Federal Register of Legislation - Australian Government

Primary content

Rules/Other as made
These rules amend the National Disability Insurance Scheme (Timeframes for Decision Making) Rules 2013 to deal with the timeframes in which certain decisions must be made regarding whether a prospective participant is eligible to become a participant, in a particular area.
Administered by: Social Services
Registered 19 Apr 2016
Tabling HistoryDate
Tabled HR02-May-2016
Tabled Senate02-May-2016
Date of repeal 21 Apr 2016
Repealed by Division 1 of Part 3 of Chapter 3 of the Legislation Act 2003

EXPLANATORY STATEMENT

 

Issued by the Authority of the Minister for Social Services

 

National Disability Insurance Scheme Act 2013

 

National Disability Insurance Scheme (Timeframes for Decision Making) Amendment Rules 2016

 

Purpose

Section 209 of the National Disability Insurance Scheme Act 2013 (the Act) provides that the Minister may, by legislative instrument, prescribe matters required or permitted by the Act to be prescribed or which are necessary or convenient to be prescribed in order to carry out or give effect to the Act.

The National Disability Insurance Scheme (Timeframes for Decision Making) Amendment Rules 2016 (the Amendment Rules) are made pursuant to section 204 of the Act and amend the National Disability Insurance Scheme (Timeframes for Decision Making) Rules 2013 (the Timeframes for Decision Making Rules). Under the Act, rules may be prescribed which extend the time available for the CEO to make a decision or do a thing that is required under the Act. This additional time must not be more than double the length of the specified period.

The Amendment Rules deal with the timeframes in which certain decisions must be made regarding whether a prospective participant meets the access criteria (the access decision), and therefore becomes a participant, in a particular area.  The current Timeframes for Decision Making Rules provide for an additional 21 days to make the access decision for the first 12 months of a particular area coming into the NDIS, being the first date on which a prospective participant in that area would meet the additional residence requirements.

The Amendment Rules expand the areas in which the extended timeframe applies to include the additional areas which have come into the NDIS, and will come into the NDIS over the coming years.  These areas are defined as NDIS areas and are set out in Schedule A of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016.  They include the 2016 early transition areas in Queensland, being the local government areas of Townsville, Charters Towers and Palm Island as specified under Schedules 1 and 2 of the Local Government Regulation 2012 (Qld).

The Amendment Rules are a legislative instrument for the purposes of the Legislation Act 2003.

Background

In 2011, the Productivity Commission report, Disability Care and Support (Report No. 54), found that ‘current disability support arrangements are inequitable, underfunded, fragmented and inefficient, and give people with a disability little choice’ (Overview, p. 5), and recommended the establishment of a NDIS.

The Act was enacted in March 2013 giving effect to the commitment by the Commonwealth, State and Territory Governments to establish such a scheme, and for its progressive implementation from 1 July 2013.  The Act is supplemented by rules made under the Act, which address the more detailed operational aspects of the NDIS.

Commencement

The Amendment Rules commence on the day after this instrument is registered on the Federal Register of Legislation.  

Consultation

The Amendment Rules are Category C rules under section 209 of the Act.  Accordingly, a majority of host jurisdictions have agreed to the making of these rules as required under subsection 209(6) of the Act.

Within the Commonwealth, the Department of Social Services has consulted with the NDIS Launch Transition Agency (known as the National Disability Insurance Agency) on the form of the Amendment Rules.

Regulation Impact Statement (RIS)

The Office of Best Practice Regulation has been consulted and has advised that a RIS is not required (OBPR ID 20008). 

Explanation of the provisions

Section 1

This section provides how the Amendment Rules are to be cited, that is, as the National Disability Insurance Scheme (Timeframes for Decision Making) Amendment Rules 2016.

Section 2

Section 2 provides that the Amendment Rules commence the day after this instrument is registered on the Federal Register of Legislation.

Section 3

Section 3 provides that Schedule 1 amends the National Disability Insurance Scheme (Timeframes for Decision Making) Rules 2013.

Schedule 1

Schedule 1 sets out the amendments to the National Disability Insurance Scheme (Timeframes for Decision Making) Rules 2013.

Schedule 1, item 1

Item 1 makes an amendment to ensure the Timeframes for Decision Making Rules in Part 3 apply to all NDIS areas for 12 months, which now include the 2016 NDIS early transition areas in Queensland and other NDIS areas as they transition into the NDIS.

 

This has the effect of extending timeframes for making particular decisions in relation to an access request made within 12 months after the first day on which a person who resides in the NDIS area would have met the additional residence requirements prescribed in paragraph 23(1)(c) of the Act, as set out in the National Disability Insurance Scheme (Becoming a Participant) Rules 2016.

Generally speaking, the CEO must make a decision on an access request, or request further information, within 42 days after receiving the access request. Where the CEO has made a request for further information, the CEO must make a decision on an access request or make a further request, within 28 days after receiving the information. Shorter timeframes apply where the access request is made by a person whose need for assistance is urgent. For the avoidance of doubt, the ordinary timeframes specified in the Act will apply after the12 month period dealt with in these Amendment Rules.  

Schedule 1, item 2

Item 2 inserts a new definition to simplify the rule, by referring to all NDIS areas as defined in the National Disability Insurance Scheme (Becoming a Participant) Rules 2016.

 


 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

National Disability Insurance Scheme (Timeframes for Decision Making) Amendment Rules 2016

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative instrument

The purpose of this legislative instrument is to extend timeframes within which certain decisions must be made regarding whether a person is eligible to become a participant in the National Disability Insurance Scheme (NDIS). The timeframes are extended for only a specified period, namely, for 12 months after the first day on which a person who resides in a particular area would have met the additional residence requirements prescribed in paragraph 23(1)(c) of the Act.

Human rights implications

The National Disability Insurance Scheme (Timeframes for Decision Making) Amendment Rules (No. 2) 2016 is essential to the transitional implementation of the NDIS, which is designed to advance the human rights of people with severe and permanent disability. Specifically, the instrument will help to ensure that the National Disability Insurance Agency (NDIA) will be able to efficiently process the large number of requests expected to be made during its initial period of operation by, or on behalf of, people who seek access to supports or funding for supports.  

Accordingly, the instrument engages, either directly or indirectly, the following human rights:

Rights of people with disabilities

  • The Convention on the Rights of Persons with Disabilities (CRPD) contains several human rights relevant to the NDIS. Notably, Article 26 of the CRPD requires governments to take effective and appropriate measures to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.
  • This instrument relates to several human rights set out in the CRPD (including personal mobility, health and rehabilitation), and promotes respect for the dignity of people with disabilities.

Right to health; Right to social security; Right to an adequate standard of living

  • The right to health – encompassing the right to the enjoyment of the highest attainable standard of physical and mental health – is contained in Article 12(1) of the International Covenant on Economic and Social and Cultural Rights (ICESCR). The UN Committee on Economic Social and Cultural rights has stated that health is a fundamental human right indispensible for the exercise of other human rights.
  • The right to social security is set out in Article 9 of the ICESCR; Article 28 of the CRPD; and Article 26 of the Convention on the Rights of the Child (CRC); and Article 11 of the Convention on the Elimination of all Forms of Discrimination Against Women. Essentially, that right requires that governments, within their maximum available resources, take action to ensure access to a social security scheme that provides a minimum essential level of benefits to all individual and families that will enable them to acquire essential health care. 
  • The right to an adequate standard of living is specified in Article 11 of the ICESCR, Article 28 of the CRPD and Article 27 of the CRC, which require governments to take appropriate steps to realise this right.  The CRPD provides that one step is to ensure access by people with disabilities to appropriate and affordable services, devices and other assistance for disability related needs.

 

It is appropriate that timeframes for decision-making be extended during the first 12 months after persons in a particular area are eligible to become participants in the NDIS to ensure that urgent claims are prioritised, and expectations of prospective participants are appropriately managed, when the volume of requests to the NDIA are expected to be high.

Conclusion

This legislative instrument is compatible with human rights as it forms part of an overall legislative scheme designed to deliver improved health social security and living standards to people with disability.  This instrument does not limit any human rights. To the extent that decision-making may be delayed, these measures are reasonable, necessary and proportionate in the circumstances and consistent with the country’s available resources.

 

Minister for Social Services

The Hon. Christian Porter MP