Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT (QUALITY
AND SAFEGUARDS COMMISSION AND OTHER MEASURES) BILL 2017
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by the authority of the
Minister for Social Services, the Hon Christian Porter MP)
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT (QUALITY
AND SAFEGUARDS COMMISSION AND OTHER MEASURES) BILL 2017
Amendments to be moved on behalf of the Government
OUTLINE
These amendments are designed to give effect to:
further engagement with disability stakeholders; and
issues raised in submissions to the Senate Community Affairs
Legislation Committee in its inquiry into the Bill.
Refinements are made to the complaints and incident management
provisions, including amendments that give greater emphasis to ensuring that
people with disability are supported to access independent advocacy and that
all parties are to be afforded procedural fairness.
Other amendments will relate to the Quality and Safeguards Commissioner's
discretion to make instruments requiring NDIS providers registered under the
Act to acknowledge the role of advocates and other representatives of people
with disability.
The amendments made will require the Commissioner to assist the States and
Territories to develop nationally consistent minimum standards in relation to
restrictive practices that are in line with the intergovernmental agreement to
the National Framework for Reducing and Eliminating the Use of Restrictive
Practices in the Disability Service Sector. This intergovernmental agreement
was endorsed by Commonwealth, State and Territory Disability Ministers at
the Disability Reform Council meeting on 21 March 2014:
https://www.dss.gov.au/our-responsibilities/disability-and-carers/publications-
articles/policy-research/national-framework-for-reducing-and-eliminating-the-
use-of-restrictive-practices-in-the-disability-service-sector.
Lastly, the amendments will remove Schedule 2 of the Bill that provided for
minor administrative amendments to the NDIS Act in accordance with
COAG's response to an independent legislative review.
FINANCIAL IMPACT STATEMENT
These amendments will not alter the financial impact of the establishment of
the Commission, which will have a cost to the Commonwealth of $209 million
over four years from 2018.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
Supplementary Explanatory Memorandum.
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT (QUALITY AND
SAFEGUARDS COMMISSION AND OTHER MEASURES) BILL 2017
Amendments to be moved on behalf of the Government
SUMMARY OF AMENDMENTS
Advocacy in the NDIS
The amendments to the National Disability Insurance Scheme Amendment (Quality
and Safeguards Commission and Other Measures) Bill 2017 (the Bill) require the
NDIS Quality and Safeguards Commissioner (the Commissioner) to recognise and
respect the role of independent advocates acting on behalf of a person with
disability.
The proposed amendments would also require NDIS providers registered under the
Act to acknowledge the role of advocates and other representatives of people with
disability.
Procedural fairness for workers
Further amendments will ensure the Commissioner has due regard to procedural
fairness in the performance of his or her functions. This change confirms on the face
of the legislation, the common law requirement for the Commissioner as an
administrative decision maker, to afford procedural fairness to people affected by
decisions, including workers and other people who are the subject of allegations or
investigations. A related amendment enables rules to be made relating to procedural
fairness in relation to the management and resolution of complaints.
Reducing and eliminating restrictive practices in the NDIS
An additional amendment requires the Commissioner to assist the States and
Territories to develop nationally consistent minimum standards in relation to
restrictive practices that are in line with the intergovernmental agreement to the
National Framework for Reducing and Eliminating the Use of Restrictive Practices in
the Disability Service Sector. This amendment is consistent with the policy intent to
reduce and eliminate restrictive practices in the NDIS and clarifies the
Commissioner's role under proposed section 181H of the Bill.
Removal of Schedule 2
The amendment will remove schedule 2 of the Bill that provided for minor
administrative amendments to the NDIS Act in accordance with COAG's response to
an independent legislative review.
NOTES ON AMENDMENTS
Amendment 1 to Clause 2, page 2 (table item 3) of the Bill by omitting the table
item.
Amendment 2 to Schedule 1, item 7, page 5 (before line 25) of the Bill adds a new
definition of independent advocate, which is inserted at section 4 of the National
Disability Insurance Scheme Act 2013 (the Act). In relation to persons with disability,
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an independent advocate is independent of the Agency and the Commission and
NDIS providers providing supports or services to the person with disability. These
advocates provide independent advocacy for the person with disability so they can
exercise choice and control and have their voice heard in matters that affect them.
Independent advocates act at the direction of the person with disability, reflecting
their expressed wish, will, preferences and rights and should be free of relevant
conflicts of interest.
Amendment 3 to Schedule 1, item 48, page 32 (after line 7) adds new
paragraphs (aa) and (ab) to section 73W of the Bill. This amendment will require
NDIS providers in implementing and maintaining a complaints management system
to:
acknowledge the role of advocates (including independent advocates) and
other representatives of persons with disability; and
provide for cooperation with, and facilitate arrangements for these advocates
and representatives where they are affected by the complaints process, and
wish to be independently supported in that process by an advocate or other
representative.
Amendment 4 to Schedule 1, item 48, page 32 (line 25), inserts after "NDIS
providers" the words, ", advocates (including independent advocates)" into
paragraph 73X(2)(b) of the Bill. This will add advocates (including independent
advocates) to the non- exhaustive list of matters that may addressed in rules made
under subsection 73X(1).
Amendment 5 to Schedule 1, item 48, page 32 (after line 29), inserts after
paragraph 73X(2)(c) a new paragraph (ca) making requirements relating to
procedural fairness in relation to the management and resolution of complaints a
matter that may be addressed in rules made under subsection 73X(1).
Amendment 6 to Schedule 1, item 48, page 34 (before line 5), inserts before
paragraph 73Z(3)(a) a new paragraph (aa) allowing rules made under subsection
73Z(1) to require registered NDIS providers to provide information regarding the use
of an advocate (including an independent advocate) to persons with disability in
relation to an investigation into a reportable incident.
Amendment 7 to Schedule 1, item 48, page 35 (line 15), inserts after the word
"carer", the words, ", independent advocate" at paragraph 73ZA(1)(d) of the Bill.
This includes independent advocates in the class of people that may attract the
protections in relation to disclosure of information related to NDIS providers under
section 73ZA (subject to operation of that section).
Amendment 8 to Schedule 1, item 60, page 64 (after line 8), inserts after
subsection 181D(3), a new subsection (3A). Subsection 181D(3A) requires the
Commissioner in exercising his or her functions under section 181D(1) to
acknowledge, recognise and respect the role of advocates (including independent
advocates) in representing the interests of people with disability.
Amendment 9 to Schedule 1, item 60, page 64 (before line 9), inserts before
subsection 181D(4), a new subsection (3B) requiring the Commissioner in
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performing his or her functions under section 181D(1) to have due regard to
procedural fairness. Procedural fairness has its ordinary common law meaning.
Amendment 10 to Schedule 1, item 60, page 67 (line 20), adds at the end of section
181H, a new paragraph (f) which is a new Commissioner behaviour support function.
This function is to assist the States and Territories to develop a regulatory
framework, including nationally consistent minimum standards, in relation to
restrictive practices, that is consistent or in line with both:
the National Framework for Reducing and Eliminating the Use of Restrictive
Practices in the Disability Service Sector; and
the Convention on the Rights of Persons with Disabilities done at New York
on 13 December 2006.
The amendment also inserts a note identifying where the Convention may be found.
Amendment 11 to Schedule 2, page 80 (line 1) to page 89 (line 17), omits Schedule
2 from the Bill.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT (QUALITY AND
SAFEGUARDS COMMISSION AND OTHER MEASURES) BILL 2017
Schedule 1 - Amendments to acknowledge the role of independent advocates
and to emphasise procedural fairness
The amendments are compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the amendments
The amendments to the National Disability Insurance Scheme Amendment (Quality
and Safeguards Commission and Other Measures) Bill 2017 (the Bill) require the
Quality and Safeguards Commissioner (the Commissioner) to recognise and respect
the role of independent advocates acting on behalf of a person with disability.
The proposed amendments would also require NDIS providers registered under the
Act to acknowledge the role of advocates and other representatives of people with
disability.
Further amendments will ensure the Commissioner has due regard to procedural
fairness in the performance of his or her functions. This change confirms on the face
of the legislation, the common law requirement for the Commissioner as an
administrative decision maker, to afford procedural fairness to people affected by
decisions, including workers and other people who are the subject of allegations or
investigations. A related amendment enables rules to be made relating to procedural
fairness in relation to the management and resolution of complaints.
An additional amendment requires the Commissioner to assist the States and
Territories to develop nationally consistent minimum standards in relation to
restrictive practices that are in line with the intergovernmental agreement to the
National Framework for Reducing and Eliminating the Use of Restrictive Practices in
the Disability Service Sector. This amendment is consistent with the policy intent to
reduce and eliminate restrictive practices in the NDIS and clarifies the
Commissioner's national policy setting role under proposed section 181H of the Bill.
Human rights implications
The amendments advance the protection of the rights of people with disability
in Australia consistent with the Convention on the Rights of Persons with
Disabilities (CRPD) and engages the following rights under international
human rights law:
the rights of people with disabilities in the CRPD, especially Articles 3, 4, 8,
11, 12, 13, 16, 17, 19, 20, 21, 22, 26, 28, 30 and 31;
Articles 23 and 34 of the Convention on the Rights of the Child (CROC);
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Articles 6, 7(b) and 9 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR); and
Article 17 of the International Covenant on Civil and Political Rights (ICCPR).
The amendments slightly expand the disclosure powers to protect independent
advocates in relation to a person with disability from victimisation arising from a
protected disclosure, which limit the right to privacy under article 22 of the CRPD and
article 17 of the ICCPR, but those limitations are considered to be proportionate.
General principles underpinning the CRPD
The Convention on the Rights of Persons with Disabilities (CRPD) recognises the
barriers that people with disability may face in realising their rights. While the rights
under all human rights treaties apply to everyone, including people with disability, the
CRPD applies human rights specifically to the context of people with disability.
Article 4(3) of the CRPD states that 'in the development and implementation of
legislation and policies to implement the present Convention, and in other decision-
making processes concerning issues relating to persons with disabilities, State
Parties shall closely consult with and actively involve persons with disabilities,
including children with disabilities, through their representative organisations'.
The preamble of the CRPD, and the general principles and obligations set out in
Articles 3 and 4 reflect the need for the respect for the inherent dignity, individual
autonomy (including the freedom to make one's own choices and the independence
of the person), the need for people with disability to be able to participate fully and
effectively and be included in society, the need for respect for difference and
acceptance of people with disability as part of human diversity and providing people
with disability the opportunity to be involved actively in decision-making processes
about policies and programmes, including those directly concerning them.
CRPD rights positively engaged by the Bill
The establishment of the NDIS promotes the rights of people with disability in
Australia by providing access to nationally consistent funding and support to help
them realise their aspirations, and to participate in the social and economic life of the
community.
The relevant human rights which are promoted are those related to the provision of
services through the NDIS including the rights of persons with disability to live
independently and be included in the community (CRPD, article 19), to personal
mobility (article 20), to enjoy the highest attainable standard of health (article 25), to
habitation and rehabilitation (article 26) and to an adequate standard of living for
themselves and their families (article 28).
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Review of Decisions
Article 12(4) of the CRPD requires signatories to the CRPD to ensure that all
measures that relate to the exercise of legal capacity provide for appropriate and
effective safeguards to prevent abuse in accordance with international human rights
law. Such safeguards shall ensure that measures relating to the exercise of legal
capacity respect the rights, will and preferences of the person, are free of conflict of
interest and undue influence, are proportional and tailored to the person's
circumstances, apply for the shortest time possible and are subject to regular review
by a competent, independent and impartial authority or judicial body. The
safeguards shall be proportional to the degree to which such measures affect the
person's rights and interests. The amendments expressly provide for facilitation of
independent advocacy and the right to procedural fairness and therefore expand the
safeguards for persons with disability,
Schedule 2 of the Bill
The amendments omit Schedule 2 from the Bill, so the amendments maintain the
status quo under the Act and the NDIS.
Conclusion
The amendments are compatible with human rights because they further advance
the protection of human rights. In particular, the amendments to the Bill serve to
advance the rights of people with disability in strengthening and clarifying the
operation of the Act and the NDIS.
Minister for Social Services, the Hon Christian Porter MP
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