Senate

Revised Explanatory Memorandum

(Circulated by the authority of the Minister for the National Disability Insurance Scheme, the Hon Bill Shorten MP)

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT (GETTING THE NDIS BACK ON TRACK NO. 1) BILL 2024

The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 (the Bill) 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 Bill

The Bill amends the National Disability Insurance Scheme Act 2013 to do the following things:

1.

Require the National Disability Insurance Agency (Agency) to provide participants with a clear statement of the basis on which they entered the National Disability Insurance Scheme (NDIS, Scheme), either by meeting the disability requirements, the early intervention requirements, or both. The Bill will also clarify and expand the NDIS rules relating to access provisions, including the methods or criteria to be applied when making decisions about the disability and early intervention criteria and the matters which must or must not be taken into account.

2.

Create the new reasonable and necessary budget framework for the preparation of NDIS participants' plans. This aligns with the original intent of the NDIS to support people with permanent and significant disability as part of a larger landscape of supports outside of the NDIS. The Bill provides for 'new framework plans' to be developed in accordance with a new budget framework. Participants will receive funding based on whether they accessed the Scheme on the basis of impairments that meet the disability requirements or the early intervention requirements or both.

3.

Provide for the needs assessment process and the method for calculating the total amount of the participant's flexible funding and funding for stated supports for new framework plans to be specified in legislative instruments and NDIS rules. These will be developed in consultation with people with disability, the disability community, health and allied health technical professionals, and with all States and Territories.

4.

Insert a new definition of 'NDIS supports' which will provide a clear definition for all participants of the supports that will be funded by the NDIS and those that will not.

5.

Insert measures focused on protecting participants such as:

a.

Allowing the CEO to specify in a participant's statement of participant supports a total funding amount under the plan for reasonable and necessary supports together with funding component amount(s) under the plan for group(s) supports, up to a specified amount.

b.

Clarifying the requirement that an NDIS participant who receives an amount or amounts for NDIS supports may only spend that money in accordance with the participant's plan. This reflects the reasonable expectation that participants should spend up to the limits specified in their plan – unless their needs significantly change and spend on supports needed as a result of their impairment.

c.

Enabling the Agency to change the plan management type as well as imposing shorter funding periods to safeguard participants where others may seek to exploit or coerce the participant to use their package in a way that is not consistent with their best interests.

6.

Insert quality and safeguard amendments to enable the imposition of conditions on approved quality auditors to not employ or engage a person against whom a banning order has been made, and to enable greater delegation of the Commissioner's compliance and enforcement powers to specified positions.

Human Rights Implications

The Bill engages the following rights:

•

Right to equality and non-discrimination – Articles 3, 4, 5 and 12 of the Convention on the Rights of Persons with Disabilities (CRPD) and Articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR)

•

Rights of people with disability – Articles 4(3) and 7 of the CRPD

•

Right to health – Article 12(1) of the ICESCR and Article 25 of the CRPD

•

Right to privacy and reputation – Article 17 of the ICCPR and Article 22 of the CRPD

The Bill seeks to protect the rights of persons with disability by ensuring the continued support for the needs of persons with disabilities, having regard to the key objectives of the NDIS, the first of which is to give effect to Australia's obligations under the CRPD, in conjunction with other laws. Each of the relevant rights engaged by the Bill are dealt with in turn.

Right to equality and non-discrimination – Articles 3, 4, 5 and 12 of the CRPD and Articles 2, 16 and 26 of the ICCPR

Article 3 of the CRPD reflects the need for respect of the inherent dignity, individual autonomy (including the freedom to make one's own choices and the independence of the person), non-discrimination, full and effective participation and inclusion in society, the need for respect for difference and acceptance of persons with disabilities, equality of opportunity, accessibility, gender equality and respect for the evolving capacities of children with disabilities, including their right to preserve their identities.

In addition, Article 4 of the CRDP outlines the need to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disability without discrimination of any kind on the basis of disability.

These Bill advances the rights of people with disability by ensuring that the Act will clearly identify the supports that are, and are not, NDIS supports, providing certainty for existing participants and prospective participants alike. The Bill ensures the inherent dignity and individual autonomy of people with disabilities as stated in Article 3 of the CRPD, by requiring the Chief Executive Officer (CEO) of the Agency to make a specific decision about whether a prospective participant meets the disability requirements, the early intervention requirements, or both, in order to gain access to the NDIS. The Bill will also clarify and expand the NDIS rules relating to access provisions, including the methods or criteria to be applied when making decisions about the disability and early intervention criteria and the matters which must or must not be taken into account. In doing so, the Bill will ensure transparency such that participants are aware which criteria they have met as part of their access to the NDIS.

This aspect of the Bill will also facilitate the establishment of an early intervention pathway to ensure that participants receive the supports and services which are most appropriate to them. In seeking to ensure that participants continue to meet early intervention requirements if they access the NDIS on this basis, the Bill promotes the respect for difference and acceptance of persons with disabilities and the respect for the evolving capacities of children with disabilities in particular.

The Bill further engages with Articles 3 and 4 by providing legislative authority for participants to utilise their plan funding flexibly for NDIS supports. This reinforces participants' inherent dignity and individual autonomy by supporting the freedom to make one's own choices about their use of supports, in turn promoting their independence to ensure full and effective participation and inclusion in society. This is articulated in Article 3 of the CRPD in relation to promoting the full realisation of persons with disability, as per the obligations in Article 4.

Article 5(2) of the CRPD seeks to prohibit all discrimination on the basis of disability and guarantee persons with disabilities equal and effective legal protection against discrimination on all grounds. Article 12 of the CRPD reaffirms that persons with disability have the right to recognition everywhere as persons before the law and shall enjoy legal capacity on an equal basis with others, with appropriate measures being taken to provide access and support in exercising their legal capacity, including appropriate safeguards. The Article also provides that persons with disability should be given equal rights to, among other things, control their financial affairs and not be arbitrarily deprived of their property.

Similarly, Article 16 of the ICCPR states that everyone shall have the right to recognition everywhere as a person before the law, and Article 26 of the ICCPR states that all persons are equal before the law and are entitled, without any discrimination on any grounds, to the equal protection of the law, including protection from discrimination. Article 2(3) of the ICCPR seeks to ensure that any person whose rights or freedoms are violated shall have an effective remedy, and that competent authorities enforce such remedies when granted.

The Bill promotes Article 12(5) of the CRPD by recognising the equal right of people with disability to control their own financial affairs. The Bill ensures that people with disabilities are afforded higher levels of choice and control in identifying and acquiring the supports that best meet their individual needs, provided these supports are appropriately funded by the NDIS. The Bill includes a range of specific circumstances in which payments can be made above the funding limit in a participant's plan, and in which a participant can seek a variation of their plan. This will ensure participants have an understanding of the circumstances in which they can, and cannot, obtain additional funding which will support them to manage their available funding within the relevant timeframe.

The Bill also provides that, in limited circumstances, the CEO can place restrictions or conditions on portions of this flexible funding, thereby setting reasonable parameters within which Article 12(5) of the CRPD is adopted. This limitation is connected with, and proportionate to, the legitimate objective of ensuring that the NDIS funds supports for which it has appropriate authority, and that such funds are properly directed towards the provision of those supports.

The Bill sets out specific circumstances in which the CEO can impose restrictions or conditions on flexible funding, including where the CEO is satisfied there is an unreasonable risk to the participant if the restriction or condition is not imposed, or where a person has previously not spent their NDIS funding in accordance with their plan. This limitation is compatible with Article 12(4) because it provides an effective safeguard to risk of the participant being subjected to financial exploitation, violence and abuse (a protection offered by Article 16 of the CRPD).

Similarly, the Bill seeks to adopt Article 12(5) in a manner compatible with Article 12(4) by providing that a statement of participant supports does not need to give effect to a plan management request if the CEO is satisfied that the participant is unlikely to utilise the funding in accordance with their plan. As stated above, this will ensure that participants are protected from the risk of being subjected to financial exploitation, violence and abuse.

The Bill also seeks to adopt Article 12(5) of the CRPD in a way which ensures that flexible funding can only be used to purchase 'NDIS supports'. This restriction on the freedom to make one's own choices in Article 3 of the CRPD is proportionate and for a legitimate objective of providing transparency and clarity about supports which are and are not appropriately funded by the NDIS and ensuring the financial stability of the NDIS for the benefit of persons with disabilities who meet the relevant access requirements. This further reinforces respect for the inherent dignity and individual autonomy of persons with disability by providing clear parameters within which the Scheme operates. Additionally, these limitations will ensure the NDIS will remain financially sustainable and able to benefit persons with disabilities who meet the relevant access requirements for many years into the future.

The Bill introduces a new 'needs assessment' process for participants, which will be used to develop their reasonable and necessary budget from which they can purchase NDIS supports. Participants will be provided with their needs assessment report before a decision is made about the supports in their plan, and a replacement assessment will be available if there initial report is incorrect. This promotes the rights to equality and non-discrimination by ensuring that all participants in the NDIS have the same rights and are provided an opportunity to participate in decisions made about the supports they will receive.

Rights of people with disability – Articles 4(3),7, and 28 of the CRPD

Article 4(3) of the CRPD seeks to ensure necessary consultation with, and active involvement of, persons with disabilities in the development and implementation of legislation and policies.

The Bill is compatible with Article 4(3) through the clarification and expansion of the NDIS rules which relate to the access criteria. The new NDIS rules will be designed and implemented with extensive consultation and co-design with the disability community. In addition, the methodology for working out the amount of funding in a participant's plan will be developed and built with the disability community. The overriding principles of the Act include a recognition of the fact that the disability community is central to the NDIS and should be included in a co-design capacity. The Act as currently drafted requires the Minister to have regard to this principle when making NDIS rules, and the Bill explicitly requires the Minister to have regard to this principle when making key legislative instruments that are not NDIS rules. This will ensure the rights of people with disability are protected and maintained.

Article 7 of the CRPD requires the taking of all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children. This requires that the best interests of the child are a primary consideration and that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and should be provided with disability and age-appropriate assistance to realise that right.

The Bill promotes Article 7 by giving children with disabilities and their family access to early intervention supports to meet their child's individual support needs. The requirement for the CEO to specify whether a child has met the early intervention requirements will provide clarity for children and their family as to the nature of their NDIS funding and will ensure that children are provided with support to pursue their goals and aspirations on an equal basis as children without disability.

Article 28 of the CRPD recognises the right of persons with disability to an adequate standard of living for themselves and their families. Article 28(2) seeks to ensure equal access by persons with disabilities to appropriate and affordable services, devices and other assistance for disability-related needs.

The Bill outlines parameters in relation to the adoption of Article 28 of the CRPD by providing that under 'new framework plans', which are plans developed in accordance with the budget requirements of the Bill, participants will receive funding in respect of impairments that meet the disability requirements or the early intervention requirements. This limitation is necessary to achieve the objective of ensuring that needs which are not the responsibility of the NDIS (for example, treatable health and mental health conditions) are dealt with through more appropriate means, such as the health system. This will also help to ensure financial sustainability of the NDIS and aligns with the original intent of the NDIS of supporting people with permanent and significant disability as part of a larger landscape of supports outside of the NDIS. These changes are proportionate and for a legitimate objective, including to help ensure that all persons with disability who meet the requirements for accessing the NDIS are supported for as long as they continue to do so.

The Bill is compatible with the Article 28 as it contains measures to remove barriers for people with disability to utilise their funding in a way which best suits them and meets their individual needs. The Bill recognises that people with disabilities know their own support needs the best and allows people with disability to flexibly use their NDIS funding to purchase disability-related needs. The changes ensure that the NDIS is placed on a more sustainable financial footing to allow participants to choose how to meet their needs.

Right to health – Article 12(1) of the ICESCR and Article 25 of the CRPD

Article 12(1) of the ICESCR seeks to recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

Similarly, Article 25 of the CRPD seeks to recognise that persons with disability have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. This involves the provision of health services needed by persons with disabilities specifically because of their disabilities and services designed to minimise and prevent further disabilities to be provided.

The Bill supports Article 25(1)(b) of the CRPD by establishing a clear early intervention pathway to ensure that people who meet the early intervention requirements have access to supports which mitigate the impacts of their impairments and improve their functional capacity.

The Bill is further compatible with the right to health by allowing for the establishment of NDIS rules which guide the making of access decisions relating to people with progressive conditions. This will ensure that NDIS participants who meet the early intervention requirements continue to receive the supports that are best targeted to their needs.

The Bill also includes powers to make NDIS rules about supports that are, and are not, funded by the NDIS. This aspect of the Bill will promote transparency regarding the types of supports which are appropriately funded by the NDIS. Additionally, it will ensure that persons with disabilities can seek out and obtain supports and services from the appropriate system.

Right to privacy and reputation – Article 17 of the ICCPR and Article 22 of the CRPD

Article 22 of the CRPD provides that no person with disability, regardless of place of residence or living arrangements, shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence or other types of communication, or to unlawful attacks on their honour and reputation. It also provides that the privacy of personal, health and rehabilitation information of persons with disabilities should be protected on an equal basis with others. This right contains similar protections to those in Article 17 of the ICCPR. The right to privacy in Article 17 includes respect for informational privacy, including in respect of storing, using and sharing private information and the right to control the dissemination of private information.

For interference with privacy not to be arbitrary, it must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. Reasonableness in this context incorporates notions of proportionality to the end sought and necessity in the circumstances.

The Bill introduces new information gathering powers, specifically allowing the CEO to collect information in relation to decisions about whether to revoke a participant's access to the Scheme and the supports to be included in their plan. These decisions are critical to the operation of the Scheme, and for the benefit of participants it is necessary for current evidence to be available to the person making the decision. Seeking personal information is proportionate in the circumstances and connected to the legitimate objectives of ensuring ongoing access to the Scheme is available to those who continue to meet the eligibility criteria and providing appropriate supports to participants. Additionally, these powers are limited to requesting information that is reasonably necessary for the relevant decision, consistent with limitations found in the Privacy Act 1988. Where the Bill allows the CEO to request a participant to attend an examination or assessment, this ability is limited to circumstances where there is no other reasonable way to obtain the relevant information. This is an important safeguard that ensures a proportionate and appropriately limited ability to obtain relevant information.

The Bill may also limit the above Articles by allowing the disclosure of information relating to banning orders to approved quality auditors if a banning order is made against a person who is employed or engaged by the quality auditor, or is part of the quality auditor's key personnel. This limitation is connected to a legitimate objective and is proportionate to the purpose of providing safe and high quality supports and services to people with disability, protecting people with disability from exploitation, violence and abuse, as well as providing equal recognition before the law.

Conclusion

The Bill is compatible with human rights because it advances the protection of the rights of people with disability in Australia, consistent with the CRPD, ICCPR and ICESCR. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to ensure the long term integrity and sustainability of the NDIS, for the benefit of all persons with disability who have access to the NDIS.