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National Disability Insurance Scheme Bill 2012

Introduced into the House of Representatives on 29 November 2012
Portfolio: Families, Housing, Community Services and Indigenous Affairs

Committee view

1.1        The committee seeks further clarification from the Minister on whether the definition of 'disability' in the bill is as broad as that contained in the Convention on the Rights of Persons with Disabilities, and if not why the broader definition has not been used.

1.2        The committee notes that excluding those aged 65 and over from this scheme raises non-discrimination issues, and seeks further clarification from the Minister as to whether the aged care system delivers the same forms of assistance and support as provided under this scheme.

1.3        The committee has concerns around new powers to compel the production of information or documents and seeks further clarification from the Minister on the effect on the right not to incriminate oneself. The committee also notes the importance of identifying and justifying any reverse onus offences in statements of compatibility.

1.4        The committee seeks clarification of the use of the phrase 'reasonably necessary' in the bill (as applied in clause 60) when the international standard is that a limitation on a right must be 'necessary' if it is to be justified.

Overview

1.5        This bill establishes the framework for the National Disability Insurance Scheme to enable the scheme to be launched in five sites across Australia from July 2013. 

1.6        The bill:

• sets out the objects and principles of the scheme, including people with disability being given choice and control over the care and support they receive;
• provides  for the establishment and functions of the National Disability Insurance Scheme Launch Transition Agency, including implementing the scheme from July 2013; and
• provides for a review of the operation of the Act after a two-year period.

Compatibility with human rights

1.7        The bill is accompanied by a detailed self-contained statement of compatibility, annexed to the explanatory memorandum. The statement of compatibility notes that the legislation will engage the rights of people with disabilities contained in the  Convention on the Rights of Persons with Disabilities (especially articles 3, 4, 7, 8, 12, 19, 20, 21, 22, 26, 28, 30, 31); the rights of children in the Convention on the Rights of the Child (CRC) (especially articles 12 and 23); the right to protection of the family in article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the right not to be subjected to unlawful or arbitrary interference with one’s privacy in article 17 of the International Covenant on Civil and Political Rights (ICCPR).[1]

1.8        The purpose of the bill is to provide for the establishment of the National Disability Insurance Scheme (NDIS), pursuant to recommendations made by the Productivity Commission in its 2011 report on the subject. The NDIS will be a collaborative scheme undertaken by the Commonwealth, State and Territory authorities, persons with disabilities, and disability service providers, and other relevant parties. It is proposed that the scheme will be introduced progressively from mid-2013, initially in a number of trial sites but ultimately extending to nation-wide coverage. It will complement existing measures to remove discrimination against persons with disabilities and to enhance the full enjoyment by them of human rights. The central feature of the scheme will be the development of individual participant plans by NDIS participants that will receive ‘the provision and funding of reasonable and necessary and supports’ under the legislation (where not more appropriately provided from other sources). While initially participation in the scheme will be restricted by the terms of the pilot programs, it is intended that ultimately any person who is an Australian citizen or permanent resident or the holder of certain visas and who is under the age of 65 will be eligible to be a participant.

Promotion of human rights – rights and obligations in the Disability Convention

1.9        The explanatory memorandum and the statement of compatibility both make clear that the NDIS has been conceived in light of the underlying conceptual framework and specific obligations of the UN Convention on the Rights of Persons with Disabilities (CRPD). The General Principles contained in article 3 of the CRPD^[2] are largely reflected in the general principles of the NDIS set out in clause 4 of the bill. Importantly, the bill reflects the emphasis paid by the CRPD to the right to persons with disability to make decisions about their own lives and also the obligation of governments ‘to closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations’ in ‘the development and implementation of legislation and policies to implement the ... Convention, and in other decision-making processes concerning issues relating to persons with disabilities’.[3] 

1.10      The statement of compatibility notes that the NDIS will be implemented progressively, with the pilot sites to be followed by a full roll-out.

The definition of ‘disability’

1.11      Article 1 of the CRPD provides:

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

1.12      Clause 24 of the bill sets out the ‘disability requirements’ that a person must satisfy in order to be eligible to participate in the NDIS. These include that:

• the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments relating to a psychiatric condition;
• the impairment or impairments are permanent;
• the impairment or impairments result in substantially reduced functional capacity of the person to undertake one or more of the following activities of daily living: communication; social interaction; learning; mobility; self-care; self-management;
• the impairment or impairments affect the person’s capacity for social and economic participation; and
• the person’s support needs in relation to his or her impairment or impairments are likely to continue for the person’s lifetime.

1.13      This definition appears to be less extensive than the non-exhaustive definition of ‘disability’ in the CRPD, in particular in relation to the requirement of permanence and the likely lifetime requirements for support.

Equality and non-discrimination

1.14      Once the NDIS is fully established it will be available to the general population. However, access to the scheme will be limited to persons aged under 65.

1.15      Under article 26 of the ICCPR, article 2(2) of the ICESCR, and article 5(2) of the CRPD, persons with disability are guaranteed protection against discrimination on the basis of age in the enjoyment of various rights, including the various rights the enjoyment of which are supported by the NDIS. The statement of compatibility explains the rationale for the age restrictions in the following terms:

Age requirements (section 22) – the intent is that NDIS applicants should be under the age of 65, on the basis that persons aged over 65 are eligible for long term assistance and support under the aged care system....

[O]nly those people aged under 65 can make an access request. This is because the NDIS is one part of a broader system of support in Australia. The intent is that people over the age of 65 should access the aged care system. Those people who are receiving support under the NDIS and turn 65 can choose either to remain in the NDIS or to move to the aged care system.[4]

1.16      As the statement of compatibility notes, differential treatment on the basis of age ‘will not constitute discrimination if the differences in treatment are aimed at achieving a legitimate purpose and are reasonable and proportionate to this purpose’.[5] It states in relation to the age limitation:

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.[6]

1.17      This assumes that the aged care system does or will deliver all the forms of assistance and support required, and is organised in accordance with the principles and operates in compliance with the obligations set out in the CRPD and the NDIS. While the incidence of disability may increase with age, the assumption that a person who has lived with disability for many years can transition without difficulty to a different system that may be organised around different principles deserves further examination. 

1.18      The potential issue of non-discrimination was also highlighted by the Scrutiny of Bills Committee in its interim report on the NDIS bill:

The committee notes that the scheme will not, initially at least, have universal coverage such that all persons with a disability will be covered. It is also noted that access to the scheme will be limited based on age requirements. .... In light of the principle of non-discrimination under the Convention on the Rights of Persons with Disabilities and International Convention on Civil and Political Rights the committee will therefore draw this matter to the attention of the Parliamentary Joint Committee on Human Rights.[7]

Liberty of movement

1.19      Section 47 of the Act will provide that if a participant is temporarily absent from Australia for less than six weeks, the plan is not affected (the grace period may be extended). If not extended, the plan will be suspended until the participant returns to Australia. A person with disability, like any other Australian, has the right to liberty of movement, which would include the right to travel overseas for extended periods. It is not clear from the explanatory memorandum and statement of compatibility whether this period is comparable to periods under other schemes which limit the right to support when a person is overseas, or whether it would be possible to vary an individual plan in order to permit a more extended stay for a purpose other than the ones specifically referred to.

Review of adverse decisions

1.20      The statement of compatibility notes that, in accordance with article 12(4) of the CPRD, the legislation will provide for rights of review of decisions affecting a person; the person must be provided with written notice of review rights and details of how to request a review.[8] The statement of compatibility does not provide any information about the provision of assistance to individuals with disability who may wish to request review of a decision, or to seek a further review before the Administrative Appeals Tribunal. Given 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.

Power to require answers and creation of an offence: self-incrimination

1.21      Clause 53(1) of the bill provides that where the CEO of the National Disability Insurance Scheme Launch Transition Agency (the Agency) has reasonable grounds to believe a participant or a prospective participant has information or custody or control of a document, that may be relevant to certain matters relating to eligibility under the scheme or to its administration, the CEO may require the person to give the information, or produce the document, to the Agency. The clause does not address the question whether a person may refuse to provide information or produce a document if to do so would tend to incriminate them.

1.22      Clause 55(1) of the Bill makes similar provision in relation to requiring a person other than a participant or a prospective participant to provide information or to produce documents.

1.23      Clause 57 provides it is an offence to refuse or fail to comply with such a requirement under clause 55 (but not under clause 53) without reasonable excuse; the maximum penalty is 30 penalty units. A defendant bears an evidential onus in relation to the defence of reasonable excuse.

1.24      The statement of compatibility states simply that the ‘intent of both section 53 and 55 is to ensure the integrity of the NDIS.[9] Accordingly, the powers to compel information are necessary to achieve a legitimate aim, and are appropriately limited so as to ensure they are a proportionate means by which to achieve this aim.’ Some further justification is given in relation to section 55 in the explanatory memorandum:

In addition to ensuring the integrity and operation of the scheme and the protection of people with disability, and guarding against fraud, the purpose of this clause is to enable the Agency to collect and obtain the information it requires in order to perform its functions – in particular, collecting, analysing and exchanging data about disability and undertaking research in relation to disability. The collection and exchange of data is also important to ensuring the financial sustainability of the scheme.[10]

1.25      The ability to collect data about the operation of the scheme, both in individual cases and overall, involves the pursuit of a legitimate objective, and such powers could be seen as a reasonable means of achieving this purpose. However, an assessment of the reasonableness of the power to compel information must also take into account whether they infringe on the right not to incriminate oneself and any penalty that may apply for refusal or failure to respond to the requirement.

Right to privacy

1.26      Clause 60 of the bill sets out the parameters for dealing with protected information, including personal information that the Agency may obtain in the course of performing its functions. The explanatory memorandum acknowledges that ‘a large amount of personal information will likely be acquired by the Agency through the operation of the scheme’.[11]

1.27      Under clause 60(3), a person may obtain, use or disclose protected information if the CEO of the Agency has reasonable grounds for believing that it is ‘reasonably necessary’ for:[12]

• research matters relevant to the NDIS;
• actuarial analysis of matters relevant to the NDIS; or
• policy development.

1.28      As noted in the statement of compatibility, collecting, using, storing and sharing personal information, including its release without a person’s knowledge or consent, all amount to interferences with the right to privacy, which is protected in article 22 of the CRPD, as well as article 17 of the ICCPR and article 16 of the CRC. [13] In order for interference to be permissible, it must be for a legitimate objective and be reasonable, necessary and proportionate in the particular circumstances.

1.29             The committee notes that these provisions are likely to give rise to privacy concerns as the range of purposes for which personal information can be disclosed is very broad. For example, it is not clear why it would be necessary to disclose personal information that has not first been de-identified for the purposes of policy development. There does not appear to be any requirement in the bill for steps to be taken to de-identify the information or to obtain the person’s consent before releasing personal information for these purposes.

Presumption of innocence: defence of reasonable excuse

1.30      An offence provision which requires the defendant to carry an evidential or legal burden of proof with regard to the existence of some fact will engage the presumption of innocence because a defendant’s failure to discharge the burden of proof may permit their conviction despite reasonable doubt as to their guilt. Offences which provide for a justification or an excuse, and impose an evidential or legal burden on the defendant in relation to that justification or excuse, also engage the presumption of innocence.

1.31      Such burdens are not necessarily inconsistent with the presumption of innocence provided that they are within reasonable limits which take into account the importance of the objective being sought and maintain the defendant's right to a defence. In other words, the provision must pursue a legitimate aim and be reasonable, necessary and proportionate to that aim. Neither the explanatory memorandum nor the statement of compatibility addresses these issues in relation to the reverse burden in clause 57. [14]

1.32             The committee notes that clause 57 is likely to be compatible with the presumption of innocence as the burden imposed is only an evidential one, the question of reasonable excuse is a matter that can be assumed to be peculiarly within the knowledge of the accused, and the maximum penalty is not a severe one, However, the committee notes that it nevertheless expects reverse burden offences to be identified and justified in the compatibility statement.

1.33             The committee intends to write to the Minister to seek clarification:

(a) whether the definition of disability (in the context of the term ‘disability requirements’ in clause 24) in the bill is as extensive as the concept of ‘disability’ that is employed by the CRPD and, if not, why the broader CRPD definition has not been used;

(b) whether it is the case that the aged care system does or will deliver all the forms of assistance and support, and is organised in accordance with the principles and operates in compliance with the obligations set out in the CRPD and the NDIS;

(c) whether clauses 53 and 55 will compel a person to provide information or produce a document even where the provision of the information or the production of the document may have a tendency to incriminate the person; and:

(i) if so, what is the justification for the encroachment on the right of persons not to incriminate themselves guaranteed by article 14(3)(g) of the ICCPR; or

(ii) if not, whether it would be appropriate to clarify this in the legislation; and

(d) why the threshold of ‘reasonably necessary’ is applied in clause 60 when the international standard is that a limitation on a right must be ‘necessary’ if it is to be justified; and in light of the broad purposes for which information may be disclosed, whether consideration should be given to de-identifying the information where practicable, and/or requiring that the individual’s consent must be sought first.

The committee thanks the Senate Scrutiny of Bills Committee for drawing the non-discrimination issue to its attention and intends to refer its comments on the issue to the Scrutiny of Bills Committee for its reference.

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