House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Families, Community Services and Indigenous Affairs, Minister for Disability Reform, the Hon Jenny Macklin 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 LEGISLATION AMENDMENT BILL 2013

This 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

Background

In 2011, the Productivity Commission Report, Disability Care and Support , found that 'current disability support arrangements are inequitable, underfunded, fragmented and inefficient, and give people with a disability little choice' (Overview, p. 5), and recommended, inter alia , the establishment of a National Disability Insurance Scheme (NDIS).

National Disability Insurance Scheme Act 2013 (the NDIS Act) was enacted in March 2013. The Act gave effect to the commitment by the Commonwealth, State and Territory Governments to establish such a scheme, and for its progressive implementation from July 2013. The Act sets out the statutory framework for the NDIS, and for a National Disability Scheme Launch Transition Agency (the Agency - known as DisabilityCare Australia) to administer the scheme. The Act will be supplemented by disallowable legislative instruments known as NDIS rules, which will address some operational aspects of the scheme.

This Bill makes minor amendments to the NDIS Act to clarify the policy intention in relevant provisions, and to address minor anomalies and technical errors. It also makes consequential amendments to other Commonwealth legislation.

Consultation

The design of the NDIS has been a collaborative exercise, relying heavily on substantial contributions from stakeholders, including:

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the COAG Select Council on Disability Reform;

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joint Commonwealth/State/Territory Government working groups at official levels;

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extensive consultation with people with disabilities, their advocates, carers and families;

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the NDIS Advisory Group, comprising people with expertise in social insurance principles, disability policy, service provision, performance monitoring, training and curriculum development, academia and research, psychological and intellectual disability, Indigenous disability services, young people and children with disability;

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four Expert Groups, comprising persons with disabilities, their carers, advocates, service providers and other sector experts, focused on:

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a national approach to control and choice;

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eligibility and assessment;

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quality, safeguards and standards; and

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disability workforce and sector capacity; and

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the National Disability and Carer Alliance, which undertook public engagements around the country.

Outline of the National Disability Insurance Scheme Legislation Amendment Bill 2013

The Bill has three Schedules:

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Schedule 1 makes amendments to the NDIS Act and has five Parts:

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Part 1 makes amendments to rule-making powers in relation to the National Disability Insurance Scheme Rules;

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Part 2 makes general amendments to the NDIS Act, such as repealing definitions that are no longer required;

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Part 3 makes minor amendments to the privacy provision of the NDIS Act to align the language of the amended provisions in line with the Privacy Act 1988 (Cth);

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Part 4 makes three technical amendments

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Part 5 makes three amendments relating to compensation.

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Schedule 2 makes amendments to the following Acts:

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Administrative Appeals Tribunal Act 1975 ;

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Age Discrimination Act 2004 ;

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Social Security Act 1991 ; and

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Veterans' Entitlements Act 1986 .

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Schedule 3 makes amendments to the Income Tax Assessment Act 1997 .

Human rights implications

The amendments made by the legislation will engage the following rights:

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The rights of people with disabilities in the Convention on the Rights of Persons with Disabilities (CRPD), especially Articles 3, 4, 7, 13 and 28;

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Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and

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Article 14 of the International Covenant on Civil and Political Rights (ICCPR).

General principles underpinning the CRPD

The CRPD recognises the barriers that persons with disabilities may face in realising their rights. While the rights under all human rights treaties apply to everyone, including persons with disabilities, the CRPD applies human rights specifically to the context of persons with disabilities.

The amendments in the Bill are consistent with the alignment of the NDIS Act with the seven international human rights instruments to which Australia is party.

The preamble of the CRPD, and the General Principles set out in Article 3, reflect the need for respect for the inherent dignity, individual autonomy (including the freedom to make one's own choices and the independence of the person) of persons with disabilities, the need for persons with disabilities to be able to participate fully and effectively and be included in society, the need for respect for difference and acceptance of persons with disabilities as part of human diversity, and providing persons with disabilities the opportunity to be involved actively in decision-making processes about policies and programmes, including those directly concerning them.

The general principles of the NDIS Act in section 4 align closely with the CRPD principles. Placement of the CRPD as the first of a number of objectives in the NDIS Act is designed to promote the status of the CRPD and emphasise its critical nature in the interpretation of the legislation.

The principle of non-discrimination and the age requirements

Article 3(b) of the CRPD provides that non-discrimination is a general principle in relation to all rights in the CRPD. As noted by the Human Rights Committee in General Comment No. 18 on equivalent rights in the International Covenant on Civil and Political Rights (ICCPR), the rights to equality and non-discrimination in the ICCPR sometimes require nation states 'to take affirmative action in order to diminish or eliminate conditions which cause or help perpetuate discrimination'. In this context, the consequential amendments made by the Bill promote and advance the rights of persons with disabilities in Australia by strengthening support for them to exercise their social, economic and cultural rights in the NDIS.

Non-discrimination ensures that no-one is denied their rights because of factors such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or birth. In addition to those grounds, discrimination on certain other grounds may also be prohibited. These grounds include age, nationality, marital status, disability, place of residence within a country and sexual orientation.

Differential treatment will not constitute discrimination if the differences in treatment are aimed at achieving a legitimate purpose and are reasonable and proportionate to this purpose.

The NDIS Act limits access to the NDIS based on age in two ways. The first way is limiting entry to the NDIS to persons under the age of 65. The second limitation is a temporary one for the NDIS in South Australia and Tasmania, which will only extend to children up to 15 in South Australia and only from 15 to 24 in Tasmania. The Bill makes a consequential amendment to the Age Discrimination Act 2004 making it clear that that Act does not apply to actions and decisions made in purported compliance with the NDIS Act.

As noted in the Human Rights Compatibility Statement for the NDIS Act, this is because the NDIS is part of a broader system of support available in Australia. Accordingly, persons over the age of 65 can access the aged care system, although NDIS participants will have the choice whether to continue receiving support under the NDIS after they turn 65. This limitation is reasonable and necessary because it supports the broader intent of an integrated system of support operating nationally and providing seamless transition through different phases of life.

Likewise, the temporary age-based restriction for South Australia and Tasmania will test the effectiveness of processes and supports for particular sub-groups within the general population of persons with disabilities. The temporary age restrictions in Tasmania and South Australia are considered reasonable and proportionate, because of the overarching aim to ensure the integrity of the NDIS when it is nationally extended.

Article 7 of the CRPD - Respect for the rights of children

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. It also requires that, in all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.

The Bill amends sections 74 and 75 of the NDIS Bill relating to the situation where a State or Territory Minister has parental responsibility or guardianship of a child. The CEO must not determine that another person has parental responsibility for the child, or to act as the child's representative, unless agreed to in writing by the State or Territory Minister. The amendment extends the scope to also include heads of departments or agencies who have guardianship of the child.

This amendment is drafted to recognise the guardianship system, with its checks and balances. Therefore, from a human rights perspective, the provision operates to avoid any uncertainty as to who would be regarded as the parent of the child, or to act as the child's representative.

Article 12 of the CRPD - Establishment of a NDIS Division in the Administrative Appeals Tribunal

Article 12(4) of the CRPD requires signatories to the Convention to ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible, and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests.

Consistent with this, the Bill makes amendments to the Administrative Appeals Tribunal Act 1975 to establish a new National Disability Insurance Scheme Division of the Administrative Appeals Tribunal and require that members appointed to the division have expertise relating to disability or other relevant experience. This ensures that applications for review of relevant decisions under the scheme are reviewed by Tribunal members with appropriate training, knowledge or experience in this specialised area.

These amendments also engage with Article 4 of the CRPD, which includes obligations for the training of professionals and staff working with persons with disabilities so as to better provide the assistance and services guaranteed by the rights in the Convention, Article 13 of the CRPD and Article 14 of the ICCPR, which sets out the principles of equality before the law and access to justice, including obligations on government to take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

Article 28 CPRD and Article 9 ICESCR - Right to Social Security

Article 9 of ICESCR recognises the right to social security for all persons. Article 28 of CRPD require countries to recognise the right of people with disabilities to social protection and to take appropriate steps to ensure access by people with disabilities to social protection and poverty reduction programs and to retirement benefits and programs.

The consequential amendments to the following Acts engage with the right to social security under ICESCR and CRPD:

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Income Tax Assessment Act 1997 ;

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Social Security Act 1991 ; and

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Veterans' Entitlements Act 1986 .

The amendments to the Income Tax Assessment Act make clear that an NDIS amount is exempt from income tax. Under a corresponding provision, an NDIS participant cannot claim an NDIS expenditure as a deduction. The amendments promote the right to social security in ensuring that a payment of an NDIS amount is not taxed.

The amendments to the Social Security Act make clear that an NDIS amount, or a return made on a NDIS amount, is not income, an asset, financial asset or a liquid asset for the purposes of the Social Security Act. These amendments promote the right to social security in ensuring that the entitlement to a social security benefit is not affected by a payment of an NDIS amount. The amendment to the mobility allowance provisions, so that an NDIS participant who, before joining the scheme, was receiving a mobility allowance is no longer eligible, is made on the basis that they will be receiving this level of support as part of their plan. This ensures the more efficient allocation of resources and, in some cases, there will be more funding allocated for NDIS participants who require assistance with transportation.

Similarly, the amendments to the Veterans' Entitlements Act make clear that an NDIS amount, or a return made on a NDIS amount, is not income, an asset, a financial asset or a liquid asset for the purposes of the Veterans' Entitlements Act. The amendments promote the right to social security in ensuring that the entitlement to a social security benefit is not affected by a payment of an NDIS amount.

Conclusion

The National Disability Insurance Scheme Legislation Amendment Bill 2013 is compatible with human rights because it advances the protection of the rights of persons with disabilities in Australia, consistent with the CRPD. It reinforces the additional opportunities for persons with disabilities to exercise those rights under the NDIS by providing support to enable participation in the social, economic and cultural life of the community. To the extent that it limits human rights in some circumstances, those limitations are reasonable, necessary and proportionate to ensure the long-term integrity and sustainability of the National Disability Insurance Scheme.

The Minister for Families, Community Services and Indigenous Affairs, Minister for Disability Reform, the Hon Jenny Macklin MP