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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to amend the National Disability Insurance Scheme Act
2013 to implement significant improvements for participants, their families
and carers by reducing red tape, increasing flexibility and
clarifying
timeframes for decision-making by providing for the Participant Service
Guarantee.
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Portfolio
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National Disability Insurance Scheme
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Introduced
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House of Representatives on 28 October 2021
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1.84 Schedule 1 to the bill seeks to make a number of amendments to the National Disability Insurance Scheme Act 2013 (the Act) in relation to the implementation of a Participant Service Guarantee.
1.85 Item 23 of Schedule 1 to the bill seeks to insert proposed section 47A into the Act to provide that the CEO of the National Disability Insurance Agency (the CEO) may vary a participant's plan, if the variation is:
• a change to the statement of participant supports in the circumstances prescribed by the National Disability Insurance Scheme (NDIS) rules; or
• a correction of a minor or technical error; or
• of a kind prescribed by the National Disability Insurance Scheme rules.
1.86 Proposed subsection 47A(4) also provides that, if a participant requests a variation to their plan, the CEO must, within 21 days, decide to vary, not vary, reassess or inform the participant that additional time is required to make a decision. Proposed subsection 47A(6) provides that the NDIS rules may set out matters to which the CEO must have regard in deciding whether to vary a participant's plan on the CEO's own initiative; or in doing a thing under proposed subsection 47A(4).
1.87 Proposed subsection 48(5) allows for similar matters to be included in the NDIS rules in relation to a reassessment of a participant's plan initiated by the CEO or when requested by the participant.
1.88 In relation to variation by the CEO, the explanatory memorandum states:
The purpose of a plan variation is to make minor or technical changes to a participant's plan or in circumstances prescribed in the relevant NDIS Rules. Typically, this would occur where the variation does not require a reduction or significant increase to the level of NDIS funding. An example of a variation on the CEO's own initiative would be to correct a technical mistake by the Agency found after the plan had been agreed. Other examples under which a plan variation may be appropriate include:
• if a participant requires crisis/emergency funding as a result of a significant change to their supports;
• if the participant requests a change to the type of plan management and after an appropriate risk assessment;
• a minor change in supports; or
• to implement an AAT decision.[41]
1.89 Item 30 of Schedule 1 to the bill seeks to insert proposed section 50J into the Act to provide that the NDIS rules may prescribe requirements with which the CEO must comply in relation to the preparation of plans for participants; plans that have come into effect for participants; and giving effect to decisions of the Administrative Appeals Tribunal in relation to prospective participants or participants. The explanatory memorandum states:
For example, the NDIS Rules could prescribe timeframes for additional processes, such as the offer of a meeting after the plan is approved to discuss how the participant and their family could implement it and access their NDIS funding. The new section also enables NDIS Rules to prescribe requirements with which the CEO must comply to give effect to decisions of the Administration Appeals Tribunal ('AAT'). It is intended that these NDIS Rules will prescribe the timeframe within which the NDIA must implement AAT decisions. These amendments aim to assist participants, their families and carers gain a greater understanding of the service delivery options they can expect from the Agency.[42]
1.90 Item 55 of Schedule 1 to the bill seeks to insert proposed section 204A into the Act to provide that as soon as practicable after the end of each financial year, the Commonwealth Ombudsman must prepare and give to the minister a report about some or all of the matters prescribed by the NDIS rules. The explanatory memorandum states:
It is intended the NDIS Rules will prescribe the following matters:
• collective performance against one or more of the proposed engagement principles and service standards;
• performance against one or more of the timeframes that apply to the Agency or CEO in accordance with the timeframes prescribed as part of the Guarantee; and
• other matters relating to the experience of participants, or prospective participants, relating to decisions by the Agency or CEO under the Act or NDIS Rules made in relation to the Guarantee.[43]
1.91 Item 56 of Schedule 1 to the bill seeks to amend subsection 209(2A) of the Act to provide that the NDIS rules may provide for matters relating to how the Agency, the CEO, and other specified persons are to engage with participants or prospective participants and to provide for matters relating to how participants or prospective participants are to engage with the Agency, the CEO, and other specified persons. The explanatory memorandum states that 'this approach is consistent with the structure of the NDIS Practice Standards for registered providers managed by the NDIS Commission'.[44]
1.92 The committee has consistently drawn attention to framework provisions, which contain only the broad principles of a legislative scheme and rely heavily on delegated legislation to determine the scope and operation of the scheme. The committee considers that such an approach considerably limits the ability of Parliament to have appropriate oversight over new legislative schemes. Consequently, the committee's consistent scrutiny view is that significant matters, such as key details in relation to the implementation of the Participant Service Guarantee, should be included in the primary legislation unless a sound justification for the use of delegated legislation is provided.
1.93 While noting the explanations provided in the explanatory memorandum, it is unclear to the committee why there could not be additional high-level guidance on the face of the primary legislation in relation to these matters. For example, the circumstances in which a plan variation may be appropriate listed in the explanatory memorandum could be included in proposed subsection 47A(1). Similarly, the detail about matters for inclusion in reports by the Commonwealth Ombudsman listed in the explanatory memorandum could be included in proposed subsection 204A(1). The committee notes that a legislative instrument, made by the executive, is not subject to the same level of parliamentary scrutiny inherent in bringing any changes in the form of an amending bill.
1.94 The committee therefore requests the minister's advice as to:
• why it is considered necessary and appropriate to leave key details in relation to the implementation of the Participant Service Guarantee to delegated legislation; and
• whether the bill can be amended to include at least high-level guidance in relation to these matters on the face of the primary legislation.
[40] Schedule 1, items 23, 24, 30, 50, 55 and 56, proposed sections 47A, 48, 50J, 204A and paragraphs 209(2A)(c) and (d). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).
[41] Explanatory memorandum, p. 20.
[42] Explanatory memorandum, p. 16.
[43] Explanatory memorandum, p. 18.
[44] Explanatory memorandum, p. 16.
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URL: http://www.austlii.edu.au/au/other/AUSStaCSBSD/2021/239.html