keyboard-shift-1
Chapters poster

Download your Mental Health Rights Manual poster here

print-text Print this section

Chapter 12 Section B: The NDIS Legal Framework

Overview

The legal framework that sets up the National Disability Insurance Scheme (NDIS) involves both State and Commonwealth laws. The policy directives, rules and regulations, standards and guidelines related to the laws make the NDIS operational. They also establish the rights of participants and set out the responsibilities and accountabilities of the NDIA, the NDIS Quality and Safeguards Commission and the service providers.

The objects and principles set out in the legislation reflect the intentions of the parliament in drafting that legislation. 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 are not classified as laws. 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 and/or mental health conditions, their carers, families and support persons 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 ; and
  • roles and responsibilities.

13B.1: National legislation, rules and policy

13B.1.1: Legislation

National Disability Insurance Scheme Act 2013

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 National Disability Insurance Agency reviews applications to access the NDIS based on this law.

The Act sets out, for example:

  • the objects and principles under which the NDIS operates;
  • how a person can become a NDIS participant ;
  • 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 oversight and accountability arrangements; and
  • a process for internal and external review of certain decisions made under the NDIS Act.

The National Disability Insurance Scheme Act 2013 is supported by the NDIS Rules and Operational Guidelines, which guide specific aspects of the NDIS.

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.

12B.1.2: NDIS Rules

There are many rules which guide the detailed operation of the NDIS. Most of the Rules apply to organisations that provide services in the NDIS, but they can have a big impact on the service and supports you receive as a NDIS participant. Some examples of important Rules are explained below, but for a summary of all the NDIS Rules, click here.

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

These rules are about becoming a participant in the NDIS and receiving a personal, goal-based plan. A person becomes a participant in the NDIS if they meet the age requirements, residence requirements, as well as the disability/early intervention requirements.

Follow this link to read more about whether you may be eligible for a NDIS plan.

National Disability Insurance Scheme (Code of Conduct) Rules 2018

The National Disability Insurance Scheme (Code of Conduct) Rules 2018 has a Code of Conduct which applies to all NDIS providers and people employed by NDIS providers. This Code of Conduct outlines the minimum expectations of behaviour and the culture and values of services. The Code of Conduct helps protect consumer rights and supports people with disability in the NDIS to have access to quality, safe and ethical 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 a provider and to the NDIS Quality and Safeguards Commissioner. These rules ensure providers are responsive to the needs of people with disability through the timely resolution of issues. Complaints can also highlight systemic issues and lead to continuous improvement of NDIS supports and services. For more information about the NDIS Quality and Safeguards Commissioner, click here.

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.

Registered NDIS providers must ensure that workers have an appropriate check as a mandatory requirement of NDIS provider registration. This guarantees that key personnel and workers in roles delivering specified NDIS supports or specified NDIS services, or with more regular contact with people with disability, do not pose an unacceptable risk to the safety and wellbeing of NDIS participants.

Other than worker screening, NDIS providers must also actively promote a culture that does not tolerate abuse, neglect or exploitation of people with disability. NDIS providers should focus on continuous upskilling, education and training for their workers.

To read more about these requirements, click here.

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.

‘Restrictive practice’ means any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability, with the main aim of protecting the person or others from harm. The NDIS Commission’s behaviour support team is responsible for providing clinical leadership in behaviour support and promoting the reduction and elimination of restrictive practices. The goal of behaviour support in the NDIS is to improve quality of life outcomes for people with disability and reduce and eliminate restrictive practices.

There are five categories of regulated restrictive practices that are monitored by the NDIS Commission. These are the following:

  • Seclusion – the sole confinement of a person with disability in a room or a physical space at any hour of the day or night where voluntary exit is prevented, or not facilitated, or it is implied that voluntary exit is not permitted.
  • Chemical restraint – the use of medication or chemical substance for the primary purpose of influencing a person’s behaviour. It does not include the use of medication prescribed by a medical practitioner for the treatment of a diagnosed mental disorder, a physical illness or a physical condition.
  • Mechanical restraint – the use of a device to prevent, restrict, or subdue a person’s movement for the primary purpose of influencing a person’s behaviour, but does not include the use of devices for therapeutic or non-behavioural purposes.
  • Physical restraint – the use or action of physical force to prevent, restrict or subdue movement of a person’s body, or part of their body, for the primary purpose of influencing their behaviour. Physical restraint does not include the use of a hands-on technique in a reflexive way to guide or redirect a person away from potential harm/injury, consistent with what could reasonably be considered the exercise of care towards a person.
  • Environmental restraint – which restrict a person’s free access to all parts of their environment, including items or activities.

A behaviour support plan is often a way of avoiding restrictive practices; it is a document prepared in consultation with the person with disability, their family, carers, and other support people that addresses the needs of the person identified as having complex behaviours of concern. The behaviour support plan contains evidence-informed strategies and seeks to improve the person’s quality of life.

To read more about behaviour support planning and review, click here.

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.

12B.1.3: Policy

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; and
  • enable effective monitoring and responses to emerging issues as the NDIS develops.

Intergovernmental Agreement on Nationally Consistent Worker Screening

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.

13B.2: NSW legislation

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:

  1. Committing the NSW Government to making communities more inclusive and accessible for people living with disability now and into the future. These commitments continue even with the introduction of the National Disability Insurance Scheme operating across NSW.
  2. 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 Communities and Justice (DCJ) 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 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 include 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.

As of August 2020, The Disability Inclusion Act is still under review, and this Manual will be updated when possible. To read more about this, click here.

Elsewhere in this manual describes the legal framework in relation to discrimination law in NSW and in more detail in the Anti-Discrimination Act 1977.

12B.3: Roles and responsibilities

12B.3.1: Bilateral Agreement

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 . 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.

12B.3.2: The United Nations Convention on the Rights of Persons with Disabilities

The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) was ratified in Australia in 2008. The purpose of UNCRPD is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities and to promote respect for their inherent dignity.

Australia has an obligation under the UNCRPD to support people with disability to live independently and promote community inclusion, to encourage capacity building and enable persons with disability to exercise choice and control.

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; and
  • Health and wellbeing.

The NDIS was developed as ‘personal and community support’ in the National Disability Strategy 2010-2020, which aims to allow people with disability, their families and carers to have access to a range of supports to assist them to live independently and actively engage in their communities. The values and intentions of the NDIS seek to align with the UNCRPD’s framework of equal opportunity of access to the physical, social, economic and cultural environment while allowing persons with disability to be actively involved in decision-making and exercising individual autonomy.

Article 19 of the UNCRPD was key in shaping the NDIS operational framework. Article 19 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.

Updated November 19, 2020