National Disability Insurance Scheme (Nominees)
Rules 2013
FRLI: F2013L01062
Portfolio: Social Services
Tabled: House of Representatives and Senate, 20 June 2013
Summary of committee concerns
2.1
The committee seeks further information whether a more explicit
statement could be provided in the NDIS Rules to reflect the desirability that
the appointment of a nominee should be for the shortest time possible and seeks
information about the assistance available to support individuals with
disability to exercise their rights of review effectively.
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.[115]
The NDIS Act provides for the appointment of nominees to manage the affairs of
persons with a disability who are participating in the scheme and provides for
the further prescription of criteria to be applied or matters to be taken into
account in the appointment of nominees in the NDIS rules.[116]
2.3
This instrument sets out the requirements relating to whether a
nominee should be appointed, who should be appointed as a nominee, the duties
of nominees, and the cancellation and suspension of nominees.
Compatibility with human rights
Statement of compatibility
2.4
The statement of compatibility accompanying the instrument states that
the instrument engages the rights of persons with disabilities in the
Convention on the Rights of Persons with Disabilities (CRPD).[117]
2.5
The statement of compatibility states that the instrument promotes the
general principles recognised in the CRPD, in particular respect for the
inherent dignity, individual autonomy including the freedom to make one's own
choices and independence of persons[118]
and the right to exercise legal capacity in all aspects of life.[119]
The statement of compatibility recognises that allowing for the appointment of
nominees to undertake the decision-making function may limit the rights of
persons with a disability to exercise their legal capacity. However, the
statement states that the instrument prescribes matters intended to provide
appropriate and effective safeguards to prevent abuse, for example through
requiring consultation with the participant when appointing a nominee.[120]
2.6
The statement concludes that the instrument is compatible with human
rights because it advances the protection of the rights of persons with
disabilities by providing support through nominees to participate in the
social, economic and cultural life of the community. The statement also
concludes that to the extent that it limits rights in some circumstances, these
limitations are reasonable necessary and proportionate to ensure the long-term
integrity and sustainability of the scheme.
Committee view on compatibility
The right to exercise legal capacity
2.7
The NDIS Act provides for a nominee to be appointed indefinitely or for
a specified term.[121]
In describing the effect of the nominee regime under the Act and the safeguards
prescribed by this instrument, the statement of compatibility states that '[i]t
should also be borne in mind that these provisions have at their heart that the
appointment of a nominee is a last resort and where possible a temporary
measure'.[122]
2.8
Under article 12(4) of the CRPD, States must ensure that all measures
that relate to the exercise of legal capacity provide for appropriate and
effective safeguards to prevent abuse, including ensuring that measures apply
for the shortest time possible and are subject to regular review. It is not
clear to the committee that guidance to this effect is explicitly provided in
the instrument. The instrument is limited to providing examples of when the CEO
might decide that an appointment for a specified term is appropriate. It does
not, for example, prescribe any presumption that a nominee should be appointed
for a specified period of time, rather than indefinitely.
2.9
The committee also notes that the implications of article 12 of the CRPD
are currently being examined by the UN Committee on the Rights of Persons with
Disabilities. The committee has recently adopted a Draft General comment on
Article 12 – on Equal Recognition before the Law. The committee considers
that these matters set out in the Draft General comment may be of assistance in
refining these rules and their implementation.
2.10
The committee intends to write to the Minister for Social
Services to inquire whether a more explicit statement could be provided in the
NDIS Rules to reflect the desirability that the appointment of a nominee should
be for the shortest time possible and subject to regular review by a competent,
independent and impartial authority as provided for in the CRPD.
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