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National Disability Insurance Scheme (Nominees) Rules 2013 [F2013L01062]

Portfolio: Social Services
Authorising legislation: National Disability Insurance Scheme Act 2013
Last day to disallow: 12 December 2013 (Senate)

Purpose

2.29        The National Disability Insurance Scheme Act 2013 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

2.30        The National Disability Insurance Scheme (Nominees) Rules 2013 sets out the requirements relating to whether a nominee should be appointed, who should be appointed as nominees, the duties of nominees and the cancellation and suspension of nominees.

Background

2.31        The committee reported on the instrument in its First and Third Reports of the 44th Parliament.

Committee view on compatibility

Rights of persons with disabilities

Right to exercise legal capacity

2.32        The committee sought clarification from the Assistant Minister for Social Services as to:

• the legal status of the Operational Guidelines and the details of the power under which they have been made;
• whether the Operational Guidelines may be amended without parliamentary scrutiny; and
• whether any restrictions on rights carried out pursuant to the operational guidelines would be considered to be authorised by ‘law’.

Assistant Minister's response

The operational guidelines are not legislative instruments; they are policy documents and, as such, have only the relevance and force in exercising discretion in decision-making as described by Brennan J in the Administrative Appeals Tribunal in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. In that case, his Honour clarified that a decision maker is free to exercise their power without adopting a policy as to the standards and values to which they will have regard in deciding particular cases. His Honour went on to say that, decision makers are equally free, in point of law, to adopt a policy in order to guide them in the exercise of the statutory discretion, provided the policy is consistent with the statute.

The operational guidelines are made pursuant to section 202(3) of the National Disability Insurance Scheme Act 2013 (the Act). As was said in the above cited case, it is good practice to have guidelines that encourage consistency in decision-making even though operational guidelines are often published by government agencies without any specific legislative basis.

Restrictions on rights carried out pursuant to the operational guidelines are not considered to be authorised by 'law'. However, many operational guidelines reflect legal provisions in the Act and acts done pursuant to the guidelines would be authorised by the laws being described in the guidelines.

As they are not legislative instruments the operational guidelines may be amended without Parliamentary scrutiny. They are publicly available on the National Disability Insurance Agency website: www.ndis.gov.au/about-us-1. These operational guidelines have been updated since launch and will continue to be updated for full scheme in line with lessons learned from the experience in trial sites.[1]

Committee response

2.33                  The committee thanks the Assistant Minister for Social Services for his response and has concluded its examination of this instrument.

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