National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 - Commentary on Ministerial Responses [2022] AUSStaCSBSD 13 (4 February 2022)

• National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021
• Significant matters in delegated legislation19

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National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021

Purpose	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.
Portfolio	National Disability Insurance Scheme
Introduced	House of Representatives on 28 October 2021
Bill status	Before the House of Representatives

Significant matters in delegated legislation^[19]

2.41 In Scrutiny Digest 17 of 2021 the committee requested 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.^[20]

Minister's response^[21]

2.42 The minister advised:

Joint governance of the National Disability Insurance Scheme
The funding and governance of the National Disability Insurance Scheme (NDIS) is shared among the Commonwealth and all state and territory governments. Delegating certain details of the measures contained in the Bill to NDIS Rules ensures that state and territory governments are appropriately involved in determining the operation of those measures, in accordance with the consultation and agreement requirements set out in the National Disability Insurance Scheme Act 2013 (the Act).
Section 209 of the Act prescribes requirements that must be met in order for all NDIS Rules to be made. Specifically, section 209 categorises NDIS Rules as either A, B, C or D, requiring various levels of consultation and agreement with states and territories. For example, Category D Rules require that the Minister consult with states and territories before making the NDIS Rules, whilst Category A Rules require unanimous agreement with all states and territories.
As set out in the explanatory memorandum to the Bill that led to the NDIS Act, the intention was that Category A Rules are those that relate to significant policy matters with financial implications for the Commonwealth and states and territories, or which interact closely with relevant state and territory laws.
Implementation of the Tune Review
It is both necessary and appropriate to implement key aspects of the Participant Service Guarantee (the Guarantee), and certain other measures contained in the Bill, through NDIS Rules. The Bill, and associated Rules, implement a number of recommendations of the 2019 Review of the Act conducted by Mr David Tune AO PSM (the Tune Review). The recommendations of the Tune review specifically included that the Guarantee and the circumstances for variations be legislated through NDIS Rules.
As the Tune Review stated (at paragraph 10.45) 'the NDIS as a system will be subject to continuous evolution. As a result, the Guarantee needs to be sufficiently flexible and responsive to prevailing circumstances as they evolve.' Accordingly significant aspects of the Guarantee are appropriately implemented through Rules.
The NDIS is still evolving, and itis crucial that the operation of certain aspects of the NDIS, such as reassessments and variations, be able to evolve in response. Prescribing certain matters in the NDIS Rules will enable changes to be made more readily, for example in response to recommendations made by the Commonwealth Ombudsman or on the basis of operational experience or feedback on the implementation of measures contained in the Bill.
High-level guidance
As noted above, the Committee has also sought my advice whether the bill can be amended to include at least high-level guidance in relation to these matters. High level guidance already exists in the Act and has been modified by the Bill to address matters raised through consultation. Section 4 of the Act already provides general principles guiding actions under the Act. Further, section 31 of the Act sets out principles relating to the plans that must be complied with so far as reasonably practicable. These overarching guiding principles will be complied with in relation to the matters identified by the Committee.
As such, the Government believes that it is not desirable nor appropriate to provide other high-level guidance in the Bill.

Committee comment

2.43 The committee thanks the minister for this response. The committee notes the minister's advice that the funding and governance of the National Disability Insurance Scheme is shared among the Commonwealth and all state and territory governments and that delegating certain details to the NDIS Rules ensures that state and territory governments are appropriately involved in determining the operation of those measures, in accordance with the consultation and agreement requirements set out in the National Disability Insurance Scheme Act 2013.

2.44 The committee also notes the minster's advice that prescribing certain matters in the NDIS Rules will enable changes to be made more readily, for example in response to recommendations made by the Commonwealth Ombudsman or on the basis of operational experience or feedback on the implementation of measures contained in the bill.

2.45 While noting this advice, the committee reiterates that it 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.

2.46 The committee does not consider that the minister's advice has adequately justified why additional guidance regarding the implementation of the Participant Service Guarantee cannot be included on the face of the primary legislation. The committee has generally not considered a desire for administrative flexibility to be a sufficient justification of itself for leaving significant matters to delegated legislation.

2.47 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving key details in relation to the implementation of the Participant Service Guarantee to delegated legislation.

2.48 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

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^[19] 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).

^[20] Senate Scrutiny of Bills Committee, Scrutiny Digest 17 of 2021, pp. 27-30.

^[21] The minister responded to the committee's comments in a letter dated 15 December 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest.