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National Disability Insurance Scheme Amendment (Streamlined Governance) Bill 2019

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2019

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

 

 

 

 

NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT

(STREAMLINED GOVERNANCE) BILL 2019

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 (Circulated by the authority of the

Minister for the National Disability Insurance Scheme,

the Hon Stuart Robert MP)



NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT

(STREAMLINED GOVERNANCE) BILL 2019

 

 

OUTLINE

 

The National Disability Insurance Scheme Amendment (Streamlined Governance) Bill 2019 ( Bill ) amends the National Disability Insurance Scheme Act 2013 ( Act ) to improve the operation of the Act via the introduction of streamlined governance arrangements.

 

Schedule 1 - Amendments

 

The streamlined governance arrangements at Schedule 1 to the Bill introduce new requirements for appointments to the Board of the Agency and the Independent Advisory Council.

 

The amendments also establish a 28-day requirement for consultations with host jurisdictions for various matters under the Act that require consultation (with the ability for host jurisdictions to seek an extension for up to 90 days).

 

The amendments also re-categorise some of the National Disability Insurance Scheme rules ( NDIS rules ), made under section 209 of the Act, to convert some rules requiring unanimous agreement of the Commonwealth, States and Territories (Category A) and rules requiring agreement of the Commonwealth and the majority of States and Territories (Category C), to rules made after consultation with States and Territories (Category D).

 

Financial impact statement

 

MEASURE

FINANCIAL IMPACT OVER THE FORWARD ESTIMATES

Schedule 1

Nil

 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

The statement of compatibility with human rights appear at the end of this explanatory memorandum.

 

 

 

 



NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT

(STREAMLINED GOVERNANCE) BILL 2019

 

 

NOTES ON CLAUSES

 

Abbreviations and Acronyms used in this explanatory memorandum

 

  • Act means the National Disability Insurance Scheme Act 2013 ;

 

  • Agency means the National Disability Insurance Agency (also known as the National Disability Insurance Scheme Launch Transition Agency);

 

  • NDIS means the National Disability Insurance Scheme, as defined in section 9 of the NDIS Act;

 

  • NDIS rules means the National Disability Insurance Scheme rules made under section 209 of the Act;

 

 

Clause 1 sets out how the new Act is to be cited - that is, as the National Disability Insurance Scheme Amendment (Streamlined Governance) Act 2019 .

 

Clause 2 provides a table setting out the commencement date of the various sections in, and Schedule to, the new Act.

 

Clause 3 provides that legislation that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule has effect according to its terms.

 



Schedule 1 - Amendments

 

Summary

 

The streamlined governance arrangements at Schedule 1 to the Bill introduce new requirements for appointments to the Board of the Agency and the Independent Advisory Council.

 

The amendments also establish a 28-day requirement for consultations with host jurisdictions for various matters under the Act that require consultation (with the ability for host jurisdictions to seek an extension for up to 90 days).

 

The amendments also re-categorise some of the NDIS rules, made under section 209 of the Act, to convert some Category A and Category C NDIS rules to Category D NDIS rules.

 

Background

 

In April 2018, the Council of Australian Governments’ ( COAG ) Disability Reform Council noted the Commonwealth’s intention to introduce streamlined governance arrangements under the Act.

 

Streamlined governance arrangements will help enhance delivery of the NDIS for the Commonwealth and host jurisdictions. Such changes build on the lessons learnt from the trial and transition period and will ensure governance at full Scheme is robust, agile and sustainable. These arrangements are included in the new intergovernmental agreements for full Scheme, which should be in place for all jurisdictions, except Queensland and Western Australia, on 1 July 2019.

 

The amendments made by this Schedule commence on the day after Royal Assent.  All State and Territory governments have been consulted on the amendments in this Schedule.

 

Explanation of the changes

 

National Disability Insurance Scheme Act 2013

 

Item 1 inserts a new definition for host jurisdiction Minister at section 9.  “Host jurisdiction Minister”, for a host jurisdiction (as defined at section 10) means a Minister of the host jurisdiction who is a member of the Ministerial Council.  “Ministerial Council” is also defined at section 9.

 

Items 2, 3, 4, 7, 8, 10, 14, 16, 17, 24 and 25 insert new subsections to introduce a consultation process for the Minister to seek the agreement of host jurisdiction Ministers to the making of certain instruments, the giving of certain directions and statements, the termination of the appointment of a Board member other than the Chair, the terms and conditions of Board members, the making of certain delegations.  The new subsections, and the matters in relation to which the Minister is required to seek the host jurisdictions’ agreement, are as follows:

 



·          item 2, subsections 120(4A), (4B) and (4C):  a process for seeking agreement to make an instrument prescribing things that the Agency does in the performance of its functions for which it may charge fees, and the amount, or method of working out the amount, of those fees;

·          item 3, subsections 121(3A), (3B) and (3C):  a process for seeking agreement to give, by legislative instrument, a direction to the Agency about the performance of its functions;

·          item 4, subsections 125(3A), (3B) and (3C):  a process for seeking agreement to give the Board a written statement setting out strategic guidance to the Agency;

·          item 7, subsections 127(4), (4A), (4B), (4C) and (4D):  a process for seeking agreement to appoint a Board member other than the Chair;

·          item 8, subsections 134(4A), (4B) and (4C):  a process for seeking agreement to terminate the appointment of a Board member other than the Chair;

·          item 10, subsections 135(3), (4) and (5):  a process for seeking agreement to the terms and conditions on which a Board member holds office in relation to matters not covered by the Act;

·          item 14, subsections 172(7), (8) and (9):  a process for seeking agreement to prescribe, by legislative instrument, particular information or analysis that must be included in the annual report prepared by the Board members;

·          item 16, subsection 174(4A), (4B) and (4C):  a process for seeking agreement to prescribe, by legislative instrument, particular information that must be included in the quarterly report on the operations of the Agency;

·          item 17, subsections 201(2A), (2B) and (2C):  a process for seeking agreement to delegate the Minister’s powers under section 209 to the CEO;

·          item 24, subsections 209(8A), (8B) and (8C):  a process for seeking agreement to make NDIS rules; and

·          item 25, subsections 210(3), (4) and (5):  a process for seeking agreement for the Governor-General to make regulations.

 

The above items, other than items 7, 8, 14, 16 and 24 also insert relevant subheadings into the respective sections to delineate between the new provisions about the process for seeking agreement and other existing provisions.

 

Item 7 also repeals and replaces subsection 127(4) to replace “States and Territories” with “host jurisdictions” because all States and Territories have now been prescribed as host jurisdictions under section 10.  It also inserts a new requirement for the Minister to be satisfied that the Commonwealth, and a majority of the group consisting of the Commonwealth and the host jurisdictions (rather than the Commonwealth and all States and Territories) support the appointment of a Board member other than the Chair.  This aligns subsection 127(4) with the requirement at subsection 134(4), which is the equivalent provision for termination of the appointment of a Board member other than the Chair.

 

The new process for seeking agreement is as follows.  The Minister is to give a notice (the original notice ) to one host jurisdiction Minister for each host jurisdiction seeking the agreement of that host jurisdiction to the relevant course of action (that is, the making of an instrument, giving of a direction or statement, setting of terms and conditions, making of rules or regulations), and requesting that agreement be given before the end of 28 days beginning on the day the notice is given.  The above items (except for items 7 and 8, which relates to a proposal to appoint, or terminate the appointment of, a Board member other than the Chair) also insert a requirement for the Minister to provide a copy of the proposed instrument, direction, statement, terms and conditions, rules or regulations (as the case may be) to the host jurisdiction Minister when issuing the original notice to the host jurisdiction Minister.

 

Host jurisdiction Ministers are able to give a notice in writing to the Minister, within the initial 28-day period, requesting a longer period within which to agree to the course of action.  If such a request is made, the host jurisdiction may give their agreement before the end of 90 days beginning on the day the original notice was given.  If no host jurisdiction Minister has informed the Minister whether that host jurisdiction agrees to the proposed course of action immediately before the end of the 90-day period, the host jurisdiction is taken to have agreed to the course of action.

 

If, immediately before the end of the initial 28-day period, no host jurisdiction Minister for a host jurisdiction has made a request for extended time to consider the request, and no host jurisdiction Minister for a host jurisdiction has informed the Minister whether that host jurisdiction agrees to the proposed course of action, then at the end of the 28-day period, the host jurisdiction is taken to have agreed to the course of action.

 

This process for seeking agreement gives host jurisdictions adequate time to consider requests for agreement and seek extensions up to 90 days where the initial 28 days is not sufficient, while also balancing the Minister’s need to proceed with a course of action where a host jurisdiction does not respond to a request.  The 28 day process has been implemented administratively since it was agreed by the Council of Australian Government’s Disability Reform Council in November 2017, where all jurisdictions agreed to provide responses to requests for agreement within 28 days, with no response taken as agreement.  The policy objective is to ensure the Minister is not precluded from making certain decisions and taking certain courses of action where host jurisdictions do not indicate their agreement (or otherwise) in a prompt manner.  The process for seeking agreement also takes into account the host jurisdiction’s need to seek a longer period in instances where, for example, there is a State or Territory election and caretaker period preventing them from agreeing to a course of action, or the matter in question is too complex to consider in a short timeframe.

 

Subsection 127(4D) allows the Minister to appoint a person as a Board member, other than the Chair, without the support of a majority of the group consisting of the Commonwealth and the host jurisdictions.  The Minister must wait until the end of the period of 90 days beginning on the day the first notice was given under subsection 127(4A) in relation to that appointment, before exercising this power. The Minister may choose to use this 90 day period to consider the positions of the host jurisdictions and negotiate alternative possible appointments or arrangements if majority agreement was not reached. The Minister may also choose to seek agreement of host jurisdictions under subsection 127(4) again by giving new notices, which will start a new period.

 

Item 5 inserts a new subheading at subsection 125(5), which is consequential to the amendments made by item 4.

 

Item 6 replaces the words “States and Territories” with “host jurisdictions” in subsection 127(3) as all States and Territories have now been prescribed as host jurisdictions under section 10.

 

Item 9 is a consequential amendment to the amendment at item 8.  It also corrects an error in subsection 134(5) as a termination of an appointment of a Board Member (not only the Chair) under subsection 134(3) or (4) is also subject to section 30 of the Public Governance, Performance and Accountability Act 2013 .

 

Items 11, 12 and 13 insert new requirements about consulting the host jurisdictions in relation to appointing and terminating the appointment of members of the Advisory Council, and determining the terms and conditions upon which members of the Advisory Council hold office, respectively.

 

Item 11 repeals subsections 147(2) to (3A) and inserts new subsection 147(2) requiring the Minister to consult host jurisdictions about the appointment of each member of the Advisory Council.  The repealed subsections impose requirements on the Minister to seek the support of all host jurisdictions before appointing a member of the Advisory Council other than the Principal Member (while the appointment of the Principal Member requires consultation only).  Subsection 147(3A), also being repealed by item 11, enables the Minister to appoint a member of the Advisory Council if the Minister has sought the support of a State or Territory, 90 days have passed since seeking that support, and the Minister is satisfied that it is not possible to make the appointment with the support of the relevant State or Territory (or it is not known whether the appointment can be so made).  These requirements prevent the Minister from being able to exercise the Minister’s powers to appoint members of the Advisory Council and can cause unreasonable delays in making such appointments.  The new requirement to consult all host jurisdictions gives all host jurisdictions the opportunity to comment on a proposed appointment while preserving the Minister’s ability to exercise the power to make appointments.

 

Item 12 repeals subsections 155(3) and (4) and inserts new subsection 155(3) requiring the Minister to consult host jurisdictions about the termination of the appointment of a member of the Advisory Council.  The repealed subsections impose requirements on the Minister to seek the support of all host jurisdictions before terminating the appointment of a member of the Advisory Council other than the Principal Member (while the termination of the appointment of the Principal Member requires consultation only).  This requirement prevents the Minister from being able to exercise the Minister’s powers to terminate the appointment of members of the Advisory Council and can cause unreasonable delays in making such appointments.  The new requirement to consult all host jurisdictions gives all host jurisdictions the opportunity to comment on a proposed termination while preserving the Minister’s ability to exercise the power to terminate appointments.

 

Item 13 repeals and replaces subsection 156(2) requiring the Minister to consult host jurisdictions before determining the terms and conditions (if any), in relation to matters not covered by the Act, on which a member of the Advisory Council holds office.  Current subsection 156(2) imposes a requirement on the Minister to be satisfied that the Commonwealth and a majority of host jurisdictions agree to the terms and conditions before determining such terms and conditions.  This requirement prevents the Minister from being able to exercise the Minister’s power to determine terms and conditions on which members of the Advisory Council hold office and can cause unreasonable delays in determining such terms and conditions.  The new requirement to consult all host jurisdictions gives all host jurisdictions the opportunity to comment on proposed terms and conditions while preserving the Minister’s ability to exercise the power to determine those terms and conditions.

 

Item 15 is a consequential amendment to the amendment at item 1.

 

Item 18 inserts a new subheading at subsection 201(4), which is consequential to the amendments made by item 17.

 

Items 19, 20, 21, 22 and 23 amend the categories assigned to certain NDIS rules.

 

Item 19 removes rules made for the purposes of sections 66 and 67 from the list of Category A NDIS rules in the table at subsection 209(8).  Section 66 is not a rule-making power in and of itself and therefore does not need to appear in the table at subsection 209(8).  Item 23 inserts rules made for the purposes of section 67 into the Category D NDIS rules as paragraph (ca) in table item 4 at subsection 209(8).

 

Item 21 removes rules made for the purposes of section 45 from the list of Category C NDIS rules, leaving rules made for the purposes of subsection 32A(4) and section 204 as the only Category C NDIS rules.  Item 20 is a consequential amendment as a result of item 21.  Item 22 inserts rules made for the purposes of section 45 into the list of Category D NDIS rules as paragraph (ba) in table item 4 at subsection 209(8). 

 

The Minister must not make Category D NDIS rules unless each host jurisdiction has been consulted in relation to the making of the rules.  These amendments balance the Minister’s need to be able to exercise the power to make NDIS rules with the host jurisdictions’ interest in being consulted in relation to their content and their ability to comment on any proposed NDIS rules.  The particular NDIS rules to be moved to Category D (rules made for the purposes of sections 45 and 67) relate to matters that do not directly affect the host jurisdictions or participant plans.

 

·          Section 45 provides for NDIS rules in relation to the payment of NDIS amounts, for example, in relation to the payment of those amounts into a nominated bank account.

·          Section 67 provides that the NDIS rules may make provision for and in relation to the CEO’s power to disclose information under paragraph 66(1)(a) or subparagraphs 66(1)(b)(i) or (v).

 

These are all administrative matters between governments only and will not have any impact on access to the NDIS or participant plans. Therefore, it is not considered necessary for host jurisdictions to agree to the content of NDIS rules on these matters before the Minister’s rule-making powers can be exercised.

 

Item 26 contains application provisions.  Sub-items 26(1), (2), (3), (4), (5), (6), (10), (11), (12) and (13) provide that the amendments of sections 120, 121, 125, 127, 134, 135, 172, 174, 201, 209 and 210, respectively, apply in relation to instruments made, directions or statements given, appointments and terminations made, terms and conditions determined, instruments of delegations made, rules made or regulations made (as the case may be) on or after the commencement of item 26.  These amendments set out the new process for seeking host jurisdictions’ agreement to certain matters.

 

Sub-items 26(7), (8) and (9) provide that the amendments of sections 147, 155 and 156, respectively, apply in relation to appointments or terminations made, or terms and conditions determined (as the case may be) on or after the commencement of item 26.  These amendments provide for the Minister to consult host jurisdictions about matters relating to the members of the Advisory Council.

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

Prepared in accordance with Part 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

 

 

NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT

(STREAMLINED GOVERNANCE) BILL 2019

 

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

 

Overview of the Bill

 

The Bill amends the National Disability Insurance Scheme Act 2013 (Act) to enhance the delivery of the National Disability Insurance Scheme ( NDIS ) for the Commonwealth and host jursidcitions.

The streamlined governance arrangements at Schedule 1 to the Bill introduce new requirements for appointments to the Board of the National Disability Insurance Agency ( NDIA ) and the Independent Advisory Council.  The amendments also establish a 28-day requirement for consultations with host jurisdictions for various matters under the Act that require consultation and re-categorises some of the National Disability Insurance Scheme rules ( NDIS rules ), made under section 209 of the Act, to convert some Category A and C NDIS rules to Category D NDIS rules.

The provisions in the Bill only relate to matters between governments and do not have any impact on people’s access to the NDIS or the supports available to NDIS participants.

 

Human rights implications

 

This Bill does not engage any of the applicable rights or freedoms outlined in the Human Rights (Parliamentary Scrutiny) Act 2011 , such as encompassed in the International Covenant on Civil and Political Rights or the Convention on the Rights of Persons with Disabilities.

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.

 

 

[Circulated by the authority of the Minister for the National Disability Insurance Scheme, the Hon Stuart Robert MP]