National Health (Listed drugs on F1 or F2) Amendment Determination 2017 (No 2) (PB 22 OF 2017) [F2017L00361]-Concluded matters [2017] AUSStaCSDLM 204 (14 June 2017)

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Instrument	National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2016 [F2017L00209]
Purpose	Sets rules for funding specialist disability accommodation for participants under the National Disability Insurance Scheme
Authorising legislation	National Disability Insurance Scheme Act 2013
Department	Social Services
Disallowance	15 sitting days after tabling (tabled Senate 20 March 2017) Notice of motion to disallow must be given by 19 June 2017
Scrutiny principle	Standing Order 23(3)(a) and (d)
Previously reported in	Delegated legislation monitor 4 of 2017

Access to incorporated documents

The committee previously commented as follows:

Paragraph 15J(2)(c) of the Legislation Act 2003 requires the ES for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.

The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely (i.e. without cost) available to the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by the law may have inadequate access to its terms.

With reference to the above, the committee notes that the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2016 [F2017L00209] (the rules) incorporate the NDIS (National Disability Insurance Scheme) Price Guide and Legacy Stock Price List, as in force from time to time. However, the ES does not provide a description of these documents, or indicate how they may be freely obtained, other than to state that the documents are published by the National Disability Insurance Agency (NDIA).

While the committee does not interpret paragraph 15J(2)(c) as requiring a detailed description of an incorporated document and how it may be obtained, it considers that an ES that does not contain any description of an incorporated document fails to satisfy the requirements of the Legislation Act 2003.

With respect to providing a description of the incorporated documents, the committee understands that NDIS prices and associated arrangements included in these documents are designed to assist disability support providers to understand the way pricing and payments work in the NDIS, and that the documents may be described as administrative in character. However, the committee is interested to understand why it is appropriate for the NDIS Price Guide and Legacy Stock Price List to be issued by the NDIA without Parliamentary oversight given that their application in the rules will determine the amounts that will be funded by the NDIS for specialist disability accommodation.^[1]

With respect to indicating how the incorporated documents may be obtained, the committee notes that the NDIS Price Guide is available for free online.^[2] Where an incorporated document is available for free online, the committee considers that a best-practice approach is for the ES to an instrument to provide details of the website where the document can be accessed. The committee remains concerned about how the Legacy Stock Price List may be obtained.

The committee's expectations in this regard are set out in the guideline on incorporation contained in Appendix 1.

The committee requests the advice of the minister in relation to the above.

Minister's response

The Minister for Social Services advised:

Having regard to paragraph 15J(2)(c) of the Legislation Act 2003, I will submit a revised Explanatory Statement which includes a description of these documents, as well as website links indicating how the documents may be publicly accessed.
In relation to the Committee's comments on the authority of the National Disability Insurance Agency (NDIA) to issue the NDIS Price Guide and Legacy Stock Price List, the NDIS Act 2013 establishes the NDIA and its functions. The functions are set out in section 118(1) of the NDIS Act 2013 and include:

• 'to manage the financial sustainability of the National Disability Insurance Scheme' (s 118(1)(b)) and

• 'to do anything incidental or conclucive to the performance of the above functions' (s 118(1)(h)).

To undertake these functions, it is appropriate that the NDIA set prices and use other methods to ensure that the prices of supports under the NDIS support financial sustainability.

Committee's response

The committee thanks the minister for his response.

The committee notes the minister's undertaking to register a revised ES that will include a description of the incorporated documents and where they can be publicly accessed.

The committee also notes the minister's advice that in order for the NDIA to undertake its functions as set out in the National Disability Insurance Scheme Act 2013, it is appropriate for the NDIA to 'set prices and use other methods to ensure that the prices of supports under the NDIS support financial sustainability', and that this may include issuing the NDIS Price Guide and Legacy Stock Price List.

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^[1] See paragraph 5.4.

^[2] See National Disability Insurance Agency, https://www.ndis.gov.au/providers/pricing-and-payment (accessed 28 March 2017).