National Disability Insurance Scheme
(Children) Rules 2013
FRLI: F2013L01070
Portfolio: Social Services
Tabled in the House of Representatives and the
Senate: 20 June 2013
Summary of committee concerns
2.1
The committee seeks further information regarding the assistance to be
provided to children with disabilities to exercise their right to have their
views heard and the limitations on human rights referred to in the statement of
compatibility.
Overview
2.2 The National
Disability Insurance Scheme Act 2013 (NDIS Act) makes provision for various
matters, including ‘significant policy matters’, to be covered by the NDIS
rules, which are to be made as disallowable legislative instruments.[102] The NDIS Act
provides for who may make decisions or do things on behalf of children who are
participants in the NDIS and sets out processes around how this will occur.[103]
2.3 This instrument
sets out the rules relating to persons who are responsible for undertaking acts
and making decisions on behalf of a child for the purposes of the NDIS Act. In
particular, the instrument prescribes factors which the Chief Executive Officer
of DisabilityCare Australia must have regard to in making determinations about
whether or not a child needs a representative and who a child's representative
should be (including determinations relating to who has parental responsibility
for a child).
Compatibility with human rights
Statement of compatibility
2.4
The statement of compatibility that accompanies the instrument states
that the instrument engages the rights of people with disabilities in the
Convention on the Rights of Persons with Disabilities (CRPD),[104]
the rights of children in the Convention on the Rights of the Child (CRC),[105]
and the right to protection of the family in the International Covenant on Economic,
Social and Cultural Rights (ICESCR).[106]
2.5
The statement concludes that the instrument is compatible with human
rights because the instrument advances the protection of the rights of children
with disabilities and '[t]o the extent that its limits human rights in some
circumstances, those limitations are reasonable, necessary and proportionate to
ensure the long-term integrity and sustainability of the scheme'.[107]
Committee view on compatibility
Rights of children with a disability
2.6
The CRC and the CRPD provide that the best interests of the child shall
be a primary consideration in all actions concerning children.[108]
The CRPD provides that children with disabilities have the right to express
their views freely on all matters affecting them, their views being given due
weigh in accordance with their age and maturity, on an equal basis to other
children and be provided with disability and age-appropriate assistance to
realise that right.[109]
2.7
The statement of compatibility accompanying the instrument states that
the instrument promotes these rights by requiring the CEO to have regard to the
views of the child when:
-
making a determination to appoint a child representative;[110]
-
determining that one or more persons have parental responsibility
for the child;[111]
and
-
determining that a child participant in the NDIS does not need a
child representative and is able to make decisions for themselves for the
purposes of the scheme.[112]
2.8
The NDIS Act places a duty on a child's representative to ascertain the
wishes of the child and act in the best interests of that child[113]
and this instrument requires a child's representative to consult the guardian
of the child or any other person who assists the child to manage their
day-to-day activities and make decisions.[114]
2.9
While the statement of compatibility notes the provision in the CRPD
that children with disabilities are to be provided with disability and
age-appropriate assistance to realise the right to express their views, it is
not clear to the committee whether the CEO or the child's representative will
be required to ensure such assistance is provided.
Limitations on rights
2.10
As noted above, the statement of compatibility notes that to the extent
that the instrument limits human rights in some circumstances, those
limitations are 'reasonable, necessary and proportionate to ensure the
long-term integrity and sustainability of the scheme'. However, there is no
indication in the statement of compatibility of the specific rights that are
referred to here, and accordingly it is not possible for the committee to
assess whether any limitations on those rights are permissible.
2.11
The committee intends to write to the Minister for Social
Services to seek further information regarding:
- the assistance to be provided to children with disabilities to
exercise their right to have their views heard and the guidance that is to be
provided to the CEO and the child's representative when having regard to the
preferences of the child; and
- the limitations on rights referred to by the statement of
compatibility and the justification for those limitations.
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