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This is a Bill, not an Act. For current law, see the Acts databases.
NATIONAL DISABILITY INSURANCE SCHEME BILL 2012
2010-2011-2012
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
National Disability Insurance Scheme
Bill 2012
No. , 2012
(Families, Housing, Community Services and Indigenous Affairs)
A Bill for an Act to establish the National Disability
Insurance Scheme, and for related purposes
i National Disability Insurance Scheme Bill 2012 No. , 2012
Contents
Chapter 1--Introduction
1
Part 1--Preliminary
1
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
2
Part 2--Objects and principles
4
3
Objects of Act .................................................................................... 4
4
General principles guiding actions under this Act ............................. 5
5
General principles guiding actions of people who may do
acts or things on behalf of others ....................................................... 6
6
Agency may provide support and assistance ..................................... 7
7
Provision of notice, approved form or information under this
Act etc. ............................................................................................... 7
Part 3--Simplified outline
8
8 Simplified
outline
..............................................................................
8
Part 4--Definitions
10
9 Definitions
.......................................................................................
10
10 Definition
of
host jurisdiction .......................................................... 16
11 Definitions
relating
to compensation ............................................... 16
Part 5--Ministerial Council
18
12 Ministerial
Council
functions etc. .................................................... 18
Chapter 2--Assistance for people with disability and
others
19
13
Agency may provide coordination, strategic and referral
services etc. to people with disability .............................................. 19
14
Agency may provide funding to persons or entities ......................... 19
15
Agency may provide information .................................................... 19
16
Agency may assist in relation to doing things under Chapter .......... 20
17
National Disability Insurance Scheme rules .................................... 20
Chapter 3--Participants and their plans
21
Part 1--Becoming a participant
21
18
Person may make a request to become a participant ........................ 21
19
Matters relating to access requests ................................................... 21
20
CEO must consider and decide access requests ............................... 22
National Disability Insurance Scheme Bill 2012 No. , 2012 ii
21
When a person meets the access criteria .......................................... 22
22 Age
requirements
.............................................................................
23
23 Residence
requirements ................................................................... 24
24 Disability
requirements
....................................................................
25
25 Early
intervention
requirements ....................................................... 25
26
Requests that the CEO may make .................................................... 26
27
National Disability Insurance Scheme rules relating to
disability requirements and early intervention requirements ........... 27
28
When a person becomes a participant .............................................. 28
29
When a person ceases to be a participant ......................................... 28
30 Revocation
of
participant status ....................................................... 29
Part 2--Participants' plans
30
Division 1--Principles relating to plans
30
31 Principles
relating to plans ............................................................... 30
Division 2--Preparing participants' plans
31
32
CEO must facilitate preparation of participant's plan ...................... 31
33
Matters that must be included in a participant's plan ...................... 31
34
Reasonable and necessary supports ................................................. 33
35
National Disability Insurance Scheme rules for statement of
participant supports .......................................................................... 34
36
Information and reports for the purposes of preparing and
approving a participant's plan .......................................................... 35
37
When plan is in effect ...................................................................... 36
38
Copy of plan to be provided ............................................................ 36
39
Agency must comply with the statement of participant
supports ............................................................................................ 36
40
Effect of temporary absence on plans .............................................. 36
41
Suspension of plans ......................................................................... 37
Division 3--Managing the funding for supports under
participants' plans
38
42 Meaning
of
managing the funding for supports under a
participant's plan ............................................................................. 38
43
Choice for the participant in relation to plan management .............. 38
44
Circumstances in which participant must not manage plan to
specified extent ................................................................................ 40
45
Payment of NDIS amounts .............................................................. 40
46 Acquittal
of
NDIS amounts ............................................................. 41
Division 4--Reviewing and changing participants' plans
42
47
Participant may change participant's statement of goals and
aspirations at any time ..................................................................... 42
iii National Disability Insurance Scheme Bill 2012 No. , 2012
48
Review of participant's plan ............................................................ 42
49 Outcome
of
review .......................................................................... 43
50
Information and reports for the purposes of reviewing a
participant's plan ............................................................................. 43
Chapter 4--Administration
45
Part 1--General matters
45
Division 1--Participants and prospective participants
45
51
Requirement to notify change of circumstances .............................. 45
52 Requirements
relating to notices ...................................................... 45
53
Power to obtain information from participants and
prospective participants to ensure the integrity of the
National Disability Insurance Scheme ............................................. 45
54 Written
notice
of
requirement .......................................................... 46
Division 2--Other persons
47
55
Power to obtain information from other persons to ensure the
integrity of the National Disability Insurance Scheme .................... 47
56 Written
notice
of
requirement .......................................................... 48
57
Offence--refusal or failure to comply with requirement ................. 48
Division 3--Interaction with other laws
49
58
Obligations not affected by State or Territory laws ......................... 49
59 Interaction
with
Commonwealth laws ............................................. 49
Part 2--Privacy
50
60
Protection of information held by the Agency etc. .......................... 50
61 Offence--unauthorised
access
to protected information ................. 50
62
Offence--unauthorised use or disclosure of protected
information ...................................................................................... 51
63 Offence--soliciting
disclosure of protected information ................. 51
64
Offence--offering to supply protected information ........................ 52
65
Protection of certain documents etc. from production to court
etc. .................................................................................................... 52
66
Disclosure of information by CEO .................................................. 53
67
National Disability Insurance Scheme rules for exercise of
CEO's disclosure powers ................................................................. 54
68
Part does not affect the operation of the Freedom of
Information Act 1982 ....................................................................... 54
Part 3--Registered providers of supports
55
69
Application to be a registered provider of supports ......................... 55
70 Registered
providers of supports ..................................................... 55
National Disability Insurance Scheme Bill 2012 No. , 2012 iv
71
When a person or entity ceases to be a registered provider of
supports ............................................................................................ 56
72
Revocation of approval as a registered provider of supports ........... 56
73
National Disability Insurance Scheme rules for registered
providers of supports ....................................................................... 57
Part 4--Children
59
74 Children
...........................................................................................
59
75 Definition
of
parental responsibility ............................................... 60
76
Duty to children ............................................................................... 61
77 Revocation
of
determinations under section 74 ............................... 62
Part 5--Nominees
63
Division 1--Functions and responsibilities of nominees
63
78
Actions of plan nominee on behalf of participant ............................ 63
79
Actions of correspondence nominee on behalf of participant .......... 64
80
Duty of nominee to participant ........................................................ 64
81
Giving of notices to correspondence nominee ................................. 65
82
Compliance by correspondence nominee ........................................ 66
83
Nominee to inform Agency of matters affecting ability to act
as nominee ....................................................................................... 67
84
Statement by plan nominee regarding disposal of money ................ 68
85
Right of nominee to attend with participant ..................................... 69
Division 2--Appointment and cancellation or suspension of
appointment
70
86 Appointment
of
plan nominee ......................................................... 70
87
Appointment of correspondence nominee ....................................... 70
88 Provisions
relating
to appointments ................................................. 70
89
Circumstances in which the CEO must cancel appointment
of nominees ...................................................................................... 71
90
General circumstances in which CEO may cancel or suspend
appointment of nominees ................................................................. 72
91
Suspension etc. of appointment of nominees in cases of
severe physical, mental or financial harm ........................................ 73
92
Other matters relating to cancellation or suspension of
appointment ..................................................................................... 74
93
National Disability Insurance Scheme rules may prescribe
requirements etc. .............................................................................. 75
94
CEO's powers of revocation ............................................................ 75
Division 3--Other matters relating to nominees
76
95
CEO's powers to give notices to participant .................................... 76
96
Notification of nominee where notice is given to participant .......... 76
v National Disability Insurance Scheme Bill 2012 No. , 2012
97
Protection of participant against liability for actions of
nominee ........................................................................................... 76
98
Protection of nominee against criminal liability .............................. 76
Part 6--Review of decisions
77
99 Reviewable
decisions ....................................................................... 77
100
Review of reviewable decisions ....................................................... 78
101
Variation of reviewable decision before review completed ............. 79
102
Withdrawal of request for review .................................................... 80
103
Applications to the Administrative Appeals Tribunal ..................... 80
Chapter 5--Compensation payments
81
Part 1--Requirement to take action to obtain compensation
81
104
CEO may require person to take action to obtain
compensation ................................................................................... 81
105
Consequences of failure to comply with a requirement to
take action to obtain compensation .................................................. 82
Part 2--Agency may recover compensation fixed after NDIS
amounts have been paid
83
106
Recovering past NDIS amounts from certain judgements ............... 83
107
Recovering past NDIS amounts from consent judgements
and settlements ................................................................................. 84
108
Debts resulting from section 106 or 107 .......................................... 85
Part 3--Recovery from compensation payers and insurers
86
109
CEO may send preliminary notice to potential compensation
payer or insurer ................................................................................ 86
110 Offence--potential
compensation payer or insurer ......................... 87
111
CEO may send recovery notice to compensation payer or
insurer .............................................................................................. 87
112
Preliminary notice or recovery notice suspends liability to
pay compensation ............................................................................ 89
113
Compensation payer's or insurer's payment to Agency
discharges liability to participant ..................................................... 89
114 Offence--making
compensation payment after receiving
preliminary notice or recovery notice .............................................. 90
115
Liability to pay the Agency if there is a contravention of
section 114 ....................................................................................... 91
Part 4--CEO may disregard certain payments
92
116
CEO may disregard certain payments .............................................. 92
National Disability Insurance Scheme Bill 2012 No. , 2012 vi
Chapter 6--National Disability Insurance Scheme
Launch Transition Agency
93
Part 1--National Disability Insurance Scheme Launch
Transition Agency
93
117 Establishment
...................................................................................
93
118
Functions of the Agency .................................................................. 93
119
Powers of the Agency ...................................................................... 94
120
Charging of fees ............................................................................... 94
121
Minister may give directions to the Agency .................................... 95
122
Agency does not have privileges and immunities of the
Crown .............................................................................................. 96
Part 2--Board of the Agency
97
Division 1--Establishment and functions
97
123 Establishment
...................................................................................
97
124
Functions of the Board ..................................................................... 97
125
Minister may give the Board a statement setting out strategic
guidance for the Agency .................................................................. 97
Division 2--Members of the Board
99
126 Membership
.....................................................................................
99
127 Appointment
of
Board members ...................................................... 99
128
Term of appointment ..................................................................... 100
129 Acting
appointments
......................................................................
100
130 Remuneration
and
allowances ....................................................... 102
131
Leave of absence ............................................................................ 102
132
Outside employment ...................................................................... 102
133 Resignation
of
Board members ...................................................... 103
134
Termination of appointment of Board members ............................ 103
135
Other terms and conditions of Board members .............................. 104
Division 3--Meetings of the Board
105
136 Convening
meetings ...................................................................... 105
137
Presiding at meetings ..................................................................... 105
138 Quorum
..........................................................................................
105
139 Voting
at
meetings
.........................................................................
106
140
Conduct of meetings ...................................................................... 106
141 Minutes
..........................................................................................
106
142 Decisions
without meetings ........................................................... 106
vii National Disability Insurance Scheme Bill 2012 No. , 2012
Part 3--Independent Advisory Council
108
Division 1--Establishment and function
108
143 Establishment
.................................................................................
108
144
Function of the Advisory Council .................................................. 108
145
Advice of the Advisory Council .................................................... 109
Division 2--Members of the Advisory Council
110
146 Membership
...................................................................................
110
147
Appointment of members of the Advisory Council ....................... 110
148
Term of appointment ..................................................................... 111
149 Acting
appointments
......................................................................
111
150 Remuneration
and
allowances ....................................................... 112
151
Leave of absence ............................................................................ 113
152
Disclosure of interests to the Minister ........................................... 113
153
Disclosure of interests to the Advisory Council ............................ 113
154
Resignation of members of the Advisory Council ......................... 114
155
Termination of appointment of members of the Advisory
Council ........................................................................................... 114
156
Other terms and conditions of members of the Advisory
Council ........................................................................................... 115
Division 3--Procedures of the Advisory Council
116
157 Procedures
of
the
Advisory Council .............................................. 116
Part 4--Chief Executive Officer and staff etc.
117
Division 1--Chief Executive Officer
117
158 Establishment
.................................................................................
117
159
Functions of the CEO .................................................................... 117
160 Appointment
of the CEO ............................................................... 117
161 Acting
appointments
......................................................................
118
162 Remuneration
and
allowances ....................................................... 118
163
Leave of absence ............................................................................ 118
164
Outside employment ...................................................................... 119
165 Disclosure
of
interests .................................................................... 119
166
Resignation of the CEO ................................................................. 119
167
Termination of appointment of the CEO ....................................... 119
168
Other terms and conditions of the CEO ......................................... 120
Division 2--Staff etc.
121
169 Staff
...............................................................................................
121
170
Services of other persons to be made available to the Agency ...... 121
171 Consultants
....................................................................................
121
National Disability Insurance Scheme Bill 2012 No. , 2012 viii
Part 5--Reporting and planning
122
Division 1--Reporting
122
Subdivision A--Reporting by Board members
122
172 Annual
report
.................................................................................
122
173
Giving certain information to the Ministerial Council ................... 123
174
Quarterly report to the Ministerial Council .................................... 124
Subdivision B--Reporting by the Agency
125
175
Giving information requested by Commonwealth, State or
Territory Ministers ......................................................................... 125
Subdivision C--Reporting by the Minister
125
176
Giving certain information to the Ministerial Council ................... 125
Division 2--Planning
127
177 Corporate
plan
...............................................................................
127
Part 6--Finance
128
178
Payments to the Agency by the Commonwealth ........................... 128
179
Payments to the Agency by the host jurisdictions ......................... 128
180 Application
of
money by the Agency ............................................ 128
Part 7--Miscellaneous
130
181 Taxation
.........................................................................................
130
Chapter 7--Other matters
131
Part 1--Debt recovery
131
Division 1--Debts
131
182
Debts due to the Agency ................................................................ 131
Division 2--Methods of recovery
132
183 Legal
proceedings
..........................................................................
132
184
Arrangement for payment of debt .................................................. 132
185
Recovery of amounts from financial institutions ........................... 133
Division 3--Information relating to debts
135
186
Power to obtain information from a person who owes a debt
to the Agency ................................................................................. 135
187
Power to obtain information about a person who owes a debt
to the Agency ................................................................................. 135
188 Written
notice
of
requirement ........................................................ 135
189
Offence--refusal or failure to comply with requirement ............... 136
Division 4--Non-recovery of debts
137
190
CEO may write off debt ................................................................. 137
ix National Disability Insurance Scheme Bill 2012 No. , 2012
191
Power to waive Agency's right to recover debt ............................. 138
192
Waiver of debt arising from error .................................................. 138
193
Waiver of small debt ...................................................................... 138
194 Waiver
in
relation
to settlements ................................................... 139
195 Waiver
in
special
circumstances .................................................... 140
Part 2--General matters
141
196
Method of notification by CEO ..................................................... 141
197
CEO not required to make a decision ............................................ 141
198
Protection of participant against liability for actions of
persons ........................................................................................... 141
199
Protection against criminal liability ............................................... 141
200
Evidentiary effect of CEO's certificate .......................................... 142
201
Delegation by the Minister ............................................................ 142
202
Delegation by the CEO .................................................................. 142
203
Application of Act to unincorporated bodies ................................. 143
204 Time
frames
for
decision making .................................................. 144
Part 3--Constitutional matters
145
205 Act
binds
Crown
............................................................................
145
206 Alternative
constitutional basis ...................................................... 145
207 Concurrent
operation
of State laws ................................................ 146
Part 4--Review of the Act
147
208
Review of operation of Act ............................................................ 147
Part 5--Legislative instruments
148
209
The National Disability Insurance Scheme rules ........................... 148
210 Regulations
....................................................................................
150
National Disability Insurance Scheme Bill 2012 No. , 2012 1
A Bill for an Act to establish the National Disability
1
Insurance Scheme, and for related purposes
2
The Parliament of Australia enacts:
3
Chapter 1--Introduction
4
Part 1--Preliminary
5
6
1 Short title
7
This Act may be cited as the National Disability Insurance Scheme
8
Act 2012.
9
Chapter 1 Introduction
Part 1 Preliminary
Section 2
2 National Disability Insurance Scheme Bill 2012 No. , 2012
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Sections 3 to
12
The day after this Act receives the Royal
Assent.
3. Chapters 2 and
3
A day or days to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
4. Chapter 4,
Part 1, Division 1
A day or days to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
5. Chapter 4,
Part 1,
Divisions 2 and 3
The day after this Act receives the Royal
Assent.
6. Chapter 4,
Parts 2 and 3
The day after this Act receives the Royal
Assent.
7. Chapter 4,
Parts 4, 5 and 6
A day or days to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day this Act receives the
Introduction Chapter 1
Preliminary Part 1
Section 2
National Disability Insurance Scheme Bill 2012 No. , 2012 3
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
Royal Assent, they commence on the day
after the end of that period.
8. Chapter 5
A day or days to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
9. Chapters 6 and
7
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
7
Chapter 1 Introduction
Part 2 Objects and principles
Section 3
4 National Disability Insurance Scheme Bill 2012 No. , 2012
Part 2--Objects and principles
1
2
3 Objects of Act
3
(1) The objects of this Act are to:
4
(a) provide for the National Disability Insurance Scheme in
5
Australia; and
6
(b) support the independence and social and economic
7
participation of people with disability; and
8
(c) provide reasonable and necessary supports, including early
9
intervention supports, for participants in the National
10
Disability Insurance Scheme launch; and
11
(d) enable people with disability to exercise choice and control in
12
the pursuit of their goals and the planning and delivery of
13
their supports; and
14
(e) facilitate the development of a nationally consistent approach
15
to the access to, and the planning and funding of, supports for
16
people with disability; and
17
(f) promote the provision of high quality and innovative
18
supports to people with disability; and
19
(g) raise community awareness of the issues that affect the social
20
and economic participation of people with disability, and
21
facilitate greater community inclusion of people with
22
disability; and
23
(h) give effect to certain obligations that Australia has as a party
24
to the Convention on the Rights of Persons with Disabilities.
25
(2) These objects are to be achieved by:
26
(a) providing the foundation for governments to work together to
27
develop and implement the National Disability Insurance
28
Scheme launch; and
29
(b) adopting an insurance-based approach, informed by actuarial
30
analysis,
to the provision and funding of supports for people
31
with disability.
32
(3) In giving effect to the objects of the Act, regard is to be had to:
33
(a) the progressive implementation of the National Disability
34
Insurance Scheme; and
35
Introduction Chapter 1
Objects and principles Part 2
Section 4
National Disability Insurance Scheme Bill 2012 No. , 2012 5
(b) the need to ensure the financial sustainability of the National
1
Disability Insurance Scheme.
2
4 General principles guiding actions under this Act
3
(1) People with disability have the same right as other members of
4
Australian society to realise their potential for physical, social,
5
emotional and intellectual development.
6
(2) People with disability should be supported to participate in and
7
contribute to social and economic life to the extent of their ability.
8
(3) People with disability and their families and carers should have
9
certainty that people with disability will receive the care and
10
support they need over their lifetime.
11
(4) People with disability should be supported to exercise choice and
12
control in the pursuit of their goals and the planning and delivery
13
of their supports.
14
(5) People with disability should be supported to receive reasonable
15
and necessary supports, including early intervention supports.
16
(6) People with disability have the same right as other members of
17
Australian society to respect for their worth and dignity and to live
18
free from abuse, neglect and exploitation.
19
(7) People with disability have the same right as other members of
20
Australian society to pursue any grievance.
21
(8) People with disability have the same right as other members of
22
Australian society to be able to determine their own best interests,
23
including the right to exercise informed choice and engage as equal
24
partners in decisions that will affect their lives, to the full extent of
25
their capacity.
26
(9) People with disability should be supported in all their dealings and
27
communications with the Agency so that their capacity to exercise
28
choice and control is maximised in a way that is appropriate to
29
their circumstances and cultural needs.
30
(10) People with disability should have their privacy and dignity
31
respected.
32
Chapter 1 Introduction
Part 2 Objects and principles
Section 5
6 National Disability Insurance Scheme Bill 2012 No. , 2012
(11) Reasonable and necessary supports for people with disability
1
should:
2
(a) support people with disability to pursue their goals and
3
maximise their independence; and
4
(b) support the capacity of people with disability to undertake
5
activities that enable them to participate in the community
6
and in employment.
7
(12) The role of families, carers and other significant persons in the
8
lives of people with disability is to be acknowledged and respected.
9
(13) People with disability should be supported to receive supports
10
outside the National Disability Insurance Scheme, and be assisted
11
to coordinate these supports with the supports provided under the
12
National Disability Insurance Scheme.
13
(14) Innovation, quality, continuous improvement, contemporary best
14
practice and effectiveness in the provision of supports to people
15
with disability are to be promoted.
16
(15) It is the intention of the Parliament that the Ministerial Council, the
17
Minister, the Board, the CEO and any other person or body is to
18
perform functions and exercise powers under this Act in
19
accordance with these principles, having regard to:
20
(a) the progressive implementation of the National Disability
21
Insurance Scheme; and
22
(b) the need to ensure the financial sustainability of the National
23
Disability Insurance Scheme.
24
5 General principles guiding actions of people who may do acts or
25
things on behalf of others
26
It is the intention of the Parliament that, if this Act requires or
27
permits an act or thing to be done by or in relation to a person with
28
disability by another person, the act or thing is to be done, so far as
29
practicable, in accordance with both the general principles set out
30
in section 4 and the following principles:
31
(a) people with disability should be involved in decision making
32
processes that affect them, and where possible make
33
decisions for themselves;
34
Introduction Chapter 1
Objects and principles Part 2
Section 6
National Disability Insurance Scheme Bill 2012 No. , 2012 7
(b) people with disability should be encouraged to engage in the
1
life of the community;
2
(c) the judgements and decisions that people with disability
3
would have made for themselves should be taken into
4
account;
5
(d) the cultural and linguistic circumstances of people with
6
disability should be taken into account;
7
(e) the supportive relationships, friendships and connections with
8
others of people with disability should be recognised.
9
6 Agency may provide support and assistance
10
(1) The Agency may provide support and assistance (including
11
financial assistance) to prospective participants and participants in
12
relation to doing things or meeting obligations under, or for the
13
purposes of, this Act.
14
Note:
For example, the Agency might assist a participant to prepare the
15
participant's statement of goals and aspirations by assisting the
16
participant to clarify his or her goals, objectives and aspirations.
17
(2) However, subsection (1) does not permit or require the Agency to
18
fund legal assistance for prospective participants or participants in
19
relation to review of decisions made under this Act.
20
7 Provision of notice, approved form or information under this Act
21
etc.
22
(1) The contents of any notice, approved form or information given
23
under this Act, the regulations or the National Disability Insurance
24
Scheme rules to a person with disability must be explained by the
25
giver of the notice, approved form or information to the maximum
26
extent possible to the person in the language, mode of
27
communication and terms which that person is most likely to
28
understand.
29
(2) An explanation given under subsection (1) must be given both
30
orally and in writing if reasonably practicable.
31
Chapter 1 Introduction
Part 3 Simplified outline
Section 8
8 National Disability Insurance Scheme Bill 2012 No. , 2012
Part 3--Simplified outline
1
2
8 Simplified outline
3
The following is a simplified outline of this Act:
4
This Act provides for the National Disability Insurance Scheme.
5
The National Disability Insurance Scheme comprises:
6
(a)
the provision of services or activities that are in the
7
nature of coordination, strategic or referral services
8
or activities (Chapters 2 and 3); and
9
(b)
funding for persons or entities to enable them to
10
assist people with disability to participate in
11
economic and social life (Chapter 2); and
12
(c)
individual plans under which reasonable and
13
necessary supports will be funded for certain
14
people, called participants (Chapter 3).
15
This Act includes administrative provisions supporting the
16
operation of the National Disability Insurance Scheme (Chapters 4
17
and 5), such as:
18
(a)
provisions to ensure the National Disability
19
Insurance Scheme's integrity, including limited
20
powers to obtain information, and requirements
21
relating to protection of information; and
22
(b)
provisions relating to children; and
23
(c)
provisions for nominees; and
24
(d)
provisions for review of decisions; and
25
(e)
provisions about the treatment of compensation.
26
Introduction Chapter 1
Simplified outline Part 3
Section 8
National Disability Insurance Scheme Bill 2012 No. , 2012 9
This Act also provides for the establishment of the National
1
Disability Insurance Scheme Launch Transition Agency
2
(Chapter 6).
3
The functions of the Agency include delivering the National
4
Disability Insurance Scheme.
5
The Agency also has more general functions, such as:
6
(a)
developing and enhancing the disability sector,
7
including by facilitating innovation, research and
8
contemporary best practice in the sector; and
9
(b)
building community awareness of disabilities and
10
the social contributors to disabilities.
11
Chapter 6 also:
12
(a)
establishes the Board of the Agency; and
13
(b)
establishes an Independent Advisory Council; and
14
(c)
provides for the Chief Executive Officer and staff
15
of the Agency; and
16
(d)
provides for reporting and financial matters.
17
Chapter 7 includes provisions relating to general matters, such as:
18
(a)
debts;
and
19
(b)
review of the Act; and
20
(c)
legislative
instruments.
21
22
Chapter 1 Introduction
Part 4 Definitions
Section 9
10 National Disability Insurance Scheme Bill 2012 No. , 2012
Part 4--Definitions
1
2
9 Definitions
3
In this Act:
4
access request has the meaning given by section 18.
5
Advisory Council means the Independent Advisory Council
6
established by section 143.
7
Agency means the National Disability Insurance Scheme Launch
8
Transition Agency established by section 117.
9
Board means the Board of the Agency established by section 123.
10
Board member means a member of the Board (and includes the
11
Chair).
12
CAC Act means the Commonwealth Authorities and Companies
13
Act 1997.
14
carer means an individual who:
15
(a) provides personal care, support and assistance to another
16
individual who needs it because that other individual is a
17
person with disability; and
18
(b) does not provide the care, support and assistance:
19
(i) under a contract of service or a contract for the
20
provision of services; or
21
(ii) in the course of doing voluntary work for a charitable,
22
welfare or community organisation; or
23
(iii) as part of the requirements of a course of education or
24
training.
25
centrelink program has the same meaning as in the Human
26
Services (Centrelink) Act 1997.
27
CEO means the Chief Executive Officer of the Agency.
28
Chair means the Chair of the Board.
29
Introduction Chapter 1
Definitions Part 4
Section 9
National Disability Insurance Scheme Bill 2012 No. , 2012 11
child means a person who is under 18 years of age.
1
COAG means the Council of Australian Governments.
2
community care has the same meaning as in the Aged Care Act
3
1997.
4
compensation has the meaning given by section 11.
5
Convention on the Rights of Persons with Disabilities means the
6
Convention on the Rights of Persons with Disabilities, done at
7
New York on 30 March 2007.
8
Note:
The text of the Convention is set out in Australian Treaty Series 2008
9
No. 12 ([2008] ATS 12). In 2012, the text of a Convention in the
10
Australian Treaty Series was accessible through the Australian
11
Treaties Library on the AustLII website (www.austlii.edu.au).
12
correspondence nominee means a person who is appointed as the
13
correspondence nominee of a participant under section 87.
14
developmental delay means a delay in the development of a child
15
under 6 years of age that:
16
(a) is attributable to a mental or physical impairment or a
17
combination of mental and physical impairments; and
18
(b) results in substantial reduction in functional capacity in one
19
or more of the following areas of major life activity:
20
(i)
self-care;
21
(ii) receptive and expressive language;
22
(iii)
cognitive
development;
23
(iv) motor development; and
24
(c) results in the need for a combination and sequence of special
25
interdisciplinary or generic care, treatment or other services
26
that are of extended duration and are individually planned
27
and coordinated.
28
early intervention supports means supports that are identified in
29
the National Disability Insurance Scheme rules as early
30
intervention supports.
31
enters into an agreement to give up his or her right to
32
compensation: a participant or prospective participant enters into
33
Chapter 1 Introduction
Part 4 Definitions
Section 9
12 National Disability Insurance Scheme Bill 2012 No. , 2012
an agreement to give up his or her right to compensation if he or
1
she:
2
(a) enters into an agreement to waive his or her right to
3
compensation; or
4
(b) enters into an agreement to withdraw his or her claim for
5
compensation.
6
entity means a partnership or an unincorporated association.
7
entry, in relation to a person and a residential care service, has the
8
same meaning as in the Aged Care Act 1997.
9
Finance Minister means the Minister administering the Financial
10
Management and Accountability Act 1997.
11
financial institution means a corporation that is an ADI for the
12
purposes of the Banking Act 1959.
13
general supports has the meaning given by subsection 13(2).
14
grace period has the meaning given by subsection 40(2).
15
holder, in relation to a visa, has the same meaning as in the
16
Migration Act 1958.
17
host jurisdiction has the meaning given by section 10.
18
managing the funding for supports under a participant's plan has
19
the meaning given by section 42.
20
medicare program has the same meaning as in the Human Services
21
(Medicare) Act 1973.
22
meets the access criteria has the meaning given by section 21.
23
meets the age requirements has the meaning given by section 22.
24
meets the disability requirements has the meaning given by
25
section 24.
26
meets the early intervention requirements has the meaning given
27
by section 25.
28
Introduction Chapter 1
Definitions Part 4
Section 9
National Disability Insurance Scheme Bill 2012 No. , 2012 13
meets the residence requirements has the meaning given by
1
section 23.
2
Ministerial Council means a body:
3
(a) that consists of Ministers of the Commonwealth, States and
4
Territories; and
5
(b) that has been designated by COAG as having responsibilities
6
relating to the National Disability Insurance Scheme.
7
National Disability Insurance Scheme means:
8
(a) the arrangements set out in Chapter 2; and
9
(b) the arrangements set out in Chapter 3 in relation to people
10
who meet the residence requirements because of their
11
residence in a prescribed area and meet the age requirements
12
(if any) in relation to a prescribed area; and
13
(c) the arrangements referred to in paragraph (b) as they apply
14
when those arrangements are not limited on the basis of
15
residence in a prescribed area.
16
National Disability Insurance Scheme launch means:
17
(a) the arrangements set out in Chapter 2; and
18
(b) the arrangements set out in Chapter 3 in relation to people
19
who meet the residence requirements because of their
20
residence in a prescribed area and meet the age requirements
21
(if any) in relation to the prescribed area.
22
National Disability Insurance Scheme rules means the rules
23
mentioned in section 209.
24
NDIS amount means an amount paid under the National Disability
25
Insurance Scheme in respect of reasonable and necessary supports
26
funded under a participant's plan.
27
nominee means the correspondence nominee of a participant or the
28
plan nominee of a participant.
29
officer means:
30
(a) a member of the staff of the Agency under section 169; or
31
(b) a person assisting the Agency under section 170.
32
Chapter 1 Introduction
Part 4 Definitions
Section 9
14 National Disability Insurance Scheme Bill 2012 No. , 2012
parent: without limiting who is a parent of anyone for the purposes
1
of this Act, a person is the parent of another person if the other
2
person is a child of the person within the meaning of the Family
3
Law Act 1975.
4
parental responsibility has the meaning given by section 75.
5
participant means a person who is a participant in the National
6
Disability Insurance Scheme launch (see sections 28, 29 and 30).
7
participant's impairment means an impairment in relation to
8
which the participant meets the disability requirements, or the early
9
intervention requirements, to any extent.
10
participant's statement of goals and aspirations has the meaning
11
given by subsection 33(1).
12
permanent visa has the same meaning as in the Migration Act
13
1958.
14
plan, for a participant, means the participant's plan that is in effect
15
under section 37.
16
plan management request has the meaning given by subsection
17
43(1).
18
plan nominee means a person who is appointed as the plan
19
nominee of a participant under section 86.
20
prescribed area means an area prescribed by the National
21
Disability Insurance Scheme rules for the purposes of paragraph
22
22(2)(a) or subsection 23(3).
23
Principal Member means the Principal Member of the Advisory
24
Council.
25
prospective participant means a person in relation to whom an
26
access request has been made but not yet decided.
27
prospective participant's impairment means an impairment in
28
relation to which the prospective participant claims to meet the
29
disability requirements, or the early intervention requirements, to
30
any extent.
31
Introduction Chapter 1
Definitions Part 4
Section 9
National Disability Insurance Scheme Bill 2012 No. , 2012 15
protected information means:
1
(a) information about a person that is or was held in the records
2
of the Agency; or
3
(b) information to the effect that there is no information about a
4
person held in the records of the Agency.
5
protected SCV holder: a person is a protected SCV holder if:
6
(a) the person was in Australia on 26 February 2001, and was a
7
special category visa holder on that day; or
8
(b) the person had been in Australia for a period of, or for
9
periods totalling, 12 months during the 2 years immediately
10
before 26 February 2001, and returned to Australia after that
11
day.
12
recoverable amount has the meaning given by sections 106 and
13
107.
14
registered plan management provider means a registered provider
15
of supports who is approved in relation to managing the funding
16
for supports under plans as mentioned in paragraph 70(1)(a).
17
registered provider of supports means a person approved under
18
section 70 as a registered provider of supports.
19
residential care service has the same meaning as in the Aged Care
20
Act 1997.
21
reviewable decision has the meaning given by section 99.
22
review date of a participant's plan means the date specified in the
23
plan under paragraph 33(2)(c).
24
reviewer has the meaning given by subsection 100(5).
25
special category visa has the same meaning as in the Migration Act
26
1958.
27
statement of participant supports has the meaning given by
28
subsection 33(2).
29
supports includes general supports.
30
Chapter 1 Introduction
Part 4 Definitions
Section 10
16 National Disability Insurance Scheme Bill 2012 No. , 2012
10 Definition of host jurisdiction
1
The Minister may, by legislative instrument, specify that a State or
2
Territory is a host jurisdiction, with the agreement of that State or
3
Territory.
4
Note:
Section 42 (disallowance) of the Legislative Instruments Act 2003
5
does not apply to the instrument (see subsection 44(1) of that Act).
6
11 Definitions relating to compensation
7
(1) In this Act:
8
compensation means a payment (with or without admission of
9
liability) in respect of:
10
(a) compensation or damages in respect of personal injury; or
11
(b) personal injury, under a scheme of insurance or
12
compensation under a Commonwealth, State or Territory
13
law, including a payment under a contract entered into under
14
such a scheme; or
15
(c) personal injury, in settlement of a claim for damages or a
16
claim under such an insurance scheme;
17
that is wholly or partly in respect of the cost of supports that may
18
be provided to a participant (whether or not specifically identified
19
as such). It does not matter whether the payment is made directly
20
to the person who sustained the personal injury or to another
21
person in respect of that person.
22
(2) A payment referred to in subsection (1) may be:
23
(a) in the form of a lump sum or in the form of a series of
24
periodic payments; and
25
(b) made within or outside Australia.
26
(3) In this Act, a reference to an insurer who is, under a contract of
27
insurance, liable to indemnify a compensation payer or a potential
28
compensation payer includes a reference to an authority of a State
29
or Territory:
30
(a) that is liable to indemnify a compensation payer or a
31
potential compensation payer against such a liability, whether
32
under a contract, law or otherwise; or
33
Introduction Chapter 1
Definitions Part 4
Section 11
National Disability Insurance Scheme Bill 2012 No. , 2012 17
(b) that determines to make a payment to indemnify a
1
compensation payer or a potential compensation payer
2
against such a liability, whether or not the authority is liable
3
to do so.
4
5
Chapter 1 Introduction
Part 5 Ministerial Council
Section 12
18 National Disability Insurance Scheme Bill 2012 No. , 2012
Part 5--Ministerial Council
1
2
12 Ministerial Council functions etc.
3
(1) The Ministerial Council is to:
4
(a) consider policy matters that relate to the National Disability
5
Insurance Scheme or arise under this Act; and
6
(b) advise the Minister about such matters; and
7
(c) make recommendations to COAG about such matters.
8
(2) The advice and recommendations must not relate to a particular
9
individual.
10
(3) The Minister must consult the Ministerial Council about policy
11
matters that relate to the National Disability Insurance Scheme or
12
arise under this Act.
13
14
Assistance for people with disability and others Chapter 2
Section 13
National Disability Insurance Scheme Bill 2012 No. , 2012 19
Chapter 2--Assistance for people with
1
disability and others
2
3
4
13 Agency may provide coordination, strategic and referral services
5
etc. to people with disability
6
(1) The Agency may provide general supports to, or in relation to,
7
people with disability who are not participants.
8
Note:
Chapter 3 deals with the provision of general supports to, or in relation
9
to, participants.
10
(2) In this Act:
11
general support means:
12
(a) a service provided by the Agency to a person; or
13
(b) an activity engaged in by the Agency in relation to a person;
14
that is in the nature of a coordination, strategic or referral service
15
or activity, including a locally provided coordination, strategic or
16
referral service or activity.
17
14 Agency may provide funding to persons or entities
18
The Agency may provide assistance in the form of funding for
19
persons or entities:
20
(a) for the purposes of enabling those persons or entities to assist
21
people with disability to:
22
(i) realise their potential for physical, social, emotional and
23
intellectual development; and
24
(ii) participate in social and economic life; and
25
(b) otherwise in the performance of the Agency's functions.
26
15 Agency may provide information
27
(1) The Agency may provide information about the following:
28
(a) matters relevant to the National Disability Insurance Scheme;
29
(b) the functions of the Agency.
30
Chapter 2 Assistance for people with disability and others
Section 16
20 National Disability Insurance Scheme Bill 2012 No. , 2012
(2) The Agency must use its best endeavours to provide timely and
1
accurate information to people with disability and other people in
2
order to assist them in making informed decisions about matters
3
relevant to the National Disability Insurance Scheme.
4
16 Agency may assist in relation to doing things under Chapter
5
The Agency may provide support and assistance to people in
6
relation to doing things under, or for the purposes of, this Chapter.
7
17 National Disability Insurance Scheme rules
8
The National Disability Insurance Scheme rules may prescribe
9
matters for and in relation to this Chapter.
10
11
Participants and their plans Chapter 3
Becoming a participant Part 1
Section 18
National Disability Insurance Scheme Bill 2012 No. , 2012 21
Chapter 3--Participants and their plans
1
Part 1--Becoming a participant
2
3
18 Person may make a request to become a participant
4
A person may make a request (an access request) to the Agency to
5
become a participant in the National Disability Insurance Scheme
6
launch.
7
Note:
Once a person becomes a participant, the CEO must commence to
8
facilitate the preparation of his or her plan (see section 32).
9
19 Matters relating to access requests
10
(1) An access request must:
11
(a) be in the form (if any) approved by the CEO; and
12
(b) include any information, and be accompanied by any
13
documents, required by the CEO; and
14
(c) certify that it includes all the information, and is
15
accompanied by all the documents, required as mentioned in
16
paragraph (b) that are in the possession or control of the
17
person.
18
Note:
The CEO is not required to make a decision on the access request if
19
this section is not complied with (see section 197).
20
(2)
If:
21
(a) a person has made an access request; and
22
(b) the CEO decides that the person does not meet the access
23
criteria, or is taken to have so decided because of subsection
24
21(3);
25
the person may make another access request at any time, unless at
26
that time either of the following has been commenced, but not
27
finally determined:
28
(c) a review (the initial review) under subsection 100(5) of the
29
CEO's decision;
30
(d) a review under section 103 of a decision on the initial review.
31
Chapter 3 Participants and their plans
Part 1 Becoming a participant
Section 20
22 National Disability Insurance Scheme Bill 2012 No. , 2012
20 CEO must consider and decide access requests
1
If a person (the prospective participant) makes an access request,
2
the CEO must, within 21 days of receiving the access request:
3
(a) decide whether or not the prospective participant meets the
4
access criteria; or
5
(b) make one or more requests under subsection 26(1).
6
21 When a person meets the access criteria
7
(1)
A
person
meets the access criteria if:
8
(a) the CEO is satisfied that the person meets the age
9
requirements (see section 22); and
10
(b) the CEO is satisfied that, at the time of considering the
11
request, the person meets the residence requirements (see
12
section 23); and
13
(c) the CEO is satisfied that, at the time of considering the
14
request:
15
(i) the person meets the disability requirements (see
16
section 24); or
17
(ii) the person meets the early intervention requirements
18
(see section 25).
19
(2) If the CEO is not satisfied as mentioned in subsection (1), the
20
person meets the access criteria if the CEO is satisfied of the
21
following:
22
(a) at the time of considering the request, the person satisfies the
23
requirements in relation to residence prescribed as mentioned
24
in subsection 23(3) (whether or not the person also satisfies
25
the requirements mentioned in subsection 23(1));
26
(b)
the
person:
27
(i) was receiving supports at the time of considering the
28
request or, if another time is prescribed by the National
29
Disability Insurance Scheme rules for the purposes of
30
this subparagraph, at that other time; and
31
(ii) received the supports throughout the period (if any)
32
prescribed by the National Disability Insurance Scheme
33
rules for the purposes of this subparagraph; and
34
Participants and their plans Chapter 3
Becoming a participant Part 1
Section 22
National Disability Insurance Scheme Bill 2012 No. , 2012 23
(iii) received the supports under a program prescribed by the
1
National Disability Insurance Scheme rules for the
2
purposes of this subparagraph;
3
(c) if the person becomes a participant, the person would not be
4
entitled to receive the supports referred to in paragraph (b), or
5
equivalent supports.
6
(3) The CEO is taken to have decided that the prospective participant
7
does not meet the access criteria if:
8
(a) the CEO does not do a thing referred to in paragraph 20(a) or
9
(b) within the 21-day period referred to in section 20; or
10
(b) if subsection 26(2) applies--the CEO does not do one of the
11
things referred to in that subsection within the 14-day period
12
referred to in that subsection.
13
Note 1:
The periods may be extended under National Disability Insurance
14
Scheme rules made under section 204.
15
Note 2:
Notice of a decision that the CEO is taken to have made must be given
16
because of subsection 100(1) and will be automatically reviewed
17
because of subsection 100(5).
18
22 Age requirements
19
(1)
A
person
meets the age requirements if:
20
(a) the person was aged under 65 when the access request in
21
relation to the person was made; and
22
(b) if the National Disability Insurance Scheme rules for the
23
purposes of this paragraph prescribe that on a prescribed date
24
or a date in a prescribed period the person must be a
25
prescribed age--the person is that age on that date.
26
(2) Without limiting paragraph (1)(b), National Disability Insurance
27
Scheme rules made for the purposes of that paragraph:
28
(a) may prescribe that a person must be a prescribed age on a
29
prescribed date or a date in a prescribed period only if the
30
person resides in a prescribed area of Australia; and
31
(b) may prescribe different ages and different dates in relation to
32
different areas of Australia.
33
Chapter 3 Participants and their plans
Part 1 Becoming a participant
Section 23
24 National Disability Insurance Scheme Bill 2012 No. , 2012
23 Residence requirements
1
(1)
A
person
meets the residence requirements if the person:
2
(a) resides in Australia; and
3
(b) is one of the following:
4
(i) an Australian citizen;
5
(ii) the holder of a permanent visa;
6
(iii) a special category visa holder who is a protected SCV
7
holder; and
8
(c) satisfies the other requirements in relation to residence that
9
are prescribed by the National Disability Insurance Scheme
10
rules.
11
(2) In deciding whether or not a person resides in Australia, regard
12
must be had to:
13
(a) the nature of the accommodation used by the person in
14
Australia; and
15
(b) the nature and extent of the family relationships the person
16
has in Australia; and
17
(c) the nature and extent of the person's employment, business
18
or financial ties with Australia; and
19
(d) the nature and extent of the person's assets located in
20
Australia; and
21
(e) the frequency and duration of the person's travel outside
22
Australia; and
23
(f) any other matter relevant to determining whether the person
24
intends to remain permanently in Australia.
25
(3) Without limiting paragraph (1)(c), National Disability Insurance
26
Scheme rules made for the purposes of that paragraph:
27
(a) may require that a person reside in a prescribed area of
28
Australia on a prescribed date or a date in a prescribed period
29
in order to meet the residence requirements; and
30
(b) may require that a person has resided in a prescribed area for
31
a prescribed period in order to meet the residence
32
requirements; and
33
(c) may require that a person continue to reside in a prescribed
34
area of Australia in order to meet the residence requirements.
35
Participants and their plans Chapter 3
Becoming a participant Part 1
Section 24
National Disability Insurance Scheme Bill 2012 No. , 2012 25
24 Disability requirements
1
(1)
A
person
meets the disability requirements if:
2
(a) the person has a disability that is attributable to one or more
3
intellectual, cognitive, neurological, sensory or physical
4
impairments or to one or more impairments attributable to a
5
psychiatric condition; and
6
(b) the impairment or impairments are, or are likely to be,
7
permanent; and
8
(c) the impairment or impairments result in substantially reduced
9
functional capacity to undertake, or psychosocial functioning
10
in undertaking, one or more of the following activities:
11
(i)
communication;
12
(ii)
social
interaction;
13
(iii)
learning;
14
(iv)
mobility;
15
(v)
self-care;
16
(vi)
self-management;
and
17
(d) the impairment or impairments affect the person's capacity
18
for social and economic participation; and
19
(e) the person's support needs in relation to his or her
20
impairment or impairments are likely to continue for the
21
person's lifetime.
22
(2) For the purposes of subsection (1), an impairment or impairments
23
that vary in intensity may be permanent, and the person's support
24
needs in relation to such an impairment or impairments may be
25
likely to continue for the person's lifetime, despite the variation.
26
25 Early intervention requirements
27
A
person
meets the early intervention requirements if:
28
(a)
the
person:
29
(i) has a disability that is attributable to one or more
30
intellectual, cognitive, neurological, sensory or physical
31
impairments or to one or more impairments attributable
32
to a psychiatric condition; or
33
(ii) is a child who has developmental delay; and
34
Chapter 3 Participants and their plans
Part 1 Becoming a participant
Section 26
26 National Disability Insurance Scheme Bill 2012 No. , 2012
(b) the CEO is satisfied that provision of early intervention
1
supports for the person is likely to reduce the person's future
2
needs for supports in relation to disability; and
3
(c) the CEO is satisfied that provision of early intervention
4
supports for the person is likely to:
5
(i) mitigate, alleviate or prevent the deterioration of the
6
functional capacity of the person to undertake
7
communication, social interaction, learning, mobility,
8
self-care or self-management; or
9
(ii) strengthen the sustainability of the informal supports
10
available to the person, including through building the
11
capacity of the person's carer.
12
26 Requests that the CEO may make
13
(1) The requests the CEO may make under this subsection after a
14
prospective participant has made an access request (see paragraph
15
20(b)) are as follows:
16
(a) that the prospective participant, or another person, provide
17
information that is reasonably necessary for deciding whether
18
or not the prospective participant meets the access criteria;
19
(b) that the prospective participant do either or both of the
20
following:
21
(i) undergo an assessment and provide to the CEO the
22
report, in the approved form, of the person who
23
conducts the assessment;
24
(ii) undergo a medical, psychiatric or psychological
25
examination (whether or not at a particular place), and
26
provide to the CEO the report, in the approved form, of
27
the person who conducts the examination.
28
(2)
If:
29
(a) information or one or more reports are requested under
30
subsection (1); and
31
(b) the information and each such report are received by the
32
CEO within 28 days, or such longer period as is specified in
33
the request, after that information or report is requested;
34
the CEO must, within 14 days after the last information or report is
35
received:
36
Participants and their plans Chapter 3
Becoming a participant Part 1
Section 27
National Disability Insurance Scheme Bill 2012 No. , 2012 27
(c) decide whether or not the prospective participant meets the
1
access criteria; or
2
(d) make a further request under subsection (1).
3
(3)
If:
4
(a) information or one or more reports are requested under
5
subsection (1); and
6
(b) the information and each such report are not received by the
7
CEO within 28 days, or such longer period as is specified in
8
the request, after that information or report is requested;
9
the prospective participant is taken to have withdrawn the access
10
request, unless the CEO is satisfied that it was reasonable for the
11
prospective participant not to have complied with the request made
12
by the CEO within that period.
13
27 National Disability Insurance Scheme rules relating to disability
14
requirements and early intervention requirements
15
(1) The National Disability Insurance Scheme rules may prescribe
16
circumstances in which, or criteria to be applied in assessing
17
whether:
18
(a) one or more impairments are, or are likely to be, permanent
19
for the purposes of paragraph 24(1)(b); or
20
(b) one or more impairments result in substantially reduced
21
functional capacity of a person to undertake, or psychosocial
22
functioning of a person in undertaking, one or more activities
23
for the purposes of paragraph 24(1)(c); or
24
(c) one or more impairments affect a person's capacity for social
25
and economic participation for the purposes of paragraph
26
24(1)(d); or
27
(d) the provision of early intervention supports is likely to reduce
28
a person's future needs for supports in relation to disability
29
for the purposes of subparagraph 25(b); or
30
(e) the provision of early intervention supports is likely to
31
mitigate, alleviate or prevent the deterioration of a person's
32
functional capacity to undertake one or more of the activities
33
referred to in subparagraph 25(c)(i); or
34
(f) the provision of early intervention supports is likely to
35
strengthen the sustainability of the informal supports
36
Chapter 3 Participants and their plans
Part 1 Becoming a participant
Section 28
28 National Disability Insurance Scheme Bill 2012 No. , 2012
available to the person, including through building the
1
capacity of the person's carer for the purposes of
2
subparagraph 25(c)(ii).
3
(2) The National Disability Insurance Scheme rules may prescribe for
4
and in relation to the following:
5
(a) the persons who may conduct assessments for the purposes of
6
deciding whether a person meets the disability requirements
7
or the early intervention requirements;
8
(b) the kinds of assessments that may be conducted for those
9
purposes.
10
28 When a person becomes a participant
11
(1) A person becomes a participant in the National Disability
12
Insurance Scheme launch on the day the CEO decides that the
13
person meets the access criteria.
14
(2) The CEO must give written notice of the decision to the
15
participant, stating the date on which the person became a
16
participant.
17
29 When a person ceases to be a participant
18
(1) A person ceases to be a participant in the National Disability
19
Insurance Scheme launch when:
20
(a) the person dies; or
21
(b) the person is aged at least 65 years and has entered a
22
residential care service, or is being provided with community
23
care, on a permanent basis; or
24
(c) the person's status as a participant is revoked under
25
section 30; or
26
(d) the person notifies the CEO in writing that he or she no
27
longer wishes to be a participant.
28
Note:
Residential care service and community care have the same meanings
29
as in the Aged Care Act 1997.
30
(2) A person is not entitled to be paid NDIS amounts so far as the
31
amounts relate to reasonable and necessary supports that would
32
Participants and their plans Chapter 3
Becoming a participant Part 1
Section 30
National Disability Insurance Scheme Bill 2012 No. , 2012 29
otherwise have been funded in respect of a period after he or she
1
ceased to be a participant.
2
30 Revocation of participant status
3
(1) The CEO may revoke a person's status as a participant in the
4
National Disability Insurance Scheme launch if:
5
(a) the CEO is satisfied that the person does not meet the
6
residence requirements (see section 23); or
7
(b) the CEO is satisfied that the person does not meet at least one
8
of the following:
9
(i) the disability requirements (see section 24);
10
(ii) the early intervention requirements (see section 25).
11
(2) The CEO must give written notice of the decision to the
12
participant, stating the date on which the revocation takes effect.
13
14
Chapter 3 Participants and their plans
Part 2 Participants' plans
Division 1 Principles relating to plans
Section 31
30 National Disability Insurance Scheme Bill 2012 No. , 2012
Part 2--Participants' plans
1
Division 1--Principles relating to plans
2
31 Principles relating to plans
3
The preparation, review and replacement of a participant's plan,
4
and the management of the funding for supports under a
5
participant's plan, should so far as reasonably practicable:
6
(a) be individualised; and
7
(b) be directed by the participant; and
8
(c) where relevant, consider and respect the role of family, carers
9
and other persons who are significant in the life of the
10
participant; and
11
(d) where possible, strengthen and build capacity of families and
12
carers to support participants who are children; and
13
(e) consider the availability to the participant of informal support
14
and other support services generally available to any person
15
in the community; and
16
(f) support communities to respond to the individual goals and
17
needs of participants; and
18
(g) be underpinned by the right of the participant to exercise
19
control over his or her own life; and
20
(h) advance the inclusion and participation in the community of
21
the participant with the aim of achieving his or her individual
22
aspirations; and
23
(i) maximise the choice and independence of the participant; and
24
(j) facilitate tailored and flexible responses to the individual
25
goals and needs of the participant; and
26
(k) provide the context for the provision of disability services to
27
the participant and, where appropriate, coordinate the
28
delivery of disability services where there is more than one
29
disability service provider.
30
31
Participants and their plans Chapter 3
Participants' plans Part 2
Preparing participants' plans Division 2
Section 32
National Disability Insurance Scheme Bill 2012 No. , 2012 31
Division 2--Preparing participants' plans
1
32 CEO must facilitate preparation of participant's plan
2
(1) If a person becomes a participant, the CEO must facilitate the
3
preparation of the participant's plan.
4
(2) The CEO must commence facilitating the preparation of the plan
5
within 14 days after the person becomes a participant.
6
33 Matters that must be included in a participant's plan
7
(1) A participant's plan must include a statement (the participant's
8
statement of goals and aspirations) prepared by the participant
9
that specifies:
10
(a) the goals, objectives and aspirations of the participant; and
11
(b) the environmental and personal context of the participant's
12
living, including the participant's:
13
(i) living arrangements; and
14
(ii) informal community supports and other community
15
supports; and
16
(iii) social and economic participation.
17
(2) A participant's plan must include a statement (the statement of
18
participant supports), prepared with the participant and approved
19
by the CEO, that specifies:
20
(a) the general supports (if any) that will be provided to, or in
21
relation to, the participant; and
22
(b) the reasonable and necessary supports (if any) that will be
23
funded under the National Disability Insurance Scheme; and
24
(c) the date by which, or the circumstances in which, the Agency
25
must review the plan under Division 4; and
26
(d) the management of the funding for supports under the plan
27
(see also Division 3); and
28
(e) the management of other aspects of the plan.
29
(3) The supports that will be funded or provided under the National
30
Disability Insurance Scheme may be specifically identified in the
31
Chapter 3 Participants and their plans
Part 2 Participants' plans
Division 2 Preparing participants' plans
Section 33
32 National Disability Insurance Scheme Bill 2012 No. , 2012
plan or described generally, whether by reference to a specified
1
purpose or otherwise.
2
(4) The CEO must endeavour to decide whether or not to approve the
3
statement of participant supports as soon as reasonably practicable,
4
including what is reasonably practicable having regard to
5
section 36 (information and reports).
6
(5) In deciding whether or not to approve a statement of participant
7
supports under subsection (2), the CEO must:
8
(a) have regard to the participant's statement of goals and
9
aspirations; and
10
(b) have regard to relevant assessments conducted in relation to
11
the participant; and
12
(c) be satisfied as mentioned in section 34 in relation to the
13
reasonable and necessary supports that will be funded and the
14
general supports that will be provided; and
15
(d) apply any methods and have regard to any criteria prescribed
16
by the National Disability Insurance Scheme rules in relation
17
to the reasonable and necessary supports that will be funded
18
and the manner in which they will be funded; and
19
(e) have regard to the principle that a participant should manage
20
his or her plan to the extent that he or she wishes to do so;
21
and
22
(f) have regard to the operation and effectiveness of any
23
previous plans of the participant.
24
(6) To the extent that the funding for supports under a participant's
25
plan is managed by the Agency, the plan must provide that the
26
supports are to be provided only by a registered provider of
27
supports.
28
(7) A participant's plan may include additional matters, including such
29
additional matters as are prescribed by the National Disability
30
Insurance Scheme rules.
31
Note:
For example, a participant's plan may include arrangements for
32
ongoing contact with the Agency.
33
Participants and their plans Chapter 3
Participants' plans Part 2
Preparing participants' plans Division 2
Section 34
National Disability Insurance Scheme Bill 2012 No. , 2012 33
(8) A participant's statement of goals and aspirations need not be
1
prepared by the participant in writing, but if it is prepared other
2
than in writing, the Agency must record it in writing.
3
Note:
Section 38 requires a copy of a participant's plan to be provided to
4
him or her.
5
34 Reasonable and necessary supports
6
For the purposes of specifying, in a statement of participant
7
supports, the general supports that will be provided, and the
8
reasonable and necessary supports that will be funded, the CEO
9
must be satisfied of all of the following in relation to the funding or
10
provision of each such support:
11
(a) the support will assist the participant to pursue the goals,
12
objectives and aspirations included in the participant's
13
statement of goals and aspirations;
14
(b) the support will assist the participant to undertake activities,
15
so as to facilitate the participant's social and economic
16
participation;
17
(c) the support represents value for money in that the costs of the
18
support are reasonable, relative to both the benefits achieved
19
and the cost of alternative support;
20
(d) the support will be, or is likely to be, effective and beneficial
21
for the participant, having regard to current good practice;
22
(e) the funding or provision of the support takes account of what
23
it is reasonable to expect families, carers, informal networks
24
and the community to provide;
25
(f) the support is most appropriately funded or provided through
26
the National Disability Insurance Scheme, and is not more
27
appropriately funded or provided through other general
28
systems of service delivery or support services offered by a
29
person, agency or body, or systems of service delivery or
30
support services offered:
31
(i) as part of a universal service obligation; or
32
(ii) in accordance with reasonable adjustments required
33
under a law dealing with discrimination on the basis of
34
disability;
35
Chapter 3 Participants and their plans
Part 2 Participants' plans
Division 2 Preparing participants' plans
Section 35
34 National Disability Insurance Scheme Bill 2012 No. , 2012
(g) the support is not prescribed by the National Disability
1
Insurance Scheme rules as a support that will not be funded
2
or provided under the National Disability Insurance Scheme;
3
(h) the funding of the support complies with the methods or
4
criteria (if any) prescribed by the National Disability
5
Insurance Scheme rules for deciding the reasonable and
6
necessary supports that will be funded under the National
7
Disability Insurance Scheme.
8
35 National Disability Insurance Scheme rules for statement of
9
participant supports
10
(1) The National Disability Insurance Scheme rules may prescribe:
11
(a) a method for assessing, or criteria for deciding, the
12
reasonable and necessary supports or general supports that
13
will be funded or provided under the National Disability
14
Insurance Scheme; and
15
(b) reasonable and necessary supports or general supports that
16
will not be funded or provided under the National Disability
17
Insurance Scheme; and
18
(c) reasonable and necessary supports or general supports that
19
will or will not be funded or provided under the National
20
Disability Insurance Scheme for prescribed participants.
21
(2) The methods or criteria prescribed by the National Disability
22
Insurance Scheme rules for assessing or deciding the reasonable
23
and necessary supports that will be funded may include methods or
24
criteria relating to the manner in which the supports are to be
25
funded and by whom the supports so funded are to be provided.
26
(3) The methods or criteria prescribed by the National Disability
27
Insurance Scheme rules for assessing or deciding the general
28
supports that will be provided may include methods or criteria
29
relating to the manner in which the supports are to be provided.
30
(4) The methods or criteria prescribed by the National Disability
31
Insurance Scheme rules for assessing or deciding the reasonable
32
and necessary supports that will be funded under the National
33
Disability Insurance Scheme may include methods or criteria
34
relating to how to take into account:
35
Participants and their plans Chapter 3
Participants' plans Part 2
Preparing participants' plans Division 2
Section 36
National Disability Insurance Scheme Bill 2012 No. , 2012 35
(a) lump sum compensation payments that specifically include
1
an amount for the cost of supports; and
2
(b) lump sum compensation payments that do not specifically
3
include an amount for the cost of supports; and
4
(c) periodic compensation payments that the CEO is satisfied
5
include an amount for the cost of supports.
6
(5) The methods or criteria prescribed by the National Disability
7
Insurance Scheme rules for assessing or deciding the reasonable
8
and necessary supports that will be funded under the National
9
Disability Insurance Scheme may include methods or criteria
10
relating to how to take into account amounts that a participant or
11
prospective participant did not receive by way of a compensation
12
payment because he or she entered into an agreement to give up his
13
or her right to compensation.
14
36 Information and reports for the purposes of preparing and
15
approving a participant's plan
16
(1) For the purposes of preparing a statement of participant supports,
17
or deciding whether to approve a statement of participant supports,
18
the CEO may make one or more requests under subsection (2).
19
(2) The requests the CEO may make are as follows:
20
(a) that the participant, or another person, provide information
21
that is reasonably necessary for the purposes of preparing the
22
statement of participant supports, or deciding whether to
23
approve the statement of participant supports;
24
(b) that the participant do either or both of the following:
25
(i) undergo an assessment and provide to the CEO the
26
report, in the approved form, of the person who
27
conducts the assessment;
28
(ii) undergo a medical, psychiatric or psychological
29
examination (whether or not at a particular place), and
30
provide to the CEO the report, in the approved form, of
31
the person who conducts the examination.
32
(3) The CEO may prepare the statement of participant supports, or
33
decide whether to approve a statement of participant supports,
34
before all the information and reports requested under
35
Chapter 3 Participants and their plans
Part 2 Participants' plans
Division 2 Preparing participants' plans
Section 37
36 National Disability Insurance Scheme Bill 2012 No. , 2012
subsection (2) are received by the CEO, but must give the
1
participant a reasonable opportunity to provide them.
2
Note:
If information or reports are provided after the plan is approved, the
3
plan can be reviewed and if necessary replaced.
4
37 When plan is in effect
5
(1) A participant's plan comes into effect when the CEO has:
6
(a) received the participant's statement of goals and aspirations
7
from the participant; and
8
(b) approved the statement of participant supports.
9
(2) A participant's plan cannot be varied after it comes into effect, but
10
can be replaced under Division 4.
11
Note:
Under Division 4, a participant may request a review of his or her plan
12
at any time and may revise the participant's statement of goals and
13
aspirations at any time, which results in the replacement of the plan.
14
(3) A participant's plan ceases to be in effect at the earlier of the
15
following times:
16
(a) when it is replaced by another plan under Division 4;
17
(b) when the participant ceases to be a participant.
18
38 Copy of plan to be provided
19
The CEO must provide a copy of a participant's plan to the
20
participant within 7 days after the plan comes into effect.
21
39 Agency must comply with the statement of participant supports
22
The Agency must comply with the statement of participant
23
supports in a participant's plan.
24
40 Effect of temporary absence on plans
25
(1) A participant for whom a plan is in effect may be temporarily
26
absent from Australia for the grace period for the absence without
27
affecting the participant's plan.
28
(2)
The
grace period for a temporary absence of a participant is:
29
Participants and their plans Chapter 3
Participants' plans Part 2
Preparing participants' plans Division 2
Section 41
National Disability Insurance Scheme Bill 2012 No. , 2012 37
(a) 6 weeks beginning when the participant leaves Australia; or
1
(b) if the CEO is satisfied that it is appropriate for the grace
2
period to be longer than 6 weeks--such longer period as the
3
CEO decides, having regard to the criteria (if any) prescribed
4
by the National Disability Insurance Scheme rules for the
5
purposes of this paragraph.
6
(3) If a participant for whom a plan is in effect is temporarily absent
7
from Australia after the end of the grace period for the absence, the
8
participant's plan is suspended from the end of the grace period
9
until the participant returns to Australia.
10
(4) For the purposes of this section, a person's absence from Australia
11
is temporary if, throughout the absence, the person does not cease
12
to reside in Australia (within the meaning of paragraph 23(1)(a)).
13
41 Suspension of plans
14
(1) A statement of participant supports in a participant's plan is
15
suspended:
16
(a) as mentioned in subsection 40(3) (which deals with
17
temporary absence from Australia); and
18
(b) as mentioned in subsection 105(2) (which deals with
19
obtaining compensation).
20
(2) The effect of suspension of a statement of participant supports in a
21
participant's plan is that the plan remains in effect but, during the
22
period of suspension:
23
(a) the person is not entitled to be paid NDIS amounts, so far as
24
the amounts relate to reasonable and necessary supports that
25
would otherwise have been funded in respect of that period;
26
and
27
(b) the Agency is not required to provide or fund other supports
28
under the plan, but is not prevented from doing so if the CEO
29
considers it appropriate; and
30
(c) the participant is not entitled to request a review of the plan
31
under subsection 48(1).
32
33
Chapter 3 Participants and their plans
Part 2 Participants' plans
Division 3 Managing the funding for supports under participants' plans
Section 42
38 National Disability Insurance Scheme Bill 2012 No. , 2012
Division 3--Managing the funding for supports under
1
participants' plans
2
42 Meaning of managing the funding for supports under a
3
participant's plan
4
(1) For the purposes of this Act, managing the funding for supports
5
under a participant's plan means:
6
(a) purchasing the supports identified in the plan (including
7
paying any applicable indirect costs, such as taxes, associated
8
with the supports); and
9
(b) receiving and managing any funding provided by the
10
Agency; and
11
(c) acquitting any funding provided by the Agency.
12
(2) For the purposes of the statement of participant supports in a
13
participant's plan, in specifying the management of the funding for
14
supports under the plan as mentioned in paragraph 33(2)(d), the
15
plan must specify that such funding is to be managed wholly, or to
16
a specified extent, by:
17
(a) the participant; or
18
(b) a registered plan management provider; or
19
(c) the Agency; or
20
(d) the plan nominee.
21
43 Choice for the participant in relation to plan management
22
(1) A participant for whom a plan is in effect or is being prepared may
23
make a request (a plan management request):
24
(a) that he or she manage the funding for supports under the plan
25
wholly or to the extent specified in the request; or
26
(b) that the funding for supports under the plan be managed
27
wholly, or to the extent specified in the request, by a
28
registered plan management provider he or she nominates; or
29
(c) that the funding for supports under the plan be managed
30
wholly, or to the extent specified in the request, by a person
31
specified by the Agency.
32
Participants and their plans Chapter 3
Participants' plans Part 2
Managing the funding for supports under participants' plans Division 3
Section 43
National Disability Insurance Scheme Bill 2012 No. , 2012 39
(2) A statement of participant supports in a participant's plan must
1
give effect to the plan management request other than as follows:
2
(a) if the participant is prevented from managing the funding for
3
supports under the plan to any extent by section 44--the
4
statement must make provision in accordance with
5
subsection (3) of this section;
6
(b) if the participant has a plan nominee--the statement must
7
provide that the funding for supports under the plan is to be
8
managed in accordance with the terms of the plan nominee's
9
appointment.
10
(3) If the participant is prevented from managing the funding for
11
supports under the plan wholly, or to a specified extent, by
12
section 44, the statement of participant supports in the plan must
13
provide that:
14
(a) the funding for supports under the plan is to be managed in
15
accordance with the plan management request, to the extent
16
that the participant is not prevented from managing it; and
17
(b) the remainder of the funding for supports under the plan is to
18
be managed by:
19
(i) a registered plan management provider specified by the
20
Agency; or
21
(ii)
the
Agency.
22
(4) If a participant does not make a plan management request, the
23
statement of participant supports in the plan must provide that the
24
funding for supports under the plan is to be managed by:
25
(a) a registered plan management provider specified by the
26
Agency; or
27
(b)
the
Agency.
28
(5) If the funding for supports under a participant's plan is to be
29
managed to any extent by a registered plan management provider
30
specified by the Agency, or by the Agency, the CEO must, so far
31
as reasonably practicable, have regard to the wishes of the
32
participant in specifying who is to manage the funding for supports
33
under the plan to that extent.
34
Chapter 3 Participants and their plans
Part 2 Participants' plans
Division 3 Managing the funding for supports under participants' plans
Section 44
40 National Disability Insurance Scheme Bill 2012 No. , 2012
44 Circumstances in which participant must not manage plan to
1
specified extent
2
(1) The statement of participant supports in a participant's plan must
3
not provide that the participant is to manage the funding for
4
supports under his or her plan to any extent if the participant is an
5
insolvent under administration.
6
(2) The statement of participant supports in a participant's plan must
7
not provide that the participant is to manage the funding for
8
supports under his or her plan to a particular extent if the CEO is
9
satisfied that management of the plan to that extent would:
10
(a) present an unreasonable risk to the participant; or
11
(b) permit the participant to manage matters that are prescribed
12
by the National Disability Insurance Scheme rules as being
13
matters that must not be managed by a participant.
14
(3) The National Disability Insurance Scheme rules may prescribe
15
criteria to which the CEO is to have regard in considering whether
16
a participant managing the funding for supports under the plan
17
would present an unreasonable risk to the participant.
18
45 Payment of NDIS amounts
19
(1) An NDIS amount that is payable to a participant, or to a person
20
who is managing the funding for supports under a participant's
21
plan, is to be paid:
22
(a) at the time or times determined by the CEO in accordance
23
with the National Disability Insurance Scheme rules; and
24
(b) in the manner (if any) prescribed by the National Disability
25
Insurance Scheme rules.
26
(2) Without limiting paragraph (1)(b), the National Disability
27
Insurance Scheme rules may provide that:
28
(a) an NDIS amount is to be paid to the credit of a bank account
29
nominated and maintained by the person to whom it is to be
30
paid; and
31
(b) an NDIS amount is not payable to the person until the person
32
nominates an account.
33
Participants and their plans Chapter 3
Participants' plans Part 2
Managing the funding for supports under participants' plans Division 3
Section 46
National Disability Insurance Scheme Bill 2012 No. , 2012 41
46 Acquittal of NDIS amounts
1
(1) A participant who receives an NDIS amount, or a person who
2
receives an NDIS amount on behalf of a participant, must spend
3
the money in accordance with the participant's plan.
4
(2) The National Disability Insurance Scheme rules may make
5
provision for and in relation to the retention of records of NDIS
6
amounts paid to participants and other persons, including requiring
7
that prescribed records be retained for a prescribed period.
8
9
Chapter 3 Participants and their plans
Part 2 Participants' plans
Division 4 Reviewing and changing participants' plans
Section 47
42 National Disability Insurance Scheme Bill 2012 No. , 2012
Division 4--Reviewing and changing participants' plans
1
47 Participant may change participant's statement of goals and
2
aspirations at any time
3
(1) A participant may give the CEO a changed version of the
4
participant's statement of goals and aspirations at any time.
5
Note:
The participant may also request a review of his or her plan at any
6
time under subsection 48(1) and the CEO may review a participant's
7
plan at any time under subsection 48(4).
8
(2) If a participant gives a changed version of the participant's
9
statement of goals and aspirations to the CEO, the plan is taken to
10
be replaced by a new plan comprising:
11
(a) the changed version of the participant's statement of goals
12
and aspirations; and
13
(b) the statement of participant supports in the existing plan.
14
(3) The Agency must provide a copy of the new plan to the participant
15
within 7 days of receiving the changed version of the participant's
16
statement of goals and aspirations.
17
48 Review of participant's plan
18
(1) A participant may request that the CEO conduct a review of the
19
participant's plan at any time.
20
(2) The CEO must decide whether or not to conduct the review within
21
14 days after receiving the request. If the CEO does not make a
22
decision within that period, he or she is taken to have decided not
23
to conduct the review.
24
Note 1:
The period may be extended under National Disability Insurance
25
Scheme rules made under section 204.
26
Note 2:
Notice of a decision that the CEO makes, or is taken to have made,
27
must be given because of subsection 100(1), and a decision the CEO is
28
taken to have made will be automatically reviewed because of
29
subsection 100(5).
30
(3) If the CEO decides to conduct a review under subsection (1), the
31
CEO must commence to facilitate the review within 14 days after
32
Participants and their plans Chapter 3
Participants' plans Part 2
Reviewing and changing participants' plans Division 4
Section 49
National Disability Insurance Scheme Bill 2012 No. , 2012 43
so deciding and must complete the review as soon as reasonably
1
practicable.
2
(4) The CEO may, on the CEO's initiative, conduct a review of a
3
participant's plan at any time.
4
(5) The CEO must conduct a review of a participant's plan before the
5
plan's review date and in the circumstances, if any, specified in the
6
plan.
7
(6) The CEO must conduct a review of a participant's plan in the
8
circumstances (if any) prescribed by the National Disability
9
Insurance Scheme rules.
10
49 Outcome of review
11
If the CEO conducts a review of a participant's plan under
12
section 48, the CEO must facilitate the preparation of a new plan
13
with the participant in accordance with Division 2.
14
Note 1:
If the participant does not wish to change the participant's statement
15
of goals and aspirations, the statement remains unchanged and forms
16
part of the new plan.
17
Note 2:
Because the new plan is prepared in accordance with Division 2, a
18
decision to approve the statement of participant supports in the plan
19
would be made under subsection 33(2) and be reviewable under
20
paragraph 99(d).
21
50 Information and reports for the purposes of reviewing a
22
participant's plan
23
(1) For the purposes of reviewing a participant's plan, the CEO may
24
make one or more requests under subsection (2).
25
(2) The requests the CEO may make are as follows:
26
(a) that the participant, or another person, provide information
27
that is reasonably necessary for the purposes of reviewing the
28
participant's plan; or
29
(b) that the participant do either or both of the following:
30
(i) undergo an assessment and provide to the CEO the
31
report, in the approved form, of the person who
32
conducts the assessment;
33
Chapter 3 Participants and their plans
Part 2 Participants' plans
Division 4 Reviewing and changing participants' plans
Section 50
44 National Disability Insurance Scheme Bill 2012 No. , 2012
(ii) undergo a medical, psychiatric or psychological
1
examination (whether or not at a particular place), and
2
provide to the CEO the report, in the approved form, of
3
the person who conducts the examination.
4
(3) The CEO may review a participant's plan before all the
5
information and reports requested under subsection (2) are received
6
by the CEO, but must give the participant a reasonable opportunity
7
to provide them.
8
Note:
If information or reports are provided after the plan is reviewed, the
9
plan can be reviewed again and if necessary replaced.
10
11
Administration Chapter 4
General matters Part 1
Participants and prospective participants Division 1
Section 51
National Disability Insurance Scheme Bill 2012 No. , 2012 45
Chapter 4--Administration
1
Part 1--General matters
2
Division 1--Participants and prospective participants
3
51 Requirement to notify change of circumstances
4
(1) A participant or a prospective participant must notify the CEO if:
5
(a) an event or change of circumstances happens that affects, or
6
might affect, his or her access request, status as a participant
7
or plan; or
8
(b) the participant or prospective participant becomes aware that
9
such an event or change of circumstances is likely to happen.
10
(2) The participant or prospective participant must notify the CEO:
11
(a) in the manner set out in a written notice given to him or her
12
under section 52; and
13
(b) as soon as reasonably practicable after he or she becomes
14
aware that the event or change of circumstances has
15
happened or is likely to happen.
16
52 Requirements relating to notices
17
(1) The CEO must approve a manner of notification that a participant
18
or prospective participant is to use when notifying the CEO in
19
relation to an event or change of circumstances under section 51.
20
(2) The CEO must, by written notice, notify the participant or
21
prospective participant of the approved manner of notification.
22
53 Power to obtain information from participants and prospective
23
participants to ensure the integrity of the National
24
Disability Insurance Scheme
25
(1) If the CEO has reasonable grounds to believe that a participant or a
26
prospective participant has information, or has custody or control
27
of a document, that may be relevant to one or more of the matters
28
Chapter 4 Administration
Part 1 General matters
Division 1 Participants and prospective participants
Section 54
46 National Disability Insurance Scheme Bill 2012 No. , 2012
mentioned in subsection (2), the CEO may require the participant
1
or prospective participant to give the information, or produce the
2
document, to the Agency.
3
(2) The matters are as follows:
4
(a) the monitoring of supports funded for, or provided to, a
5
participant;
6
(b) whether NDIS amounts paid to the participant or to another
7
person have been spent in accordance with the participant's
8
plan;
9
(c) determining whether the participant was not entitled to be
10
paid NDIS amounts because of the misleading statements or
11
fraud of any person;
12
(d) whether the participant or other person has complied with
13
section 46;
14
(e) whether the participant or prospective participant receives:
15
(i) supports or funding through a statutory compensation
16
scheme or a statutory care or support scheme; or
17
(ii) any other disability or early intervention supports.
18
54 Written notice of requirement
19
(1) A requirement under section 53 must be made by written notice
20
given to the person of whom the requirement is made.
21
(2) The notice must specify:
22
(a) the nature of the information or document that is required to
23
be given or produced; and
24
(b) how the person is to give the information or produce the
25
document; and
26
(c) the period within which the person is to give the information
27
or produce the document to the Agency; and
28
(d) the officer to whom the information is to be given or the
29
document is to be produced; and
30
(e) that the notice is given under this section.
31
(3) The period specified under paragraph (2)(c) must be at least 14
32
days beginning on the day on which the notice is given.
33
34
Administration Chapter 4
General matters Part 1
Other persons Division 2
Section 55
National Disability Insurance Scheme Bill 2012 No. , 2012 47
Division 2--Other persons
1
55 Power to obtain information from other persons to ensure the
2
integrity of the National Disability Insurance Scheme
3
(1) If the CEO has reasonable grounds to believe that a person other
4
than a participant or a prospective participant has information, or
5
has custody or control of a document, that may be relevant to one
6
or more of the matters mentioned in subsection (2), the CEO may
7
require the person to give the information, or produce the
8
document, to the Agency.
9
(2) The matters are as follows:
10
(a) whether a prospective participant meets the access criteria;
11
(b) whether a participant continues to meet the access criteria;
12
(c) whether a person purporting to act on a person's behalf for
13
the purposes of this Act has the authority to do so;
14
(d) the preparation or review of a participant's plan;
15
(e) the monitoring of supports funded for, or provided to, a
16
participant;
17
(f) whether NDIS amounts paid to the participant or to another
18
person have been spent in accordance with the participant's
19
plan;
20
(g) whether a participant or other person has complied with
21
section 46;
22
(h) whether a participant receives:
23
(i) supports or funding through a statutory compensation
24
scheme or a statutory care or support scheme; or
25
(ii) any other disability support;
26
(i) whether an applicant for approval as a registered provider of
27
supports meets the criteria for approval;
28
(j) whether a registered provider of supports continues to meet
29
the criteria for approval;
30
(k) the functions of the Agency.
31
Chapter 4 Administration
Part 1 General matters
Division 2 Other persons
Section 56
48 National Disability Insurance Scheme Bill 2012 No. , 2012
56 Written notice of requirement
1
(1) A requirement under section 55 must be made by written notice
2
given to the person of whom the requirement is made.
3
(2) The notice must specify:
4
(a) the nature of the information or document that is required to
5
be given or produced; and
6
(b) how the person is to give the information or produce the
7
document; and
8
(c) the period within which the person is to give the information
9
or produce the document to the Agency; and
10
(d) the officer to whom the information is to be given or the
11
document is to be produced; and
12
(e) that the notice is given under this section.
13
(3) The period specified under paragraph (2)(c) must be at least 14
14
days beginning on the day on which the notice is given.
15
(4) The notice may require the person to give the information by
16
appearing before a specified officer to answer questions.
17
(5) If the notice requires the person to appear before an officer, the
18
notice must specify a time and place at which the person is to
19
appear. The time must be at least 14 days after the notice is given.
20
57 Offence--refusal or failure to comply with requirement
21
(1) A person must not refuse or fail to comply with a requirement
22
under section 55 to give information or produce a document.
23
Penalty: 30 penalty units.
24
Note:
If a body corporate is convicted of an offence against this subsection,
25
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a
26
fine of up to 5 times the penalty stated above.
27
(2) Subsection (1) does not apply if the person has a reasonable
28
excuse.
29
Note:
A defendant bears an evidential burden in relation to the matter in this
30
subsection: see subsection 13.3(3) of the Criminal Code.
31
32
Administration Chapter 4
General matters Part 1
Interaction with other laws Division 3
Section 58
National Disability Insurance Scheme Bill 2012 No. , 2012 49
Division 3--Interaction with other laws
1
58 Obligations not affected by State or Territory laws
2
(1) Subject to subsection (2), nothing in a law of a State or a Territory
3
prevents a person from:
4
(a) giving information; or
5
(b) producing a document; or
6
(c)
giving
evidence;
7
that the person is required to give or produce to the Agency or an
8
officer for the purposes of this Act.
9
(2) Despite subsection (1), a person is not required to give information,
10
produce a document or give evidence to the Agency or an officer
11
for the purposes of this Act if:
12
(a) the person would, apart from subsection (1), be prevented
13
from doing so under a law of a State or Territory; and
14
(b) the law of the State or Territory is prescribed by the National
15
Disability Insurance Scheme rules for the purposes of this
16
paragraph.
17
59 Interaction with Commonwealth laws
18
This Part does not require a person to give information or produce
19
a document to the extent that in doing so the person would
20
contravene a law of the Commonwealth.
21
22
Chapter 4 Administration
Part 2 Privacy
Section 60
50 National Disability Insurance Scheme Bill 2012 No. , 2012
Part 2--Privacy
1
2
60 Protection of information held by the Agency etc.
3
(1) A person may obtain protected information for the purposes of this
4
Act.
5
(2) A person may:
6
(a) make a record of protected information; or
7
(b) disclose such information to any person; or
8
(c) otherwise use such information;
9
if:
10
(d) the making of the record, or the disclosure or use of the
11
information, by the person is made:
12
(i) for the purposes of this Act; or
13
(ii) for the purpose for which the information was disclosed
14
to the person under section 66; or
15
(iii) with the express or implied authorisation of the person
16
to whom the information relates; or
17
(e) the person believes on reasonable grounds that the making of
18
the record, or the disclosure or use of the information, by the
19
person is necessary to prevent or lessen a serious threat to an
20
individual's life, health or safety.
21
(3) Without limiting subsections (1) and (2), the obtaining, recording,
22
disclosure or use of information by a person is taken to be for the
23
purposes of this Act if the CEO believes, on reasonable grounds,
24
that it is reasonably necessary for one or more of the following
25
purposes:
26
(a) research into matters relevant to the National Disability
27
Insurance Scheme;
28
(b) actuarial analysis of matters relevant to the National
29
Disability Insurance Scheme;
30
(c)
policy
development.
31
61 Offence--unauthorised access to protected information
32
A person commits an offence if:
33
Administration Chapter 4
Privacy Part 2
Section 62
National Disability Insurance Scheme Bill 2012 No. , 2012 51
(a) the person obtains information; and
1
(b) the person is not authorised or required by or under this Act
2
to obtain the information; and
3
(c) the information is protected information.
4
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
5
Note:
If a body corporate is convicted of an offence against this section,
6
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a
7
fine of up to 5 times the pecuniary penalty stated above.
8
62 Offence--unauthorised use or disclosure of protected
9
information
10
A person commits an offence if:
11
(a)
the
person:
12
(i) makes a record of information; or
13
(ii) discloses information to any other person; or
14
(iii) otherwise makes use of information; and
15
(b) the person is not authorised or required by or under this Act
16
to make the record, disclosure or use of the information that
17
is made by the person; and
18
(c) the information is protected information.
19
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
20
Note:
If a body corporate is convicted of an offence against this section,
21
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a
22
fine of up to 5 times the pecuniary penalty stated above.
23
63 Offence--soliciting disclosure of protected information
24
A person (the first person) commits an offence if:
25
(a) the first person solicits the disclosure of information from an
26
officer or another person, whether or not any protected
27
information is actually disclosed; and
28
(b) the disclosure would be in contravention of this Part; and
29
(c) the information is protected information.
30
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
31
Chapter 4 Administration
Part 2 Privacy
Section 64
52 National Disability Insurance Scheme Bill 2012 No. , 2012
Note:
If a body corporate is convicted of an offence against this section,
1
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a
2
fine of up to 5 times the pecuniary penalty stated above.
3
64 Offence--offering to supply protected information
4
(1) A person commits an offence if:
5
(a) the person offers to supply (whether to a particular person or
6
otherwise) information about another person; and
7
(b) the person knows the information is protected information.
8
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
9
Note:
If a body corporate is convicted of an offence against this subsection,
10
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a
11
fine of up to 5 times the pecuniary penalty stated above.
12
(2) A person commits an offence if:
13
(a) the person holds himself or herself out as being able to
14
supply (whether to a particular person or otherwise)
15
information about another person; and
16
(b) the person knows the information is protected information.
17
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
18
Note:
If a body corporate is convicted of an offence against this subsection,
19
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a
20
fine of up to 5 times the pecuniary penalty stated above.
21
(3) Subsections (1) and (2) do not apply to an officer acting in the
22
performance or exercise of his or her duties, functions or powers
23
under this Act.
24
65 Protection of certain documents etc. from production to court etc.
25
A person must not, except for the purposes of this Act, be required:
26
(a) to produce any document in his or her possession because of
27
the performance or exercise of his or her duties, functions or
28
powers under this Act; or
29
(b) to disclose any matter or thing of which he or she had notice
30
because of the performance or exercise of such duties,
31
functions or powers;
32
Administration Chapter 4
Privacy Part 2
Section 66
National Disability Insurance Scheme Bill 2012 No. , 2012 53
to a court, tribunal, authority or person that has power to require
1
the production of documents or the answering of questions.
2
66 Disclosure of information by CEO
3
(1) Despite sections 62 and 65, the CEO may:
4
(a) if the CEO certifies that it is necessary in the public interest
5
to do so in a particular case or class of cases--disclose
6
information acquired by a person in the performance of his or
7
her functions or duties or in the exercise of his or her powers
8
under this Act to such persons and for such purposes as the
9
CEO determines; or
10
(b) disclose any such information:
11
(i) to the Secretary of a Department of State of the
12
Commonwealth, or to the head of an authority of the
13
Commonwealth, for the purposes of that Department or
14
authority; or
15
(ii) to a person who is expressly or impliedly authorised by
16
the person to whom the information relates to obtain it;
17
or
18
(iii) to the Chief Executive Centrelink for the purposes of a
19
centrelink program; or
20
(iv) to the Chief Executive Medicare for the purposes of a
21
medicare program; or
22
(v) to the chief executive (however described) of a
23
Department of State of a State or Territory, or to the
24
head of an authority of a State or Territory, for the
25
purposes of that Department or authority.
26
(2) In certifying for the purposes of paragraph (1)(a) or disclosing
27
information for the purposes of subparagraph (1)(b)(i) or (v), the
28
CEO must act in accordance with any National Disability
29
Insurance Scheme rules made for the purposes of section 67.
30
(3) Despite any other provision of this Part, the CEO may disclose
31
protected information to a participant's nominee if the protected
32
information:
33
(a) relates to the participant; and
34
(b) is or was held in the records of the Agency.
35
Chapter 4 Administration
Part 2 Privacy
Section 67
54 National Disability Insurance Scheme Bill 2012 No. , 2012
67 National Disability Insurance Scheme rules for exercise of CEO's
1
disclosure powers
2
The National Disability Insurance Scheme rules may make
3
provision for and in relation to the exercise of either or both of the
4
following:
5
(a) the CEO's power to certify for the purposes of paragraph
6
66(1)(a);
7
(b) the CEO's power under subparagraph 66(1)(b)(i) or (v) to
8
disclose information to a person.
9
68 Part does not affect the operation of the Freedom of Information
10
Act 1982
11
The provisions of this Part that relate to the disclosure of
12
information do not affect the operation of the Freedom of
13
Information Act 1982.
14
15
Administration Chapter 4
Registered providers of supports Part 3
Section 69
National Disability Insurance Scheme Bill 2012 No. , 2012 55
Part 3--Registered providers of supports
1
2
69 Application to be a registered provider of supports
3
(1) A person or entity may apply in writing to the CEO to be a
4
registered provider of supports in relation to either or both of the
5
following:
6
(a) managing the funding for supports under plans;
7
(b) the provision of supports.
8
Note 1:
If the funding for supports under a plan is managed by the Agency,
9
supports are to be provided only by a registered provider of supports
10
(see subsection 33(6)).
11
Note 2:
A registered plan management provider of supports may in certain
12
circumstances manage the funding for supports under a plan (see
13
subsection 42(2)).
14
(2) The application must:
15
(a) be in the form (if any) approved by the CEO; and
16
(b) include any information, and be accompanied by any
17
documents, required by the CEO.
18
Note:
The CEO is not required to make a decision on the application if this
19
subsection is not complied with (see section 197).
20
70 Registered providers of supports
21
(1) The CEO must approve a person or entity as a registered provider
22
of supports in relation to either or both of the following:
23
(a) managing the funding for supports under plans;
24
(b) the provision of supports;
25
if:
26
(c) the person or entity (the applicant) makes an application
27
under section 69; and
28
(d) the CEO is satisfied that the applicant meets the criteria
29
prescribed by the National Disability Insurance Scheme
30
rules.
31
(2) An approval of a person or entity as a registered provider of
32
supports must be by written instrument.
33
Chapter 4 Administration
Part 3 Registered providers of supports
Section 71
56 National Disability Insurance Scheme Bill 2012 No. , 2012
(3) The instrument may specify that the person or entity is a registered
1
provider of supports in respect of:
2
(a) a class of supports specified in the instrument; or
3
(b) a class of person specified in the instrument.
4
(4) The instrument may specify that it ceases to be in effect on a
5
specified day.
6
71 When a person or entity ceases to be a registered provider of
7
supports
8
A person or entity ceases to be a registered provider of supports on
9
the earlier of the following days:
10
(a) if the instrument approving the person or entity as a
11
registered provider of supports is revoked under section 72--
12
the day on which the revocation takes effect;
13
(b) if the instrument specifies that it ceases to be in effect on a
14
specified day--that day.
15
72 Revocation of approval as a registered provider of supports
16
(1) The CEO must revoke an instrument approving a person or entity
17
as a registered provider of supports if the CEO is satisfied that:
18
(a) the person or entity no longer meets the criteria prescribed by
19
the National Disability Insurance Scheme rules for the
20
purposes of paragraph 70(1)(d); or
21
(b) the application by the person or entity for approval contained
22
information that was false or misleading in a material
23
particular.
24
(2) Before deciding to revoke the instrument, the CEO must notify the
25
person or entity that revocation is being considered. The notice
26
must be in writing and must:
27
(a) include the CEO's reasons for considering the revocation;
28
and
29
(b) invite the person or entity to make submissions, in writing, to
30
the CEO within 28 days after receiving the notice; and
31
Administration Chapter 4
Registered providers of supports Part 3
Section 73
National Disability Insurance Scheme Bill 2012 No. , 2012 57
(c) inform the person or entity that if no submissions are made
1
within that period, any revocation may take effect as early as
2
7 days after the end of the period referred to in paragraph (b).
3
(3) In deciding whether to revoke the instrument, the CEO must
4
consider any submissions given to the CEO within the period
5
referred to in paragraph (2)(b).
6
(4) The CEO must notify the person or entity, in writing, of the
7
decision.
8
(5) The notice under subsection (4) must be given within 28 days after
9
the end of the period for making submissions. If the notice is not
10
given within this period, the CEO is taken to have decided not to
11
revoke the instrument.
12
73 National Disability Insurance Scheme rules for registered
13
providers of supports
14
(1) The National Disability Insurance Scheme rules may make
15
provision in connection with the approval of persons or entities as
16
registered providers of supports, including by prescribing criteria
17
relating to:
18
(a) compliance with prescribed safeguards; and
19
(b) compliance with prescribed quality assurance standards and
20
procedures; and
21
(c) qualifications of persons or entities or employees of persons
22
or entities.
23
(2) The National Disability Insurance Scheme rules may make
24
provision in connection with registered providers of supports,
25
including by prescribing:
26
(a) the consequences of registered providers of supports failing
27
to comply with this Act, the regulations or the National
28
Disability Insurance Scheme rules; and
29
(b) requirements with which registered providers of supports
30
must comply, including in relation to the following:
31
(i)
governance;
32
(ii)
business
practice;
33
(iii) accounting practice; and
34
Chapter 4 Administration
Part 3 Registered providers of supports
Section 73
58 National Disability Insurance Scheme Bill 2012 No. , 2012
(c) the obligations of registered providers of supports in relation
1
to the monitoring of compliance; and
2
(d) the process for handling complaints involving registered
3
providers of supports; and
4
(e) auditing requirements in relation to registered providers of
5
supports.
6
7
Administration Chapter 4
Children Part 4
Section 74
National Disability Insurance Scheme Bill 2012 No. , 2012 59
Part 4--Children
1
2
74 Children
3
(1) If this Act requires or permits a thing to be done by or in relation to
4
a child, the thing is to be done by or in relation to:
5
(a) the person who has, or the persons who jointly have, parental
6
responsibility for the child; or
7
(b) if the CEO is satisfied that this is not appropriate--a person
8
determined in writing by the CEO.
9
(2) If a person mentioned in subsection (1) makes a plan management
10
request for a participant who is a child, the person may request:
11
(a) that the person manage the plan wholly or to the extent
12
specified in the request; or
13
(b) that the plan be managed wholly, or to the extent specified in
14
the request, by a registered plan management provider
15
nominated by the person to manage the plan; or
16
(c) that the plan be managed wholly, or to the extent specified in
17
the request, by the Agency or a person specified by the
18
Agency.
19
(3) The statement of participant supports in the plan must give effect
20
to the plan management request, except as mentioned in
21
subsections (4) and (5).
22
(4) The statement of participant supports in a participant's plan must
23
not provide that the person referred to in paragraph (2)(a) is to
24
manage the funding for supports under the participant's plan:
25
(a) to any extent, if the person is an insolvent under
26
administration; or
27
(b) to a particular extent, if the CEO is satisfied that management
28
of the plan to that extent would:
29
(i) present an unreasonable risk to the participant; or
30
(ii) permit the person to manage matters that are prescribed
31
by the National Disability Insurance Scheme rules as
32
being matters that must not be managed by the person.
33
Chapter 4 Administration
Part 4 Children
Section 75
60 National Disability Insurance Scheme Bill 2012 No. , 2012
(5) Subsections (1) and (2) of this section do not have effect in relation
1
to a participant who is a child if:
2
(a) the CEO is satisfied that the child is capable of making
3
decisions for himself or herself; and
4
(b) the CEO is satisfied that it is appropriate in the circumstances
5
for those subsections not to apply to the child; and
6
(c) the CEO makes a determination that those subsections do not
7
apply to the child.
8
(6) The National Disability Insurance Scheme rules may prescribe
9
criteria to which the CEO is to have regard in deciding the
10
following:
11
(a) whether to make a determination under paragraph (1)(b);
12
(b) whether a person managing the funding for supports under a
13
participant's plan would present an unreasonable risk to the
14
participant as mentioned in paragraph (4)(b);
15
(c) whether a child is capable of making decisions for himself or
16
herself as mentioned in paragraph (5)(a);
17
(d) whether it is appropriate for subsections (1) and (2) not to
18
apply to a child as mentioned in paragraph (5)(b).
19
(7) A determination made under paragraph (5)(c) is not a legislative
20
instrument.
21
75 Definition of parental responsibility
22
(1) For the purposes of this Act, a person has parental responsibility
23
for a child if:
24
(a) the person is the child's parent and has not ceased to have
25
parental responsibility for the child because of an order made
26
under the Family Law Act 1975 or a law of a State or
27
Territory; or
28
(b) under a parenting order (within the meaning of the Family
29
Law Act 1975):
30
(i) the child is to live with the person; or
31
(ii) the child is to spend time with the person; or
32
(iii) the person is responsible for the child's long-term or
33
day-to-day care, welfare and development.
34
Administration Chapter 4
Children Part 4
Section 76
National Disability Insurance Scheme Bill 2012 No. , 2012 61
(2) Despite subsection (1), if, under a law of the Commonwealth, a
1
State or a Territory, a person has guardianship of a child, that
2
person has parental responsibility for the child, unless the CEO
3
determines that one or more of the persons referred to in
4
subsection (1) instead have parental responsibility for the child.
5
(3) If subsection (1) would result in more than one person having
6
parental responsibility for a child, the CEO may determine that one
7
or more of those persons have parental responsibility for the child
8
for the purposes of this Act.
9
(4) The National Disability Insurance Scheme rules may prescribe
10
criteria to which the CEO is to have regard in deciding whether to
11
make a determination under subsection (2) or (3).
12
(5) A determination under subsection (2) or (3) must be in writing.
13
(6) A determination under subsection (2) or (3) is not a legislative
14
instrument.
15
76 Duty to children
16
(1) It is the duty of a person who may do a thing because of section 74
17
to ascertain the wishes of the child concerned and to act in a
18
manner that promotes the personal and social wellbeing of that
19
child.
20
(2) A person does not breach the duty imposed by subsection (1) by
21
doing a thing if, when the thing is done, the person reasonably
22
believes that:
23
(a) he or she has ascertained the wishes of the child in relation to
24
the thing; and
25
(b) the doing of the thing promotes the personal and social
26
wellbeing of the child.
27
(3) A person does not breach the duty imposed by subsection (1) by
28
refraining from doing a thing if, at the relevant time, the person
29
reasonably believes that:
30
(a) he or she has ascertained the wishes of the child in relation to
31
the thing; and
32
Chapter 4 Administration
Part 4 Children
Section 77
62 National Disability Insurance Scheme Bill 2012 No. , 2012
(b) not doing the thing promotes the personal and social
1
wellbeing of the child.
2
(4) The National Disability Insurance Scheme rules may prescribe
3
other duties of a person who may do a thing in relation to a child
4
because of section 74, including duties requiring the person:
5
(a) to support decision-making by the child personally; or
6
(b) to have regard to, and give appropriate weight to, the views
7
of the child.
8
77 Revocation of determinations under section 74
9
(1) The CEO may, by written instrument, revoke a determination that
10
is in effect under paragraph 74(1)(b) in relation to a person if:
11
(a) the person requests the CEO in writing to do so; or
12
(b) the CEO is satisfied that it is no longer appropriate for the
13
determination to remain in effect.
14
(2) The CEO must give the person a copy of the instrument.
15
16
Administration Chapter 4
Nominees Part 5
Functions and responsibilities of nominees Division 1
Section 78
National Disability Insurance Scheme Bill 2012 No. , 2012 63
Part 5--Nominees
1
Division 1--Functions and responsibilities of nominees
2
78 Actions of plan nominee on behalf of participant
3
(1) Any act that may be done by a participant under, or for the
4
purposes of, this Act that relates to:
5
(a) the preparation, review or replacement of the participant's
6
plan; or
7
(b) the management of the funding for supports under the
8
participant's plan;
9
may be done by the participant's plan nominee, other than to the
10
extent specified in the instrument of appointment of the plan
11
nominee.
12
Note 1:
For the appointment of plan nominees, see section 86.
13
Note 2:
This subsection is subject to section 85 (which deals with the right of
14
the nominee to attend with a participant) and subsection (4) of this
15
section.
16
(2) Without limiting subsection (1), a request that may be made under
17
this Act by a participant may be made by the participant's plan
18
nominee on behalf of the participant.
19
(3) An act done by a participant's plan nominee because of this section
20
has effect, for the purposes of this Act (other than this Part), as if it
21
had been done by the participant.
22
(4) If, under this Act, the CEO gives a notice to a participant who has a
23
plan nominee, subsection (1) does not extend to an act that is
24
required by the notice to be done by the participant personally.
25
(5) If the participant's plan nominee was appointed on the initiative of
26
the CEO, the plan nominee may only do an act in relation to:
27
(a) the preparation, review or replacement of the participant's
28
plan; or
29
(b) the management of the funding for supports under the
30
participant's plan;
31
Chapter 4 Administration
Part 5 Nominees
Division 1 Functions and responsibilities of nominees
Section 79
64 National Disability Insurance Scheme Bill 2012 No. , 2012
if the nominee considers that the participant is not capable of doing
1
the act.
2
79 Actions of correspondence nominee on behalf of participant
3
(1) Any act that may be done by a participant under, or for the
4
purposes of, this Act may be done by the participant's
5
correspondence nominee, other than an act that relates to:
6
(a) the preparation, review or replacement of the participant's
7
plan; or
8
(b) the management of the funding for supports under the
9
participant's plan.
10
Note 1:
For the appointment of correspondence nominees, see section 87.
11
Note 2:
This subsection is subject to section 85 (which deals with the right of
12
the nominee to attend with a participant) and subsection (4) of this
13
section.
14
(2) Without limiting subsection (1), a request that may be made under
15
this Act by a participant may be made by the participant's
16
correspondence nominee on behalf of the participant.
17
(3) An act done by a participant's correspondence nominee because of
18
this section has effect, for the purposes of this Act (other than this
19
Part), as if it had been done by the participant.
20
(4) If, under this Act, the CEO gives a notice to a participant who has a
21
correspondence nominee, subsection (1) does not extend to an act
22
that is required by the notice to be done by the participant
23
personally.
24
80 Duty of nominee to participant
25
(1) It is the duty of a nominee of a participant to ascertain the wishes
26
of the participant and to act in a manner that promotes the personal
27
and social wellbeing of the participant.
28
(2) A nominee does not breach the duty imposed by subsection (1) by
29
doing an act if, when the act is done, the nominee reasonably
30
believes that:
31
(a) he or she has ascertained the wishes of the participant in
32
relation to the act; and
33
Administration Chapter 4
Nominees Part 5
Functions and responsibilities of nominees Division 1
Section 81
National Disability Insurance Scheme Bill 2012 No. , 2012 65
(b) the doing of the act promotes the personal and social
1
wellbeing of the participant.
2
(3) A nominee does not breach the duty imposed by subsection (1) by
3
refraining from doing an act if, at the relevant time, the nominee
4
reasonably believes that:
5
(a) he or she has ascertained the wishes of the participant in
6
relation to the act; and
7
(b) not doing the act promotes the personal and social wellbeing
8
of the participant.
9
(4) The National Disability Insurance Scheme rules may prescribe
10
other duties of a nominee, including duties requiring the nominee:
11
(a) to support decision-making by the participant personally; or
12
(b) to have regard to, and give appropriate weight to, the views
13
of the participant.
14
81 Giving of notices to correspondence nominee
15
(1) Any notice that the CEO is authorised or required by this Act to
16
give to a participant must be given by the CEO to the participant's
17
correspondence nominee.
18
(2)
The
notice:
19
(a) must, in every respect, be in the same form, and in the same
20
terms, as if it were being given to the participant; and
21
(b) may be given to the correspondence nominee personally, by
22
post or by any other means approved by the CEO.
23
(3)
If:
24
(a) under subsection (1), the CEO gives a notice (the nominee
25
notice) to a participant's correspondence nominee; and
26
(b) the CEO has already given, or afterwards gives, the
27
participant a notice that:
28
(i) is expressed to be given under the same provision of this
29
Act as the nominee notice; and
30
(ii) makes the same requirement of the participant as the
31
nominee notice;
32
Chapter 4 Administration
Part 5 Nominees
Division 1 Functions and responsibilities of nominees
Section 82
66 National Disability Insurance Scheme Bill 2012 No. , 2012
section 82 ceases to have effect, or does not come into effect, as
1
the case requires, in relation to the nominee notice.
2
82 Compliance by correspondence nominee
3
(1) If, under section 81, a notice is given to a participant's
4
correspondence nominee, the following paragraphs have effect:
5
(a) for the purposes of this Act, other than this Part, the notice is
6
taken:
7
(i) to have been given to the participant; and
8
(ii) to have been so given on the day the notice was given to
9
the correspondence nominee;
10
(b) any requirement made of the participant to:
11
(i) inform the CEO of a matter; or
12
(ii) give information, or produce a document, to an officer;
13
may be satisfied by the correspondence nominee;
14
(c) any act done by the correspondence nominee for the purposes
15
of satisfying such a requirement has effect, for the purposes
16
of this Act, as if it had been done by the participant;
17
(d) if the correspondence nominee fails to satisfy such a
18
requirement, the participant is taken, for the purposes of this
19
Act, to have failed to comply with the requirement.
20
(2) To avoid doubt, for the purposes of this Act, the participant is
21
taken to have complied with a requirement if:
22
(a) the requirement imposes an obligation on the participant to
23
inform the CEO of a matter, or give information or produce a
24
document, within a specified period; and
25
(b) the correspondence nominee does so within that period.
26
(3) To avoid doubt, for the purposes of this Act, the participant is
27
taken not to have complied with a requirement if:
28
(a) the requirement imposes an obligation on the participant to
29
inform the CEO of a matter, or give information or produce a
30
document, within a specified period; and
31
(b) the correspondence nominee does not do so within that
32
period.
33
Administration Chapter 4
Nominees Part 5
Functions and responsibilities of nominees Division 1
Section 83
National Disability Insurance Scheme Bill 2012 No. , 2012 67
83 Nominee to inform Agency of matters affecting ability to act as
1
nominee
2
(1) The CEO may give a nominee of a participant a written notice that
3
requires the nominee to inform the Agency if:
4
(a)
either:
5
(i) an event or change of circumstances happens; or
6
(ii) the nominee becomes aware that an event or change of
7
circumstances is likely to happen; and
8
(b) the event or change of circumstances is likely to affect:
9
(i) the ability of the nominee to act as the plan nominee or
10
correspondence nominee of the participant (as the case
11
may be); or
12
(ii) the ability of the CEO to give notices to the nominee
13
under this Act; or
14
(iii) the ability of the nominee to comply with notices given
15
to the nominee by the CEO under this Act.
16
(2) A notice under subsection (1) must specify:
17
(a) how the nominee is to inform the Agency; and
18
(b) the period within which the nominee is to inform the Agency,
19
which must be a period of at least 14 days beginning on
20
whichever of the following days is applicable:
21
(i) the day on which the event or change of circumstances
22
happens;
23
(ii) the day on which the nominee becomes aware that the
24
event or change of circumstances is likely to happen.
25
(3) A notice under subsection (1) is not ineffective only because it
26
does not comply with paragraph (2)(a).
27
(4) This section extends to:
28
(a) acts, omissions, matters and things outside Australia, whether
29
or not in a foreign country; and
30
(b) all persons, irrespective of their nationality or citizenship.
31
Chapter 4 Administration
Part 5 Nominees
Division 1 Functions and responsibilities of nominees
Section 84
68 National Disability Insurance Scheme Bill 2012 No. , 2012
84 Statement by plan nominee regarding disposal of money
1
(1) The CEO may give the plan nominee of a participant a notice that
2
requires the nominee to give the Agency a statement about a matter
3
relating to the disposal by the nominee of an NDIS amount paid to
4
the nominee on behalf of the participant.
5
(2) A notice under subsection (1):
6
(a) must specify how the plan nominee is to give the statement to
7
the Agency; and
8
(b) must specify the period within which the plan nominee is to
9
give the statement to the Agency.
10
(3) A notice under subsection (1) is not ineffective only because it
11
does not comply with paragraph (2)(a).
12
(4) The period specified under paragraph (2)(b) must not end earlier
13
than 14 days after the day the notice is given.
14
(5) A statement given in response to a notice under subsection (1)
15
must be in accordance with a form approved by the CEO.
16
(6) A person commits an offence if:
17
(a) the person is a plan nominee; and
18
(b) the person refuses or fails to comply with a notice under
19
subsection (1).
20
Penalty: 30 penalty units.
21
(7) Subsection (6) does not apply if the person has a reasonable
22
excuse.
23
Note:
A defendant bears an evidential burden in relation to the matter in this
24
subsection (see subsection 13.3(3) of the Criminal Code).
25
(8) An offence against subsection (6) is an offence of strict liability.
26
Note:
For strict liability, see section 6.1 of the Criminal Code.
27
(9) This section extends to:
28
(a) acts, omissions, matters and things outside Australia, whether
29
or not in a foreign country; and
30
(b) all persons, irrespective of their nationality or citizenship.
31
Administration Chapter 4
Nominees Part 5
Functions and responsibilities of nominees Division 1
Section 85
National Disability Insurance Scheme Bill 2012 No. , 2012 69
85 Right of nominee to attend with participant
1
(1)
If:
2
(a) under this Act, the CEO makes a request of a participant who
3
has a nominee; and
4
(b) the request is that the participant undergo an assessment or a
5
medical, psychiatric or psychological examination;
6
the nominee may accompany the participant while the assessment
7
or examination is being conducted:
8
(c) if the participant so wishes; and
9
(d) to the extent that the person conducting the assessment or
10
examination consents.
11
(2) If a participant's nominee is a body corporate, the last reference in
12
subsection (1) to the nominee is to be read as a reference to an
13
officer or employee of the nominee.
14
15
Chapter 4 Administration
Part 5 Nominees
Division 2 Appointment and cancellation or suspension of appointment
Section 86
70 National Disability Insurance Scheme Bill 2012 No. , 2012
Division 2--Appointment and cancellation or suspension of
1
appointment
2
86 Appointment of plan nominee
3
(1) The CEO may, in writing, appoint a person to be the plan nominee
4
of a participant for the purposes of this Act.
5
Note:
The CEO must make the appointment in accordance with section 88.
6
(2) An appointment may be made:
7
(a) at the request of the participant; or
8
(b) on the initiative of the CEO.
9
(3) An appointment may limit the matters in relation to which the
10
person is the plan nominee of the participant.
11
87 Appointment of correspondence nominee
12
(1) The CEO may, in writing, appoint a person to be the
13
correspondence nominee of a participant for the purposes of this
14
Act.
15
Note:
The CEO must make the appointment in accordance with section 88.
16
(2) An appointment may be made:
17
(a) at the request of the participant; or
18
(b) on the initiative of the CEO.
19
88 Provisions relating to appointments
20
(1) A person may be appointed as the plan nominee and the
21
correspondence nominee of the same participant.
22
(2) The CEO must not appoint a person as a nominee of a participant
23
under section 86 or 87 except:
24
(a) with the written consent of the person to be appointed; and
25
(b) after taking into consideration the wishes (if any) of the
26
participant regarding the making of the appointment.
27
Administration Chapter 4
Nominees Part 5
Appointment and cancellation or suspension of appointment Division 2
Section 89
National Disability Insurance Scheme Bill 2012 No. , 2012 71
(3) In appointing a person as a nominee of a participant under
1
section 86 or 87, the CEO must consider whether the person is able
2
to comply with section 80.
3
(4) In appointing a nominee of a participant under section 86 or 87, the
4
CEO must have regard to whether a person has guardianship of the
5
participant under a law of the Commonwealth, a State or a
6
Territory.
7
(5) The CEO must cause a copy of an appointment under section 86 or
8
87 to be given to:
9
(a) the nominee; and
10
(b)
the
participant.
11
(6) The National Disability Insurance Scheme rules may prescribe:
12
(a) persons who must not be appointed as nominees; and
13
(b) criteria to which the CEO is to have regard in considering the
14
appointment of a nominee.
15
89 Circumstances in which the CEO must cancel appointment of
16
nominees
17
At the request of a participant
18
(1)
If:
19
(a) a person is appointed as a nominee of a participant under
20
section 86 or 87 at the request of the participant; and
21
(b) the participant requests the CEO to cancel the appointment;
22
the CEO must, as soon as practicable, cancel the appointment by
23
written instrument.
24
(2) A request under paragraph (1)(b) need not be made in writing. If
25
the request is not made in writing, the CEO must make a written
26
record of the request.
27
Nominee no longer wishes to be a nominee
28
(3)
If:
29
(a) a person is appointed as a nominee of a participant under
30
section 86 or 87; and
31
Chapter 4 Administration
Part 5 Nominees
Division 2 Appointment and cancellation or suspension of appointment
Section 90
72 National Disability Insurance Scheme Bill 2012 No. , 2012
(b) the person informs the CEO in writing that the person no
1
longer wishes to be a nominee under that appointment;
2
the CEO must, as soon as practicable, cancel the appointment by
3
written instrument.
4
Copy of instrument of cancellation to be given
5
(4) If the appointment of a person as a nominee of a participant is
6
cancelled under this section, the CEO must give the person and
7
participant a copy of the instrument of cancellation.
8
90 General circumstances in which CEO may cancel or suspend
9
appointment of nominees
10
At the request of a participant
11
(1)
If:
12
(a) a person is appointed as a nominee of a participant under
13
section 86 or 87 on the initiative of the CEO; and
14
(b) the participant requests the CEO to cancel the appointment;
15
the CEO may, by written instrument, cancel the appointment.
16
(2) A request under paragraph (1)(b) need not be made in writing. If
17
the request is not made in writing, the CEO must make a written
18
record of the request.
19
(3) If a request is made under paragraph (1)(b):
20
(a) the CEO must decide whether to cancel the appointment
21
within 14 days after receiving the request; and
22
(b) if the CEO decides not to cancel the appointment--the CEO
23
must give the person and participant written notice of the
24
CEO's decision.
25
Ability to act as a nominee affected
26
(4) The CEO may, by written instrument, suspend or cancel one or
27
more of a nominee's appointments if:
28
(a) the CEO gives the nominee a notice under section 83; and
29
Administration Chapter 4
Nominees Part 5
Appointment and cancellation or suspension of appointment Division 2
Section 91
National Disability Insurance Scheme Bill 2012 No. , 2012 73
(b) the nominee informs the Agency that an event or change of
1
circumstances has happened or is likely to happen and is
2
likely to have an effect referred to in paragraph 83(1)(b).
3
Failure to comply with a notice under section 83 or 84
4
(5) The CEO may, by written instrument, suspend or cancel one or
5
more of a nominee's appointments if:
6
(a) the CEO gives the nominee a notice under
section 83 or 84;
7
and
8
(b) the nominee does not comply with a requirement specified in
9
the notice.
10
Copy of instrument of cancellation or suspension to be given
11
(6) If the appointment of a person as a nominee of a participant is
12
cancelled or suspended under this section, the CEO must give the
13
person and participant a copy of the instrument of cancellation or
14
suspension.
15
91 Suspension etc. of appointment of nominees in cases of severe
16
physical, mental or financial harm
17
Suspension of appointment
18
(1) The CEO may, by written instrument, suspend the appointment of
19
a person as a nominee of a participant if the CEO has reasonable
20
grounds to believe that the person has caused, or is likely to cause,
21
severe physical, mental or financial harm to the participant.
22
(2) If the person's appointment is suspended under subsection (1), the
23
CEO must:
24
(a) give the person and participant a copy of the instrument of
25
suspension; and
26
(b) by written notice given to the person, request the person to
27
give the CEO, within 28 days after the notice is given, a
28
statement setting out reasons why the person's appointment
29
should not be cancelled by the CEO under this section.
30
Chapter 4 Administration
Part 5 Nominees
Division 2 Appointment and cancellation or suspension of appointment
Section 92
74 National Disability Insurance Scheme Bill 2012 No. , 2012
Cancellation of appointment following suspension
1
(3) If the person gives the CEO the statement within the 28-day period,
2
the CEO may, by written instrument, cancel the person's
3
appointment.
4
(4) The CEO must decide whether to cancel the person's appointment
5
under subsection (3) as soon as practicable after receiving the
6
statement.
7
(5) If the CEO decides not to cancel the person's appointment under
8
subsection (3):
9
(a) the suspension of the person's appointment ends; and
10
(b) the CEO must give the person and participant written notice
11
of the CEO's decision.
12
(6) If the person does not give the CEO the statement within the
13
28-day period, the CEO must, by written instrument, cancel the
14
person's appointment as soon as practicable after that period ends.
15
Copy of instrument of cancellation to be given
16
(7) If the person's appointment is cancelled under this section, the
17
CEO must give the person and participant a copy of the instrument
18
of cancellation.
19
92 Other matters relating to cancellation or suspension of
20
appointment
21
Cancellation of appointment
22
(1)
If:
23
(a) the National Disability Insurance Scheme rules made for the
24
purposes of subsection 46(2) apply in relation to a person
25
who is a nominee; and
26
(b) the appointment of the person as a nominee is cancelled
27
under section 89, 90 or 91;
28
those rules continue to apply in relation to the person as if the
29
appointment had not been cancelled.
30
Administration Chapter 4
Nominees Part 5
Appointment and cancellation or suspension of appointment Division 2
Section 93
National Disability Insurance Scheme Bill 2012 No. , 2012 75
Suspension of appointment
1
(2) While a person's appointment as a nominee is suspended, the
2
appointment has no effect for the purposes of this Act.
3
(3) If a person's appointment as a nominee of a participant is
4
suspended under section 90 or 91, the CEO may appoint another
5
person under section 86 or 87 to be the nominee of the participant
6
for a period specified in the instrument of appointment.
7
93 National Disability Insurance Scheme rules may prescribe
8
requirements etc.
9
The National Disability Insurance Scheme rules may prescribe:
10
(a) requirements with which the CEO must comply relating to
11
the appointment of nominees or the cancellation or
12
suspension of the appointment of nominees; and
13
(b) matters to which the CEO is to have regard in appointing
14
nominees or cancelling or suspending the appointment of
15
nominees.
16
94 CEO's powers of revocation
17
Nothing in this Part is an expression of a contrary intention for the
18
purposes of subsection 33(3) of the Acts Interpretation Act 1901.
19
20
Chapter 4 Administration
Part 5 Nominees
Division 3 Other matters relating to nominees
Section 95
76 National Disability Insurance Scheme Bill 2012 No. , 2012
Division 3--Other matters relating to nominees
1
95 CEO's powers to give notices to participant
2
Nothing in this Part is intended in any way to affect the CEO's
3
powers under other provisions of this Act to give notices to, or
4
make requirements of, a participant who has a nominee.
5
96 Notification of nominee where notice is given to participant
6
(1) If, under this Act (other than this Part), the CEO gives a notice to a
7
participant who has a correspondence nominee, the CEO may
8
inform the correspondence nominee of the giving of the notice and
9
of the terms of the notice.
10
(2) If, under this Act (other than this Part):
11
(a) the CEO gives a notice to a participant who has a plan
12
nominee; and
13
(b) the notice relates to the preparation, management or review
14
of the participant's plan;
15
the CEO must inform the plan nominee of the giving of the notice
16
and of the terms of the notice.
17
97 Protection of participant against liability for actions of nominee
18
Nothing in this Part renders a participant guilty of an offence
19
against this Act in relation to any act or omission of the
20
participant's nominee.
21
98 Protection of nominee against criminal liability
22
(1) A nominee of a participant is not subject to any criminal liability
23
under this Act in relation to:
24
(a) any act or omission of the participant; or
25
(b) anything done, in good faith, by the nominee in his or her
26
capacity as nominee.
27
(2) This section has effect subject to section 84 (which deals with a
28
statement by a plan nominee regarding the disposal of money).
29
Administration Chapter 4
Review of decisions Part 6
Section 99
National Disability Insurance Scheme Bill 2012 No. , 2012 77
Part 6--Review of decisions
1
2
99 Reviewable decisions
3
Each of the following decisions of the CEO is a reviewable
4
decision:
5
(a) a decision under paragraph 20(a), subsection 21(3) or
6
paragraph 26(2)(c) that a person does not meet the access
7
criteria;
8
(b) a decision under paragraph 26(2)(b) not to specify a period;
9
(c) a decision under section 30 to revoke a person's status as a
10
participant;
11
(d) a decision under subsection 33(2) to approve the statement of
12
participant supports in a participant's plan;
13
(e) a decision under paragraph 40(2)(b) not to extend a grace
14
period;
15
(f) a decision under subsection 48(2) not to review a
16
participant's plan;
17
(g) a decision under section 70 to refuse to approve a person or
18
entity as a registered provider of supports;
19
(h) a decision under section 72 to revoke an instrument
20
approving a person or entity as a registered provider of
21
supports;
22
(i) a decision under paragraph 74(1)(b) to make, or not to make,
23
a determination in relation to a person;
24
(j) a decision under paragraph 74(4)(c) not to make a
25
determination that subsections 74(1) and (2) do not apply to a
26
child;
27
(k) a decision under subsection 75(2) or (3) to make, or not to
28
make, a determination that a person has parental
29
responsibility for a child;
30
(l) a decision under section 86 to appoint a plan nominee;
31
(m) a decision under section 87 to appoint a correspondence
32
nominee;
33
(n) a decision under section 89, 90 or 91 to cancel or suspend, or
34
not to cancel or suspend, the appointment of a nominee;
35
Chapter 4 Administration
Part 6 Review of decisions
Section 100
78 National Disability Insurance Scheme Bill 2012 No. , 2012
(o) a decision under section 104 to give a notice to require a
1
person to take reasonable action to claim or obtain
2
compensation;
3
(p) a decision under section 111 to give a notice that the CEO
4
proposes to recover an amount;
5
(q) a decision under section 116 not to treat the whole or part of
6
a compensation payment as not having been fixed by a
7
judgement or settlement.
8
100 Review of reviewable decisions
9
(1) The CEO must give written notice of a reviewable decision to each
10
person directly affected by the reviewable decision. The notice
11
must include a statement:
12
(a)
that:
13
(i) the person may request the CEO to review the
14
reviewable decision; or
15
(ii) if the CEO is taken to have made the reviewable
16
decision because of subsection 21(3) or 48(2)--the
17
decision will be reviewed automatically; and
18
(b) that the person may seek further review under section 103.
19
(2) A person who is directly affected by a reviewable decision may
20
request the CEO to review the reviewable decision. If the person is
21
given a notice under subsection (1) the person must make the
22
request within 3 months after receiving the notice.
23
(3) A request may be made by:
24
(a) sending or delivering a written request to the CEO; or
25
(b) making an oral request, in person or by telephone or other
26
means, to the CEO.
27
(4) If a person makes an oral request in accordance with
28
paragraph (3)(b), the person receiving the oral request must:
29
(a) make a written record of the details of the request; and
30
(b) note on the record the day the request is made.
31
(5)
If:
32
Administration Chapter 4
Review of decisions Part 6
Section 101
National Disability Insurance Scheme Bill 2012 No. , 2012 79
(a) the CEO receives a request for review of a reviewable
1
decision; or
2
(b) the CEO is taken to have made a reviewable decision because
3
of subsection 21(3) or 48(2);
4
the CEO must cause the reviewable decision to be reviewed by a
5
person (the reviewer):
6
(c) to whom the CEO's powers and functions under this section
7
are delegated; and
8
(d) who was not involved in making the reviewable decision.
9
(6) The reviewer must, as soon as reasonably practicable, make a
10
decision:
11
(a) confirming the reviewable decision; or
12
(b) varying the reviewable decision; or
13
(c) setting aside the reviewable decision and substituting a new
14
decision.
15
(7) A request for review of a reviewable decision, or a requirement to
16
review a reviewable decision that the CEO is taken to have made,
17
does not affect the operation of the decision or prevent the taking
18
of action to implement the decision.
19
(8) A failure of the CEO to comply with subsection (1) does not affect
20
the validity of the reviewable decision or the right of a person
21
directly affected to request review of the decision.
22
(9) To the extent that this provision relates to a decision referred to in
23
paragraph 99(g) or (h), a reference in this section to a person
24
includes a reference to an entity.
25
101 Variation of reviewable decision before review completed
26
If:
27
(a) a request is made for review of a reviewable decision; and
28
(b) before a decision on the review is made, the reviewable
29
decision is varied;
30
the request for review is taken to be for review of the reviewable
31
decision as varied.
32
Chapter 4 Administration
Part 6 Review of decisions
Section 102
80 National Disability Insurance Scheme Bill 2012 No. , 2012
102 Withdrawal of request for review
1
(1) A request for review of a reviewable decision may be withdrawn
2
by:
3
(a) sending or delivering a written notice to the CEO; or
4
(b) contacting the CEO and withdrawing the request orally,
5
whether in person, by telephone or by other means.
6
(2) If a request is withdrawn in accordance with paragraph (1)(b), the
7
person receiving the oral withdrawal must make a written record of
8
the details of the withdrawal and note on the record the day the
9
withdrawal is made.
10
103 Applications to the Administrative Appeals Tribunal
11
Applications may be made to the Administrative Appeals Tribunal
12
for review of a decision made by a reviewer under subsection
13
100(6).
14
Note: Under
the
Administrative Appeals Tribunal Act 1975, notice must be
15
given to persons whose interests are affected by a decision of the
16
reviewer.
17
18
Compensation payments Chapter 5
Requirement to take action to obtain compensation Part 1
Section 104
National Disability Insurance Scheme Bill 2012 No. , 2012 81
Chapter 5--Compensation payments
1
Part 1--Requirement to take action to obtain
2
compensation
3
4
104 CEO may require person to take action to obtain compensation
5
(1) This section applies if:
6
(a) a participant or a prospective participant is, or in the CEO's
7
opinion may be, entitled to compensation in respect of a
8
personal injury; and
9
(b) the participant or prospective participant:
10
(i) has taken no action to claim or obtain the compensation;
11
or
12
(ii) has taken no reasonable action to claim or obtain the
13
compensation.
14
(2) The CEO may, by written notice, require the participant or
15
prospective participant to take the action specified in the notice
16
within the period specified in the notice. The action must be action
17
that is reasonable to enable the person to claim or obtain the
18
compensation.
19
(3) In considering whether it is reasonable to require a participant or
20
prospective participant to take an action, the CEO must have
21
regard to the following:
22
(a) the disability of the participant or prospective participant;
23
(b) the circumstances which give rise to the entitlement or
24
possible entitlement to compensation;
25
(c) any impediments the participant or prospective participant
26
may face in recovering compensation;
27
(d) any reasons given by the participant or prospective
28
participant as to why he or she has not claimed or obtained
29
compensation;
30
(e) the financial circumstances of the participant or prospective
31
participant;
32
Chapter 5 Compensation payments
Part 1 Requirement to take action to obtain compensation
Section 105
82 National Disability Insurance Scheme Bill 2012 No. , 2012
(f) the impact of the requirement to take the action on the
1
participant or prospective participant and his or her family.
2
(4) The CEO must not give a notice under subsection (2) requiring a
3
participant or prospective participant to take action to claim or
4
obtain compensation unless the CEO is satisfied that the participant
5
or prospective participant has reasonable prospects of success in
6
claiming or obtaining the compensation.
7
(5) The period specified by the CEO must be a period of at least 28
8
days after the day on which the notice is given.
9
(6) Even though a participant or a prospective participant has entered
10
into an agreement to give up his or her right to compensation, the
11
CEO may form the opinion that the participant or prospective
12
participant may be entitled to compensation if the CEO is satisfied
13
that the agreement is void, ineffective or unenforceable.
14
105 Consequences of failure to comply with a requirement to take
15
action to obtain compensation
16
(1) A participant or a prospective participant who is given a notice
17
under subsection 104(2) requiring him or her to take action (the
18
required action) to claim or obtain compensation within a
19
specified period must take the required action within the period.
20
(2) If a participant does not take the required action within the period:
21
(a) if a plan is in effect for the participant--the plan is suspended
22
from the end of the specified period until the participant takes
23
the required action; or
24
(b) if a plan is not yet in effect for the participant--the CEO
25
must still comply with section 32 in relation to facilitating the
26
preparation of the participant's plan, but the plan does not
27
come into effect until the participant takes the required
28
action.
29
(3) If a prospective participant does not take the required action, the
30
CEO is not prevented from deciding whether or not the prospective
31
participant meets the access criteria and facilitating the preparation
32
of the participant's plan, but the plan does not come into effect
33
until the participant takes the required action.
34
Compensation payments Chapter 5
Agency may recover compensation fixed after NDIS amounts have been paid Part 2
Section 106
National Disability Insurance Scheme Bill 2012 No. , 2012 83
Part 2--Agency may recover compensation fixed
1
after NDIS amounts have been paid
2
3
106 Recovering past NDIS amounts from certain judgements
4
(1) This section applies if:
5
(a) an amount of compensation is fixed under a judgement (other
6
than a consent judgement) given in respect of a personal
7
injury that has caused, to any extent, a participant's
8
impairment (whether or not the participant was a participant
9
at the time of the injury); and
10
(b) before the day of the judgement, NDIS amounts (the past
11
NDIS amounts) had been paid in respect of supports in
12
relation to the participant's impairment; and
13
(c) the judgement specifies a portion (the past NDIS support
14
component) of the amount of compensation to be a
15
component for supports of a kind funded or provided under
16
the National Disability Insurance Scheme.
17
(2) An amount (the recoverable amount) is payable by the participant
18
to the Agency. The recoverable amount is an amount equal to:
19
(a) unless subsection (4) or (5) applies--the sum of the past
20
NDIS amounts, reduced as mentioned in subsection (3) (if
21
applicable); or
22
(b) if subsection (4) or (5) applies--the amount worked out in
23
accordance with whichever of those subsections is
24
applicable.
25
(3)
If:
26
(a) the judgement fixes the amount of compensation on the basis
27
that liability for the injury should be apportioned between the
28
participant and another person; and
29
(b) as a result, the amount of compensation is less than it would
30
have been if liability had not been so apportioned;
31
the sum of the past NDIS amounts is to be reduced by the
32
proportion corresponding to the proportion of liability that is
33
apportioned to the participant by the judgement.
34
Chapter 5 Compensation payments
Part 2 Agency may recover compensation fixed after NDIS amounts have been paid
Section 107
84 National Disability Insurance Scheme Bill 2012 No. , 2012
(4) If the recoverable amount would, apart from this subsection,
1
exceed the past NDIS support component, the recoverable amount
2
is taken to be the lesser of the sum of the past NDIS amounts and
3
the past NDIS support component.
4
(5) If the recoverable amount would, apart from this subsection,
5
exceed the difference (if any) between:
6
(a) the amount of compensation fixed by the judgement; and
7
(b) the sum of the amounts (if any) payable in respect of the
8
amount of compensation under the following:
9
(i)
the
Health and Other Services (Compensation) Act
10
1995;
11
(ii)
the
Health and Other Services (Compensation) Care
12
Charges Act 1995;
13
(iii) Part 3.14 of the Social Security Act 1991;
14
(iv) a law of the Commonwealth, a State or a Territory,
15
prescribed by the National Disability Insurance Scheme
16
rules;
17
the recoverable amount is taken to be the amount of the difference.
18
107 Recovering past NDIS amounts from consent judgements and
19
settlements
20
(1) This section applies if:
21
(a) an amount of compensation is fixed under a consent
22
judgement or settlement in respect of a personal injury that
23
has caused, to any extent, a participant's impairment
24
(whether or not the participant was a participant at the time of
25
the injury); and
26
(b) before the day of the consent judgement or settlement, NDIS
27
amounts (the past NDIS amounts) had been paid in respect
28
of supports in relation to the participant's impairment.
29
(2) An amount (the recoverable amount) is payable by the participant
30
to the Agency. The recoverable amount is an amount equal to:
31
(a) unless subsection (4) applies--the sum of the past NDIS
32
amounts, reduced as mentioned in subsection (3) (if
33
applicable); or
34
Compensation payments Chapter 5
Agency may recover compensation fixed after NDIS amounts have been paid Part 2
Section 108
National Disability Insurance Scheme Bill 2012 No. , 2012 85
(b) if subsection (4) applies--the amount worked out in
1
accordance with that subsection.
2
(3)
If:
3
(a) the consent judgement or settlement fixes the amount of
4
compensation on the basis that liability for the injury should
5
be apportioned between the participant and another person;
6
and
7
(b) as a result, the amount of compensation is less than it would
8
have been if liability had not been so apportioned;
9
the sum of the past NDIS amounts is to be reduced by the
10
proportion corresponding to the proportion of liability that is
11
apportioned to the participant by the consent judgement or
12
settlement.
13
(4) If the recoverable amount would, apart from this subsection,
14
exceed the difference (if any) between:
15
(a) the amount of compensation fixed under the consent
16
judgement or settlement; and
17
(b) the sum of the amounts (if any) payable in respect of the
18
amount of compensation under the following:
19
(i)
the
Health and Other Services (Compensation) Act
20
1995;
21
(ii)
the
Health and Other Services (Compensation) Care
22
Charges Act 1995;
23
(iii) Part 3.14 of the Social Security Act 1991;
24
(iv) a law of the Commonwealth, a State or a Territory,
25
prescribed by the National Disability Insurance Scheme
26
rules;
27
the recoverable amount is taken to be the amount of the difference.
28
108 Debts resulting from section 106 or 107
29
An amount payable by a person under section 106 or 107 is a debt
30
due by the person to the Agency.
31
32
Chapter 5 Compensation payments
Part 3 Recovery from compensation payers and insurers
Section 109
86 National Disability Insurance Scheme Bill 2012 No. , 2012
Part 3--Recovery from compensation payers and
1
insurers
2
3
109 CEO may send preliminary notice to potential compensation
4
payer or insurer
5
(1)
If:
6
(a) a participant or prospective participant makes a claim against
7
another person (the potential compensation payer) for
8
compensation; and
9
(b) the claim relates to the participant's or prospective
10
participant's impairment;
11
the CEO may give written notice to the potential compensation
12
payer, stating that the CEO may wish to recover an amount from
13
the potential compensation payer.
14
(2)
If:
15
(a) a participant or prospective participant makes a claim against
16
another person (the potential compensation payer) for
17
compensation; and
18
(b) the claim relates to the participant's or prospective
19
participant's impairment; and
20
(c) an insurer may be liable, under a contract of insurance, to
21
indemnify the potential compensation payer against any
22
liability arising from the claim for compensation;
23
the CEO may give written notice to the insurer, stating that the
24
CEO may wish to recover an amount from the insurer.
25
(3) A notice under subsection (1) or (2) must contain:
26
(a) a statement of the potential compensation payer's or insurer's
27
obligation under subsection 110(1) or (2), as the case
28
requires; and
29
(b) a statement of the effect of section 111 (recovery) so far as it
30
relates to the notice.
31
Compensation payments Chapter 5
Recovery from compensation payers and insurers Part 3
Section 110
National Disability Insurance Scheme Bill 2012 No. , 2012 87
110 Offence--potential compensation payer or insurer
1
(1) A person (the potential compensation payer) commits an offence
2
if:
3
(a) the potential compensation payer is given a notice under
4
subsection 109(1) in relation to a participant or prospective
5
participant; and
6
(b) before or after receiving the notice, the potential
7
compensation payer becomes liable to pay compensation to
8
the participant or prospective participant; and
9
(c) the potential compensation payer does not give written notice
10
to the CEO of the liability within 7 days after becoming
11
liable or receiving the notice, whichever is later.
12
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
13
Note:
If a body corporate is convicted of an offence against this section,
14
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a
15
fine of up to 5 times the pecuniary penalty stated above.
16
(2) An insurer commits an offence if:
17
(a) the insurer is given a notice under subsection 109(2) in
18
relation to a claim by a participant or prospective participant;
19
and
20
(b) before or after receiving the notice, the insurer becomes
21
liable to indemnify the potential compensation payer, either
22
wholly or partly, in relation to the claim; and
23
(c) the insurer does not give written notice to the CEO of the
24
liability within 7 days of becoming liable or receiving the
25
notice, whichever is later.
26
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
27
Note:
If a body corporate is convicted of an offence against this section,
28
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a
29
fine of up to 5 times the pecuniary penalty stated above.
30
111 CEO may send recovery notice to compensation payer or
31
insurer
32
(1)
If:
33
Chapter 5 Compensation payments
Part 3 Recovery from compensation payers and insurers
Section 111
88 National Disability Insurance Scheme Bill 2012 No. , 2012
(a) one or more NDIS amounts have been paid to a person in
1
respect of a participant's impairment; and
2
(b) a person (the compensation payer):
3
(i) is liable to pay compensation to the participant in
4
relation to the impairment; or
5
(ii) if the compensation payer is an authority of a State or
6
Territory--has determined that a payment by way of
7
compensation is to be made to the participant in relation
8
to the impairment;
9
the CEO may give written notice to the compensation payer that
10
the CEO proposes to recover from the compensation payer the
11
amount specified in the notice.
12
(2)
If:
13
(a) one or more NDIS amounts have been paid to a person in
14
respect of a participant's impairment; and
15
(b) an insurer is liable, under a contract of insurance, to
16
indemnify the compensation payer against any liability
17
arising from a claim of the participant for compensation;
18
the CEO may give written notice to the insurer that the CEO
19
proposes to recover from the insurer the amount specified in the
20
notice.
21
(3) If a compensation payer or insurer is given notice under
22
subsection (1) or (2), the compensation payer or insurer is liable to
23
pay to the Agency the amount specified in the notice.
24
(4) The amount to be specified in the notice is the lesser of the
25
following:
26
(a) an amount equal to the sum of the NDIS amounts referred to
27
in paragraph (1)(a) or (2)(a);
28
(b) an amount equal to the recoverable amount in relation to the
29
judgement, consent judgement or settlement to which the
30
liability relates.
31
(5) A notice under this section must contain a statement of the effect of
32
section 114 (offences) so far as it relates to such a notice.
33
Compensation payments Chapter 5
Recovery from compensation payers and insurers Part 3
Section 112
National Disability Insurance Scheme Bill 2012 No. , 2012 89
(6) This section applies to an amount payable by way of compensation
1
in spite of any law of the Commonwealth, a State or Territory
2
(however expressed) under which the compensation is inalienable.
3
(7) If the CEO gives a person a notice under this section that the CEO
4
proposes to recover a specified amount from the person, the
5
specified amount is a debt due by the person to the Agency.
6
112 Preliminary notice or recovery notice suspends liability to pay
7
compensation
8
(1) If a person (the compensation payer) has been given a notice under
9
subsection 109(1) or 111(1) in relation to the compensation payer's
10
liability, or possible liability, to pay compensation, the
11
compensation payer is not liable to pay that compensation while
12
the notice has effect.
13
(2) If an insurer has been given a notice under subsection 109(2) or
14
111(2) in relation to the insurer's liability, or possible liability, to
15
indemnify a compensation payer against a liability arising from a
16
claim for compensation:
17
(a) the insurer is not liable to so indemnify the compensation
18
payer; and
19
(b) the compensation payer is not liable to pay that
20
compensation;
21
while the notice has effect.
22
113 Compensation payer's or insurer's payment to Agency
23
discharges liability to participant
24
(1) Payment to the Agency of an amount that a compensation payer is
25
liable to pay under section 111 in relation to a participant operates,
26
to the extent of the payment, as a discharge of:
27
(a) the compensation payer's liability to pay compensation to the
28
participant; and
29
(b) the participant's liability to pay the Agency.
30
(2) Payment to the Agency of an amount that an insurer is liable to pay
31
under section 111 in relation to a participant operates, to the extent
32
of the payment, as a discharge of:
33
Chapter 5 Compensation payments
Part 3 Recovery from compensation payers and insurers
Section 114
90 National Disability Insurance Scheme Bill 2012 No. , 2012
(a) the insurer's liability to the compensation payer; and
1
(b) the compensation payer's liability to pay compensation to the
2
participant; and
3
(c) the participant's liability to pay the Agency.
4
114 Offence--making compensation payment after receiving
5
preliminary notice or recovery notice
6
(1) A person (the potential compensation payer) commits an offence
7
if:
8
(a) the potential compensation payer has been given a notice
9
under subsection 109(1) or 111(1) in relation to the payment
10
of compensation to a participant or prospective participant;
11
and
12
(b) the potential compensation payer makes the compensation
13
payment to the participant or prospective participant.
14
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
15
Note:
If a body corporate is convicted of an offence against this section,
16
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a
17
fine of up to 5 times the pecuniary penalty stated above.
18
(2) Subsection (1) does not apply if:
19
(a) in the case of a notice under section 109--the CEO has given
20
the potential compensation payer written notice that the
21
notice is revoked; or
22
(b) in the case of a notice under section 111--the potential
23
compensation payer has paid to the Agency the amount
24
specified in the notice; or
25
(c) the CEO has given the potential compensation payer written
26
permission to pay the amount.
27
(3) An insurer commits an offence if:
28
(a) the insurer has been given a notice under subsection 109(2)
29
or 111(2) in relation to a liability to indemnify a person; and
30
(b) the insurer makes a payment in relation to that liability.
31
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
32
Compensation payments Chapter 5
Recovery from compensation payers and insurers Part 3
Section 115
National Disability Insurance Scheme Bill 2012 No. , 2012 91
Note:
If a body corporate is convicted of an offence against this section,
1
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a
2
fine of up to 5 times the pecuniary penalty stated above.
3
(4) Subsection (3) does not apply if:
4
(a) in the case of a notice under section 109--the CEO has given
5
the insurer written notice that the notice is revoked; or
6
(b) in the case of a notice under section 111--the insurer has
7
paid to the Agency the amount specified in the notice; or
8
(c) the CEO has given the insurer written permission to pay the
9
amount.
10
115 Liability to pay the Agency if there is a contravention of
11
section 114
12
(1) A potential compensation payer or insurer who contravenes
13
section 114 is, in addition to being liable under that section, liable
14
to pay to the Agency:
15
(a) if the contravention relates to a notice under section 109--an
16
amount determined by the CEO; or
17
(b) if the contravention relates to a notice under section 111--the
18
amount specified in the notice.
19
(2) The amount determined by the CEO under paragraph (1)(a) must
20
not be more than the amount that would have been specified in a
21
notice under section 111 if one had been given.
22
(3) This section applies in relation to a payment by way of
23
compensation in spite of any law of the Commonwealth, a State or
24
Territory (however expressed) under which the compensation is
25
inalienable.
26
(4) The amount determined by the CEO under paragraph (1)(a) or
27
specified in the notice under section 111 is a debt due by the
28
compensation payer or the insurer to the Agency.
29
30
Chapter 5 Compensation payments
Part 4 CEO may disregard certain payments
Section 116
92 National Disability Insurance Scheme Bill 2012 No. , 2012
Part 4--CEO may disregard certain payments
1
2
116 CEO may disregard certain payments
3
For the purposes of this Chapter, the CEO may treat the whole or
4
part of a compensation payment as not having been fixed by a
5
judgement (including a consent judgement) or settlement, if the
6
CEO thinks it is appropriate to do so in the special circumstances
7
of the case.
8
9
National Disability Insurance Scheme Launch Transition Agency Chapter 6
National Disability Insurance Scheme Launch Transition Agency Part 1
Section 117
National Disability Insurance Scheme Bill 2012 No. , 2012 93
Chapter 6--National Disability Insurance
1
Scheme Launch Transition Agency
2
Part 1--National Disability Insurance Scheme
3
Launch Transition Agency
4
5
117 Establishment
6
(1) The National Disability Insurance Scheme Launch Transition
7
Agency is established by this section.
8
(2)
The
Agency:
9
(a) is a body corporate; and
10
(b) must have a seal; and
11
(c) may acquire, hold and dispose of real and personal property;
12
and
13
(d) may sue and be sued.
14
Note:
The CAC Act applies to the Agency. That Act deals with matters
15
relating to Commonwealth authorities, including reporting and
16
accountability, banking and investment, and conduct of officers.
17
(3) The seal of the Agency is to be kept in such custody as the Board
18
directs and must not be used except as authorised by the Board.
19
118 Functions of the Agency
20
(1) The Agency has the following functions:
21
(a) to deliver the National Disability Insurance Scheme;
22
(b) to manage, and to advise and report on, the financial
23
sustainability of the National Disability Insurance Scheme
24
including by:
25
(i) regularly making and assessing estimates of the current
26
and future expenditure of the National Disability
27
Insurance Scheme; and
28
(ii) identifying and managing risks and issues relevant to
29
the financial sustainability of the National Disability
30
Insurance Scheme;
31
Chapter 6 National Disability Insurance Scheme Launch Transition Agency
Part 1 National Disability Insurance Scheme Launch Transition Agency
Section 119
94 National Disability Insurance Scheme Bill 2012 No. , 2012
(c) to develop and enhance the disability sector, including by
1
facilitating innovation, research and contemporary best
2
practice in the sector;
3
(d) to build community awareness of disabilities and the social
4
contributors to disabilities;
5
(e) to collect, analyse and exchange data about disabilities and
6
the supports (including early intervention supports) for
7
people with disability;
8
(f) to undertake research relating to disabilities, the supports
9
(including early intervention supports) for people with
10
disability and the social contributors to disabilities;
11
(g) any other functions conferred on the Agency by or under this
12
Act, the regulations or an instrument made under this Act;
13
(h) to do anything incidental or conducive to the performance of
14
the above functions.
15
(2) In performing its functions, the Agency must use its best
16
endeavours to:
17
(a) act in accordance with any relevant intergovernmental
18
agreements; and
19
(b) act in a proper, efficient and effective manner.
20
119 Powers of the Agency
21
(1) The Agency has power to do all things necessary or convenient to
22
be done for or in connection with the performance of its functions.
23
(2) The Agency's powers include, but are not limited to, the following
24
powers:
25
(a) the power to enter into contracts;
26
(b) the power to accept gifts, devises, bequests and assignments.
27
120 Charging of fees
28
(1) The Agency may charge fees in accordance with an instrument
29
made under subsection (2).
30
(2) The Minister may, by legislative instrument, prescribe:
31
National Disability Insurance Scheme Launch Transition Agency Chapter 6
National Disability Insurance Scheme Launch Transition Agency Part 1
Section 121
National Disability Insurance Scheme Bill 2012 No. , 2012 95
(a) the things that the Agency does in the performance of its
1
functions for which it may charge fees; and
2
(b) the amount, or a method of working out the amount, of those
3
fees.
4
(3) An instrument made under subsection (2) must not allow:
5
(a) a fee to be charged in relation to an access request; or
6
(b) a participant to be charged a fee.
7
(4) The Minister must not make an instrument under subsection (2)
8
unless the Commonwealth and each host jurisdiction agree to the
9
making of the instrument.
10
(5) A fee must not be such as to amount to taxation.
11
121 Minister may give directions to the Agency
12
(1) The Minister may, by legislative instrument, give directions to the
13
Agency about the performance of its functions.
14
Note:
Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
15
Instruments Act 2003 do not apply to the directions (see sections 44
16
and 54 of that Act).
17
(2) A direction given under subsection (1):
18
(a) must not relate to a particular individual; and
19
(b) must not be inconsistent with:
20
(i) this Act, the regulations or an instrument made under
21
this Act; or
22
(ii) the CAC Act, or the regulations or an instrument made
23
under that Act.
24
(3) The Minister must not give a direction under subsection (1) unless
25
the Commonwealth and each host jurisdiction agree to the giving
26
of the direction.
27
(4) The Agency must comply with a direction given under
28
subsection (1).
29
Chapter 6 National Disability Insurance Scheme Launch Transition Agency
Part 1 National Disability Insurance Scheme Launch Transition Agency
Section 122
96 National Disability Insurance Scheme Bill 2012 No. , 2012
122 Agency does not have privileges and immunities of the Crown
1
The Agency does not have privileges and immunities of the Crown
2
in right of the Commonwealth.
3
4
National Disability Insurance Scheme Launch Transition Agency Chapter 6
Board of the Agency Part 2
Establishment and functions Division 1
Section 123
National Disability Insurance Scheme Bill 2012 No. , 2012 97
Part 2--Board of the Agency
1
Division 1--Establishment and functions
2
123 Establishment
3
The Board of the Agency is established by this section.
4
124 Functions of the Board
5
(1) The Board has the following functions:
6
(a) to ensure the proper, efficient and effective performance of
7
the Agency's functions;
8
(b) to determine objectives, strategies and policies to be followed
9
by the Agency;
10
(c) any other functions conferred on the Board by or under:
11
(i) this Act, the regulations or an instrument made under
12
this Act; or
13
(ii) any other law of the Commonwealth.
14
(2) The Board has the power to do all things necessary or convenient
15
to be done for or in connection with the performance of its
16
functions.
17
(3) Anything done in the name of, or on behalf of, the Agency by the
18
Board, or with the authority of the Board, is taken to have been
19
done by the Agency.
20
125 Minister may give the Board a statement setting out strategic
21
guidance for the Agency
22
(1) The Minister may give the Board a written statement setting out
23
strategic guidance for the Agency.
24
(2) A statement given under subsection (1):
25
(a) must be of a general nature only; and
26
(b) must not relate to a particular individual; and
27
(c) must not be inconsistent with:
28
Chapter 6 National Disability Insurance Scheme Launch Transition Agency
Part 2 Board of the Agency
Division 1 Establishment and functions
Section 125
98 National Disability Insurance Scheme Bill 2012 No. , 2012
(i) this Act, the regulations or an instrument made under
1
this Act; or
2
(ii) the CAC Act, or the regulations or an instrument made
3
under that Act.
4
(3) The Minister must not give a statement under subsection (1) unless
5
the Commonwealth and each host jurisdiction agree to the giving
6
of the statement.
7
(4) In performing its functions, the Board must have regard to a
8
statement given under subsection (1).
9
(5) A statement given under subsection (1) is not a legislative
10
instrument.
11
12
National Disability Insurance Scheme Launch Transition Agency Chapter 6
Board of the Agency Part 2
Members of the Board Division 2
Section 126
National Disability Insurance Scheme Bill 2012 No. , 2012 99
Division 2--Members of the Board
1
126 Membership
2
The Board consists of the Chair and 8 other members.
3
127 Appointment of Board members
4
(1) The Board members are to be appointed by the Minister, by written
5
instrument, on a part-time basis.
6
(2) A person is eligible for appointment as a Board member only if the
7
Minister is satisfied that the person has skills, experience or
8
knowledge in at least one of the following fields:
9
(a) the provision or use of disability services;
10
(b) the operation of insurance schemes, compensation schemes
11
or schemes with long-term liabilities;
12
(c)
financial
management;
13
(d)
corporate
governance.
14
Procedures relating to appointment
15
(3) The Minister must consult the host jurisdictions about the
16
appointment of the Chair.
17
(4) Before the Minister appoints a Board member other than the Chair,
18
the Minister must:
19
(a) seek the support of all the host jurisdictions for the
20
appointment; and
21
(b) be satisfied that the appointment is supported by:
22
(i) the Commonwealth; and
23
(ii) a majority of the group consisting of the
24
Commonwealth and the host jurisdictions.
25
Persons ineligible for appointment
26
(5) Despite subsection (2), a person is not eligible for appointment as a
27
Board member if the person is:
28
(a) a member (however described) of:
29
Chapter 6 National Disability Insurance Scheme Launch Transition Agency
Part 2 Board of the Agency
Division 2 Members of the Board
Section 128
100 National Disability Insurance Scheme Bill 2012 No. , 2012
(i) the Parliament of the Commonwealth or a State; or
1
(ii) the legislature of a Territory; or
2
(iii) a local government authority; or
3
(b) an employee of the Commonwealth, a State, a Territory or a
4
local government authority; or
5
(c) the holder of a full-time office under a law of the
6
Commonwealth, a State or a Territory.
7
Balance of skills etc.
8
(6) In appointing the Board members, the Minister must ensure that
9
the Board members collectively possess an appropriate balance of
10
skills, experience or knowledge in the fields mentioned in
11
subsection (2).
12
128 Term of appointment
13
A Board member holds office for the period specified in the
14
instrument of appointment. The period must not be more than 3
15
years.
16
Note:
For reappointment, see section 33AA of the Acts Interpretation Act
17
1901.
18
129 Acting appointments
19
Appointment to act during vacancy
20
(1) The Minister may, by written instrument, appoint a person to act as
21
the Chair, for a specified period of not more than 12 months,
22
during a vacancy in the office of the Chair, whether or not an
23
appointment has previously been made to the office.
24
(2) The Minister may, by written instrument, appoint a person to act as
25
a Board member other than the Chair, for a specified period of not
26
more than 12 months, during a vacancy in the office of a Board
27
member other than the Chair, whether or not an appointment has
28
previously been made to the office, if:
29
(a) the Minister has sought the support of all the host
30
jurisdictions for an appointment (the proposed substantive
31
National Disability Insurance Scheme Launch Transition Agency Chapter 6
Board of the Agency Part 2
Members of the Board Division 2
Section 129
National Disability Insurance Scheme Bill 2012 No. , 2012 101
appointment) of a particular person to the office to be made
1
under section 127; and
2
(b) the Minister is satisfied that either:
3
(i) it is not possible to make the proposed substantive
4
appointment in accordance with subsection 127(4); or
5
(ii) 90 days have passed since the Minister sought the
6
support and it is not known whether the proposed
7
substantive appointment can be made in accordance
8
with subsection 127(4).
9
Appointment to act during absence etc.
10
(3) The Minister may, by written instrument, appoint a person to act as
11
a Board member during any period, or during all periods, when a
12
Board member:
13
(a) is absent from duty or from Australia; or
14
(b) is, for any reason, unable to perform the duties of the office.
15
Note:
The Minister must tell the Ministerial Council as soon as practicable
16
after the Minister appoints a person to act as the Chair or another
17
Board member: see subsection 176(2).
18
Eligibility for appointment
19
(4) A person is eligible for appointment under subsection (1), (2) or (3)
20
only if the Minister is satisfied that the person has skills,
21
experience or knowledge in at least one of the fields mentioned in
22
subsection 127(2).
23
(5) Despite subsection (4), a person is not eligible for appointment
24
under subsection (1), (2) or (3) if the person is:
25
(a) a member (however described) of:
26
(i) the Parliament of the Commonwealth or a State; or
27
(ii) the legislature of a Territory; or
28
(iii) a local government authority; or
29
(b) the holder of a full-time office under a law of the
30
Commonwealth, a State or a Territory.
31
Note:
For rules that apply to acting appointments, see sections 33AB and
32
33A of the Acts Interpretation Act 1901.
33
Chapter 6 National Disability Insurance Scheme Launch Transition Agency
Part 2 Board of the Agency
Division 2 Members of the Board
Section 130
102 National Disability Insurance Scheme Bill 2012 No. , 2012
130 Remuneration and allowances
1
(1) A Board member is to be paid the remuneration that is determined
2
by the Remuneration Tribunal. If no determination of that
3
remuneration by the Tribunal is in operation, the member is to be
4
paid the remuneration that is prescribed by the regulations.
5
(2) A Board member is to be paid the allowances that are prescribed
6
by the regulations.
7
(3) This section has effect subject to the Remuneration Tribunal Act
8
1973.
9
131 Leave of absence
10
Chair
11
(1) The Minister may grant leave of absence to the Chair on the terms
12
and conditions that the Minister determines.
13
(2) Before the Minister grants leave of absence to the Chair under
14
subsection (1), the Minister must consult the host jurisdictions
15
about the grant.
16
Other Board members
17
(3) The Chair may grant leave of absence to another Board member on
18
the terms and conditions that the Chair determines.
19
(4) The Chair must notify the Minister if the Chair grants another
20
Board member leave of absence for a period that exceeds 3
21
months.
22
132 Outside employment
23
A Board member must not engage in any paid employment that, in
24
the Minister's opinion, conflicts or may conflict with the proper
25
performance of the member's duties.
26
National Disability Insurance Scheme Launch Transition Agency Chapter 6
Board of the Agency Part 2
Members of the Board Division 2
Section 133
National Disability Insurance Scheme Bill 2012 No. , 2012 103
133 Resignation of Board members
1
(1) A Board member may resign his or her appointment by giving the
2
Minister a written resignation.
3
(2) The resignation takes effect on the day it is received by the
4
Minister or, if a later day is specified in the resignation, on that
5
later day.
6
(3) The later day specified in the resignation must not be more than 90
7
days after the day the resignation is received by the Minister.
8
134 Termination of appointment of Board members
9
(1) The Minister may terminate the appointment of a Board member:
10
(a) for misbehaviour; or
11
(b) if the member is incapable of performing the duties of his or
12
her office.
13
(2) The Minister may terminate the appointment of a Board member if:
14
(a)
the
member:
15
(i) becomes bankrupt; or
16
(ii) applies to take the benefit of any law for the relief of
17
bankrupt or insolvent debtors; or
18
(iii) compounds with his or her creditors; or
19
(iv) makes an assignment of his or her remuneration for the
20
benefit of his or her creditors; or
21
(b) the member is absent, except on leave of absence, from 3
22
consecutive meetings of the Board; or
23
(c) the member engages in paid employment that, in the
24
Minister's opinion, conflicts or may conflict with the proper
25
performance of the member's duties (see section 132); or
26
(d) the member fails, without reasonable excuse, to comply with
27
an obligation imposed on him or her by section 27F or 27J of
28
the CAC Act; or
29
(e) the Minister is satisfied that the performance of the member
30
has been unsatisfactory for a significant period.
31
Chapter 6 National Disability Insurance Scheme Launch Transition Agency
Part 2 Board of the Agency
Division 2 Members of the Board
Section 135
104 National Disability Insurance Scheme Bill 2012 No. , 2012
Procedures relating to termination
1
(3) The Minister must consult the host jurisdictions about the
2
termination of the appointment of the Chair.
3
(4) Before the Minister terminates the appointment of a Board member
4
other than the Chair, the Minister must:
5
(a) seek the support of all the host jurisdictions for the
6
termination; and
7
(b) be satisfied that the termination is supported by:
8
(i) the Commonwealth; and
9
(ii) a majority of the group consisting of the
10
Commonwealth and the host jurisdictions.
11
135 Other terms and conditions of Board members
12
(1) A Board member holds office on the terms and conditions (if any)
13
in relation to matters not covered by this Act that are determined
14
by the Minister.
15
(2) Before the Minister determines terms and conditions on which a
16
Board member holds office, the Minister must be satisfied that the
17
Commonwealth and a majority of host jurisdictions agree to the
18
terms and conditions.
19
20
National Disability Insurance Scheme Launch Transition Agency Chapter 6
Board of the Agency Part 2
Meetings of the Board Division 3
Section 136
National Disability Insurance Scheme Bill 2012 No. , 2012 105
Division 3--Meetings of the Board
1
136 Convening meetings
2
(1) The Board must hold the meetings that are necessary for the
3
efficient performance of its functions.
4
(2) Meetings are to be held at the times and places that the Board
5
determines.
6
Note:
Section 33B of the Acts Interpretation Act 1901 contains further
7
information about the ways in which Board members may participate
8
in meetings.
9
(3)
The
Chair:
10
(a) may convene a meeting; and
11
(b) must convene at least 4 meetings each calendar year; and
12
(c) must convene a meeting within 30 days of receiving a written
13
request to do so from another Board member.
14
137 Presiding at meetings
15
(1) The Chair must preside at all meetings at which he or she is
16
present.
17
(2) If the Chair is not present at a meeting:
18
(a) a Board member nominated by the Chair presides; or
19
(b) if a Board member has not been nominated by the Chair to
20
preside--the other Board members present must appoint one
21
of themselves to preside.
22
138 Quorum
23
(1) At a meeting of the Board, a quorum is constituted by 5 Board
24
members.
25
(2)
However,
if:
26
(a) a Board member is required by section 27J of the CAC Act
27
not to be present during the deliberations, or to take part in
28
any decision, of the Board with respect to a particular matter;
29
and
30
Chapter 6 National Disability Insurance Scheme Launch Transition Agency
Part 2 Board of the Agency
Division 3 Meetings of the Board
Section 139
106 National Disability Insurance Scheme Bill 2012 No. , 2012
(b) when the member leaves the meeting concerned there is no
1
longer a quorum present;
2
the remaining members at the meeting constitute a quorum for the
3
purpose of any deliberation or decision at that meeting with respect
4
to that matter.
5
139 Voting at meetings
6
(1) A question arising at a meeting is to be determined by a majority of
7
the votes of the Board members present and voting.
8
(2) The person presiding at a meeting has a deliberative vote and, if
9
the votes are equal, a casting vote.
10
140 Conduct of meetings
11
The Board may, subject to this Division, regulate proceedings at its
12
meetings as it considers appropriate.
13
141 Minutes
14
The Board must keep minutes of its meetings.
15
142 Decisions without meetings
16
(1) The Board is taken to have made a decision at a meeting if:
17
(a) without meeting, a majority of the Board members entitled to
18
vote on the proposed decision indicate agreement with the
19
decision; and
20
(b) that agreement is indicated in accordance with the method
21
determined by the Board under subsection (2); and
22
(c) all the Board members were informed of the proposed
23
decision, or reasonable efforts were made to inform all the
24
members of the proposed decision.
25
(2) Subsection (1) applies only if the Board:
26
(a) has determined that it may make decisions of that kind
27
without meeting; and
28
(b) has determined the method by which Board members are to
29
indicate agreement with proposed decisions.
30
National Disability Insurance Scheme Launch Transition Agency Chapter 6
Board of the Agency Part 2
Meetings of the Board Division 3
Section 142
National Disability Insurance Scheme Bill 2012 No. , 2012 107
(3) For the purposes of paragraph (1)(a), a Board member is not
1
entitled to vote on a proposed decision if the member would not
2
have been entitled to vote on that proposal if the matter had been
3
considered at a meeting of the Board.
4
(4) The Board must keep a record of decisions made in accordance
5
with this section.
6
7
Chapter 6 National Disability Insurance Scheme Launch Transition Agency
Part 3 Independent Advisory Council
Division 1 Establishment and function
Section 143
108 National Disability Insurance Scheme Bill 2012 No. , 2012
Part 3--Independent Advisory Council
1
Division 1--Establishment and function
2
143 Establishment
3
The Independent Advisory Council is established by this section.
4
144 Function of the Advisory Council
5
(1) The Advisory Council's function is to provide, on its own initiative
6
or at the written request of the Board, advice to the Board about the
7
way in which the Agency:
8
(a) performs its functions relating to the National Disability
9
Insurance Scheme; and
10
(b) supports the independence and social and economic
11
participation of people with disability; and
12
(c) provides reasonable and necessary supports, including early
13
intervention supports, for participants in the National
14
Disability Insurance Scheme launch; and
15
(d) enables people with disability to exercise choice and control
16
in the pursuit of their goals and the planning and delivery of
17
their supports; and
18
(e) facilitates the development of a nationally consistent
19
approach to the access to, and the planning and funding of,
20
supports for people with disability; and
21
(f) promotes the provision of high quality and innovative
22
supports to people with disability; and
23
(g) raises community awareness of the issues that affect the
24
social and economic participation of people with disability,
25
and facilitates greater community inclusion of people with
26
disability.
27
(2) In providing advice, the Advisory Council must have regard to the
28
role of families, carers and other significant persons in the lives of
29
people with disability.
30
(3) Advice provided by the Advisory Council must not relate to:
31
(a) a particular individual; or
32
National Disability Insurance Scheme Launch Transition Agency Chapter 6
Independent Advisory Council Part 3
Establishment and function Division 1
Section 145
National Disability Insurance Scheme Bill 2012 No. , 2012 109
(b) the approval of a person or entity as a registered provider of
1
supports or the revocation of that approval; or
2
(c) the corporate governance of the Agency; or
3
(d) the money paid to, or received by, the Agency.
4
(4) The Advisory Council has power to do all things necessary or
5
convenient to be done for or in connection with the performance of
6
its function.
7
145 Advice of the Advisory Council
8
If the Advisory Council provides advice to the Board under
9
subsection 144(1), the Board must:
10
(a) have regard to the advice in performing its functions; and
11
(b) give the Ministerial Council a copy of the advice and a
12
statement setting out what has been done, or is to be done, in
13
response to the advice.
14
15
Chapter 6 National Disability Insurance Scheme Launch Transition Agency
Part 3 Independent Advisory Council
Division 2 Members of the Advisory Council
Section 146
110 National Disability Insurance Scheme Bill 2012 No. , 2012
Division 2--Members of the Advisory Council
1
146 Membership
2
The Advisory Council is to consist of the following members:
3
(a) the Principal Member of the Council;
4
(b) not more than 12 other members.
5
147 Appointment of members of the Advisory Council
6
(1) The members of the Advisory Council are to be appointed by the
7
Minister, by written instrument, on a part-time basis.
8
Procedures relating to appointment
9
(2) The Minister must consult the host jurisdictions about the
10
appointment of the Principal Member.
11
(3) Before the Minister appoints a member of the Advisory Council
12
other than the Principal Member, the Minister must:
13
(a) seek the support of all the host jurisdictions for the
14
appointment; and
15
(b) be satisfied that the appointment is supported by:
16
(i) the Commonwealth; and
17
(ii) a majority of the group consisting of the
18
Commonwealth and the host jurisdictions.
19
Persons ineligible for appointment
20
(4) A person is not eligible for appointment as a member of the
21
Advisory Council if the person is a member (however described)
22
of:
23
(a) the Parliament of the Commonwealth or a State; or
24
(b) the legislature of a Territory; or
25
(c) a local government authority.
26
Membership requirements
27
(5) In appointing the members of the Advisory Council, the Minister
28
must:
29
National Disability Insurance Scheme Launch Transition Agency Chapter 6
Independent Advisory Council Part 3
Members of the Advisory Council Division 2
Section 148
National Disability Insurance Scheme Bill 2012 No. , 2012 111
(a) have regard to the desirability of the membership of the
1
Advisory Council reflecting the diversity of people with
2
disability; and
3
(b)
ensure
that:
4
(i) at least 4 of the members are people with disability who
5
have skills, experience or knowledge relating to
6
disability services; and
7
(ii) at least 2 of the members are carers of people with
8
disability and have skills, experience or knowledge
9
relating to disability services; and
10
(iii) at least one of the members is a person who has skills,
11
experience or knowledge in the supply of equipment, or
12
the provision of services, to people with disability; and
13
(iv) any other members are persons with skills, experience
14
or knowledge that will help the Advisory Council
15
perform its function.
16
148 Term of appointment
17
A member of the Advisory Council holds office for the period
18
specified in the instrument of appointment. The period must not
19
exceed 3 years.
20
Note:
For reappointment, see section 33AA of the Acts Interpretation Act
21
1901.
22
149 Acting appointments
23
Appointment to act during vacancy
24
(1) The Minister may, by written instrument, appoint a person to act as
25
the Principal Member, for a specified period of not more than 12
26
months, during a vacancy in the office of the Principal Member,
27
whether or not an appointment has previously been made to the
28
office.
29
(2) The Minister may, by written instrument, appoint a person to act as
30
a member of the Advisory Council other than the Principal
31
Member, for a specified period of not more than 12 months, during
32
a vacancy in the office of a member of the Advisory Council other
33
Chapter 6 National Disability Insurance Scheme Launch Transition Agency
Part 3 Independent Advisory Council
Division 2 Members of the Advisory Council
Section 150
112 National Disability Insurance Scheme Bill 2012 No. , 2012
than the Principal Member, whether or not an appointment has
1
previously been made to the office, if:
2
(a) the Minister has sought the support of all the host
3
jurisdictions for an appointment (the proposed substantive
4
appointment) of a particular person to the office to be made
5
under section 147; and
6
(b) the Minister is satisfied that either:
7
(i) it is not possible to make the proposed substantive
8
appointment in accordance with subsection 147(3); or
9
(ii) 90 days have passed since the Minister sought the
10
support and it is not known whether the proposed
11
substantive appointment can be made in accordance
12
with subsection 147(3).
13
Appointment to act during absence etc.
14
(3) The Minister may, by written instrument, appoint a person to act as
15
a member of the Advisory Council during any period, or during all
16
periods, when a member of the Advisory Council:
17
(a) is absent from duty or from Australia; or
18
(b) is, for any reason, unable to perform the duties of the office.
19
Note 1:
The Minister must tell the Ministerial Council as soon as practicable
20
after the Minister appoints a person to act as the Principal Member or
21
another member of the Advisory Council: see subsection 176(2).
22
Note 2:
For rules that apply to acting appointments, see sections 33AB and
23
33A of the Acts Interpretation Act 1901.
24
150 Remuneration and allowances
25
(1) A member of the Advisory Council is to be paid the remuneration
26
that is determined by the Remuneration Tribunal. If no
27
determination of that remuneration by the Tribunal is in operation,
28
the member is to be paid the remuneration that is prescribed by the
29
regulations.
30
(2) A member of the Advisory Council is to be paid the allowances
31
that are prescribed by the regulations.
32
(3) This section has effect subject to the Remuneration Tribunal Act
33
1973.
34
National Disability Insurance Scheme Launch Transition Agency Chapter 6
Independent Advisory Council Part 3
Members of the Advisory Council Division 2
Section 151
National Disability Insurance Scheme Bill 2012 No. , 2012 113
151 Leave of absence
1
Principal Member
2
(1) The Minister may grant leave of absence to the Principal Member
3
on the terms and conditions that the Minister determines.
4
(2) Before the Minister grants leave of absence to the Principal
5
Member under subsection (1), the Minister must consult the host
6
jurisdictions about the grant.
7
Other members
8
(3) The Principal Member may grant leave of absence to another
9
member of the Advisory Council on the terms and conditions that
10
the Principal Member determines.
11
(4) The Principal Member must notify the Minister if the Principal
12
Member grants another member of the Advisory Council leave of
13
absence for a period that exceeds 3 months.
14
152 Disclosure of interests to the Minister
15
A member of the Advisory Council must give written notice to the
16
Minister of all interests, pecuniary or otherwise, that the member
17
has or acquires and that conflict or could conflict with the proper
18
performance of the member's functions.
19
153 Disclosure of interests to the Advisory Council
20
(1) A member of the Advisory Council who has an interest, pecuniary
21
or otherwise, in a matter being considered or about to be
22
considered by the Council must disclose the nature of the interest
23
to a meeting of the Council.
24
(2) The disclosure must be made as soon as possible after the relevant
25
facts have come to the member's knowledge.
26
(3) The disclosure must be recorded in the minutes of the meeting.
27
(4) Unless the Advisory Council otherwise determines, the member:
28
Chapter 6 National Disability Insurance Scheme Launch Transition Agency
Part 3 Independent Advisory Council
Division 2 Members of the Advisory Council
Section 154
114 National Disability Insurance Scheme Bill 2012 No. , 2012
(a) must not be present during any deliberation by the Council
1
on the matter; and
2
(b) must not take part in any decision of the Council with respect
3
to the matter.
4
(5) For the purposes of making a determination under subsection (4),
5
the member:
6
(a) must not be present during any deliberation of the Council
7
for the purpose of making the determination; and
8
(b) must not take part in making the determination.
9
(6) A determination under subsection (4) must be recorded in the
10
minutes of the meeting of the Council.
11
154 Resignation of members of the Advisory Council
12
(1) A member of the Advisory Council may resign his or her
13
appointment by giving the Minister a written resignation.
14
(2) The resignation takes effect on the day it is received by the
15
Minister or, if a later day is specified in the resignation, on that
16
later day.
17
(3) The later day specified in the resignation must not be more than 90
18
days after the day the resignation is received by the Minister.
19
155 Termination of appointment of members of the Advisory
20
Council
21
(1) The Minister may terminate the appointment of a member of the
22
Advisory Council:
23
(a) for misbehaviour; or
24
(b) if the member is incapable of performing the duties of his or
25
her office.
26
(2) The Minister may terminate the appointment of a member of the
27
Advisory Council if:
28
(a)
the
member:
29
(i) becomes bankrupt; or
30
National Disability Insurance Scheme Launch Transition Agency Chapter 6
Independent Advisory Council Part 3
Members of the Advisory Council Division 2
Section 156
National Disability Insurance Scheme Bill 2012 No. , 2012 115
(ii) applies to take the benefit of any law for the relief of
1
bankrupt or insolvent debtors; or
2
(iii) compounds with his or her creditors; or
3
(iv) makes an assignment of his or her remuneration for the
4
benefit of his or her creditors; or
5
(b) the member is absent, except on leave of absence, from 3
6
consecutive meetings of the Council; or
7
(c) the member fails, without reasonable excuse, to comply with
8
section 152 or 153 (which deal with the disclosure of
9
interests); or
10
(d) the Minister is satisfied that the performance of the member
11
has been unsatisfactory for a significant period.
12
Procedures relating to termination
13
(3) The Minister must consult the host jurisdictions about the
14
termination of the appointment of the Principal Member.
15
(4) Before the Minister terminates the appointment of a member of the
16
Advisory Council other than the Principal Member, the Minister
17
must:
18
(a) seek the support of all the host jurisdictions for the
19
termination; and
20
(b) be satisfied that the termination is supported by:
21
(i) the Commonwealth; and
22
(ii) a majority of the group consisting of the
23
Commonwealth and the host jurisdictions.
24
156 Other terms and conditions of members of the Advisory Council
25
(1) A member of the Advisory Council holds office on the terms and
26
conditions (if any) in relation to matters not covered by this Act
27
that are determined by the Minister.
28
(2) Before the Minister determines terms and conditions on which a
29
member of the Advisory Council holds office, the Minister must be
30
satisfied that the Commonwealth and a majority of host
31
jurisdictions agree to the terms and conditions.
32
Chapter 6 National Disability Insurance Scheme Launch Transition Agency
Part 3 Independent Advisory Council
Division 3 Procedures of the Advisory Council
Section 157
116 National Disability Insurance Scheme Bill 2012 No. , 2012
Division 3--Procedures of the Advisory Council
1
157 Procedures of the Advisory Council
2
The Advisory Council may determine its own procedures.
3
4
National Disability Insurance Scheme Launch Transition Agency Chapter 6
Chief Executive Officer and staff etc. Part 4
Chief Executive Officer Division 1
Section 158
National Disability Insurance Scheme Bill 2012 No. , 2012 117
Part 4--Chief Executive Officer and staff etc.
1
Division 1--Chief Executive Officer
2
158 Establishment
3
There is to be a Chief Executive Officer of the Agency.
4
159 Functions of the CEO
5
(1) The CEO is responsible for the day-to-day administration of the
6
Agency.
7
(2) The CEO has power to do all things necessary or convenient to be
8
done for or in connection with the performance of his or her duties.
9
(3) The CEO is to act in accordance with the objectives, strategies and
10
policies determined by the Board under paragraph 124(1)(b).
11
(4) The Board may give written directions to the CEO about the
12
performance of the CEO's duties.
13
(5) The CEO must comply with a direction under subsection (4).
14
(6) A direction under subsection (4) is not a legislative instrument.
15
160 Appointment of the CEO
16
(1) The CEO is to be appointed by the Board.
17
(2) The appointment is to be made by written instrument.
18
(3) The CEO holds office on a full-time basis.
19
(4) The CEO holds office for the period specified in the instrument of
20
appointment. The period must not exceed 3 years.
21
Note:
For reappointment, see section 33AA of the Acts Interpretation Act
22
1901.
23
(5) The CEO must not be a member of the Board.
24
Chapter 6 National Disability Insurance Scheme Launch Transition Agency
Part 4 Chief Executive Officer and staff etc.
Division 1 Chief Executive Officer
Section 161
118 National Disability Insurance Scheme Bill 2012 No. , 2012
(6) Despite subsection (1), the first CEO is to be appointed by the
1
Minister.
2
(7) Before the Minister makes an appointment under subsection (6),
3
the Minister must consult the host jurisdictions about the
4
appointment.
5
(8) This Part (other than subsection (1)) applies to the CEO appointed
6
under subsection (6) as if the CEO had been appointed under
7
subsection (1).
8
161 Acting appointments
9
The Board may, by written instrument, appoint a person (other than
10
a Board member) to act as the CEO:
11
(a) during a vacancy in the office of the CEO, whether or not an
12
appointment has previously been made to the office; or
13
(b) during any period, or during all periods, when the CEO:
14
(i) is absent from duty or from Australia; or
15
(ii) is, for any reason, unable to perform the duties of the
16
office.
17
Note:
For rules that apply to acting appointments, see sections 33AB and
18
33A of the Acts Interpretation Act 1901.
19
162 Remuneration and allowances
20
(1) The CEO is to be paid the remuneration that is determined by the
21
Remuneration Tribunal. If no determination of that remuneration
22
by the Tribunal is in operation, the CEO is to be paid the
23
remuneration that is prescribed by the regulations.
24
(2) The CEO is to be paid the allowances that are prescribed by the
25
regulations.
26
(3) This section has effect subject to the Remuneration Tribunal Act
27
1973.
28
163 Leave of absence
29
(1) The CEO has the recreation leave entitlements that are determined
30
by the Remuneration Tribunal.
31
National Disability Insurance Scheme Launch Transition Agency Chapter 6
Chief Executive Officer and staff etc. Part 4
Chief Executive Officer Division 1
Section 164
National Disability Insurance Scheme Bill 2012 No. , 2012 119
(2) The Board may grant the CEO leave of absence, other than
1
recreation leave, on the terms and conditions as to remuneration or
2
otherwise that the Board determines.
3
164 Outside employment
4
The CEO must not engage in paid employment outside the duties
5
of his or her office without the Board's approval.
6
165 Disclosure of interests
7
The CEO must give written notice to the Board of all interests,
8
pecuniary or otherwise, that the CEO has or acquires and that
9
conflict or could conflict with the proper performance of the
10
CEO's duties.
11
166 Resignation of the CEO
12
(1) The CEO may resign his or her appointment by giving the Board a
13
written resignation.
14
(2) The resignation takes effect on the day it is received by the Board
15
or, if a later day is specified in the resignation, on that later day.
16
(3) The later day specified in the resignation must not be more than 90
17
days after the day the resignation is received by the Board.
18
167 Termination of appointment of the CEO
19
(1) The Board may terminate the appointment of the CEO:
20
(a) for misbehaviour; or
21
(b) if the CEO is incapable of performing the duties of his or her
22
office.
23
(2) The Board may terminate the appointment of the CEO if:
24
(a)
the
CEO:
25
(i) becomes bankrupt; or
26
(ii) applies to take the benefit of any law for the relief of
27
bankrupt or insolvent debtors; or
28
(iii) compounds with his or her creditors; or
29
Chapter 6 National Disability Insurance Scheme Launch Transition Agency
Part 4 Chief Executive Officer and staff etc.
Division 1 Chief Executive Officer
Section 168
120 National Disability Insurance Scheme Bill 2012 No. , 2012
(iv) makes an assignment of his or her remuneration for the
1
benefit of his or her creditors; or
2
(b) the CEO is absent, except on leave of absence, for 14
3
consecutive days or for 28 days in any 12 months; or
4
(c) the CEO engages, except with the Board's approval, in paid
5
employment outside the duties of his or her office (see
6
section 164); or
7
(d) the CEO fails, without reasonable excuse, to comply with
8
section 165 (which is about the disclosure of interests); or
9
(e) the Board is satisfied that the performance of the CEO has
10
been unsatisfactory for a significant period.
11
(3) If the Board terminates the appointment of the CEO, the Board
12
must notify the Minister of the termination.
13
168 Other terms and conditions of the CEO
14
The CEO holds office on the terms and conditions (if any) in
15
relation to matters not covered by this Act that are determined by
16
the Board.
17
18
National Disability Insurance Scheme Launch Transition Agency Chapter 6
Chief Executive Officer and staff etc. Part 4
Staff etc. Division 2
Section 169
National Disability Insurance Scheme Bill 2012 No. , 2012 121
Division 2--Staff etc.
1
169 Staff
2
(1) The staff of the Agency must be persons engaged under the Public
3
Service Act 1999.
4
(2) For the purposes of that Act:
5
(a) the CEO and the staff of the Agency together constitute a
6
Statutory Agency; and
7
(b) the CEO is the Head of that Statutory Agency.
8
170 Services of other persons to be made available to the Agency
9
(1) The Agency may arrange with:
10
(a) an Agency Head (within the meaning of the Public Service
11
Act 1999) of an Agency (within the meaning of that Act); or
12
(b) a body established for a public purpose by or under a law of
13
the Commonwealth;
14
for the services of officers or employees of the Agency referred to
15
in paragraph (a) or body to be made available to assist the Agency
16
in the performance of its functions.
17
(2) The Agency may arrange with the appropriate authority of a State
18
or Territory for the services of officers or employees of the
19
following to be made available to assist the Agency in the
20
performance of its functions:
21
(a) the Public Service of the State or Territory;
22
(b) a body established for a public purpose by or under a law of
23
the State or Territory.
24
171 Consultants
25
The Agency may engage consultants to assist in the performance of
26
its functions.
27
28
Chapter 6 National Disability Insurance Scheme Launch Transition Agency
Part 5 Reporting and planning
Division 1 Reporting
Section 172
122 National Disability Insurance Scheme Bill 2012 No. , 2012
Part 5--Reporting and planning
1
Division 1--Reporting
2
Subdivision A--Reporting by Board members
3
172 Annual report
4
(1) The Board members must include in each annual report on the
5
Agency under section 9 of the CAC Act the things described in
6
subsections (2), (4) and (5).
7
(2) The annual report must include the following for the period to
8
which the report relates:
9
(a) details of any directions given under section 121 in the
10
period;
11
(b) details of any statements given under section 125 in the
12
period;
13
(c) information (including statistics) and analysis that relates to
14
either or both of the following in the period:
15
(i)
participants;
16
(ii) funding or provision of supports by the Agency.
17
(3) The Minister may, by legislative instrument, prescribe particular
18
information, or analysis, described in paragraph (2)(c) that must be
19
included in the annual report.
20
(4) The annual report must include a report on the estimated future
21
expenditure of the National Disability Insurance Scheme that was
22
prepared by an actuary at or after the end of the period to which the
23
annual report relates.
24
(5) The annual report must include a review that:
25
(a) is of the actuary's report described in subsection (4); and
26
(b) was conducted by another actuary, who, when he or she
27
conducted the review:
28
(i) was a Fellow of The Institute of Actuaries of Australia;
29
and
30
National Disability Insurance Scheme Launch Transition Agency Chapter 6
Reporting and planning Part 5
Reporting Division 1
Section 173
National Disability Insurance Scheme Bill 2012 No. , 2012 123
(ii) was not a member of the staff of the Agency under
1
section 169; and
2
(c) includes a statement by the actuary who conducted the
3
review that he or she is satisfied that the Agency made all
4
arrangements necessary for him or her to conduct the review.
5
Prerequisite to making instrument under subsection (3)
6
(6) The Minister must not make an instrument under subsection (3)
7
unless a majority of the members of the Ministerial Council agree
8
to the making of the instrument.
9
173 Giving certain information to the Ministerial Council
10
(1) The Board members must give the Ministerial Council a copy of
11
each of the following when, or as soon as practicable after, the
12
Board members give it to the Minister or the Finance Minister:
13
(a) an annual report given to the Minister under section 9 of the
14
CAC Act;
15
(b) an interim report given to the Minister under section 13 of the
16
CAC Act;
17
(c) particulars of a proposal given to the Minister under
18
section 15 of the CAC Act;
19
(d) information, a report or a document given to the Minister or
20
the Finance Minister under section 16 of the CAC Act.
21
(2) The Board members must cause a copy of information the Agency
22
gives the Minister or a Minister of a host jurisdiction under
23
section 175 to be given to the Ministerial Council as soon as
24
practicable after the Agency gives the information to that Minister.
25
(3) As soon as practicable after any of the following events happens to
26
a person, the Board members must tell the Ministerial Council that
27
the event has happened to the person:
28
(a) appointment of the person as the CEO by the Board;
29
(b) resignation of the person as the CEO;
30
(c) termination of the person's appointment as the CEO.
31
Chapter 6 National Disability Insurance Scheme Launch Transition Agency
Part 5 Reporting and planning
Division 1 Reporting
Section 174
124 National Disability Insurance Scheme Bill 2012 No. , 2012
174 Quarterly report to the Ministerial Council
1
(1) The Board members must:
2
(a) prepare a report on the operations of the Agency for each
3
period of 3 months starting on 1 July, 1 October, 1 January or
4
1 April; and
5
(b) give the report to the Ministerial Council within 1 month
6
after the end of the period to which the report relates.
7
(2) The report must include information (including statistics) that
8
relates to either or both of the following in the period to which the
9
report relates:
10
(a) participants in each host jurisdiction;
11
(b) funding or provision of supports by the Agency in relation to
12
each host jurisdiction.
13
(3) The Minister may, by legislative instrument, prescribe particular
14
information described in subsection (2) that must be included in the
15
report.
16
Prerequisite to making instrument under subsection (3)
17
(4) The Minister must not make an instrument under subsection (3)
18
unless a majority of the members of the Ministerial Council agree
19
to the making of the instrument.
20
First report
21
(5) If this section commences on a day other than a day (a quarter
22
start day) mentioned in paragraph (1)(a):
23
(a) the Board members are not required to prepare a report for
24
the period ending immediately before the next quarter start
25
day; and
26
(b) the first report under this section must be for the period:
27
(i) starting on the day this section commences; and
28
(ii) ending immediately before the second quarter start day
29
after the day this section commences.
30
National Disability Insurance Scheme Launch Transition Agency Chapter 6
Reporting and planning Part 5
Reporting Division 1
Section 175
National Disability Insurance Scheme Bill 2012 No. , 2012 125
Subdivision B--Reporting by the Agency
1
175 Giving information requested by Commonwealth, State or
2
Territory Ministers
3
(1) The Agency must give the Minister information requested by the
4
Minister about:
5
(a) expenditure, relating to a particular host jurisdiction, of
6
money received by the Agency from the Commonwealth or
7
that host jurisdiction; or
8
(b) activities of the Agency relating to a particular host
9
jurisdiction.
10
(2) The Agency must give a Minister of a host jurisdiction who is a
11
member of the Ministerial Council information requested by that
12
Minister about:
13
(a) expenditure of money received by the Agency from that
14
jurisdiction; or
15
(b) expenditure, relating to that jurisdiction, of money received
16
by the Agency from the Commonwealth; or
17
(c) activities of the Agency relating to that jurisdiction.
18
Subdivision C--Reporting by the Minister
19
176 Giving certain information to the Ministerial Council
20
(1) As soon as practicable after giving a direction to the Agency under
21
section 121 or a statement to the Board under section 125, the
22
Minister must give a copy of the direction or statement to the
23
Ministerial Council.
24
(2) As soon as practicable after any of the following events happens to
25
a person, the Minister must tell the Ministerial Council that the
26
event has happened to the person:
27
(a) appointment of the person as:
28
(i) the Chair or another member of the Board; or
29
(ii) the Principal Member or another member of the
30
Advisory Council; or
31
(iii) the first CEO;
32
Chapter 6 National Disability Insurance Scheme Launch Transition Agency
Part 5 Reporting and planning
Division 1 Reporting
Section 176
126 National Disability Insurance Scheme Bill 2012 No. , 2012
(b) appointment of the person to act as:
1
(i) the Chair or another member of the Board; or
2
(ii) the Principal Member or another member of the
3
Advisory Council;
4
(c) grant of leave of absence for the person for a period that
5
exceeds 3 months under section 131 or 151;
6
(d) resignation of the person as a Board member or a member of
7
the Advisory Council;
8
(e) termination of the person's appointment as a Board member
9
or a member of the Advisory Council.
10
11
National Disability Insurance Scheme Launch Transition Agency Chapter 6
Reporting and planning Part 5
Planning Division 2
Section 177
National Disability Insurance Scheme Bill 2012 No. , 2012 127
Division 2--Planning
1
177 Corporate plan
2
(1) The Board must prepare a corporate plan for the Agency at least
3
once a year.
4
(2) The plan must cover a period of at least 3 years.
5
(3) In preparing the plan, the Board must have regard to a statement
6
given under section 125.
7
Content of the corporate plan
8
(4) Without limiting subsection (1), the plan must include details of
9
the following matters:
10
(a) the objectives, strategies and policies to be followed by the
11
Agency;
12
(b) the performance indicators for the assessment of the
13
Agency's performance of its functions;
14
(c) the performance of the Agency in the year before the year in
15
which the plan is prepared as assessed against those
16
performance indicators;
17
(d) the financial sustainability of the National Disability
18
Insurance Scheme (including estimates of the current and
19
future expenditure of the National Disability Insurance
20
Scheme);
21
(e) the risks and issues relevant to the financial sustainability of
22
the National Disability Insurance Scheme and the
23
management of those risks and issues.
24
Copy to be given to the Ministerial Council etc.
25
(5) The Board must give a copy of the plan to the Ministerial Council
26
before the start of the period covered by the plan.
27
(6) If the Board varies the plan, the Board must notify the Ministerial
28
Council of the variation.
29
30
Chapter 6 National Disability Insurance Scheme Launch Transition Agency
Part 6 Finance
Section 178
128 National Disability Insurance Scheme Bill 2012 No. , 2012
Part 6--Finance
1
2
178 Payments to the Agency by the Commonwealth
3
(1) There is payable to the Agency such money as is appropriated by
4
the Parliament for the purposes of the Agency.
5
(2) The Finance Minister may give directions about the amounts in
6
which, and the times at which, money payable under subsection (1)
7
is to be paid to the Agency.
8
(3) If a direction under subsection (2) is given in writing, the direction
9
is not a legislative instrument.
10
179 Payments to the Agency by the host jurisdictions
11
The Agency may receive money paid to it by a host jurisdiction for
12
the purpose of funding reasonable and necessary supports for
13
participants in the National Disability Insurance Scheme launch
14
who are in the host jurisdiction.
15
180 Application of money by the Agency
16
(1) The money of the Agency consists of:
17
(a) money paid to the Agency under section 178; and
18
(b) money received by the Agency under section 179; and
19
(c) any other money paid to, or received by, the Agency.
20
(2) Subject to subsection (3), the money of the Agency is to be applied
21
only:
22
(a) in payment or discharge of any expenses, charges and
23
obligations incurred or undertaken by the Agency in the
24
performance of its functions and the exercise of its powers;
25
and
26
(b) in payment of remuneration and allowances payable under
27
this Act.
28
National Disability Insurance Scheme Launch Transition Agency Chapter 6
Finance Part 6
Section 180
National Disability Insurance Scheme Bill 2012 No. , 2012 129
(3) The money of the Agency that was received by the Agency under
1
section 179 is to be applied only for the purpose mentioned in that
2
section.
3
(4) Subsections (2) and (3) do not prevent investment of surplus
4
money of the Agency under section 18 of the CAC Act.
5
6
Chapter 6 National Disability Insurance Scheme Launch Transition Agency
Part 7 Miscellaneous
Section 181
130 National Disability Insurance Scheme Bill 2012 No. , 2012
Part 7--Miscellaneous
1
2
181 Taxation
3
The Agency is not subject to taxation under any law of the
4
Commonwealth or of a State or Territory.
5
Note:
However, the Agency may be subject to taxation under certain laws
6
(see, for example, section 177-5 of the A New Tax System (Goods and
7
Services Tax) Act 1999 and section 66 of the Fringe Benefits Tax
8
Assessment Act 1986).
9
10
Other matters Chapter 7
Debt recovery Part 1
Debts Division 1
Section 182
National Disability Insurance Scheme Bill 2012 No. , 2012 131
Chapter 7--Other matters
1
Part 1--Debt recovery
2
Division 1--Debts
3
182 Debts due to the Agency
4
(1)
If:
5
(a) a payment is made to a person that is, or purports to be, a
6
payment of an NDIS amount to or in respect of a participant;
7
and
8
(b) the person is not entitled for any reason to the payment of the
9
NDIS amount;
10
the amount of the payment is a debt due to the Agency by the
11
person and the debt is taken to arise when the person receives the
12
payment.
13
(2) Without limiting paragraph (1)(b), a person is taken not to have
14
been entitled to the payment of an NDIS amount if the payment
15
should not have been made for one or more of the following
16
reasons:
17
(a) the payment was made as a result of a computer error or an
18
administrative error;
19
(b) the payment was made as a result of:
20
(i) a contravention of this Act, the regulations or the
21
National Disability Insurance Scheme rules; or
22
(ii) a false or misleading statement or a misrepresentation;
23
(c) the participant died before the payment was made.
24
(3) If a person does not comply with subsection 46(1) in relation to an
25
NDIS amount, an equal amount is a debt due to the Agency by the
26
person.
27
(4) The National Disability Insurance Scheme rules may provide that,
28
if records are not retained for the period prescribed as mentioned in
29
subsection 46(2) in relation to an NDIS amount, an equal or lesser
30
amount is a debt due to the Agency by the person.
31
Chapter 7 Other matters
Part 1 Debt recovery
Division 2 Methods of recovery
Section 183
132 National Disability Insurance Scheme Bill 2012 No. , 2012
Division 2--Methods of recovery
1
183 Legal proceedings
2
(1) A debt under this Act is recoverable by the Agency by means of
3
legal proceedings brought by the CEO on behalf of the Agency in a
4
court of competent jurisdiction.
5
(2) Subject to subsections (3), (4) and (5), legal proceedings for the
6
recovery of the debt are not to be commenced after the end of the
7
period (the recovery period) of 6 years starting on the first day an
8
officer becomes aware, or could reasonably be expected to have
9
become aware, of the circumstances that gave rise to the debt.
10
(3) If, within the recovery period, part of the debt is paid, legal
11
proceedings for the recovery of the balance of the debt may be
12
commenced within the period of 6 years starting on the day of
13
payment.
14
(4) If, within the recovery period, the person who owes the debt
15
acknowledges that he or she owes it, legal proceedings for the
16
recovery of the debt may be commenced within the period of 6
17
years starting on the day of acknowledgement.
18
(5) If, within the recovery period, any of the following activities
19
occurs:
20
(a) a review of a file relating to action for the recovery of the
21
debt;
22
(b) other internal Agency activity relating to action for the
23
recovery of the debt;
24
action under this section for the recovery of the debt may be
25
commenced within the period of 6 years after the end of the
26
activity.
27
184 Arrangement for payment of debt
28
(1) The CEO may enter into an arrangement with a person under
29
which the person is to pay a debt, owed by the person to the
30
Agency under this Act, or the outstanding amount of such a debt,
31
in a way set out in the arrangement.
32
Other matters Chapter 7
Debt recovery Part 1
Methods of recovery Division 2
Section 185
National Disability Insurance Scheme Bill 2012 No. , 2012 133
(2) An arrangement entered into under subsection (1) has effect, or is
1
taken to have had effect, on and after the day specified in the
2
arrangement as the day the arrangement commences (whether that
3
day is the day the arrangement is entered into or an earlier or later
4
day).
5
(3) If an arrangement entered into under subsection (1) does not
6
specify a day as mentioned in subsection (2), it has effect on and
7
after the day on which it is entered into.
8
(4) The CEO may terminate or alter an arrangement entered into under
9
subsection (1):
10
(a) at the debtor's request; or
11
(b) after giving 28 days' notice to the debtor of the proposed
12
termination or alteration; or
13
(c) without notice, if the CEO is satisfied that the person has
14
failed to disclose material information about his or her true
15
capacity to repay the debt.
16
185 Recovery of amounts from financial institutions
17
(1)
If:
18
(a) an NDIS amount or NDIS amounts are paid to a financial
19
institution for the credit of an account kept with the
20
institution; and
21
(b) the CEO is satisfied that the payment or payments were
22
intended to be made to someone who was not the person or
23
one of the persons in whose name or names the account was
24
kept;
25
the CEO may give a written notice to the institution setting out the
26
matters mentioned in paragraphs (a) and (b) and requiring the
27
institution to pay to the Agency, within a reasonable period stated
28
in the notice, the lesser of the following amounts:
29
(c) an amount specified in the notice, being an amount equal to
30
the NDIS amount or the sum of the NDIS amounts;
31
(d) the amount standing to the credit of the account when the
32
notice is received by the institution.
33
(2)
If:
34
Chapter 7 Other matters
Part 1 Debt recovery
Division 2 Methods of recovery
Section 185
134 National Disability Insurance Scheme Bill 2012 No. , 2012
(a) an NDIS amount or NDIS amounts that are intended to be
1
made to or in respect of a person (the first person) are made
2
to a financial institution for the credit of an account that was
3
kept with the institution by the first person or by the first
4
person and one or more other persons; and
5
(b) the first person died before the payment or payments were
6
made;
7
the CEO may give a written notice to the institution setting out the
8
matters mentioned in paragraphs (a) and (b) and requiring the
9
institution to pay to the Agency, within a reasonable period stated
10
in the notice, the lesser of the following amounts:
11
(c) an amount specified in the notice that is equal to the NDIS
12
amount or the sum of the NDIS amounts;
13
(d) the amount standing to the credit of the account when the
14
notice is received by the institution.
15
(3) As soon as possible after issuing a notice under subsection (2), the
16
CEO must inform the deceased estate in writing of:
17
(a) the amount sought to be recovered from the deceased
18
person's account; and
19
(b) the reasons for the recovery action.
20
(4) A financial institution must comply with a notice given to it under
21
subsection (1) or (2).
22
Penalty: 300 penalty units.
23
(5) It is a defence to a prosecution of a financial institution for failing
24
to comply with a notice given to it under subsection (1) or (2) if the
25
financial institution proves that it was incapable of complying with
26
the notice.
27
(6) If a notice is given to a financial institution under subsection (1)
28
(payment made to wrong account) or under subsection (2) (death of
29
person in whose name the account was kept) in respect of an NDIS
30
amount or NDIS amounts, any amount recovered by the Agency
31
from the institution in respect of the debt reduces any debt owed to
32
the Agency by any other person in respect of the NDIS amount or
33
NDIS amounts.
34
35
Other matters Chapter 7
Debt recovery Part 1
Information relating to debts Division 3
Section 186
National Disability Insurance Scheme Bill 2012 No. , 2012 135
Division 3--Information relating to debts
1
186 Power to obtain information from a person who owes a debt to
2
the Agency
3
The CEO may require a person who owes a debt to the Agency
4
under this Act to do one or more of the following:
5
(a) give to the Agency information that is relevant to the
6
person's financial situation;
7
(b) produce to the Agency a document that the CEO has
8
reasonable grounds to believe is in the person's custody, or
9
under the person's control, and is relevant to the person's
10
financial situation;
11
(c) if the person's address changes--inform the Agency of the
12
new address within 14 days after the change.
13
187 Power to obtain information about a person who owes a debt to
14
the Agency
15
If the CEO has reasonable grounds to believe that a person has
16
information, or has custody or control of a document:
17
(a) that would help the Agency locate another person (the
18
debtor) who owes a debt to the Agency under this Act; or
19
(b) that is relevant to the debtor's financial situation;
20
the CEO may require the person to give the information, or
21
produce the document, to the Agency.
22
188 Written notice of requirement
23
(1) A requirement under this Division must be made by written notice
24
given to the person of whom the requirement is made.
25
(2) The notice must specify:
26
(a) the nature of the information or document that is required to
27
be given or produced; and
28
(b) how the person is to give the information or produce the
29
document; and
30
(c) the period within which the person is to give the information
31
or produce the document to the Agency; and
32
Chapter 7 Other matters
Part 1 Debt recovery
Division 3 Information relating to debts
Section 189
136 National Disability Insurance Scheme Bill 2012 No. , 2012
(d) the officer to whom the information is to be given or the
1
document is to be produced; and
2
(e) that the notice is given under this section.
3
(3) The period specified under paragraph (2)(c) must be a period of at
4
least 14 days beginning on the day on which the notice is given.
5
(4) The notice may require the person to give the information by
6
appearing before a specified officer to answer questions.
7
(5) If the notice requires the person to appear before an officer, the
8
notice must specify a time and place at which the person is to
9
appear. The time must be at least 14 days after the notice is given.
10
189 Offence--refusal or failure to comply with requirement
11
(1) A person must not refuse or fail to comply with a requirement
12
under this Division to give information or produce a document.
13
Penalty: 30 penalty units.
14
Note:
If a body corporate is convicted of an offence against this subsection,
15
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a
16
fine of up to 5 times the penalty stated above.
17
(2) Subsection (1) does not apply if the person has a reasonable
18
excuse.
19
Note:
A defendant bears an evidential burden in relation to the matter in this
20
subsection: see subsection 13.3(3) of the Criminal Code.
21
22
Other matters Chapter 7
Debt recovery Part 1
Non-recovery of debts Division 4
Section 190
National Disability Insurance Scheme Bill 2012 No. , 2012 137
Division 4--Non-recovery of debts
1
190 CEO may write off debt
2
(1) Subject to subsection (2), the CEO may, on behalf of the Agency,
3
decide to write off a debt, for a stated period or otherwise.
4
(2) The CEO may decide to write off a debt under subsection (1) if,
5
and only if:
6
(a) the debt is irrecoverable at law; or
7
(b) the debtor has no capacity to repay the debt; or
8
(c) the debtor's whereabouts are unknown after all reasonable
9
efforts have been made to locate the debtor; or
10
(d) it is not cost effective for the Agency to take action to
11
recover the debt.
12
(3) For the purposes of paragraph (2)(a), a debt is irrecoverable at law
13
if, and only if:
14
(a) the debt cannot be recovered by means of deductions, or legal
15
proceedings, because the relevant 6 year period mentioned in
16
section 183 has elapsed; or
17
(b) there is no proof of the debt capable of sustaining legal
18
proceedings for its recovery; or
19
(c) the debtor is discharged from bankruptcy and the debt was
20
incurred before the debtor became bankrupt and was not
21
incurred by fraud; or
22
(d) the debtor has died leaving no estate or insufficient funds in
23
the debtor's estate to repay the debt.
24
(4) A decision made under subsection (1) takes effect:
25
(a) if no day is specified in the decision--on the day the decision
26
is made; or
27
(b) if a day is specified in the decision--on the day so specified
28
(whether that day is before, on or after the day the decision is
29
made).
30
(5) Nothing in this section prevents anything being done at any time to
31
recover a debt that has been written off under this section.
32
Chapter 7 Other matters
Part 1 Debt recovery
Division 4 Non-recovery of debts
Section 191
138 National Disability Insurance Scheme Bill 2012 No. , 2012
191 Power to waive Agency's right to recover debt
1
(1) On behalf of the Agency, the CEO may waive the Agency's right
2
to recover the whole or a part of a debt from a debtor only in the
3
circumstances described in section 192, 193, 194 or 195.
4
(2) A waiver takes effect:
5
(a) on the day specified in the waiver (whether that day is before,
6
on or after the day the decision to waive is made); or
7
(b) if the waiver does not specify when it takes effect--on the
8
day the decision to waive is made.
9
Note:
If the CEO waives the Agency's right to recover all or part of a debt,
10
this is a permanent bar to recovery of the debt or part of the debt and
11
the debt or part of the debt effectively ceases to exist.
12
192 Waiver of debt arising from error
13
The CEO must waive the right to recover the proportion of a debt
14
that is attributable solely to an administrative error made by the
15
Agency if the debtor received in good faith the payment or
16
payments that gave rise to that proportion of the debt and:
17
(a) the debt is not raised within 6 weeks from the first payment
18
that caused the debt; or
19
(b) if the debt arose because a person has complied with a
20
notification obligation--the debt is not raised within 6 weeks
21
from the end of the notification period;
22
whichever is the later.
23
Note:
This section does not allow waiver of a part of a debt that was caused
24
partly by administrative error and partly by one or more other factors
25
(such as error by the debtor).
26
193 Waiver of small debt
27
The CEO must waive the right to recover a debt if:
28
(a) the debt is, or is likely to be, less than $200; and
29
(b) it is not cost effective for the Agency to take action to
30
recover the debt.
31
Other matters Chapter 7
Debt recovery Part 1
Non-recovery of debts Division 4
Section 194
National Disability Insurance Scheme Bill 2012 No. , 2012 139
194 Waiver in relation to settlements
1
(1) If the Agency has agreed to settle a civil action against a debtor for
2
recovery of a debt for less than the full amount of the debt, the
3
CEO must waive the right to recover the difference between the
4
debt and the amount that is the subject of the settlement.
5
(2) If the CEO has agreed to settle proceedings before the
6
Administrative Appeals Tribunal relating to recovery of a debt on
7
the basis that the debtor will pay less than the full amount of the
8
debt, the CEO must waive the right to recover the difference
9
between the debt and the amount that is the subject of the
10
settlement.
11
(3)
If:
12
(a) the Agency has recovered at least 80% of the original value
13
of a debt from a debtor; and
14
(b) the Agency and the debtor agree that the recovery is in full
15
satisfaction for the whole of the debt; and
16
(c) the debtor cannot repay a greater proportion of the debt;
17
the CEO must waive the remaining 20% or less of the value of the
18
original debt.
19
(4) If the CEO and a debtor agree that the debtor's debt will be fully
20
satisfied if the debtor pays the Agency an agreed amount that is
21
less than the amount of the debt outstanding at the time of the
22
agreement (the unpaid amount), the CEO must waive the right to
23
recover the difference between the unpaid amount and the agreed
24
amount.
25
(5) The CEO must not make an agreement described in subsection (4)
26
unless the CEO is satisfied that the agreed amount is at least the
27
present value of the unpaid amount if it is repaid in instalments of
28
amounts, and at times, determined by the CEO.
29
(6) For the purposes of subsection (5), the present value of the unpaid
30
amount is the amount worked out in accordance with the method
31
prescribed by the National Disability Insurance Scheme rules.
32
Chapter 7 Other matters
Part 1 Debt recovery
Division 4 Non-recovery of debts
Section 195
140 National Disability Insurance Scheme Bill 2012 No. , 2012
195 Waiver in special circumstances
1
The CEO may waive the right to recover a debt if:
2
(a) the debt did not arise in whole or part as a result of:
3
(i) a contravention of this Act, the regulations or the
4
National Disability Insurance Scheme rules; or
5
(ii) a false or misleading statement or a misrepresentation;
6
and
7
(b) there are special circumstances (other than financial hardship
8
or the disability of the debtor) that the CEO is satisfied make
9
waiver appropriate; and
10
(c) the CEO is satisfied that waiver is more appropriate than
11
writing off the debt.
12
13
Other matters Chapter 7
General matters Part 2
Section 196
National Disability Insurance Scheme Bill 2012 No. , 2012 141
Part 2--General matters
1
2
196 Method of notification by CEO
3
If this Act, the regulations or the National Disability Insurance
4
Scheme rules require or permit the CEO to notify a person, the
5
CEO may notify the person:
6
(a) by sending the notice by prepaid post addressed to the person
7
at his or her postal address last known to the CEO; or
8
(b) by giving the notice to the person personally; or
9
(c) in any other way the CEO considers appropriate.
10
197 CEO not required to make a decision
11
(1) If this Act, the regulations or the National Disability Insurance
12
Scheme rules require a request or application to be in a form
13
approved by the CEO, the CEO is not required to make a decision
14
on the request or application if it is not in that form.
15
(2) If this Act, the regulations or the National Disability Insurance
16
Scheme rules permit the CEO to require information or documents
17
for the purposes of, or for purposes relating to, making a decision
18
or doing a thing, the CEO is not required to make the decision or
19
do the thing until the information or documents are provided.
20
198 Protection of participant against liability for actions of persons
21
Nothing in this Part renders a participant guilty of an offence
22
against this Act in relation to any act or omission of a person who
23
does a thing because of section 74.
24
199 Protection against criminal liability
25
A person who does a thing because of section 74 is not subject to
26
any criminal liability under this Act in relation to:
27
(a) any act or omission of the participant concerned; or
28
(b) anything done, or omitted to be done, in good faith, because
29
of section 74.
30
Chapter 7 Other matters
Part 2 General matters
Section 200
142 National Disability Insurance Scheme Bill 2012 No. , 2012
200 Evidentiary effect of CEO's certificate
1
(1) For the purposes of paragraph 21B(1)(c) of the Crimes Act 1914, as
2
it applies in relation to an offence against Part 7.3 or 7.4 of the
3
Criminal Code relating to the Agency or this Act, a certificate
4
signed by the CEO is evidence of the matters specified in the
5
certificate.
6
(2) The certificate may specify:
7
(a) the person to whom, or in relation to whom, an NDIS amount
8
has been paid because of an act or omission for which the
9
person or another person has been convicted of an offence
10
against Part 7.3 or 7.4 of the Criminal Code relating to the
11
Agency or this Act; and
12
(b) the amount paid; and
13
(c) the act or omission.
14
Note:
Parts 7.3 and 7.4 of the Criminal Code deal with certain fraudulent
15
conduct and false or misleading statements.
16
201 Delegation by the Minister
17
(1) The Minister may, in writing, delegate to the CEO his or her
18
powers under section 209.
19
(2) The Minister must not delegate to the CEO his or her powers under
20
section 209 unless each host jurisdiction has agreed to the
21
delegation.
22
(3) When exercising powers under a delegation, the CEO must comply
23
with any directions of the Minister.
24
202 Delegation by the CEO
25
(1) The CEO may, in writing, delegate to an officer any or all of his or
26
her powers or functions under this Act, the regulations or the
27
National Disability Insurance Scheme rules.
28
(2) Despite subsection (1), the CEO may delegate the CEO's powers
29
under Part 2 of Chapter 4 (privacy) only to an officer who is a
30
member of staff of the Agency under section 169.
31
Other matters Chapter 7
General matters Part 2
Section 203
National Disability Insurance Scheme Bill 2012 No. , 2012 143
(3) A person exercising powers or functions under a delegation under
1
this section must comply with any directions of the CEO.
2
203 Application of Act to unincorporated bodies
3
(1) This Act applies to an entity that is a registered provider of
4
supports, or an entity that wishes to apply for approval as a
5
registered provider of supports as if it were a person, but it applies
6
with the changes mentioned in subsections (3), (4) and (5).
7
(2) In addition, Division 2 of Part 1 of Chapter 4 applies to an entity as
8
if it were a person, but it applies with the changes mentioned in
9
subsections (3), (4) and (5).
10
(3) An obligation that would be imposed on the entity is imposed
11
instead on:
12
(a) if the entity is a partnership--each partner; or
13
(b) in any other case--each member of the committee of
14
management of the entity;
15
but may be discharged by any of the partners or any of those
16
members.
17
(4) A thing that the entity would be permitted to do may instead be
18
done by:
19
(a) if the entity is a partnership--any partner; or
20
(b) in any other case--any member of the committee of
21
management of the entity.
22
(5) An offence against this Act that would otherwise be committed by
23
the entity is taken instead to have been committed by:
24
(a) if the entity is a partnership--any partner:
25
(i) who was knowingly concerned in, or party to, the act or
26
omission constituting the offence; or
27
(ii) who aided, abetted, counselled or procured that act or
28
omission; or
29
(b) in any other case--any member of the committee of
30
management of the entity:
31
(i) who was knowingly concerned in, or party to, the act or
32
omission constituting the offence; or
33
Chapter 7 Other matters
Part 2 General matters
Section 204
144 National Disability Insurance Scheme Bill 2012 No. , 2012
(ii) who aided, abetted, counselled or procured that act or
1
omission.
2
204 Time frames for decision making
3
(1) If this Act requires the CEO to make a decision or do a thing
4
within a specified period, the National Disability Insurance
5
Scheme rules may prescribe that the decision is to be made, or the
6
thing done, within a longer period that is not more than double the
7
length of the specified period.
8
(2) If this Act requires or provides for a person other than the CEO to
9
do a thing within a specified period, the National Disability
10
Insurance Scheme rules may prescribe that the thing is to be done
11
within a longer period.
12
13
Other matters Chapter 7
Constitutional matters Part 3
Section 205
National Disability Insurance Scheme Bill 2012 No. , 2012 145
Part 3--Constitutional matters
1
2
205 Act binds Crown
3
(1) This Act binds the Crown in each of its capacities.
4
(2) However, this Act does not make the Crown liable to be prosecuted
5
for an offence.
6
206 Alternative constitutional basis
7
(1) Without limiting its effect apart from this subsection, this Act also
8
has the effect it would have if its operation were expressly
9
confined to:
10
(a) the provision of pharmaceutical, sickness or hospital benefits;
11
or
12
(b) the provision of medical services or dental services (without
13
any form of civil conscription).
14
(2) Without limiting its effect apart from this subsection, this Act also
15
has the effect it would have if its operation were expressly
16
confined to acts, matters or things occurring in, or in relation to, a
17
Territory or a place acquired by the Commonwealth for a public
18
purpose.
19
(3) Without limiting its effect apart from this subsection, this Act also
20
has the effect it would have if its operation were expressly
21
confined to acts, matters or things in relation to trade or commerce:
22
(a) between Australia and other countries; or
23
(b) among the States; or
24
(c) between a Territory and a State or another Territory.
25
(4) Without limiting its effect apart from this subsection, this Act also
26
has the effect it would have if its operation were expressly
27
confined to acts, matters or things in relation to communication by
28
means of a postal, telegraphic, telephonic or other like service
29
(within the meaning of paragraph 51(v) of the Constitution).
30
(5) Without limiting its effect apart from this subsection, this Act also
31
has the effect it would have if its operation were expressly
32
Chapter 7 Other matters
Part 3 Constitutional matters
Section 207
146 National Disability Insurance Scheme Bill 2012 No. , 2012
confined to acts, matters or things in relation to census and
1
statistics (within the meaning of paragraph 51(xi) of the
2
Constitution).
3
(6) Without limiting its effect apart from this subsection, this Act also
4
has the effect it would have if its operation were expressly
5
confined to acts, matters or things in relation to a corporation to
6
which paragraph 51(xx) of the Constitution applies.
7
(7) Without limiting its effect apart from this subsection, this Act also
8
has the effect it would have if its operation were expressly
9
confined to acts, matters or things in relation to:
10
(a) the Commonwealth; or
11
(b) an authority of the Commonwealth.
12
207 Concurrent operation of State laws
13
It is the intention of the Parliament that this Act is not to apply to
14
the exclusion of a law of a State or Territory to the extent that that
15
law is capable of operating concurrently with this Act.
16
17
Other matters Chapter 7
Review of the Act Part 4
Section 208
National Disability Insurance Scheme Bill 2012 No. , 2012 147
Part 4--Review of the Act
1
2
208 Review of operation of Act
3
(1) The Minister must cause an independent review of the operation of
4
this Act to be undertaken commencing on the second anniversary
5
of the commencement of Chapter 3.
6
(2) The review is to be undertaken by a person or persons chosen by
7
the Minister with the agreement of the Ministerial Council.
8
(3) The terms of reference of the review must be agreed by the
9
Ministerial Council.
10
(4) The person or persons undertaking the review must give the
11
Minister a written report of the review within 6 months of the
12
commencement of the review.
13
(5) Upon receiving the report, the Minister must give a copy to the
14
Ministerial Council and ask the Ministerial Council to:
15
(a) make recommendations in response to the report; and
16
(b) obtain COAG's response to the report within the period of 6
17
months after giving the copy of the report to the Ministerial
18
Council.
19
(6) The Minister must consider the report.
20
(7) The Minister must cause copies of the report to be tabled in each
21
House of the Parliament within 15 sitting days of that House after
22
receiving the report.
23
(8) The Minister must cause copies of COAG's response to the report
24
to be tabled in each House of the Parliament within 6 months of
25
giving the copy of the report to the Ministerial Council.
26
(9) If the Minister fails to cause copies of the response to be tabled in
27
each House of the Parliament within the period referred to in
28
subsection (8), the Minister must cause an explanation of the
29
failure to be tabled in each House of the Parliament within 15
30
sitting days of that House after the end of that period.
31
32
Chapter 7 Other matters
Part 5 Legislative instruments
Section 209
148 National Disability Insurance Scheme Bill 2012 No. , 2012
Part 5--Legislative instruments
1
2
209 The National Disability Insurance Scheme rules
3
(1) The Minister may, by legislative instrument, make rules called the
4
National Disability Insurance Scheme rules prescribing matters:
5
(a) required or permitted by this Act to be prescribed by the
6
National Disability Insurance Scheme rules; or
7
(b) necessary or convenient to be prescribed in order to carry out
8
or give effect to this Act.
9
(2) Despite section 14 of the Legislative Instruments Act 2003,
10
National Disability Insurance Scheme rules may make provision
11
for or in relation to a matter by applying, adopting or incorporating
12
any matter contained in an instrument or other writing as in force
13
or existing from time to time.
14
(3) When making National Disability Insurance Scheme rules, the
15
Minister must have regard to the need to ensure the financial
16
sustainability of the National Disability Insurance Scheme.
17
(4) The Minister must not make Category A National Disability
18
Insurance Scheme rules unless the Commonwealth and each host
19
jurisdiction have agreed to the making of the rules.
20
(5) The Minister must not make Category B National Disability
21
Insurance Scheme rules relating to an area, law or program of a
22
host jurisdiction unless the host jurisdiction has agreed to the
23
making of the rules.
24
(6) The Minister must not make Category C National Disability
25
Insurance Scheme rules unless the Commonwealth and a majority
26
of host jurisdictions have agreed to the making of the rules.
27
(7) The Minister must not make Category D National Disability
28
Insurance Scheme rules unless each host jurisdiction has been
29
consulted in relation to the making of the rules.
30
(8) The following table sets out the categories of National Disability
31
Insurance Scheme rules for the purposes of this section.
32
Other matters Chapter 7
Legislative instruments Part 5
Section 209
National Disability Insurance Scheme Bill 2012 No. , 2012 149
Categories of National Disability Insurance Scheme rules
Item
Category of rules
Description
1 Category
A
National Disability
Insurance Scheme
rules
Rules made for the purposes of any of the following
provisions:
(a) section 17;
(b) paragraph 23(1)(c), except to the extent that the
rules are of a kind mentioned in subsection 23(3);
(c) section 27;
(d) section 33;
(e) section 35;
(f) section 66;
(g) section 67;
(h) section 74;
(i) section 75;
(j) section 76;
(k) section 80;
(l) section 88;
(m) section 93.
All other rules, except Category B National Disability
Insurance Scheme rules, Category C National
Disability Insurance Scheme rules and Category D
National Disability Insurance Scheme rules
2 Category
B
National Disability
Insurance Scheme
rules
Rules made for the purposes of any of the following
provisions:
(a) paragraph 21(2)(b);
(b) section 22;
(c) subsection 23(3);
(d) section 58.
3 Category
C
National Disability
Insurance Scheme
rules
Rules made for the purposes of any of the following
provisions:
(a) section 70;
(b) section 73.
4 Category
D
National Disability
Insurance Scheme
rules
Rules made for the purposes of any of the following
provisions:
(a) section 40;
Chapter 7 Other matters
Part 5 Legislative instruments
Section 210
150 National Disability Insurance Scheme Bill 2012 No. , 2012
Categories of National Disability Insurance Scheme rules
Item
Category of rules
Description
(b) section 44;
(c) section 45;
(d) section 46;
(e) section 48;
(f) section 106;
(g) section 107;
(h) section 182;
(i) section 194;
(j) section 204.
210 Regulations
1
(1) The Governor-General may make regulations prescribing matters:
2
(a) required or permitted by this Act to be prescribed; or
3
(b) necessary or convenient to be prescribed for carrying out or
4
giving effect to this Act.
5
(2) Before the Governor-General makes regulations under
6
subsection (1), the Minister must:
7
(a) if the regulations are for the purposes of section 130, 150 or
8
162 (which relate to the remuneration and allowances of
9
Board members, members of the Advisory Council and the
10
CEO)--consult the host jurisdictions about the making of the
11
regulations; or
12
(b) otherwise--be satisfied that the Commonwealth and each
13
host jurisdiction have agreed to the making of the
14
regulations.
15