National Disability Insurance Scheme (Becoming a Participant) Rules 2016 [F2016L00544]-Response required [2016] AUSStaCSDLM 188 (14 September 2016)

---

Instrument	National Disability Insurance Scheme (Becoming a Participant) Rules 2016 [F2016L00544]
Purpose	Sets eligibility requirements relating to age, residence and disability or early intervention to become a participant in the National Disability Insurance Scheme
Last day to disallow	8 November 2016
Authorising legislation	National Disability Insurance Scheme Act 2013
Department	Social Services
Scrutiny principle	Standing Order 23(3)(a)

Incorporation of documents^[1]

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of the legislative instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above, the committee notes that section 8.4 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 [F2016L00544] (the becoming a participant rules) contains the following definition:

2016 NDIS early transition areas means the areas specified in Schedules 1 and 2 of the Local Government Regulation 2012 (Qld) as:

(a) Townsville City Council;

(b) Charters Towers Regional Council;

(c) Palm Island Aboriginal Shire Council.

The committee further notes that subsection 209(2) of the National Disability Insurance Scheme Act 2013 provides that, despite section 14 of the Legislation Act 2003, the National Disability Insurance Scheme Rules ‘may make provision for or in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time’. However, neither the text of the becoming a participant rules nor the ES expressly states the manner in which the relevant parts of schedules 1 and 2 of Local Government Regulation 2012 (Qld) are incorporated.

The committee expects instruments (and ideally their accompanying ESs) to clearly state the manner in which State regulations are incorporated (that is, either as in force from time to time or as in force at the commencement of the legislative instrument). This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

Consultation

Section 17 of the Legislation Act 2003 directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument. The ES which must accompany an instrument is required to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken (paragraphs 15J(2)(d) and (e)).

With reference to these requirements, the committee notes that the ES for the becoming a participant rules states:

Consultation
The Commonwealth and each host jurisdiction have agreed to the making of the Becoming a Participant Rules.

While the committee does not interpret paragraphs 15J(2)(d) and (e) of the Legislation Act 2003 as requiring a highly detailed description of consultation undertaken, it considers that an overly bare or general description is insufficient to satisfy the requirements of the Legislation Act 2003. In the committee's view, the general statement that the Commonwealth and host jurisdictions have agreed to the making of the rules is not sufficient to meet the requirement that the ES describe the nature of any consultation undertaken.

The committee's expectations in this regard are set out in the guideline on consultation contained in Appendix 2.

The committee requests the advice of the minister in relation to this matter; and requests that the ES be updated in accordance with the requirements of the Legislation Act 2003.

---

^[1] The committee notes that the issue raised here also applies to National Disability Insurance Scheme (Timeframes for Decision Making) Amendment Rules 2016 [F2016L00545] which incorporates Schedules 1 and 2 of the Local Government Regulation 2012 (Qld) at item 2.