Chapter 13 Section B: The NDIS Legal Framework
OverviewThe legal framework that underpins the NDIS involves both state and Commonwealth legislation. The policy directives, rules and regulations, standards and guidelines that underpin the law make the NDIS operational. They also establish the rights of participants and set out the responsibilities and accountabilities of the directive agencies and the service providers.
The objects and principles set out in the legislation express the intentions of the parliament, and in the case of the Disability Inclusion Act 2014, for example, the legislation is intended to serve as a way of ensuring that people living with disability live free from abuse and exploitation and have access to the services necessary to enable them to achieve their maximum potential as members of the community of their choice.
Legislation and regulations are often incorporated into policy, procedures and guidelines which assist people working in the sector meet their legal responsibilities and obligations. Policies, procedures and guidelines, whilst they are often based on law, are not classified as law. All workers, regardless of their field or profession, work within a legal and ethical framework of some kind. This simply means that they work within the boundaries defined by applicable laws and ethical standards.
Regulations are the rules, orders and by-laws created by subordinate bodies identified within legislation to administer the Act. Community and disability services workers must comply with legislation (acts of parliament) and the regulations which help them do their work and meet their obligations effectively.
This manual provides some general information which more broadly describes what the law is, what human rights are and how they are different from each other, and from standards. This information is available here.
Legislation relevant to people living with disabilities, mental health conditions, their carers and families can also be found elsewhere in this manual as follows:
You can find more about NSW legislation, standards and guidelines here.
You can find more about Australian Commonwealth legislation and standards here.
You can find out about international laws, charters and guidelines which are relevant to disability, psychosocial disability and mental health conditions here.
This section will provide information about:
- National legislation, the rules and policies which underpin the NDIS
- NSW legislation which support the NDIS
- Roles and responsibilities
The National Disability Insurance Scheme Act 2013 is the law which guides the NDIS and determines who is eligible to receive support through the NDIS. The NDIA will review applications to access the NDIS based on the legislation.
The Act sets out, for example:
- The objects and principles under which the NDIS will operate
- How a person can become a participant in the NDIS
- How a participant’s individual, goal-based plan is prepared and reviewed, including how the NDIA approves the funding of reasonable and necessary supports
- How a provider can become a registered provider of supports
- The governance arrangements
- A process for internal and external review of certain decisions made under the NDIS Act.
The Commonwealth Disability Discrimination Act 1992 (D.D.A.) provides protection for everyone in Australia against discrimination based on disability. It encourages everyone to be involved in implementing the Act and to share in the overall benefits to the community and the economy that flow from participation by the widest range of people.
Disability discrimination happens when people with a disability are treated less fairly than people without a disability. Disability discrimination also occurs when people are treated less fairly because they are relatives, friends, carers, co-workers or associates of a person with a disability.
For a more detailed description of the national legal framework follow this link.
The Disability Services Act 1986 assists people with disabilities to receive necessary services to enable them to work towards full participation as members of the community. The Act provides a comprehensive framework for the funding and provision of disability support services.
Some important objectives of the Act include:
- Services should have the achievement of positive outcomes for people with disabilities as their primary focus. Positive outcomes include increased independence, employment opportunities, and integration into the community.
- Services should be tailored to meet the individual needs and goals of the people with disabilities receiving those services, and they should ensure that the conditions of the everyday life of people with disabilities are the same as, or as close as possible to, norms and patterns which are valued in the general community.
- Programs and services should be designed and administered to ensure that organisations aren’t exercising control over aspects of the life of a person with disabilities, and should be designed to recognise the competence of people with disabilities.
- Services should be designed and administered to ensure that people with disabilities have access to advocacy support where necessary to ensure adequate participation in decision-making about the services they receive.
Elsewhere in the manual there is some additional information about the Disability Services Act 1986.
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
This instrument provides rules about becoming a participant in the NDIS, which is part of the process towards developing a personal goal-based plan, which may provide formal supports for participants in the NDIS. These rules determine who becomes a participant. A person becomes a participant in the NDIS if they meet the age requirement, residence requirements, and the disability/early intervention requirements.
Section C.3 of this chapter provides further information about the eligibility requirements to access an individualised NDIS plan.
National Disability Insurance Scheme (Code of Conduct) Rules 2018
The National Disability Insurance Scheme (Code of Conduct) Rules 2018 supports the rights of people with disability in the NDIS to have access to safe and ethical supports. The NDIS Code of Conduct applies to all NDIS providers and people employed by NDIS providers, and outlines the minimum expectations of behaviour and the culture and values of services. The Code of Conduct aims to empower consumers in relation to their rights, and ensure the safety and quality of their NDIS supports.
National Disability Insurance Scheme (Complaints Management and Resolution) Rules 2018
The National Disability Insurance Scheme (Complaints Management and Resolution) Rules 2018 requires NDIS providers to have complaints management arrangements in place and support people with disability to understand how to make a complaint to the provider and to the NDIS Commissioner. These rules will ensure providers are responsive to the needs of people with disability through the timely resolution of issues and will promote continuous improvement. Complaints can enable systemic issues to be identified and drive improvements in the quality of NDIS supports and services. The NDIS Quality and Safeguards Commissioner will be responsible for supporting the resolution of complaints about the provision of supports and services by all NDIS providers.
National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018
These rules set out the requirements relating to NDIS worker screening. They are an important element of the NDIS practice standards that seek to minimise the risk of harm to people with disability from the people who work closely with them.
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018
The National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 sets out the conditions relating to the use of regulated restrictive practices by NDIS providers to reduce and eliminate the use of these practices by NDIS providers.
National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018
The National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 set out some of the conditions that providers must comply with to become and remain registered NDIS providers. It also outlines the NDIS Practice Standards that apply to all registered NDIS providers, and those that apply to providers delivering more complex supports in areas such as behaviour supports, early childhood supports, specialist Support Coordination and Specialist Disability Accommodation. These rules enable people with disability participating in the NDIS to be aware of what they should expect from registered NDIS providers.
NDIS Quality and Safeguarding Framework
The NDIS Quality and Safeguarding Framework sets out the functions of the NDIS Quality and Safeguards Commission. The Framework aims to ensure that NDIS funded supports:
- Prevent harm of people with disability participating in the NDIS market
- Uphold the rights of people with disability, including their rights as consumers
- Facilitate informed decision making by people with disability
- Are effective in achieving person-centred outcomes for people with disability in ways that support and reflect their preferences and expectations
Enable effective monitoring and responses to emerging issues as the NDIS develops.
The Intergovernmental Agreement on Nationally Consistent Worker Screening outlines the national policy for NDIS worker screening. It requires people who provide NDIS supports and services through a registered NDIS provider to undergo a worker screening check. The Agreement provides the framework for conducting a nationally consistent NDIS worker assessment and demonstrates the shared commitment of the Commonwealth and the State and Territory Governments to deliver nationally consistent worker screening.
National Disability Insurance Scheme (NSW Enabling) Act 2013
This Act ensures that implementation of the NDIS is managed in a way that promotes ‘continuity of service’ for people receiving disability services and community care supports. It additionally provides arrangements for the transfer of staff to promote and sustain a skilled disability service workforce, and the transfer of disability services assets to maximise the capacity of the disability services sector and ensure continuity of service.
Disability Inclusion Act 2014
The Disability Inclusion Act 2014 was developed to acknowledge that people with disability have the same human rights as other members of the community and to promote the independence and social and economic inclusion of people with disability. The Act has two main roles:
- Committing the NSW Government to making communities more inclusive and accessible for people with disability now and into the future. These commitments continue even with the introduction of the National Disability Insurance Scheme operating across NSW.
Regulating specialist disability supports and services to people with disability in NSW and introducing better safeguards for these services through the transition to the NDIS.
The Act made it clear that the Department of Family and Community Services (FACS) could provide funding in a number of different ways to give people with disability control over the supports and services they need. This has helped prepare people with disability to make choices and decisions under the NDIS. The Act includes safeguards that will be in place until the NDIS is across NSW in full, in 2018/2019.
The Law officially recognises that people with disability have the same human rights as others. This brings NSW into harmony with the United Nations’ view that disability arises because of barriers that society puts up to equal participation by all. This Act has helped to dismantle existing barriers so that people with disability can participate fully in their communities.
These rights are included in the Act as ‘principles’. The principles of the Act include the right to respect and dignity, the right to make decisions that affect your life and the right to enjoy a full social and economic life as part of the community. In addition, there are also principles recognising the needs of particular groups. These are people with disability who are also Aboriginal and Torres Strait Islander peoples, are from culturally and linguistically diverse backgrounds, as well as women or children.
Under the Act the NSW Government must develop a four year State Disability Inclusion Plan to guide how the whole government works towards the inclusion in the community of people with disability and how it improves access to mainstream services and community facilities. The Act also requires NSW government departments, local councils and some other public authorities to develop and implement a Disability Inclusion Action Plan. In developing and reviewing these plans, public authorities must consult with people with disability.
The Disability Inclusion Act is due to be reviewed in 2019.
Elsewhere in this manual describes the legal framework in NSW more detail Anti-Discrimination Act 1977
On 25 May 2018, the Commonwealth and NSW Governments entered into the Bilateral Agreement between the Commonwealth of Australia and the State of NSW on the NDIS to commit to improve the outcomes of people with disability. The agreement demonstrates both Governments’ shared responsibility for the NDIS and secures arrangements for both Governments to make enduring and direct funding contributions to the scheme.
Some of the shared responsibilities between the Commonwealth and NSW governments include:
- To support and promote the objectives and principles of the NDIS, as set out in the NDIS Act;
- To work collaboratively, consulting with the National Disability Insurance Agency (NDIA) and engaging with people with disability, their families and carers, on ongoing policy modifications of the NDIS, including its interface with other service systems and non-government and community-based supports;
- Where required, provide continuity of support for clients of Commonwealth or NSW specialist disability programs who are found to be ineligible for the NDIS, to assist them to achieve similar outcomes. The Commonwealth will take full responsibility for those aged 65 and over (and Aboriginal and Torres Strait Islander people aged 50 and over);
- To coordinate and promote links between the NDIS and other service systems and non-government and community-based supports to create seamless delivery of supports to NDIS participants;
- To provide access to other services provided by the Commonwealth and NSW to all people with disability residing in NSW, in accordance with the agreed responsibilities of all governments.
The Bilateral Agreement is used in conjunction with:
- The NDIS Act and its associated Rules
- The DisabilityCare Australia Fund Act 2013
- The National Disability Strategy 2010-2020
- The ‘Principles to Determine the Responsibilities of the NDIS and other Service Systems – Applied Principles and Tables of Support’ agreed by the Council of Australian Governments
- Any National Partnership Agreements between the Commonwealth and NSW which provides for payment from the DisabilityCare Australia Fund
- Any relevant Commonwealth legislation
- Any relevant international agreements, which may be ratified from time to time, including the United Nations Convention on the Rights of Persons with Disabilities
- The National Disability Insurance Scheme (NSW Enabling) Act 2013
- The Disability Inclusion Act 2014
- The Guardianship Act 1987
- The Children and Young Persons (Care and Protection) Act 1998
- The Privacy and Personal Information Protection Act 1998
- The Health Records and Information Privacy Act 2002.
The National Disability Strategy 2010-2020 is Australia’s commitment to comply with the UNCRPD. The six outcome areas of the National Disability Strategy include:
- Inclusive and accessible communities
- Rights protection, justice and legislation
- Economic security
- Personal and community support
- Learning and skills
- Health and wellbeing
Article 19 of the UNCRPD was key in shaping the NDIS operational framework. It requires that Australia provides people with disability with the supports they need to live independently and be included in the community. The creation of individualised NDIS funding packages is an important way in which Australia can demonstrate that it upholds its responsibility to the ratification of the UNCRPD.
Click here for more information about the Convention on the Rights of Persons with Disabilities.
Click here for more information about the National Disability Strategy