 

Amendments to be moved on behalf of the Government

 

 

NOTES ON AMENDMENTS

 

Amendment 1 inserts a new paragraph 3(1)(a) to clarify that this object of the Act, which is to give effect to Australia’s obligations that it has as a party to the Convention on the Rights of Persons with Disabilities, will have effect in conjunction with other laws.  The amendment will include a treaty citation within the objects clause, rather than it being included in a separate definition in clause 9.  This will assist the reader to identify the treaty, and locate and access its text.

 

Amendment 2 inserts new paragraph 3(1)(i) to strengthen the language around human rights, and ensure that it is an object of the Act to give effect, in conjunction with other laws, to certain obligations that Australia has as a party to the following international human rights instruments:

 

(i)             the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23);

(ii)           the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5);

(iii)          the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4);

(iv)          the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9);

(v)           the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40).

 

The Bill, once enacted, will only give effect to the above instruments to the extent that these are relevant, and the mention of the instruments does not purport to extend the coverage of the Bill.  Treaty citation information is included in this amendment to identify correctly the relevant treaties, as well as to assist members of the public to locate and access the text of those treaties.

 

Amendments 1, 2 and 5 (below) respond to Recommendation 1 of the Committee’s report.

 

Amendment 3 inserts a new general principle after subclause 4(12) to guide actions under the Bill, once enacted.  The new subclause 4(13) will provide, as a general principle, that the role of advocacy in representing the interests of people with disability is to be acknowledged and respected.

 

This amendment responds to Recommendation 7 of the Committee’s report by recognising the way in which advocacy supports people with disability.

 

Amendments 4, 5, 6 and 7 renumber existing subclauses 4(13), (14), (15) and (16) to subclauses 4(14), (15), (16) and (17) respectively.  This reflects the insertion of new subclause 4(13) by amendment 3 above.

 

Amendment 8 inserts the words ‘, and the gender,’ into paragraph 5(d).  The purpose of this amendment is to guide those people, who are required or permitted to do acts or things on behalf of others under this legislation, to take account of the gender of the person with disability, as well as that person’s cultural and linguistic background.  It is noted that the Convention on the Rights of Persons with Disabilities specifically recognises the position of women and girls and that they face multiple discrimination. 

 

This amendment responds to Recommendation 5 of the Committee’s report.

 

Amendment 9 is a consequential amendment.  It removes the definition of Convention on the Rights of Persons with Disabilities from clause 9 of the Bill as the information about this convention is now incorporated into the objects clause in clause 3 of the Bill by virtue of amendment 1.

 

Amendment 10 recasts subparagraph 26(1)(b)(ii) so as to enable the CEO to request a prospective participant to undergo a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person.  Depending on the type of examination and circumstances, an appropriately qualified person could include a doctor, psychologist, psychiatrist or an allied health professional. 

 

Clause 26 can apply where a prospective participant has made an access request that has not yet been determined and enables the CEO to obtain information in the form of a report by the person conducting the examination, relevant for the purposes of deciding whether a prospective participant meets the access requirements .

 

Amendment 11 recasts subparagraph 36(2)(b)(ii) in the same way as is proposed for subparagraph 26(1)(b)(ii).  Clause 36 enables the CEO to obtain a report relevant for the purposes of preparing a statement of participant supports or deciding whether to approve a statement of participant supports.

 

Amendment 12 recasts subparagraph 50(2)(b)(ii), also in the same way as is proposed for subparagraph 26(1)(b)(ii).  Clause 50 enables the CEO to obtain a report relevant for the purposes of reviewing a participant’s plan.

 

Amendments 10, 11, 12 and 15 (below) respond to Recommendation 18 of the Committee’s report.

 

Amendment 13 amends subclause 73(1), which deals with the power to make rules in connection with the approval of registered providers of support.  The amendment will expressly allow for the prescription of criteria relating to processes to deal with actual or perceived conflicts of interest.  The amendment is a positive measure for registered providers, and has a protective effect for NDIS participants.  It will facilitate rules that signal to applicant providers the need to put processes in place processes to manage actual or potential conflicts of interest, including those that might arise where the provider is approved in respect of both managing funding for supports under a plan and the provision of supports.

 

Amendment 14 amends subclause 73(2), which deals with the power to make rules in connection registered providers of support.  This amendment will expressly allow rules that impose on registered providers obligations dealing with actual or perceived conflicts of interest.  The amendment is a positive measure for registered providers, and has a protective effect for NDIS participants.  It will improve the mechanisms available to ensure that registered providers are required to have in place mechanisms and processes to address conflicts of interest, including those that might arise where the provider manages funding of supports under a plan and provide supports.

 

Amendments 13 and 14 respond to Recommendation 20 of the Committee’s report.

 

Amendment 15 is a consequential amendment.  It amends clause 85 to reflect the changes made by amendments 10, 11 and 12. 

 

Amendment 16 amends subclause 147(5) so that a majority of members must be people with disability, replacing the requirement that at least four members be people with disability.  The amendment also includes an additional requirement that at least one member must be a person with skills, experience or knowledge of disability in rural and regional areas.

 

The effect of this amendment is to strengthen the representation of people with disability on the Advisory Council, while ensuring broad representation of diverse disability experience on the Advisory Council.  Membership of the Advisory Council will consist of a majority of people with disability, at least two people who are carers of people with disability, at least one person with experience in disability in rural or regional areas, and at least one person with experience in the supply of equipment or services.  The Minister must also have regard to the diversity of people with disability, and ensure that all members have skills, experience or knowledge that will help the Advisory Council perform its functions.  The provision notes that a person may meet one or more of the requirements.

 

This amendment responds to Recommendation 29 of the Committee’s report.