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2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL DISABILITY INSURANCE SCHEME BILL 2012
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by the authority of the
Minister for Families, Community Services and Indigenous Affairs,
the Hon Jenny Macklin MP)
NATIONAL DISABILITY INSURANCE SCHEME BILL 2012
Amendments to be moved on behalf of the Government
OUTLINE
These amendments are designed to give effect to:
decisions made by the Council of Australian Governments (COAG) on
7 December 2012, and content of a report on outstanding legislative
issues considered by COAG Senior Officials on 15 February 2013;
bilateral intergovernmental agreements made between the
Commonwealth and New South Wales, Victoria, South Australia,
Tasmania and the ACT respectively;
advice of the NDIS Advisory Group and further engagement with
disability stakeholders, including people with disability, their families
and carers; and
issues raised in submissions to the Senate Community Affairs
Committee in its inquiry into the Bill.
Refinements are made to the principles and objects guiding the National
Disability Insurance Scheme, including amendments that give greater
emphasis to ensuring that people with disability are supported to exercise
choice over the care and support they receive.
Amendments to the National Disability Insurance Scheme access provisions
are also made to clarify the approach to early intervention, including the focus
on impairment, permanence or likely permanence for adults, a focus on the
person and their likely benefit from the supports provided by the National
Disability Insurance Scheme, and clarification that people with degenerative
conditions not better supported by another system are eligible.
Other amendments will relate to the Chief Executive Officer's discretion to
revoke an instrument approving a person or entity as a registered provider of
supports. The compensation provisions will be adjusted to allow the Agency
to institute an action for damages or take over the conduct of proceedings
already commenced.
Lastly, amendments to the governance provisions will be made, including
changes to the arrangements for States and Territories agreeing to the
appointment of Board members and Advisory Council members.
Financial impact statement
These amendments will not alter the financial impact of the first stage of the
National Disability Insurance Scheme, which will have a cost to the
Commonwealth of $1 billion over four years from 2012-13.
NATIONAL DISABILITY INSURANCE SCHEME BILL 2012
Amendments to be moved on behalf of the Government
SUMMARY OF AMENDMENTS
Principles and objects
The amendments change the objects clause to give greater emphasis to the objects
of giving effect to certain obligations that Australia has as a party to the Convention
on the Rights of Persons with Disabilities, and maximising independent lifestyles and
full inclusion in the mainstream community for people with disability.
The amendments to the objects clause also recognise the broader context for
disability reform provided through the National Disability Strategy 2010-2020 and the
Carer Recognition Act 2010.
The amendments change the general principles guiding actions of people who may
do acts or things on behalf of people with disability, to ensure that, if the person with
disability is a child, the best interests of the child are paramount.
The amendments make changes to the principles relating to plans and the functions
of the Agency to make more explicit that, in the National Disability Insurance
Scheme (NDIS), people with disability will be assumed, as far as reasonably
practicable, to have the capacity to determine their own best interests and make
decisions that affect their own lives. It will be made clear that the Agency will
support individuals with disability to maximise their capacity to exercise choice and
control.
Operation of the NDIS
The early intervention requirements are clarified to focus more on the individuals
who might benefit from early intervention, their condition and its likely trajectory,
and the benefits early intervention might provide to them.
An amendment is made to ensure that a participant who has entered permanent
residential aged care or community aged care before they are 65 years of age does
not automatically cease to be a participant after turning 65.
The amendments provide a mechanism to phase entry to the NDIS to reflect its
roll-out across launch sites.
1
The amendments make changes to the CEO's power to revoke an instrument
approving a person or entity as a registered provider of supports, so that the CEO
has a discretion to revoke the instrument, as opposed to being required to revoke it,
in certain specified circumstances. In addition to the circumstances specified in the
Bill currently, the CEO's discretion would be triggered if the CEO is satisfied that a
circumstance prescribed by the rules exists and the circumstance gives rise to an
unreasonable risk to a participant. The amendments will give the Minister the power
to make rules for this purpose. This reflects the need for the CEO to have the power
to revoke the registration of a registered provider of supports but only where this is in
the interests of participants.
Where a State or Territory Minister has been appointed as a child's guardian,
the CEO would be required to seek the written agreement of the State or Territory
Minister prior to making a determination that another person is to have parental
responsibility for the child or to be the child's representative for purpose of the Act.
Minor amendments are made to the disability requirements.
Governance arrangements
The amendments make changes to the appointment of Board members and
Advisory Council members. The Commonwealth and all States and Territories must
agree to the appointment of a Board or Advisory Council member, unless the
agreement cannot be reached for 90 days, in which case the Minister may make the
appointment. The acting appointment provisions for Board and Advisory Council
members are amended so that the Minister may make an acting appointment where
a vacancy arises. The amendments also provide for an additional ground of
termination for Board members.
The amendments make provision for transitional arrangements for staff of the
Agency, the detail of which is set out in Schedule 1 to the Act, including a power for
the Minister to make a legislative instrument for other staffing matters of a
transitional nature for staff of the Agency, but the effect of such an instrument would
be prospective only, and could not detract from the terms and conditions that would
apply under the Agency's agreement, as created by Schedule 1.
The amendments strengthen the role of actuaries in the NDIS, making explicit
requirements for the Board and Agency to appoint actuaries and to consider their
advice in making decisions.
Other matters
The amendments allow the Agency to institute proceedings or take over the conduct
of proceedings that have already been commenced to recover compensation for
personal injury that may be owed to a participant or prospective participant. Where
the Agency elects to institute or take over proceedings, the Agency would be liable to
pay the plaintiff's reasonable costs in relation to the proceedings. The CEO would
take over the entire proceedings, and, when and if damages are awarded, the CEO
would recover the outstanding NDIS amounts and incidental costs and return the
rest to the participant.
2
The amendments clarify that, for an individual, a tendency to incriminate the
individual or expose them to a penalty would amount to a reasonable excuse for not
complying with a requirement to give information or produce a document.
The amendments make some technical changes to the Bill to clarify the alternate
constitutional bases of the Act, provide for a regulation-making power to specify the
kinds of State and Territory laws that are intended to operate concurrently with the
legislation, and make changes to the level of host jurisdictions agreement required
for the Minister to make some NDIS rules.
3
NOTES ON AMENDMENTS
Amendment 1 omits and substitutes new subclause 3(1). The amendment elevates
paragraph 3(1)(h) to become new paragraph 3(1)(a), and re-orders other paragraphs
in subclause 3(1) accordingly. This is intended to give greater prominence to the
object of giving effect to certain obligations that Australia has as a party to the
Convention on the Rights of Persons with Disabilities. The amendment also
changes paragraph 3(1)(f) to include a specific reference to the object of maximising
independent lifestyles and full inclusion in the mainstream community for people with
disability.
Amendment 2 adds new paragraph 3(3)(c), which specifies matters to which regard
must be had in giving effect to the objects of the Act, to recognise the broader
context for disability reform provided through the National Disability
Strategy 2010-2020 and the Carer Recognition Act 2010.
Amendment 3 replaces the words `and control' with `, including in relation to taking
reasonable risks,'.
Amendment 4 replaces the words `informed choice and' with `choice and control,
and to' in clause 4 and makes consequential changes to ensure that this language is
consistent throughout the Bill.
Amendment 5 adds to the existing general principles guiding actions under the Act
in clause 4 to clarify that reasonable and necessary supports under the Act should
support people with disability to live independently and as fully participating citizens.
Amendment 6 adds an additional general principle guiding actions under the Act in
clause 4 to acknowledge the outcomes particularly important for children and young
people with disability - namely, positive personal and social development.
Amendment 7 adds new paragraph 5(f), which specifies general principles guiding
actions of people who may do acts or things on behalf of people with disability,
to ensure that, if the person with disability is a child, the best interests of the child are
paramount. This is intended to ensure the Bill is relevant for children.
Amendment 8 replaces the words `(1) The' with `To support people with disability to
exercise choice and control in the pursuit of their goals, the' to clause 6 to clarify the
purpose for which the Agency may provide support and assistance.
Amendment 9 omits subclause 6(2) to take account of amendment 62.
Amendment 10 amends clause 9 to insert a definition of annual financial
sustainability report, which refers to the provision detailing the content of the
report.
4
Amendment 11 inserts a definition of the term cover. The definition will import the
meaning of that term as it is used in relation to an `enterprise agreement' in the
Fair Work Act 2009. The definition will ensure that the Commonwealth, non-SES
APS employees of the Agency and relevant unions are covered by, and subject to,
the Agency's enterprise agreement as created by Schedule 1.
Amendment 12 inserts a definition of the term enterprise agreement. This
definition will have the same meaning that it has in the Fair Work Act 2009.
Amendment 13 inserts a provision that defines the term FaHCSIA agreement. This
term would mean the enterprise agreement known as the Department of Families,
Housing, Community Services and Indigenous Affairs Enterprise Agreement
2012-2014, approved on 24 April 2012 in decision [2012] FWAA 3549. This is an
objective description which would readily allow the instrument to be identified and
accessed by a member of the public.
Amendment 14 amends clause 9 to insert definitions of reviewing actuary and
scheme actuary, which refer to the nomination provisions for each of these roles
within the scheme.
Amendment 15 inserts a new clause 17A to set out principles relating to the
participation of people with disability. These principles are that:
people with disability are assumed, so far as is reasonable in the
circumstances, to have capacity to determine their own best interest and
make decisions that affect their own lives;
people with disability will be supported in their dealings and communications
with the Agency so that their capacity to exercise choice and control is
maximised; and
the NDIS is to:
o respect the interests of people with disability in exercising choice and
control about matters that affect them; and
o support people with disability to make decisions that will affect their
lives, to the extent of their capacity; and
o support people with disability to participate in, and contribute to, social
and economic life, to the extent of their ability.
It is necessary to include the phrase `so far as is reasonable in the circumstances'
to take account of the provisions on nominees and children in the Bill.
Amendment 16 replaces paragraph 24(1)(e) with a new paragraph which focuses
on whether the person with disability is likely to require lifetime support under the
NDIS, rather than whether the person's support needs are likely to continue for their
lifetime. This is one of the conditions that need to be met for a person to satisfy the
disability requirements.
5
Amendment 17 makes a consequential change to the wording of subclause 24(2) to
reflect the change to paragraph 24(1)(e).
Amendment 18 recasts clause 25, which sets out the early intervention
requirements.
New subclause 25(1) sets out the criteria that need to be met for a person to satisfy
the early intervention requirements.
Firstly, the person must have an identified impairment (intellectual, cognitive,
neurological, sensory or physical or a psychiatric condition) that is, or is likely to be,
permanent, or be a child with developmental delay. The focus is on the person's
impairment rather than disability, and the requirement for the impairment to be
permanent or likely to be permanent has been added.
Secondly, the CEO needs to be satisfied that the provision of early intervention
supports is likely to benefit the person by reducing their future needs for support in
relation to disability. The focus is on benefits to the person of the provision of early
intervention supports.
Thirdly, the CEO needs to be satisfied that the provision of early intervention
supports is likely to benefit the person by mitigating or alleviating the impact of the
person's impairment on their functional capacity, or by preventing the deterioration
of, or improving, their functional capacity, or by strengthening the sustainability of
their informal supports (including through building the capacity of the person's carer).
The focus is on benefits to the person of early intervention supports, and
consideration of whether the provision of early intervention supports is likely to
benefit the person by improving their functional capacity has been added.
A note at the end of subclause 25(1) indicates to the reader that people with
degenerative conditions may meet the early intervention requirements.
New subclause 25(2) deems the requirements in paragraphs 25(1)(b) and (c)
(the second and third criteria mentioned above) to be satisfied if the person has an
impairment that is prescribed under the NDIS rules for the purposes of this provision.
The rules can then specify types of impairments that are known to respond positively
to early intervention supports such that a person with the impairment would be likely
to benefit from early intervention supports, as set out in paragraphs 25(1)(b) and (c).
These rules would be Category A rules for the purposes of clause 209
(amendment 69 refers).
New subclause 25(3) ensures that a person cannot satisfy the early intervention
requirements if early intervention supports for the person are more appropriately
funded or provided through other systems of service delivery or support services
than through the NDIS.
Amendments 19 and 20 make consequential changes to the rule-making provisions
in clause 27, which flow from new clause 25.
6
Paragraph 27(1)(a) is amended to allow the NDIS rules to prescribe circumstances
in which, or criteria to be applied in assessing whether, impairments are, or are likely
to be, permanent for the purposes of new subparagraphs 25(1)(a)(i) and (ii).
There are also changes to the way in which the rule-making powers are described,
which reflect the changed wording in new clause 25.
Amendment 21 replaces existing paragraph 29(1)(b) with a new paragraph. Under
this new provision, a person ceases to be a participant in the NDIS if the person
enters a residential aged care service on a permanent basis or starts being provided
with community aged care on a permanent basis, and this occurs for the first time
after the person turns 65 years of age. This ensures that a participant who has
entered permanent residential aged care or community aged care before they are 65
years of age does not automatically cease to be a participant after turning 65.
Amendment 22 inserts a new subclause 31(da). New subclause 31(da) inserts a
further principle that should, so far as reasonably practicable, be taken into account
in the preparation, review and replacement of a participant's plan.
Amendment 23 modifies clause 32 to allow for the phasing of participants into the
scheme. The effect of the amendment is that the CEO will commence the facilitation
of a participant's plan in accordance with the NDIS rules. This would replace the
requirement on the CEO to commence facilitation of a participant's plan within
14 days. If the rules do not require the CEO to commence facilitating the preparation
of a participant's plan within a prescribed period or in prescribed circumstances, then
the CEO is required to facilitate the preparation of the plan as soon as reasonably
practical, having regard to the obligation of the CEO under the rules to commence
facilitating the preparation of other plans.
Amendment 24 inserts a new clause 32A, which provides further information about
the NDIS rules made under the modified clause 32.
Subclause 32A(1) says that rules may describe participants in a class by reference
to a period of time or prescribed circumstances. Subclause (2) sets out a
non-exhaustive list of the categories by which participants may be phased and
reflects proposed phasing arrangements for host jurisdictions. Subclauses (3) to (5)
relate to the CEO making a decision to commence facilitating a person's plan at a
particular time other than as described in the rules, because of the urgency of the
circumstances. Further rules may be made that set out the matters to which the
CEO is to have regard in making such a decision. Subclause (6) provides that rules
on the facilitation of a participant's plan may operate by reference to the CEO being
satisfied on a matter. Finally, subclause (7) makes clear that the CEO does not have
a duty to consider whether to exercise a discretion conferred by the CEO by
subclause (3) or the rules made for the purposes of subclause 32(2) or 32A(6).
Amendment 25 omits the words `the reasonable and necessary supports that will be
funded and the manner in which they' and substitutes `the manner in which the
reasonable and necessary supports'. This amendment will clarify the operation of
paragraph 33(5)(d).
7
Amendment 26 inserts a new subclause 57(3). Existing subclause 57(1) creates an
offence relating to a refusal or failure to comply with a requirement to give
information or produce documents under clause 55 of the Bill.
Existing subclause 57(2) provides that the offence does not apply where a person
has a reasonable excuse. The burden of proving whether a person has a
reasonable excuse is on the defendant, by virtue of subsection 13.3(3) of the
Criminal Code Act 1995. This provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by the law
creating the offence bears an evidential burden in relation to that matter. It is
appropriate that the defendant bears the evidential burden for these matters, as they
are peculiarly within the defendant's knowledge. A `reasonable excuse' may include
an emergency situation or unavoidable delay.
The amendment would insert new subclause 57(3), which would provide that, for an
individual, a tendency to incriminate the individual or expose them to a penalty would
also amount to a reasonable excuse.
Amendments 27, 28 and 29 relate to the CEO's power under clause 72 to revoke
an instrument approving a person or entity as a registered provider of supports.
Amendment 27 makes an amendment to the CEO's power to revoke an instrument
approving a person or entity as a registered provider of supports to make clear that
the CEO's power is discretionary.
Amendment 28 adds new paragraph 72(1)(c), which provides a further basis on
which the CEO may revoke an instrument approving a person or entity as a
registered provider of supports. The CEO will also have a discretion to revoke the
instrument if the CEO is satisfied that a circumstance prescribed by the rules exists
and the circumstance gives rise to an unreasonable risk to a participant.
Amendment 29 relates to the Minister's power to make rules for the purpose of new
paragraph 72(1)(c). It outlines, without limitation, some of the circumstances that
may be prescribed for the purposes of paragraph 72(1)(c).
Amendment 30 makes an amendment to clause 74 by inserting a new
subclause (1A). The effect of this amendment is that, if a State or Territory Minister
has parental responsibility for the child, the CEO must not make a determination
under paragraph 74(1)(b) unless the State or Territory Minister has agreed in writing
to the making of the determination. A person who is the subject of a determination
by the CEO under paragraph 74(1)(b) is able to do the things to be done by, or in
relation to, a child as required or permitted under the Act.
8
Amendment 31 makes an amendment to clause 75 by inserting a new
subclause (3A). The effect of this amendment is that, if a State or Territory Minister
has guardianship of a child, the CEO must not make a determination under
subclause 75(2) or 75(3) unless the State or Territory Minister has agreed in writing
to the making of the determination. A determination under subclause 75(2) provides
that, despite subclause 75(1), if (under a law of the Commonwealth, a State or a
Territory) a person has guardianship of a child, that person has parental
responsibility for the child, unless the CEO determines that one or more of the
persons referred to in subsection (1) instead have parental responsibility for the
child. A determination under 75(3) provides that, if subclause 75(1) would result in
more than one person having parental responsibility for a child, the CEO may
determine that one or more of those persons have parental responsibility for the child
for the purposes of this Act.
Amendment 32 makes an amendment to subclause 76(1) by replacing the words
`in a manner that promotes the personal and social wellbeing of that child' with the
words `in the best interests of the child'. The amendment will have the effect of
making it the duty of a person who may do a thing because of clause 74 to act in the
best interests of the child. Clause 76 also makes it a duty for the person to ascertain
the wishes of the child concerned.
Amendment 33 makes an amendment to subclause 76(2) by replacing the words
`promotes the personal and social wellbeing of the child' with the words `is in the best
interests of the child'. This subclause concerns when a person does not breach the
duty imposed by subclause 76(1).
Amendment 34 makes an amendment to subclause 76(3) by replacing the words
`promotes the personal and social wellbeing of the child' with the words `is in the best
interests of the child'. This subclause concerns when a person does not breach the
duty imposed by subclause 76(1) by refraining from doing a thing.
Amendment 35 inserts a new subclause 84(7A). Existing subclause 84(6) creates
an offence where a person who is a plan nominee refuses or fails to comply with a
notice requirement under subclause 84(1).
Existing subclause 84(7) provides that the offence does not apply where a person
has a reasonable excuse. The burden of proving whether a person has a
reasonable excuse is on the defendant, by virtue of subsection 13.3(3) of the
Criminal Code Act 1995. This provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by the law
creating the offence bears an evidential burden in relation to that matter. It is
appropriate that the defendant bears the evidential burden for these matters, as they
are peculiarly within the defendant's knowledge. A `reasonable excuse' may include
an emergency situation or unavoidable delay.
The amendment would insert new subclause 84(7A), which would provide that, for
an individual, a tendency to incriminate the individual or expose them to a penalty
would also amount to a reasonable excuse.
9
Amendment 36 makes an amendment to clause 86 by inserting new subclauses (4)
and (5).
New subclause (4) enables an appointment of a person as a plan nominee to
provide that it has effect for a specified term.
New subclause (5) makes it clear that the term of appointment can be specified by
reference to the expiry of a specified period or occurrence of a specified event.
Amendment 37 makes an amendment to clause 87 by inserting new subclauses (3)
and (4).
New subclause (3) enables an appointment of a person as a correspondence
nominee to provide that it has effect for a specified term.
New subclause (4) makes it clear that the term of appointment can be specified by
reference to the expiry of a specified period or occurrence of a specified event.
Amendment 38 makes an amendment to subclause 88(4), and adds to those
persons to whom the CEO must have regard when appointing a nominee for a
participant either under clause 86 or under clause 87. The effect of this amendment
is that the CEO must have regard to any persons who, under a law of the
Commonwealth, a State or a Territory, has guardianship of the participant or is a
person who has been appointed by a court, tribunal, board or panel (however
described) and who has the power to make decisions for the participant. This
amendment clarifies that the CEO should have regard to guardians as well as other
persons who have powers to make decisions for the participant and whose
responsibilities in relation to the participant are relevant to the duties of a nominee.
Amendment 39 makes a consequential amendment to the heading of clause 91 by
removing the word `severe' to reflect the amendment to the clause.
Amendment 40 makes an amendment to clause 91 by removing the word `severe'.
The removal of this word will strengthen the CEO's ability to suspend the
appointment of a nominee in cases where the CEO has reasonable grounds to
believe that the person has, or is likely to, cause physical, mental or financial harm.
Amendment 41 omits clause 105 and substitutes new clauses 105, 105A and 105B.
New clause 105 requires a person who has been given a notice under clause 104 to
take the required action to claim or obtain compensation within the specified period,
and sets out the consequences of a failure to take the action.
If a participant does not take the required action within the prescribed period to make
a claim under a Commonwealth, State or Territory compensation scheme and a plan
is in effect for a participant, the plan is suspended from the end of the specified
period until the required action is taken (new paragraph 105(2)(a)). Clause 41 sets
out the effect of a suspension on a participant's plan.
10
A failure to take the required action would not affect the requirement in clause 32
that the CEO is to facilitate the preparation of the participant's plan, but the plan will
not come into effect until the participant has taken the required action
(new paragraph 105(2)(b)).
Example
If the CEO issues a notice under clause 104 which requires the participant to
lodge a claim for compensation from a Commonwealth, State or Territory
compensation scheme within 28 days and the participant fails to lodge the
notice within that period, the participant's plan will be suspended until the
participant informs the CEO that the claim has been lodged. Once a
participant has complied with the requirement of the notice, the participant's
plan will either remain in effect or come back into effect, and NDIS amounts
will continue to be paid (if any) while the participant's claim for compensation
from the Commonwealth, State or Territory compensation scheme is being
determined.
A failure to take the required action would not affect the CEO's capacity to consider
an access request or to facilitate the preparation of the participant's plan, but the
plan would not come into effect until the required action was taken by the participant
(new subclause 105(3)).
If a notice requires the participant to make a claim that is not a claim under a
Commonwealth, State or Territory compensation scheme and the participant fails to
take the required action within in the time specified, the CEO may take action to
claim or obtain compensation in the name of the participant or prospective
participant or take over the conduct of an existing claim (new subclause 105(4)).
New clause 105A sets out matters which are relevant to the CEO taking action to
make a claim or obtain compensation or take over an existing claim. The Agency is
responsible for all costs of and incidental to a claim that would have been payable by
a participant if the participant had made the claim. The Agency will not be
responsible for any costs unreasonably incurred by a person
(new subclause 105A(1)).
The actions the CEO may take in relation to a claim include:
whatever steps are appropriate to bring the claim to a conclusion;
if the claim is before a court - steps to settle the proceedings either with or
without obtaining a judgement;
if the claim is before a court and judgement has been obtained in favour of the
plaintiff - any necessary steps to enforce the judgement
(new subclause 105A(2)).
The participant or prospective participant must assist the CEO by signing any
documents relevant to the claim or proceedings arising out of the claim, including
settlement of claim (new subclause 105A(3)).
11
If a participant or prospective participant does not sign a document which the CEO
requires signed:
if the claim is not before a court or tribunal at the time - the CEO may make
an application to the Federal Court of Australia to direct that the document is
signed on behalf of the participant or prospective participant by a person
appointed by the CEO;
otherwise - the CEO make an application to the court or tribunal where the
proceedings in relation to the claim are being heard (new subclause 105A(4)).
If the CEO proposes making an application under subclause (4), the CEO must
notify the participant or prospective participant. The participant or prospective
participant has a right of representation in the hearing of the application
(new subclause 105A(5)).
New clause 105B provides that any amount obtained as a result of a claim (including
amounts payable as a result of a settlement) must be paid to the participant or
prospective participant after the Agency has deducted:
all NDIS amounts paid to the participant before the amount was paid to the
Agency; and
any costs incidental to the claim paid by the Agency.
Amendment 42 adds new subparagraphs to paragraph 118(1)(a). These additional
subparagraphs set out the outcomes the Agency is to fulfil in carrying out its function
of delivering the NDIS. The Agency will deliver the NDIS so as to:
support the independence, and social and economic participation, of people
with disability; and
enable people with disability to exercise choice and control in the pursuit of
their goals and the planning and delivery of their supports; and
ensure that the decisions and preferences of people with disability are
respected and given appropriate priority; and
promote the provision of high quality and innovative supports that enable
people with disability to maximise independent lifestyles and inclusion in the
mainstream community; and
ensure that a reasonable balance is achieved between safety and the right of
people with disability to choose to participate in activities involving risk.
Amendment 43 amends clause 118 to make an amendment to the functions of the
Agency to include the consideration of actuarial advice, including advice from the
scheme actuary and reviewing actuary.
12
Amendment 44 inserts a new clause 125A, which adds a requirement on the Board
to consider actuarial advice when performing its function of managing, advising and
reporting on the financial sustainability of the scheme.
Amendment 45 makes an amendment to clause 127 to change the way that the
Chair of the Board of the Agency is appointed. It replaces `all host jurisdictions' with
`all States and Territories' so that the Minister must consult all States and Territories
about the appointment of the Chair.
Amendment 46 makes an amendment to clause 127 to change the way Board
members, other than the Chair, are appointed. It replaces `all host jurisdictions' with
`all States and Territories' so that the Minister must seek the support of all States and
Territories before appointing a member, as well as the requirements detailed in
amendment 45.
Amendment 47 makes an amendment to clause 127 to change the way that Board
members, other than the Chair, are appointed. It replaces paragraph 127(4)(b) so
that the Minister must be satisfied that an appointment is supported by the
Commonwealth, States and Territories.
Amendment 48 adds a new subclause 127(4A). The new subclause provides that,
if 90 days have passed since the Minister sought the support of the States and
Territories for a proposed appointment, and the Minister is satisfied that it is not
possible to make the appointment as required by subclause 127(4), or it is not known
whether the appointment can be made, the Minister may appoint a person to be a
board member despite subclause 127(4).
Amendment 49 makes an amendment to clause 129 to change the acting
appointment provisions for Board members, other than the Chair, which are to be
used if a vacancy arises. It replaces subclause 129(2) so that the Minister may
make an acting appointment for up to 150 days. The Minister must consult States
and Territories about the acting appointment.
Amendment 50 amends clause 134 to provide for the Minister to terminate an
appointment of a Board member if the Minister does not have confidence in the
member. The capacity for the Minister to exercise this power reflects the scheme's
unique cooperative funding arrangements between the Commonwealth and States
and its shared governance model. The power is intended to allow all participating
governments and the Commonwealth to respond to a shared loss of confidence in a
member of the board.
It is expected that the Minister will exercise this power only in exceptional
circumstances. Before exercising this power to terminate the appointment of the
Chair, the Minister must consult host jurisdictions, and, before terminating the
appointment of board members, the Minister must be satisfied that the termination is
supported by the Commonwealth and a majority of the group consisting of the
Commonwealth and host jurisdictions.
13
Amendment 51 makes an amendment to clause 147 to change the way that the
Principal Member of the Advisory Council is appointed. It replaces `all host
jurisdictions' with `all States and Territories' so that the Minister must consult all
States and Territories about the appointment of the Principal Member.
Amendment 52 makes an amendment to clause 147 to change the way Advisory
Council members, other than the Principal Member, are appointed. It replaces
`all host jurisdictions' with `all States and Territories' so that the Minister must seek
the support of all States and Territories before appointing a member, as well as the
requirements detailed in amendment 51.
Amendment 53 makes an amendment to clause 147 to change the way that
Advisory Council members, other than the Principal Member, are appointed.
It replaces paragraph 147(3)(b) so that the Minister must be satisfied that an
appointment is supported by the Commonwealth, States and Territories.
Amendment 54 adds a new subclause 147(3A). The new subclause provides that,
if 90 days have passed since the Minister sought the support of the States and
Territories for a proposed appointment, and the Minister is satisfied that it is not
possible to make the appointment as required by subclause 147(3), or it is not known
whether the appointment can be made, the Minister may appoint a person to be an
Advisory Council member despite subclause 147(3).
Amendment 55 amends clause 149 to change the acting appointment provisions for
Advisory Council members, other than the Principal Member, which are to be used if
a vacancy arises. It replaces subclause 149(2) so that the Minister may make an
acting appointment for up to 150 days. The Minister must consult States and
Territories about the acting appointment.
Amendment 56 adds a new subclause to clause 159, which requires the CEO to
give the Board a copy of any significant actuarial report of advice received, so that
the Board remains informed.
Amendment 57 inserts a new provision to give effect to Schedule 1 to the Bill, which
will contain transitional provisions for staff of the Agency.
Amendments 58 and 59 work together to amend clause 172, relating to the
description of actuarial content in the Annual report, so that that content includes a
summary of the annual financial sustainability report, which is a comprehensive,
technical actuarial report on the scheme.
Amendment 60 inserts a new Part 6A (clauses 180A - 180F) to the Bill, which sets
out the nomination process for the scheme and the reviewing actuary and their
specific duties.
The scheme actuary's role is to develop and provide actuarial advice. The scheme
actuary must prepare input each time an annual report on the Agency is prepared.
14
The scheme actuary is required to report significant concerns about the financial
sustainability of the scheme, or the risk management processes of the Agency,
to the Board as soon as reasonably practicable.
The scheme actuary is also required to make quarterly estimates of the future
expenditure of the scheme and advise the CEO of these estimates. These estimates
are not intended to have a material bearing on the accounting treatment that applies
to the Agency.
The reviewing actuary's role is to provide the Board with a second opinion on advice
prepared by the scheme actuary. The reviewing actuary is required to report
significant concerns about the financial sustainability of the scheme, or the risk
management processes of the Agency, to the Board as soon as reasonably
practicable.
For the first three years, the Australian Government Actuary is to be appointed by
the Board to the position of the reviewing actuary.
New clause 180C includes an instrument-making power for the Minister
administering the Insurance Act 1973 to determine further issues that the scheme
actuary must consider in performing this role and identify professional standards that
the scheme actuary must comply with.
New clause 180F requires the Agency to assist both the scheme and reviewing
actuaries to perform their roles, such as by providing access to data or information.
To assist readers, proposed new subclause 180D(6) provides that the instrument of
nomination of the reviewing actuary is not a legislative instrument (within the
meaning of section 5 of the Legislative Instruments Act 2003). This is merely
declaratory of the law.
Amendment 61 inserts a new subclause 189(3). Existing subclause 189(1) creates
an offence if a person refuses or fails to comply with a requirement to give
information or produce a document under Division 3, Part 1, Chapter 7 of the Bill.
Existing subclause 189(2) provides that the offence does not apply where a person
has a reasonable excuse. The burden of proving whether a person has a
reasonable excuse is on the defendant, by virtue of subsection 13.3(3) of the
Criminal Code Act 1995. This provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by the law
creating the offence bears an evidential burden in relation to that matter. It is
appropriate that the defendant bears the evidential burden for these matters, as they
are peculiarly within the defendant's knowledge. A `reasonable excuse' may include
an emergency situation or unavoidable delay.
The amendment would insert new subclause 189(3), which would provide that, for an
individual, a tendency to incriminate the individual or expose them to a penalty would
also amount to a reasonable excuse.
15
Amendment 62 inserts a new clause 200A. The effect of this amendment is,
in conjunction with amendment 9, to move the text currently at clause 6 to the new
clause, as a better reflection that this is a general matter in the legislation.
Amendment 63 removes subclause (3) from clause 206 to clarify the alternate
constitutional basis of the Act.
Amendment 64 removes subclause (6) from clause 206 to clarify the alternate
constitutional basis of the Act.
Amendment 65 makes an editorial change to clause 207 by inserting the number 1
at the start of the clause to make the clause into a subclause. This takes account of
amendment 66 below, which inserts a new subclause 207(2).
Amendment 66 amends clause 207 to provide for regulations to be made to
prescribe the kinds of State and Territory laws which can operate concurrently with
the Bill. For clarity, it includes a note highlighting that paragraph 210(2)(b) will apply
to the making of regulations, so that all host jurisdictions must agree to the making of
the regulations.
Amendment 67 inserts a new subclause 209(2A), which allows the rules to provide
for the CEO to issue assessment tools that would be used to assess a person for the
purposes of the Act or rules.
Amendment 68 amends clause 209 to amend the description of Category B rules to
refer to the rules made about the commencement of the facilitation of the preparation
of plans of participants (see amendment 23). The effect of this amendment is that a
host jurisdiction must agree to those rules that are identified wholly or partly and
directly or indirectly, by reference to that host jurisdiction.
Amendment 69 adds a reference to section 25 into the first row of the table in
clause 209. The effect of this amendment is that rules made for the purposes this
provision are Category A rules and the Minister must not make the rules unless the
Commonwealth and each host jurisdiction have agreed to the making of the rules.
Amendment 70 adds a reference to sections 44 and 48 into the first row of the table
in clause 209. The effect of this amendment is that rules made for the purposes of
those provisions are Category A rules and the Minister must not make the rules
unless the Commonwealth and each host jurisdiction have agreed to the making of
the rules.
Amendment 71 adds a reference to sections 70 and 73 and
subparagraph 72(1)(c)(i) into the first row of the table in clause 209. The effect of
this amendment is that rules made for the purposes of those provisions are
Category A rules and the Minister must not make the rules unless the
Commonwealth and each host jurisdiction have agreed to the making of the rules.
Amendment 72 adds a reference to section 32 into row 2 of the table in clause 209.
The effect of this amendment is that rules made for the purpose of this provision are
Category B rules.
16
Amendment 73 adds a reference to subsection 32A(4) and sections 45 and 204 into
the third row of the table in clause 209. The effect of this amendment is that rules
made for the purposes of those provisions are Category C rules and the Minister
must not make the rules unless the Commonwealth and a majority of host
jurisdictions have agreed to the making of the rules.
Amendment 74 removes paragraphs (b) and (c) from the fourth row of the table in
clause 209 to take account of amendments 70 and 73.
Amendments 75 removes paragraph (e) from the fourth row of the table in
clause 209 to take account of amendment 70.
Amendment 76 removes paragraphs (i) and (j) from the fourth row of the table in
clause 209 to take account of amendment 73, and makes an editorial change to
ensure that the paragraphs are in alphabetical order.
Amendment 77 adds new Schedule 1 to the Bill.
SCHEDULE 1 - TRANSITIONAL PROVISIONS FOR STAFF OF THE AGENCY
Clause 1 - FaHCSIA agreement covers staff of the Agency
Subclause 1(1) provides that the FaHCSIA agreement (as defined in clause 9 of the
Bill) covers the Commonwealth, relevant unions and APS employees (except
SES employees) in relation to employment in the Statutory Agency. This provision
ensures that non-SES APS employees in the Statutory Agency will enjoy the same
terms and conditions of employment as those enjoyed by non-SES APS employees
in the Department of Families, Housing, Community Services and Indigenous Affairs.
The default conditions set by the Australian Public Service Award will not apply.
The `Statutory Agency' is expressed to be established by subsection 169(2) of the
Act. This ensures that the Agency's enterprise agreement does not apply to officers
or employees made available to assist the Agency in the performance of its functions
under clause 170 of the Bill.
Subcause 1(2) is a `reading provision'. This clause sets out the effect of the
FaHCSIA agreement in, and aid its translation to, the Agency. Upon the
establishment of the Agency, the FaHCSIA agreement will have effect as if it had
been made by the Chief Executive Officer (CEO) of the Agency on behalf of the
Commonwealth. The FaHCSIA agreement will also have effect as if any references
in the agreement to the Secretary were references to the CEO. In addition,
references to the Department or FaHCSIA should be read as though they were
references to the Agency.
The `Statutory Agency' will be expressed to be established by subsection 169(2) of
the Act as the Agency's enterprise agreement will not apply to officers or employees
made available to assist the Agency in the performance of its functions under
clause 170 of the Bill.
17
Subclause 1(3) provides that the agreement created by this Schedule has effect as
if it were a separate enterprise agreement. Accordingly, there will be no ongoing
linkage between the FaHCSIA agreement and the Agency's agreement. Parties to
the Agency's agreement will be required to observe and deal with the agreement as
if it had been made under the Fair Work Act.
Subclause 1(4) will apply to the Agency any guidelines and policies that were in
effect immediately before the commencement of this Schedule and linked to the
FaHCSIA agreement. This means that those linked guidelines and policies will apply
separately to the Agency for the purposes of the Agency's agreement, as created by
this Schedule.
Subclause 1(5) is a `reading provision'. This clause sets out the effect of guidelines
and policies linked to the FaHCSIA agreement and aid their translation to the
Agency. Subclause 1(4) will apply certain FaHCSIA guidelines and policies to the
Agency's agreement. Under this subclause, those policies and guidelines will have
effect as if references to the Secretary were references to the CEO. Similarly,
references to the Department or FaHCSIA will have effect as if they were references
to the Agency.
The `Statutory Agency' will be expressed to be established by subsection 169(2) of
the Act as the Agency's enterprise agreement will not apply to officers or employees
made available to assist the Agency in the performance of its functions under
clause 170 of the Bill.
Subclause 1(6) clarifies that the guidelines and policies applied to the Agency under
subclause 1(4) of this Schedule could be altered or revoked by the CEO or her or his
delegate. By clause 202 of the Bill, the CEO of the Agency will have the requisite
powers of delegation. This subclause would not prevent the CEO from making other
guidelines and policies for the Agency.
Subclause 1(7) will provide that the FaHCSIA agreement will cease to cover the
Commonwealth, unions and APS employees if another enterprise agreement is
made by the CEO on behalf of the Commonwealth and which covers the
Commonwealth and APS employees in the Statutory Agency.
Subclause 1(8) provides that subclause 1(7) has effect subject to section 58 of the
Fair Work Act, which provides among other things that only one enterprise
agreement can apply to an employee at a particular time. If, as envisaged by
subclause 1(7), another enterprise agreement is made by the CEO of the Agency
before the nominal expiry date of the FaHCSIA agreement (on 30 June 2014),
the FaHCSIA agreement will continue to have effect until that date (after which the
Agency's new agreement will take effect).
18
Clause 2 - Instruments about transitional staffing matters
Clause 2 allows the Minister to make a legislative instrument that provides for
matters of a transitional nature in relation to the staff of the Agency. To provide an
appropriate safeguard, the Minister will have the ability to make a legislative
instrument, and the effect of such instruments will be prospective only. Further,
a legislative instrument made by the Minister cannot detract from the terms and
conditions that will apply under the Agency's agreement as created by this Schedule.
A legislative instrument cannot alter the terms of an Act of Parliament without clear
and unambiguous words.
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