National Disability Insurance Scheme
(Supports for Participants) Rules 2013
FRLI: F2013L01063
Portfolio: Social Services
Tabled: House of Representatives and Senate, 20
June 2013
Summary of committee concerns
2.1
The committee 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.[158]
The NDIS Act provides for the making of participant plans, including the
supports to be provided and allows for the NDIS rules to prescribe additional
matters or methods or criteria to be applied in relation to making decisions
about supports.[159]
2.3
This instrument sets out the criteria and considerations the Chief Executive
Officer of DisabilityCare Australia (the CEO) is to use, in addition to
considerations set out in the Act,[160]
when assessing and determining reasonable and necessary supports that will be
funded or provided under the NDIS.
Compatibility with human rights
Statement of compatibility
2.4
The statement of compatibility accompanying the instrument states that
the instrument engages the right to self-determination,[161]
the right to liberty,[162]
the prohibition against national, racial or religious hatred,[163]
the rights of people with disabilities in the Convention on the Rights of
Persons with Disabilities (CRPD)[164]
and the rights of the child in the Convention on the Rights of the Child (CRC).[165]
2.5
The statement concludes that the instrument is compatible with human
rights. It states that to the extent that it limits human rights in some
circumstances, these limitations are reasonable, necessary and proportionate to
ensure the integrity of the scheme.
Committee view on compatibility
Right to self-determination
2.6
The committee does not consider that the instrument engages the right to
self-determination as this is a collective right that applies to peoples rather
than individuals. However, the concept of an individual right to
self-determination is reflected in the principles set out in article 3 of the
CRPD, which include respect for the inherent dignity, individual autonomy
including the freedom to make one's own choices and independence of persons, as
well as other articles of the CRPD and other treaties.
Limitations on rights
2.7
As noted above, the explanatory statement states 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.
Access to rights of review
2.8
The approval of a statement of participant supports is a reviewable
decision under the Act.[166]
The Act provides that the CEO is to give a written notice of a reviewable
decision to each person directly affected by the decision advising them of
their right of review. In its consideration of the National Disability Services
Bill 2012, the predecessor to this committee (the former committee) expressed
concern that the statement of compatibility to the bill did not provide any
information about the provision of assistance to individuals with disability
who may request review of a decision or to seek a further review before the
Administrative Appeals Tribunal. The former committee noted that, '[g]iven that
some disabilities may limit the ability of a person to effectively exercise
such rights, it may be appropriate to ensure that some form of assistance is
available to ensure that these rights of review can be exercised effectively in
practice.'[167]
2.9
As this instrument also relates to the making of such decisions by the
CEO, the committee re-iterates its previous concerns that appropriate
assistance be provided to individuals with disability who may wish to request a
review of a decision in order to ensure they are able to exercise their rights
of review effectively.
2.10
The committee re-iterates the concerns expressed by the
Parliamentary Joint Committee on Human Rights in the 43rd Parliament
and intends to write to the Minister for Social Services to seek information
about the provision of assistance to individuals with disability who may wish
to request a review of a decision to exercise their rights of review
effectively.
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