National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (81 of 2024)

Schedule 1   Main amendments

Part 1   Amendment of the National Disability Insurance Scheme Act 2013

National Disability Insurance Scheme Act 2013

14   After section 9A

Insert:

10 Definition of NDIS support

Supports that are NDIS supports

(1) Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for:

(a) participants or prospective participants generally; or

(b) a class of participants or prospective participants that includes the person.

Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

(2) Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:

(a) for rules to which paragraph (1)(a) applies - that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

(b) for rules to which paragraph (1)(b) applies - that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

(3) National Disability Insurance Scheme rules may declare a support for the purposes of subsection (1) only if at least one of the following applies:

(a) the declaration of the support implements Australia's obligations under:

(i) the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or

(ii) any other agreement with one or more other countries;

(b) the declaration of the support enables the provision of sickness benefits.

Note: For subparagraph (a)(i), the Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No. 12 ([2008] ATS 12) and could in 2024 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

Supports that are not NDIS supports

(4) The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:

(a) participants or prospective participants generally; or

(b) a class of participants or prospective participants.

Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

(5) Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (4), the Minister must be satisfied:

(a) for rules to which paragraph (4)(a) applies - that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

(b) for rules to which paragraph (4)(b) applies - that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

(6) The CEO may determine, in writing, that a support is taken to not be declared under subsection (4) in relation to a participant if:

(a) the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and

(b) the support would, apart from subsection (4), be an NDIS support for the participant; and

(c) the participant applies to the CEO in accordance with subsection (7) for the determination; and

(d) the CEO is satisfied that:

(i) the support would replace one or more other supports that are NDIS supports for the participant; and

(ii) the cost of the support is the same or lower than the total of the costs of the supports it would replace; and

(iii) the support would provide the same or a better outcome for the participant than the supports it would replace; and

(iv) any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or both.

Note 1: A determination may be revoked under subsection 33(3) of the Acts Interpretation Act 1901.

Note 2: The National Disability Insurance Scheme rules may prescribe a support for the purposes of paragraph (a) by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

(7) An application under paragraph (6)(c) must:

(a) be in the form (if any) approved by the CEO; and

(b) include any information, and be accompanied by any documents, required by the CEO; and

(c) be made in accordance with any other requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph, which may include requirements as to the circumstances in which an application may, or may not, be made.

(8) The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of subsection (6), including by prescribing requirements with which the CEO must comply, methods or criteria that the CEO is to apply, or matters that the CEO may, must or must not take into account, in deciding whether to make a determination under that subsection.

(9) A support is not an NDIS support for a participant or prospective participant if the support consists of the provision of:

(a) sexual services; or

(b) alcohol; or

(c) drugs, the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.