Contents
1Short title#
This Act is the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Act 2026.
2Commencement#
(1)Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information | ||
|---|---|---|
| Column 1 | Column 2 | Column 3 |
| Provisions | Commencement | Date/Details |
| 1. Sections 1 to 4 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 20 August 2026 |
| 2. Schedule 1, Parts 1 to 3 | The seventh day after this Act receives the Royal Assent. | 27 August 2026 |
| 3. Schedule 1, Part 4 | 1 October 2026. | 1 October 2026 |
| 4. Schedule 1, Parts 5 and 6 | 1 February 2027. | 1 February 2027 |
| 5. Schedule 1, Part 7 | 1 October 2026. | 1 October 2026 |
| 6. Schedule 1, Parts 8 and 9 | 1 January 2028. | 1 January 2028 |
| 7. Schedule 2, Parts 1 to 4 | The seventh day after this Act receives the Royal Assent. | 27 August 2026 |
| 8. Schedule 2, Part 5 | 1 December 2026. | 1 December 2026 |
| 9. Schedule 2, Part 6 | A single day to be fixed by Proclamation.However, if the provisions do not commence within the period of 24 months beginning on the day this Act receives the Royal Assent, they commence on the first day of the first calendar month to start after the end of that period. | |
| 9A. Schedule 2, Part 7 | The seventh day after this Act receives the Royal Assent. | 27 August 2026 |
| 9B. Schedule 2, Part 8 | The day after the end of the period of 3 months beginning on the day this Act receives the Royal Assent. | 20 November 2026 |
| 9C. Schedule 2, Part 9 | Immediately after the commencement of the provisions covered by table item 7. | 27 August 2026 |
| 10. Schedule 3, Parts 1 to 3 | The seventh day after this Act receives the Royal Assent. | 27 August 2026 |
| 10A. Schedule 3, Part 4 | 1 July 2027. | 1 July 2027 |
| 10B. Schedule 3, Part 5 | The day after the end of the period of 6 months beginning on the day this Act receives the Royal Assent. | 20 February 2027 |
| 10C. Schedule 4 | The seventh day after this Act receives the Royal Assent. | 27 August 2026 |
| 11. Schedule 5 | The day this Act receives the Royal Assent. | 20 August 2026 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2)Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3Schedules#
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
4 Review of amendments#
(1)The Minister must cause a review to be conducted of the operation of the amendments made by this Act.
(2)The review must be conducted at the same time as the review under section 4 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 of the operation of the amendments made by that Act.
(3)The persons conducting the review must be independent of the Agency and of the Department.
(4)The review must consider the following matters:
(a)access to the NDIS;
(b)participant outcomes, including continuity and quality of supports;
(c)review and appeal rights under the National Disability Insurance Scheme Act 2013;
(d)the viability and sustainability of the provider market;
(e)service delivery in thin markets;
(f)the interaction between the amendments made by this Act and any foundational supports or related systems of support.
(5)The persons conducting the review must give the Minister a written report of the review.
(6)The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.
Schedule 1 · Access and planning measures
Part 1 · Defining functional capacity
National Disability Insurance Scheme Act 2013#
1 Section 9 (paragraph (b) of the definition of developmental delay)
Omit “in one”, substitute “in relation to one”.
2 Section 9 (at the end of the definition of developmental delay)
Add:
Note: For functional capacity, in relation to an activity, see section 9B.
3 Section 9
Insert:
functional capacity, in relation to an activity, has the meaning given by section 9B.
4 After section 9A
Insert:
9BDefinition of functional capacity#
(1)A person’s functional capacity, in relation to an activity, is the person’s ability to undertake the activity:
(a)either without assistance from other people, assistive technology or modifications, or only with:
(i)assistance from assistive technology or modifications that are commonly used and that the person would ordinarily use to undertake the activity; and
(ii)if the person is a child—assistance from other people that is appropriate to the person’s age; and
(b)in a context that excludes, as far as possible, the impact of the person’s environmental and personal circumstances.
(2)The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of subsection (1).
(3)Without limiting subsection (2), National Disability Insurance Scheme rules made for the purposes of that subsection may prescribe:
(a)methods or criteria to be applied for the purposes of subsection (1), including classifications or thresholds relevant to an assessment of a person’s ability to undertake an activity; or
(b)matters that may, must or must not be taken into account for the purposes of subsection (1); or
(c)circumstances in which a matter relevant to the application of subsection (1) is taken to exist or to not exist in relation to a person; or
(d)assistive technology or modifications that are, or are not, taken to be commonly used for the purposes of subparagraph (1)(a)(i).
Note: If a particular assistive technology or modification is not prescribed by the National Disability Insurance Scheme rules under paragraph (d), the expression “commonly used” has its ordinary meaning in relation to that assistive technology or modification. Glasses and walking sticks are examples of assistive technology or modifications that are commonly used within the ordinary meaning of that expression.
5 Paragraph 24(1)(c)
Omit “to undertake one or more of the following activities”, substitute “in relation to one or more of the following activities (considering each activity as a whole)”.
6 At the end of subsection 24(1)
Add:
Note: For functional capacity, in relation to an activity, see section 9B.
7 Subparagraph 25(1)(c)(i)
Omit “upon the functional capacity of the person to undertake”, substitute “or impairments upon the person’s functional capacity in relation to undertaking”.
8 Subsection 25(1) (note)
Omit “Note”, substitute “Note 1”.
9 At the end of subsection 25(1)
Add:
Note 2: For functional capacity, in relation to an activity, see section 9B.
10 Subsection 209(8) (table item 1, column headed “Description”, before paragraph (aaa))
Insert:
(aaaa) subsection 9B(2);
11 Application provision
The amendments made by this Part apply in relation to a determination or decision made by the CEO in relation to whether a person meets the early intervention requirements or disability requirements, or both, made on or after the commencement of this item, whether or not the person is a participant before the commencement of this item.
Part 2 · Limit unscheduled plan reassessments
National Disability Insurance Scheme Act 2013#
12 Paragraph 32(3)(b)
After “32B(2)”, insert “or (2A)”.
13 After subsection 32B(2)
Insert:
(2A)If a participant who is a member of a class specified for the purposes of paragraph (1)(a) requests a reassessment of the participant’s plan under paragraph 48(2)(b), the CEO may give the participant written notice that the participant is to have new framework plans (even if the period specified for the purposes of paragraph (1)(b) has not ended).
Note: In this case, subsection 48(3) (decision on request) does not apply in relation to the request for reassessment (see subsection 48(4A)).
14 Subsection 32B(3)
Omit “The notice”, substitute “A notice given under subsection (2) or (2A)”.
15 Paragraph 32C(b)
After “32B(2)”, insert “or (2A)”.
16 At the end of section 45
Add:
(6)To avoid doubt, the exception in paragraph (5)(c) does not extend to the circumstance of a participant requesting a reassessment that is not conducted because the conditions in section 48A are not satisfied.
17 Subsection 47(1) (note 1)
After “variation of the participant’s plan or”, insert “(if the conditions in section 48A are satisfied)”.
18 Subsection 48(2)
Repeal the subsection, substitute:
Reassessment on CEO’s initiative or participant’s request
(2)The CEO may do so:
(a)on the CEO’s own initiative; or
(2A)A request for a reassessment of a participant’s plan 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.
Note: The CEO is not required to make a decision on the request if this requirement is not complied with (see section 197).
19 Subsection 48(3)
Omit “the participant requests a reassessment of the participant’s plan, the CEO must before the end of the period of 21 days”, substitute “a request for reassessment of the participant’s plan is made in accordance with paragraph (2)(b) and the conditions in section 48A are satisfied, the CEO must, before the end of the period of 90 days”.
20 Subsection 48(4)
Repeal the subsection, substitute:
(4)If the CEO does not make a decision under paragraph (3)(a), (b) or (c) before the end of the period of 90 days, the CEO is taken to have decided not to conduct a reassessment of the plan.
(4A)Subsection (3) does not apply if, before the end of the period of 90 days, the CEO gives the participant written notice under subsection 32B(2A) that the participant is to have new framework plans.
Note: In this case, subsections 32(3) and (4) apply instead to require the CEO to facilitate the preparation of a new framework plan for the participant.
21 After section 48
Insert:
48AConditions for conducting reassessment of participant’s plan on request#
(1)For the purposes of paragraph 48(2)(b), the conditions are that:
(a)there has been a significant change to those ongoing support needs of the participant that arise from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements; and
(b)the significant change to those needs results from either or both of the following:
(i)an alteration in the participant’s functional capacity in relation to an activity covered by paragraph 24(1)(c) or subparagraph 25(1)(c)(i);
(ii)an alteration in the participant’s personal or environmental circumstances; and
(c)to the extent that the alteration is as mentioned in subparagraph (b)(i)—the condition in subsection (2) is met in relation to the alteration; and
(d)to the extent that the alteration is as mentioned in subparagraph (b)(ii)—the condition in subsection (3) is met in relation to the alteration.
Note: For functional capacity, in relation to an activity, see section 9B.
(2)The condition in this subsection is met in relation to the alteration mentioned in subparagraph (1)(b)(i) if:
(a)the alteration in the participant’s functional capacity in relation to the activity is significant and ongoing; and
(b)the alteration in the participant’s functional capacity in relation to the activity:
(i)directly relates to a change in an existing impairment in relation to which the participant meets the disability requirements or early intervention requirements; or
(ii)arises from a new or acquired impairment in relation to which the participant meets the disability requirements or early intervention requirements; and
(c)the participant has experienced a substantial reduction in the participant’s ability to perform daily activities.
(3)The condition in this subsection is met in relation to the alteration mentioned in subparagraph (1)(b)(ii) if there has been a significant and ongoing alteration in the participant’s:
(a)living arrangements; or
(b)education arrangements; or
(c)work arrangements; or
(d)network for informal support.
22 Section 49B
After “32B(2)”, insert “or (2A)”.
27 Application of amendments
The amendments made by this Part apply in relation to a request for reassessment of a participant’s plan:
(a)made on or after the day this item commences; or
(b)made before the day this item commences and not decided before that day.
Part 3 · Strengthen link between an impairment and need for support
National Disability Insurance Scheme Act 2013#
28 Subsection 32K(3A)
Repeal the subsection.
29 Subsection 32L(6) (note 1)
Omit “Note 1”, substitute “Note”.
30 Subsection 32L(6) (note 2)
Repeal the note.
31 Paragraph 34(1)(aa)
Omit “arising from an impairment”, insert “arising directly from an impairment or impairments”.
32 Subsection 34(1) (note)
Repeal the note, substitute:
Note: For the purposes of paragraph (aa), the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports.
33 Application provision
The amendments of section 34 of the National Disability Insurance Scheme Act 2013 made by this Part applies in relation to:
(a)a statement of participant supports approved by the CEO on or after the commencement of this item; and
(b)a decision made on or after the commencement of this item on review of an earlier decision, whether the earlier decision was made before, on or after that commencement.
Part 4 · Support determinations
34ADetermination reducing funding for groups of supports#
(1)For the purposes of ensuring the financial sustainability of the National Disability Insurance Scheme, the Minister may, by legislative instrument, determine:
(a)a percentage for reducing funding component amounts for a group of supports specified in the determination; and
(b)the class of participants’ plans to which the percentage applies, which may be:
(i)all old framework plans that commence on or after the day the determination commences; or
(ii)the class of such plans specified in the determination.
Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the determination (see regulations made for the purposes of paragraph 54(2)(b) of that Act).
(1A)For the purposes of paragraph (1)(a), a specified group of supports must be supports for one of the following:
(a)assistance with social, economic and community participation;
(b)improved daily living skills.
(1B)The determination may specify one or both groups of supports. If it specifies both, it may specify the same or a different percentage for each group.
(1C)The determination may specify a subgroup within a specified group of supports as an excluded subgroup for the purposes of subsection (2A). The excluded subgroup may consist of one or more kinds of supports.
Note: Excluded subgroups will include supports in employment and disability related health supports.
(1CA)If the determination specifies an excluded subgroup, the determination may specify, in relation to the class of participants’ plans to which the percentage applies, a subclass of plans for the purposes of subsection (2A). The subclass may be specified by reference to matters relating to the plans, or the participants, or both, including matters identified by reference to information in records held by the Agency.
(1D)For the purposes of paragraph (1)(b), a class of participants’ plans may be specified by reference to features of plans, features of participants, or both.
(2)While the determination of a percentage is in force for a group of supports, it has the following effects in relation to each old framework plan in the class of participants’ plans to which the percentage applies:
(a)the funding component amount stated in the plan for the group of supports is taken instead to be the amount worked out under subsection (2A);
(b)the reduction applies to funding during each funding period so as not to alter the proportion of the following provided during each funding period:
(i)if the plan specifies funding periods as mentioned in subparagraph 33(2C)(a)(i)—the total funding amount;
(ii)if the plan specifies funding periods as mentioned in subparagraph 33(2C)(a)(ii)—the funding component amount for the group of supports to which the funding period relates;
(c)the total funding amount stated in the plan is taken instead to be the stated amount as reduced by the dollar amount by which all the funding component amounts that are stated in the plan for groups of supports specified in the determination are reduced.
Note: This means that the amounts as reduced are the amounts that have effect for the purposes of references in this Act to a total funding amount or a funding component amount.
(2A)For the purposes of paragraph (2)(a), the funding component amount for the specified group of supports is the amount worked out as follows:
where:
FCA means the funding component amount stated in the plan for the group of supports.
net FCA means:
(a)unless paragraph (b) applies—the funding component amount stated in the plan for the specified group of supports; or
(b)if:
(i)the determination specifies an excluded subgroup within the specified group; and
(ii)for a determination that specifies a subclass of plans as mentioned in subsection (1CA)—the plan is in the specified subclass;
the funding component amount stated in the plan for the group of supports minus so much of the funding component amount as is attributable to the supports in the excluded subgroup.
(2B)For the purposes of paragraph (b) of the definition of net FCA in subsection (2A), the determination must specify how to determine the portion of the funding component amount that is attributable to funding for the supports in the excluded subgroup.
(3)In making the determination, the Minister must have regard to the safety of participants.
(4)The determination does not have the effect of altering, or requiring alterations to, the text of the plans to which it applies.
(5)To avoid doubt, the determination has effect even if the result is either or both of the following:
(a)the funding provided under a participant’s plan for a reasonable and necessary support is less than the total cost of the support;
(b)the funding provided under a participant’s plan for all reasonable and necessary supports funded under the plan taken as a whole is less than the total costs of the supports.
34A After section 47A
Insert:
47BVariation of participant’s plan when determination under section 34A takes effect#
Request for variation
(1)If:
(b)the section 34A determination has the effect that the total funding amount stated in the plan is taken instead to be the amount as reduced under paragraph 34A(2)(c); and
(c)the participant is a high support needs participant;
the participant may, in the approved form (if any), request the CEO to vary the plan under subsection (8).
(2)For the purposes of this section, a high support needs participant is a participant who is a member of the class of participants specified in a determination made under paragraph (12)(a).
(3)The participant’s request must be made:
(a)unless paragraph (b) applies—before the end of the period of 90 days beginning on the day the section 34A determination started to apply in relation to the plan; or
(b)if, because of exceptional circumstances, the CEO, by notice in writing given to the participant, extends that period—by the end of the period as extended.
Decisions on request
(4)The CEO must, before the end of the period of 21 days beginning on the day the request is made:
(a)decide whether the participant is a high support needs participant; or
(b)inform the participant that the CEO requires further time to decide whether or not the participant is a high support needs participant.
(5)If the CEO decides that the participant is a high support needs participant, the CEO must, before the end of the period of 21 days beginning on the day that decision is made:
(a)having regard to a determination (if any) made under paragraph (12)(b), either:
(i)vary the plan under subsection (8); or
(ii)decide not to vary the plan; or
(b)inform the participant that the CEO requires further time to decide whether or not to vary the plan under subsection (8).
(6)The CEO is taken to have decided not to vary the plan if the CEO does not do a thing referred to in subsection (4) or (5) within the period applicable.
Note: Notice of a decision that the CEO is taken to have made must be given because of subsection 100(1) and will be automatically reviewed because of subsection 100(5).
(7)If, under paragraph (4)(b) or (5)(b), the CEO informs the participant that the CEO requires further time to make the decision mentioned in the paragraph, the CEO must then make the decision as soon as reasonably practicable.
Variation
(8)The CEO may vary the plan to increase the funding component amount stated in the plan for one or more groups of supports covered by subsection (9). However, the CEO must not do so in a way that would result in funding component amounts stated in the plan for groups of supports being increased by an amount that, in total, would exceed the difference between the 2 amounts mentioned in paragraph (1)(b).
(9)For the purposes of subsection (8):
(a)the following groups of supports are covered by this subsection:
(i)assistance with daily living;
(ii)home and living;
(iii)any group of supports specified under paragraph (12)(c); and
(b)the following groups of supports are not covered by this subsection:
(i)assistance with social, economic and community participation;
(ii)improved daily living skills.
(10)A variation may be different from the variation requested.
Copy of varied plan to be provided
(11)If the plan is varied, the Agency must provide a copy of the varied plan to the participant within 7 days of the variation taking effect.
Determinations
(12)The Minister may, by legislative instrument, make a determination specifying any of the following:
(a)a class of participants for the purposes of subsection (2);
(b)for the purposes of paragraph (5)(a)—any of the following in relation to the decision whether to vary a plan under subsection (8) or not to vary a plan:
(i)methods or criteria to be applied;
(ii)matters that may, must or must not be taken into account;
(iii)circumstances in which a matter is or is not taken to exist in relation to a person;
(c)a group of supports for the purposes of subparagraph (9)(a)(iii).
(13)A class of participants may be specified as mentioned in paragraph (12)(a) by reference to matters relating to participants’ plans, or participants, or both, including matters identified by reference to information in records held by the Agency.
Note: Broadly, high support needs participants are those who require continuous 24-hour care to meet disability-related care needs arising directly from impairments in relation to which the participant meets the disability requirements (see section 24) or meets the early intervention requirements (see section 25).
34B Subsection 99(1) (after table item 6B)
Insert:
| 6BA | a decision whether a participant is a high support needs participant | paragraph 47B(4)(a) | CEO |
| 6BB | a decision to vary a participant’s plan | subparagraph 47B(5)(a)(i) | CEO |
| 6BC | a decision not to vary a participant’s plan | subparagraph 47B(5)(a)(ii) or subsection 47B(6) | CEO |
34C Subparagraph 100(1A)(a)(ii)
After “47A(5)”, insert “, 47B(6)”.
34D Paragraph 100(5)(b)
After “47A(5)”, insert “, 47B(6)”.
34E Subparagraph 100(6A)(b)(ii)
After “47A(5)”, insert “, 47B(6)”.
34F Subparagraphs 101(2)(a)(ii) and (b)(i)
After “47A(1)”, insert “or 47B(8)”.
34G Subparagraph 103(2)(c)(i)
After “47A(1)”, insert “or 47B(8)”.
Part 5 · Plan renewal
National Disability Insurance Scheme Act 2013#
35 Section 9
Insert:
end date for an old framework plan means the date specified in the plan under paragraph 33(2)(ba).
Note: Some old framework plans have reassessment dates that are taken to be end dates (see Schedule 1 to the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Act 2026).
36 Section 9 (definition of reassessment date)
Repeal the definition, substitute:
reassessment date of a new framework plan means the day after the end of the maximum period of effect specified in the plan under paragraph 32D(2)(d).
37 Section 9
Insert:
(2)An old framework plan is:
(a)a plan prepared in accordance with Subdivision C; or
(ba)the date the plan is to end; and
40 Paragraph 33(2)(c)
Omit “the date by which, or the circumstances in which,”, substitute “any circumstances in which”.
41 Subsection 37(1)
Repeal the subsection, substitute:
(1)A participant’s plan comes into effect:
(a)if paragraph (b) does not apply—when the CEO has:
(i)received the participant’s statement of goals and aspirations from the participant; and
(ii)approved the statement of participant supports; or
(2)However, if the plan is a renewal of another plan by force of section 50A, the CEO must provide a copy of the plan to the participant as soon as practicable (which may be more than 7 days) after the plan comes into effect.
(3)At the same time as providing a participant with a copy of a plan under subsection (1) or (2), the CEO must, if the funding component amount in the plan is affected by a determination made under section 34A (determination reducing funding for groups of supports), notify the participant of the effect of the determination.
46 Paragraph 47A(1A)(a)
Omit “the plan’s reassessment date or”.
47 Subparagraph 47A(1A)(d)(iii)
Repeal the subparagraph.
48 Subsection 49(1)
Omit “The CEO must do the following before the reassessment date of a participant’s plan”, substitute “If there is a reassessment date for a participant’s plan, the CEO must do the following before the reassessment date”.
49 Subparagraph 49(1)(b)(ii)
Omit “or 33(2)”.
50 At the end of Division 4 of Part 2 of Chapter 3
Add:
50ARenewal of participant’s old framework plan on end date#
Renewal of plan
(1)A participant’s old framework plan is, by force of this section, renewed as a new plan immediately after the end date specified in the old plan.
Note 2: Section 38 requires a copy of the participant’s plan to be provided to the participant.
(2)The text of the new plan is the same as the old plan, except for the following alterations:
(b)the new plan does not include any one-off funding for a support that was included under the old plan;
(c)any other alteration determined in accordance with an instrument made under subsection (3).
Note: A funding component amount in the old plan might have been affected by a determination under section 34A (determination reducing funding for groups of supports). Those determinations do not directly alter plans (see subsection 34A(5)), meaning that a funding component amount stated in the old plan will be the same in the new plan (unless altered in another way by this subsection).
(3)The Minister may, by legislative instrument, determine alterations, or a method to work out alterations, for the purposes of paragraph (2)(c).
Note 1: Examples of alterations that might be determined in the instrument could be:
(a) that a new plan does not include a temporary variation of an old plan (such as a variation that responds to an unexpected medical event affecting a participant’s carer); or
(b) that a new plan does not include time-limited funding to the extent the funding has already been used.
Note 2: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the determination (see regulations made for the purposes of paragraph 54(2)(b) of that Act).
(4)To avoid doubt:
(a)the new plan does not require a new statement of participant supports to be prepared with the participant and approved by the CEO; and
(b)the making of the new plan does not involve the making of any reviewable decision.
Note: The statement of participant supports included in the old plan is included in the new plan (see subsection (2)).
Effect on renewed plans of administrative or judicial review of a previous plan
(5)If:
(a)as a result of administrative or judicial review, a decision (the review decision) is made to vary or substitute a decision in relation to a participant’s plan (the original plan); and
(b)the review decision takes effect from a day that is before the day the review decision was made; and
(c)a section 50A successor to the original plan came into effect before the day the review decision was made but after the review decision takes effect;
then subsection (1) of this section is taken to have applied:
(d)so as to renew the original plan as affected by the review decision; and
(e)so as to renew each later such section 50A successor to the original plan as so affected.
(6)A plan is a section 50A successor to the original plan if, by force of this section, the plan is a renewal of:
(a)the original plan; or
(b)another plan that was a renewal, directly or indirectly, of the original plan by force of this section.
(7)The Minister may, by legislative instrument, determine:
(b)whether or how, if they arise, those circumstances are to alter it.
If circumstances specified in the determination arise, they have the effect (if any) specified in the determination on any section 50A successor to a participant’s plan to which the determination applies.
Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the determination (see regulations made for the purposes of paragraph 54(2)(b) of that Act).
Renewal of suspended plans
(8)Subsection (1) applies to a plan even if the plan, or the statement of participant supports in the plan, is suspended. The suspension continues in effect in relation to the new plan.
51 Subparagraph 101(2)(b)(ii)
Omit “section 37”, substitute “paragraph 37(1)(a)”.
52 At the end of subsection 101(2)
Add:
Note: Subsection (2) does not apply to a plan as renewed by force of section 50A. See subsections 50A(4) and (5).
53 Subparagraph 103(2)(c)(ii)
Omit “section 37”, substitute “paragraph 37(1)(a)”.
54 At the end of subsection 103(2)
Add:
Note: Subsection (2) does not apply to a plan as renewed by force of section 50A. See subsections 50A(4) and (5).
55 At the end of Part 6 of Chapter 4
Add:
103AEffect of plan ceasing as a result of renewal under section 50A#
To avoid doubt, an application for review may be made, and a review may be conducted, of a reviewable decision or a decision made under subsection 100(6) in relation to a participant’s plan, regardless of the plan having ceased to be in effect as mentioned in subparagraph 37(3)(a)(ii) (by force of section 50A).
Note: Under section 50A, an old framework plan is renewed as a new plan on the old plan’s end date. Although the making of the new plan does not involve a reviewable decision, this does not prevent a review of the old plan, and the review of the old plan could also affect the new plan (see paragraph 50A(4)(b) and subsection 50A(5)).
56 Application of amendments
The amendments made by this Part apply in relation to a participant’s old framework plan:
(a)that comes into effect on or after the day this item commences; or
(b)that was in effect immediately before the day this item commences.
57 Review of decisions after this item commences
If, on or after the day this item commences, a decision is made on review of an earlier decision, the amendments made by this Part apply in relation to the decision on review, whether the earlier decision was made before, on or after the day this item commences.
58 Transitional provision for reassessment dates in old framework plans
Scope of this item
(1) This item applies to a participant’s old framework plan that was in effect immediately before this item commences.
Reassessment date on or before 1 October 2027
(2) If the date specified in the plan for the purposes of paragraph 33(2)(c) of the National Disability Insurance Scheme Act 2013 (the NDIS Act) as in force immediately before this item commences is on or before 1 October 2027, that date is taken to be the plan’s end date, and not the plan’s reassessment date, for the purposes of the NDIS Act as in force after this item commences.
Reassessment date after 1 October 2027
(3) If the date specified in the plan for the purposes of paragraph 33(2)(c) of the NDIS Act as in force immediately before this item commences is after 1 October 2027:
(a)that date is taken to be replaced by whichever date (the revised date) is specified for the plan in, or worked out for the plan in accordance with, an instrument made under subitem (4); and
(b)the revised date is taken to be the plan’s end date, and not the plan’s reassessment date, for the purposes of the NDIS Act as in force after this item commences.
(4) The Minister may, by legislative instrument, determine a date for a plan, or how to work out a date for a plan, for the purposes of subitem (3). The result may be a date that is earlier than the date specified in the plan for the purposes of paragraph 33(2)(c) of the NDIS Act as in force immediately before this item commences.
Plans continued past previous reassessment dates
(5) If, before this item commences:
(a)the reassessment date of a participant’s plan passed without a reassessment of the plan being completed under section 49 of the NDIS Act; and
(b)the participant was notified by the Agency that the participant’s plan would continue in effect until a specified date;
then the specified date most recently notified to the participant is taken, for the purposes of subitems (2) and (3) of this item, to be the date specified in the plan for the purposes of paragraph 33(2)(c) of the NDIS Act.
59 Renewal of old framework plans approved before 9 October 2024
(1) This item applies in relation to a participant’s old framework plan that is in effect immediately before this item commences, if:
(a)the plan was approved before 9 October 2024; and
(b)the statement of participant supports in the plan does not specify the matters required by subsection 33(2A) of the National Disability Insurance Scheme Act 2013 (the NDIS Act).
(2) For the purposes of that plan, subsection 50A(2) of the NDIS Act, as in force immediately after this item commences, is taken to include the following additional paragraphs after paragraph (b):
(ba)if an amount of funding is specified in the old plan for a support, or for a group of supports:
(i)that support is, or those supports are, a group of supports for the purposes of paragraph 33(2A)(b) of the NDIS Act; and
(ii)the amount is the funding component amount for the group for the purposes of paragraph 33(2A)(c) of the NDIS Act;
(bb)if, because of paragraph (ba), the new plan includes a funding component amount for one or more groups of supports—that amount, or the sum of those amounts, is the total funding amount for the purposes of paragraph 33(2A)(a) of the NDIS Act;
(bc)if paragraph (ba) applies to the old plan—the period from the day the new plan takes effect to its end date is a single funding period for the purposes of paragraph 33(2A)(d) of the NDIS Act;
Part 6 · Reasonable and necessary supports
National Disability Insurance Scheme Act 2013#
60 Paragraph 3(1)(d)
Repeal the paragraph, substitute:
(d)provide NDIS supports for participants in the National Disability Insurance Scheme that are reasonable and necessary, so far as is consistent with the financial sustainability of the scheme; and
61 Subsections 4(5) and (11)
Omit “reasonable and necessary”, substitute “NDIS”.
62 Section 17A (heading)
Repeal the heading, substitute:
17APrinciples relating to participation and plans#
63 At the end of subsection 17A(3)
Add:
; and (d) where relevant, respect the role of family, carers and other persons who are significant in the life of participants; and
(e)where relevant, recognise and respect the relationship between participants and their families and carers; and
(f)support communities to respond to participants’ individual goals and needs.
64 Subsection 17A(4)
Omit “section 4 to which the CEO is to have regard in performing the CEO’s functions and exercising the CEO’s powers under this Act”, substitute “sections 4 and 17B”.
65 At the end of Part 1A of Chapter 3
Add:
17BPrinciples relating to scheme sustainability#
(1)In performing the CEO’s functions and exercising the CEO’s powers under this Chapter, the CEO must have regard to the principles in this section.
(2)Considerations relevant to the CEO’s performance of functions and exercise of powers include the following:
(a)the National Disability Insurance Scheme is to fund supports for participants to meet disability support needs that arise directly from impairments in relation to which participants meet the disability requirements or the early intervention requirements;
(b)the desirability of supporting communities to respond to the goals and needs of participants;
(c)the financial sustainability of the scheme, having regard to reports of the scheme actuary under Part 6A of Chapter 6.
(3)Participants should be responsible for their day-to-day living costs, including day-to-day living costs incurred whether or not a person has a disability.
(4)Funding under the National Disability Insurance Scheme should be used efficiently and the distribution of scheme funding, across participants as a whole, should be equitable, having regard to similarities in needs and circumstances.
(5)The principles in this section are in addition to the principles in sections 4 and 17A.
66 Division 1 of Part 2 of Chapter 3
Repeal the Division.
67 At the end of section 32K
Add:
(6)In making National Disability Insurance Scheme rules for the purposes of subsection (1), the Minister must take into account the principles mentioned in sections 17A and 17B (in addition to having regard to the financial sustainability of the scheme as required by subsection 209(3)).
68 After subsection 33(2E)
Insert:
(2EA)A determination made under subsection (2E) may specify, for a support or a class of supports, in relation to participants generally or a class of participants:
(a)a maximum amount of funding for the support or supports in the class of supports; or
(b)a maximum intensity for provision of the support or supports in the class of supports; or
(c)a maximum ratio of worker to participant for provision of the support or supports in the class of supports.
Note: The determination is not required to specify a maximum for all supports.
(2EB)Any method determined for the purposes of paragraph (2E)(b) for working out a funding component amount in relation to group of supports must have the effect that no maximum specified for the purposes of subsection (2EA) is exceeded in working out the funding component amount.
Note 1: Subsections (2E), (2EA) and (2EB) affect the working out of funding component amounts as required by paragraph (2A)(c). These provisions apply regardless of whether a funding component amount meets the cost of the supports in the group to which it relates.
Note 2: Subsections (2E), (2EA) and (2EB) do not affect the CEO’s duty to be satisfied of the matters mentioned in subsection 34(1) in relation to specifying, in a statement of participant supports, the supports that will be funded by the National Disability Insurance Scheme.
69 Paragraph 34(1)(f)
Omit “participant.”, substitute “participant;”.
70 After paragraph 34(1)(f)
Insert:
(g)the support is not one that would be more appropriately provided or funded by:
(i)another scheme; or
(ii)one or more existing government service systems.
71 Subsection 34(1) (note)
Omit “Note”, substitute “Note 1”.
72 At the end of subsection 34(1)
Add:
Note 2: A support is not an NDIS support if it is so declared by the National Disability Insurance Scheme rules under subsection 10(4).
73 After subsection 34(1)
Insert:
Value for money considerations
(1A)For the purposes of paragraph (1)(c), in deciding whether a support represents value for money, the CEO:
(a)must consider whether comparable supports are available at a lower cost than the support; and
(b)if there are—must consider whether one of those lower cost comparable supports would represent better value for money than the support.
(1B)For the purposes of paragraph (1)(c), in deciding whether a support that is the provision of equipment or modifications represents value for money, the CEO:
(a)must consider the comparative cost of purchasing or leasing the equipment or modifications; and
(b)may decide that purchasing equipment or modifications represents value for money even if the comparative cost of leasing is lower.
(1C)For the purposes of paragraph (1)(c), in relation to a support that is the provision of equipment or modifications:
(a)the CEO must consider whether the participant’s circumstances are likely to change in the short term in a way that would affect the participant’s need for the equipment or modifications; and
(b)if it is—the CEO must, unless satisfied by evidence to the contrary, presume that the support represents value for money only if the support is provided by leasing the equipment or modifications.
(1D)Paragraphs (1A)(a), (1B)(a) and (1C)(a) do not limit the matters that the CEO may have regard to for the purposes of paragraph (1)(c).
Effective and beneficial considerations
(1E)For the purposes of paragraph (1)(d), in deciding whether a support will be, or is likely to be, effective and beneficial for the participant, the CEO must, if considering 2 or more of the following matters, consider them in the following order of importance:
(a)research and evidence in relation to the support that is published, peer reviewed and generalisable;
(b)evidence as to the effectiveness of the support, having regard to the participant’s circumstances (including age and impairment);
(c)evidence as to outcomes for the participant, arising from their use of the support in their previous plan, in improving, maintaining, or reducing a decline in, the participant’s functional capacity in relation to an activity covered by paragraph 24(1)(c) or subparagraph 25(1)(c)(i), or capacity for social and economic participation;
(d)other matters the CEO considers appropriate.
Note: For functional capacity, in relation to an activity, see section 9B.
(1F)To avoid doubt, the CEO may decide that the CEO is not satisfied as required by paragraph (1)(d) if:
(a)there is limited or no research or evidence of the kind mentioned in paragraph (1E)(a) (even if there is evidence of the kind mentioned in paragraph (1E)(b) or (c), or both); or
(b)there is limited or no evidence of the kind mentioned in paragraph (1E)(b) (even if there is research or evidence of the kind mentioned in paragraph (1E)(a) or (c), or both).
This subsection does not limit the circumstances in which the CEO may decide that the CEO is not satisfied as required by paragraph (1)(d).
Family etc. support—children
(1G)For the purposes of paragraph (1)(e) so far as it applies in relation to a participant who is a child, the CEO must take into account the presumption that parents are responsible for providing substantial care and support for their children.
(1H)For the purposes of subsection (1G), substantial care and support:
(a)includes supervision, personal care, transport, emotional support and behavioural support; and
(b)does not include additional care and support required for the child, because the child’s care and support needs are substantially greater than those of other children of a similar age because of the child’s disability.
Note: A child is a person who is under 18 years of age, see section 9.
(1J)For the purposes of paragraph (1)(e) so far as it applies in relation to a participant who is a child, the CEO must not decide that the CEO is satisfied as required by that paragraph if the primary or substantial purpose of the support is to do one or more of the following:
(a)reduce burdens on parental time below what is reasonably expected of a parent;
(b)improve household efficiency;
(c)give effect to a parent’s preference for supports to be provided otherwise than by parental care.
Family etc. support—other matters
(1K)For the purposes of paragraph (1)(e), the CEO must consider:
(a)whether relying on family, carers, informal networks or the community to provide support would expose a participant or another person to a risk of harm, abuse or neglect that cannot be reasonably mitigated; and
(b)the desirability of supporting, maintaining and strengthening informal supports and community networks in preference to replacing those supports and networks with funded supports; and
(c)the capacity of the participant’s family or carers to provide support, having regard to:
(i)the age of the participant’s family and carers; and
(ii)the intensity and type of support required; and
(iii)whether it is age and gender appropriate for any particular family member or carer to provide that support.
NDIS rules
74 After paragraph 47A(1)(a)
Insert:
(aa)the variation does not result in duplicating a support provided under the plan; and
75 Application of amendments in this Part
The amendments made by this Part apply in relation to the performance of functions and the exercise of powers on or after the day this item commences (including functions performed and powers exercised in relation to plans in effect immediately before that day).
76 Review of decisions after this item commences
If, on or after the day this item commences, a decision is made on review of an earlier decision, the amendments made by this Part apply in relation to the decision on review, whether the earlier decision was made before, on or after the day this item commences.
Part 7 · Plan suspension etc.
National Disability Insurance Scheme Act 2013#
77 Subparagraph 19(2)(b)(ii)
After “subsection 30(1)”, insert “, (1A)”.
78 Paragraph 29(1)(c)
After “subsection 30(1)”, insert “, (1A)”.
79 After subsection 30(1)
Insert:
(1A)The CEO may also revoke a person’s status as a participant in the National Disability Insurance Scheme if the CEO is satisfied that:
(a)both:
(i)the CEO has made reasonable attempts to contact the participant for the purposes of making a request under section 36 or 50 for information or reports; and
(ii)the participant is not contactable; or
(b)the participant’s plan has been suspended under section 40A for at least 90 days.
(1B)The CEO cannot be satisfied that reasonable attempts to contact the participant have been made as mentioned in subparagraph (1A)(a)(i) unless the CEO is satisfied that the requirements in subsection (1C) are met in relation to:
(a)unless paragraph (b) or (c) applies—the participant; or
(b)if the participant has a nominee—the participant’s nominee; or
(c)if the participant does not have a nominee but has another authorised contact or representative—that other authorised contact or representative.
(1C)The requirements in this subsection are met in relation to the person mentioned in paragraph (1B)(a), (b) or (c) (as applicable) if:
(a)at least 5 attempts have been made to contact the person using the person’s preferred form of contact; and
(b)the last of those attempts was made at least 3 months, and not more than 4 months, after the first of those attempts; and
(c)if the person’s preferred form of contact is not in writing—at least one additional attempt has been made, during the period between the first and last of the attempts mentioned in paragraph (a), to contact the person in writing.
(1D)If the person the CEO is attempting to contact is the participant, an attempt does not count for the purposes of subsection (1C) if, before suspending the plan, the CEO becomes aware that at the time the attempt was made, the participant was in the care of a hospital or other institution, or experiencing homelessness.
80 Subsection 30(2)
After “subsection (1)”, insert “or (1A)”.
81 Subsection 30(7)
After “subsection (1)”, insert “, (1A)”.
82 Subsection 32D(5)
Repeal the subsection, substitute:
(5)However, subsection (4) does not apply if the preparation of the participant’s plan is suspended under:
(a)subparagraph 36(3)(b)(i) (which deals with failure to provide information or reports for an assessment under section 32L); or
(b)subsection 40A(1) (which deals with participants who are not contactable).
83 After section 40
Insert:
40AParticipants who are not contactable#
(1)The CEO may suspend a participant’s plan if the CEO is satisfied that:
(a)the CEO has made reasonable attempts to contact the participant for the purposes of making a request under section 36 or 50 for information or reports; and
(b)the participant is not contactable.
Note: A decision to suspend a participant’s plan is a reviewable decision (see section 99).
(1A)The CEO cannot be satisfied that reasonable attempts to contact the participant have been made as mentioned in paragraph (1)(a) unless the CEO is satisfied that the requirements in subsection (1B) are met in relation to:
(a)unless paragraph (b) or (c) applies—the participant; or
(b)if the participant has a nominee—the participant’s nominee; or
(c)if the participant does not have a nominee but has another authorised contact or representative—that other authorised contact or representative.
(1B)The requirements in this subsection are met in relation to the person mentioned in paragraph (1A)(a), (b) or (c) (as applicable) if:
(a)at least 5 attempts have been made to contact the person using the person’s preferred form of contact; and
(b)the last of those attempts was made at least 3 months, and not more than 4 months, after the first of those attempts; and
(c)if the person’s preferred form of contact is not in writing—at least one additional attempt has been made, during the period between the first and last of the attempts mentioned in paragraph (a), to contact the person in writing.
(1C)If the person the CEO is attempting to contact is the participant, an attempt does not count for the purposes of subsection (1B) if, before suspending the plan, the CEO becomes aware that at the time the attempt was made, the participant was in the care of a hospital or other institution, or experiencing homelessness.
(2)If the CEO decides to suspend the plan:
(a)the CEO must give the participant a written notice of the decision, specifying the day on which the suspension takes effect; and
(b)the plan is suspended from the specified day.
(3)If the participant contacts the Agency within 90 days after the suspension decision is made, the CEO must, within 28 days of the contact, do one of the things mentioned in subsection (4).
(4)The CEO must either:
(a)decide to cease the suspension of the plan that is in effect at that time and give the participant a written notice of the cessation decision; or
(b)make a request under section 36 or 50 for information or reports in relation to the participant.
(5)If the CEO decides, in accordance with paragraph (4)(a), to cease the suspension, the suspension ceases at the time the CEO makes the decision.
(6)If:
(a)the CEO decides, in accordance with paragraph (4)(b), to make a request under section 36 or 50 for information or reports; and
(b)the information or reports are received by the CEO within the period specified in the request;
subsection (4) of this section applies again so that the CEO must, within 28 days of receiving the information or reports, do one of the things mentioned in paragraph (4)(a) or (b).
(7)If information or reports requested under section 36 or 50 in the circumstances mentioned in paragraph (4)(b) are not received by the CEO within the period specified in the request:
(a)subparagraph 36(3)(b)(i) and subsection 36(4) do not apply; and
(b)the suspension continues until the participant contacts the Agency or the CEO revokes the participant’s status as a participant, whichever happens sooner.
(8)Despite the 90 day period specified in subsection (3), the CEO may (but need not) do one of the things mentioned in subsection (4) as if subsection (3) applied, if the participant contacts the Agency more than 90 days after the suspension decision is made and at a time when the suspension is still in effect.
84 After paragraph 41(1)(a)
Insert:
(aaa)as mentioned in section 40A (which deals with participants who are not contactable); and
85 Subsection 99(1) (table item 3, column 2)
After “subsection 30(1)”, insert “, (1A)”.
86 Subsection 99(1) (after table item 5)
Insert:
| 5A | a decision to suspend a participant’s plan | subsection 40A(1) | CEO |
87 Application and transitional provisions
(1) The amendments made by this Part apply in relation to a participant’s plan:
(a)that comes into effect on or after the day this item commences; or
(b)that was in effect immediately before the day this item commences.
(2) For the purposes of paragraphs 30(1A)(a) and 40A(1)(a) of the National Disability Insurance Scheme Act 2013 as amended by this Part, the CEO may have regard to reasonable attempts made to contact the participant before, on or after the day this item commences.
Part 8 · Tightening meaning of permanence to reduce access where an impairment can be treated
National Disability Insurance Scheme Act 2013#
88 Section 9
Insert:
appropriate treatment, for an impairment or impairments, has the meaning given by section 25A.
89 After subsection 24(4) (before note 1)
Insert:
(5)For the purposes of paragraph (1)(b), an impairment or impairments are not permanent, or likely to be permanent, unless:
(a)the person has undertaken all appropriate treatment for the impairment or impairments (if any); and
(b)the impairment or impairments are likely to persist for the person’s lifetime.
Note 1: For appropriate treatment and when a person is taken to have undertaken all appropriate treatment for an impairment or impairments, see section 25A.
Note 2: A person may require ongoing treatment for some permanent impairments in order to maintain functional capacity in relation to an activity, even if the person has undertaken all appropriate treatments for the impairment.
(6)Subsections (2) and (3) have effect subject to subsection (5).
90 Subparagraph 25(1)(c)(i)
Omit “mitigating or alleviating”, substitute “reducing”.
91 After subsection 25(1A)
Insert:
(1B)For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments are not permanent, or likely to be permanent, unless:
(a)the person has undertaken all appropriate treatment for the impairment or impairments (if any); and
(b)the impairment or impairments are likely to persist for the person’s lifetime.
Note 1: For appropriate treatment, and when a person is taken to have undertaken all appropriate treatment for an impairment or impairments, see section 25A.
Note 2: A person may require ongoing treatment for some permanent impairments in order to maintain the person’s functional capacity in relation to an activity, even if the person has undertaken all appropriate treatments for the impairment.
25AMeaning of appropriate treatmentetc.#
Meaning of appropriate treatment
(1)For the purposes of paragraphs 24(5)(a) and 25(1B)(a), appropriate treatment for a person’s impairment or impairments is treatment that is:
(a)evidence-based; and
(b)can reliably be expected to materially improve, reverse, or alleviate the impact of, the impairment or impairments; and
(c)is regularly undertaken or performed in Australia.
Note 1: For the purposes of paragraph (c), treatment is regularly undertaken or performed in Australia if public funding is available in respect of the treatment.
Note 2: Appropriate treatment does not include restrictive practices involving seclusion, chemical restraint, mechanical restraint, physical restraint or environmental restraint.
(2)Treatment may be appropriate treatment for a person’s impairment or impairments regardless of whether the person’s individual circumstances restrict the person from accessing the treatment.
Note: A person’s individual circumstances include the person’s financial circumstances and geographical location.
Person may be taken to have undertaken all appropriate treatment
(3)For the purposes of paragraphs 24(5)(a) and 25(1B)(a), a person is taken to have undertaken all appropriate treatment for an impairment or impairments:
(a)if the person has undertaken all appropriate treatment for the impairment or impairments except appropriate medical treatment the person cannot undertake for medical reasons; or
(b)in the circumstances determined under subsection (4).
(4)The National Disability Insurance Scheme rules may determine circumstances for the purposes of paragraph (3)(b).
(5)Without limiting subsection 33(3A) of the Acts Interpretation Act 1901, or subsection 209(1A) of this Act, National Disability Insurance Scheme rules made for the purposes of subsection (4) of this section may make different provision in relation to:
(a)different classes of participants; and
(b)different impairments or classes of impairments.
93 Subsection 209(8) (table item 4, column headed “Description”, before paragraph (aa))
Insert:
(aab) subsection 25A(4);
94 Application provision
The amendments made by this Part apply in relation to a determination or decision made by the CEO in relation to whether a person meets the early intervention requirements or disability requirements, or both, made on or after the commencement of this item, whether or not the person is a participant before the commencement of this item.
Part 9 · Eligibility based on access to other services
National Disability Insurance Scheme Act 2013#
95 Section 9
Insert:
excluded impairment has the meaning given by subsections 25B(2), (3) and (4).
meets the alternative support requirements has the meaning given by subsection 25B(1).
workers’ compensation law means a law of the Commonwealth, a State or a Territory that provides for compensation or other benefits for or in respect of work-related injury suffered by persons without requiring proof of any breach by, or by persons associated with, employers.
work-related injury, in relation to a person means:
(a)an injury (other than a disease) suffered by the person, that is a physical or mental injury arising out of, or in the course of, the person’s employment; or
(b)an aggravation of a physical or mental injury (other than a disease) suffered by the person (whether or not that injury arose out of, or in the course of, the person’s employment), that is an aggravation that arose out of, or in the course of, that employment.
96 At the end of subsection 21(1)
Add:
; and (d) the CEO is satisfied that, at the time of considering the request, the person meets the alternative support requirements (see section 25B).
97 Before section 26
Insert:
25BAlternative support requirements#
(1)A person meets the alternative support requirements if all of the following apply:
(a)the person is not included in a class of persons prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph;
(b)the circumstances prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph do not apply to the person;
(c)if the person meets the disability requirements, or the early intervention requirements, in relation to one or more impairments—at least one of those impairments is not an excluded impairment (see subsections (2), (3) and (4)).
Excluded impairments—motor vehicle accident compensation schemes
(2)An impairment is an excluded impairment if:
(a)the impairment was caused by a motor vehicle accident; and
(b)a law of the Commonwealth, a State or Territory provides for compensation, or other benefits, for or in respect of the impairment.
Excluded impairments—workplace compensation schemes
(3)An impairment is an excluded impairment if:
(a)the impairment was caused by a work-related injury; and
(b)a workers’ compensation law provides for compensation, or other benefits, for or in respect of the impairment.
When a law is taken to provide for compensation etc.
(3A)For the purposes of paragraphs (2)(b) and (3)(b):
(a)a law is taken, at a particular time, to provide for compensation or other benefits for or in respect of an impairment if circumstances prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph exist at that time; and
(b)a law is taken, at a particular time, not to provide for compensation or other benefits for or in respect of an impairment if circumstances prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph exist at that time.
(3B)Without limiting paragraphs (3A)(a) and (b), National Disability Insurance Scheme rules made for the purposes of those paragraphs may prescribe circumstances by reference to whether an application for the compensation or other benefits:
(a)could be made under the law; or
(b)has been made, granted or refused under the law (whether at all or within a particular timeframe).
Excluded impairment—declared alternative supports
(4)An impairment is an excluded impairment at a particular time if:
(a)a support is declared by the National Disability Insurance Scheme rules to be an alternative support for the impairment for the purposes of this paragraph; and
(b)circumstances (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph exist at that time.
(5)For the purposes of paragraph (4)(a), the National Disability Insurance Scheme rules may declare that a support is an alternative support by reference to the system of service delivery, or support service, through which the support is offered.
(6)Before making National Disability Insurance Scheme rules declaring that a support is an alternative support for an impairment, the Minister must be satisfied that it is not appropriate to fund or provide a support for the impairment through the National Disability Insurance Scheme.
98 At the end of subsection 30(1)
Add:
; or (c) the CEO is satisfied that the person does not meet the alternative support requirements (see section 25B).
99 Subsection 209(8) (table item 1, column headed “Description”, before paragraph (c))
Insert:
(bb) paragraphs 25B(1)(a) and (b), (3A)(a) and (b) and (4)(a) and (b);
100 Application—alternative support requirements
Paragraph 21(1)(d), as inserted by this Part, applies in relation to a person if the person makes an access request to become a participant on or after the commencement of this item.
101 Application—revocation of participant status
Paragraph 30(1)(c) of the National Disability Insurance Scheme Act 2013, as inserted by this Part, applies in relation to a person who becomes a participant on or after the commencement of this item.
Schedule 2 · Fraud measures
Part 1 · Registration of NDIS providers
Crimes Act 1914#
1 Section 85ZZGM (paragraph (b) of the definition of person with disability)
Omit “paragraph (b) of the definition of NDIS provider in section 9 of that Act”, substitute “paragraph 10C(1)(b) of that Act”.
National Disability Insurance Scheme Act 2013#
2 Section 9 (definition of NDIS provider)
Repeal the definition, substitute:
10CDefinition of NDIS provider#
Persons or entities who are NDIS providers
(1)Subject to subsection (2), a person or entity is an NDIS provider if the person or entity is:
(a)a person (other than the Agency) who receives:
(i)funding under the arrangements set out in Chapter 2; or
(ii)NDIS amounts (other than as a participant); or
(b)a person or entity:
(i)who provides supports or services to people with disability other than under the National Disability Insurance Scheme; and
(ii)who is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph.
Persons or entities who are not NDIS providers
(2)A person or entity is not an NDIS provider if the person or entity is included in a class of persons or entities prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
4 Subsection 73C(2)
Omit “subparagraph (b)(ii) of the definition of NDIS provider”, substitute “subparagraph 10C(1)(b)(ii)”.
5 Paragraph 201A(1)(a)
Repeal the paragraph, substitute:
(a)subparagraph 10C(1)(b)(ii);
6 Subsection 209(8) (table item 4, column headed “Description”, paragraph (a))
Repeal the paragraph, substitute:
(a) subparagraph 10C(1)(b)(ii) and subsection 10C(2);
7 Transitional—prescribed providers
(1) This item applies to the National Disability Insurance Scheme rules (within the meaning of the National Disability Insurance Scheme Act 2013) that are:
(a)in force immediately before the commencement of this item; and
(b)made for the purposes of subparagraph (b)(ii) of the definition of NDIS provider in section 9 of that Act (as in force immediately before that commencement).
(2) The rules continue in force (and may be dealt with) on and after the commencement of this item as if the rules were made for the purposes of subparagraph 10C(1)(b)(ii) of the National Disability Insurance Scheme Act 2013 (as inserted by this Part).
Part 2 · Civil penalties and regulatory powers
National Disability Insurance Scheme Act 2013#
8 Section 9 (definition of compliance notice)
Repeal the definition, substitute:
compliance notice means:
(a)in Part 3B of Chapter 4—a notice given under section 73ZM; or
(b)in Part 3C of Chapter 4—a notice given under section 73ZSI.
9 Section 9 (definition of enforceable undertaking)
Repeal the definition, substitute:
enforceable undertaking means:
(a)in Part 3B of Chapter 4—an undertaking accepted under:
(i)section 114 of the Regulatory Powers Act in relation to a provision of this Act mentioned in subsection 73ZP(1); or
(ii)subsection 73ZP(4); or
NDIA inspector means a person appointed under subsection 73ZSK(1) as an NDIA inspector (whether or not the person is also appointed as an NDIA investigator).
NDIA investigator means a person appointed under subsection 73ZSK(1) as an NDIA investigator (whether or not the person is also appointed as an NDIA inspector).
11 Before subsection 53(1)
Insert:
CEO may require information or documents
12 At the end of section 53
Add:
Civil penalty
(3)A person contravenes this subsection if:
(a)the person is subject to a requirement under subsection (1) to give information or produce a document; and
(b)the person refuses or fails to comply with the requirement.
Civil penalty: 60 penalty units.
13 At the end of section 64
Add:
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
14 Paragraph 73ZDA(5)(i)
After “compliance notice”, insert “under Part 3B or 3C of this Chapter”.
15 Paragraph 73ZDA(5)(j)
After “enforceable undertaking”, insert “under Part 3B or 3C of this Chapter”.
16 Part 3B of Chapter 4 (heading)
Repeal the heading, substitute:
Part 3B · Compliance and enforcement in relation to Commissioner functions
17 After paragraph 73ZE(1)(a)
Insert:
(aa) section 73ZOB (complying with anti-promotion orders);
18 Subsection 73ZF(1)
Repeal the subsection, substitute:
(1) The following provisions are subject to investigation under Part 3 of the Regulatory Powers Act:
(a) a civil penalty provision in:
(i) Division 4 of Part 1 of this Chapter; or
(ii) Division 2 of Part 2 of this Chapter; or
(iii) Part 3A, or this Part, of this Chapter;
(b) an offence provision in Part 3A, or this Part, of this Chapter;
(c) an offence provision in the Crimes Act 1914 or the Criminal Code that relates to:
(i) a provision mentioned in paragraph (a) or (b); or
(ii) a function of the Commission.
Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.
19 Subsection 73ZG(1)
Omit “for the purposes of this Act”, substitute “issued for the purposes of a provision mentioned in subsection 73ZF(1)”.
20 Subsection 73ZH(1)
Omit “this Act”, substitute “a provision mentioned in subsection 73ZF(1)”.
21 Subsection 73ZI(1)
Omit “this Act”, substitute “a provision mentioned in subsection 73ZF(1)”.
22 Subparagraph 73ZI(2)(a)(iii)
Omit “this Act or under the Regulatory Powers Act as it applies in relation to this Act”, substitute “this Part or under the Regulatory Powers Act as it applies in relation to this Act because of this Part”.
23 Subparagraph 73ZI(2)(c)(iii)
After “in relation to this Act”, insert “because of this Part”.
24 Paragraph 73ZI(4)(a)
Omit “this Act or under the Regulatory Powers Act as it applies in relation to this Act”, substitute “this Part or under the Regulatory Powers Act as it applies in relation to this Act because of this Part”.
25 Subsection 73ZK(1)
Repeal the subsection, substitute:
(1) The following civil penalty provisions are enforceable under Part 4 of the Regulatory Powers Act:
(a) subsection 45B(3);
(b) subsection 57(1A), so far as the contravention relates to section 55A;
(c) section 59A;
(d) subsection 67B(2);
(e) subsection 67C(2);
(f) subsection 67D(1A);
(g) subsection 67D(2A);
(h) subsection 73B(6);
(i) section 73D;
(j) section 73J;
(k) subsection 73R(3);
(l) subsection 73V(3);
(la) subsection 73VA(10);
(m) subsection 73ZBA(1);
(n) subsections 73ZC(1) and (2);
(o) subsection 73ZM(3);
(p) subsection 73ZNA(4);
(q) section 73ZOB.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
26 Subsections 73ZK(2), (3) and (4)
Omit “of this Act”, substitute “mentioned in subsection (1)”.
27 Section 73ZKA
Omit “of this Act” (wherever occurring), substitute “mentioned in subsection 73ZK(1)”.
28 Subsection 73ZL(1)
Repeal the subsection, substitute:
(1) A civil penalty provision specified in subsection 73ZK(1), other than sections 59A and 73D, is subject to an infringement notice under Part 5 of the Regulatory Powers Act.
Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
29 Subsection 73ZL(4)
Omit “this Act”, substitute “the provisions mentioned in subsection (1)”.
30 Paragraph 73ZM(1)(a)
After “this Act”, insert “, to the extent the NDIS provider’s conduct relates to the Commissioner’s functions”.
31 Before paragraph 73ZP(1)(a)
Insert:
(aa) section 55A (Commissioner’s power to obtain information to ensure integrity);
32 Subsection 73ZP(3)
Omit “provisions of this Act”, substitute “provisions mentioned in subsection (1)”.
33 After Part 3B of Chapter 4
Insert:
Part 3C · Compliance and enforcement in relation to Agency functions
73ZSAMonitoring powers#
Provisions subject to monitoring
(1)The following provisions are subject to monitoring under Part 2 of the Regulatory Powers Act:
(a)Part 1 of Chapter 3;
(b)Part 2 of Chapter 3;
(c)Part 1 of this Chapter, other than section 55A;
(d)Division 1 of Part 2 of this Chapter;
(e)Part 4 of this Chapter;
(f)Part 5 of this Chapter;
(g)Chapter 5;
(h)Part 1 of Chapter 7;
(i)an offence provision of the Crimes Act 1914 or the Criminal Code, to the extent that it relates to one or more of the provisions mentioned in paragraphs (a) to (h).
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the provisions mentioned in this subsection have been complied with. It includes powers of entry and inspection.
Information subject to monitoring
(2)Information given in compliance or purported compliance with a provision mentioned in subsection (1) is subject to monitoring under Part 2 of the Regulatory Powers Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.
Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
(3)For the purposes of Part 2 of the Regulatory Powers Act as it applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):
(c)a magistrate is an issuing officer; and
(d)the CEO is the relevant chief executive; and
(e)each of the following is a relevant court:
(i)the Federal Court;
(ii)the Federal Circuit and Family Court of Australia (Division 2);
(iii)a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Person assisting
(4)An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to this Part.
73ZSBInvestigation powers#
Provisions subject to investigation
(1)The following provisions are subject to investigation under Part 3 of the Regulatory Powers Act:
(a)a civil penalty provision in:
(i)Division 1 of Part 1 of this Chapter; or
(ii)Division 2 of Part 1 of this Chapter; or
(iii)Division 1 of Part 2 of this Chapter; or
(iv)Division 1 of Part 5 of this Chapter; or
(v)Part 3 of Chapter 5; or
(vi)Part 1 of Chapter 7;
(b)an offence provision in this Act other than in Part 3B of this Chapter;
(c)an offence provision in the Crimes Act 1914 or the Criminal Code, that relates to a provision mentioned in paragraph (a) or (b).
Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.
Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
(2)For the purposes of Part 3 of the Regulatory Powers Act, as it applies in relation to evidential material that relates to a provision mentioned in subsection (1):
(c)a magistrate is an issuing officer; and
(d)the CEO is the relevant chief executive; and
(e)each of the following is a relevant court:
(i)the Federal Court;
(ii)the Federal Circuit and Family Court of Australia (Division 2);
(iii)a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Person assisting
(3)An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).
73ZSCUse of equipment to examine or process things#
(1)This section applies if an authorised person exercises investigation powers under Part 3 of the Regulatory Powers Act in relation to premises entered under an investigation warrant issued for the purposes of a provision mentioned in subsection 73ZSB(1).
Equipment may be brought to premises
(2)The authorised person or a person assisting may bring to the premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether the thing may be seized.
Thing may be moved for examination or processing
(3)A thing found at the premises may be moved to another place for examination or processing in order to determine whether the thing may be seized if:
(a)both of the following apply:
(i)it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;
(ii)the authorised person or a person assisting suspects on reasonable grounds that the thing contains or constitutes evidential material; or
(b)the occupier of the premises consents in writing.
Notification of examination or processing and right to be present
(4)If the thing is moved to another place for the purpose of examination or processing under subsection (3), the authorised person must, if it is practicable to do so:
(a)inform the occupier of the premises of the address of the place and the time at which the examination or processing will be carried out; and
(b)allow the occupier or the occupier’s representative to be present during the examination or processing.
(5)The authorised person need not comply with paragraph (4)(a) or (b) if the authorised person believes on reasonable grounds that to do so might:
(a)endanger the safety of a person; or
(b)prejudice an investigation or prosecution.
Time limit on moving the thing
(6)The thing may be moved to another place for examination or processing for no longer than 14 days.
(7)An authorised person may apply to an issuing officer for one or more extensions of that time if the authorised person believes on reasonable grounds that the thing cannot be examined or processed within 14 days or that time as previously extended.
(8)The authorised person must give notice of the application to the occupier of the premises, and that person is entitled to be heard in relation to the application.
(9)A single extension cannot exceed 7 days.
Equipment at premises may be operated
(10)An authorised person or a person assisting may operate equipment already at the premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized if the authorised person or person assisting believes on reasonable grounds that:
(a)the equipment is suitable for the examination or processing; and
(b)the examination or processing can be carried out without damage to the equipment or the thing.
73ZSDUse of electronic equipment at other place#
(1)This section applies if an authorised person exercises investigation powers under Part 3 of the Regulatory Powers Act in relation to premises for the purposes of a provision mentioned in subsection 73ZSB(1).
(2)If electronic equipment is moved from the premises to another place under subsection 73ZSC(3), the authorised person or a person assisting may operate the equipment to access data (including data held at another place).
(3)If the authorised person or the person assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, the person may copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device.
(4)If the CEO is satisfied that the data is not required (or is no longer required) for the purposes of this Act or for other judicial or administrative review proceedings, the CEO must arrange for:
(a)the removal of the data from any device in the control of the Agency; and
(b)the destruction of any other reproduction of the data in the control of the Agency.
(5)If the authorised person or the person assisting, after operating the equipment, finds that evidential material is accessible by doing so, the person may:
(a)seize the equipment and any disk, tape or other associated device; or
(b)if the material can be put in documentary form—put the material in that form and seize the documents so produced.
(6)An authorised person or a person assisting may seize equipment under paragraph (5)(a) only if:
(a)it is not practicable to copy the data as mentioned in subsection (3) or to put the material in documentary form as mentioned in paragraph (5)(b); or
(b)possession of the equipment by the occupier of the premises could constitute an offence.
73ZSEPerson with knowledge of a computer or a computer system to assist access etc.#
(1)This section applies if an authorised person exercises investigation powers under Part 3 of the Regulatory Powers Act in relation to premises for the purposes of a provision mentioned in subsection 73ZSB(1).
(2)The authorised person may apply to an issuing officer referred to in paragraph 73ZSB(2)(c) for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow an authorised person or person assisting to do one or more of the following:
(a)access data held in, or accessible from, a computer or data storage device that:
(i)is on the premises; or
(ii)has been moved under subsection 73ZSC(3) and is at a place for examination or processing; or
(iii)has been seized under this Part or under the Regulatory Powers Act as it applies in relation to this Act because of this Part;
(b)copy data held in, or accessible from, a computer, or data storage device, described in paragraph (a) to another data storage device;
(c)convert into documentary form or another form intelligible to an authorised person or person assisting:
(i)data held in, or accessible from, a computer, or data storage device, described in paragraph (a); or
(ii)data held in a data storage device to which the data was copied as described in paragraph (b); or
(iii)data held in a data storage device removed from premises under the Regulatory Powers Act as it applies in relation to this Act because of this Part.
(3)The issuing officer may grant the order if the issuing officer is satisfied that:
(a)there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device; and
(b)the specified person is:
(i)reasonably suspected of having committed the offence or contravened the civil penalty provision stated in the relevant warrant; or
(ii)the owner or lessee of the computer or device; or
(iii)an employee of the owner or lessee of the computer or device; or
(iv)a person engaged under a contract for services by the owner or lessee of the computer or device; or
(v)a person who uses or has used the computer or device; or
(vi)a person who is or was a system administrator for the system including the computer or device; and
(c)the specified person has relevant knowledge of:
(i)the computer or device or a computer network of which the computer or device forms or formed a part; or
(ii)measures applied to protect data held in, or accessible from, the computer or device.
(4)If:
(a)the computer or data storage device that is the subject of the order is seized under this Part or under the Regulatory Powers Act as it applies in relation to this Act because of this Part; and
(b)the order was granted on the basis of an application made before the seizure;
the order does not have effect on or after the seizure.
Note: An application for another order under this section relating to the computer or data storage device may be made after the seizure.
(5)If the computer or data storage device is not on the premises, the order must:
(a)specify the period within which the person must provide the information or assistance; and
(b)specify the place at which the person must provide the information or assistance; and
(c)specify the conditions (if any) determined by the issuing officer as the conditions to which the requirement on the person to provide the information or assistance is subject.
(6)A person commits an offence if the person fails to comply with the order.
Penalty:
(a)for a participant—30 penalty units; or
(b)in any other case—imprisonment for 2 years, or 120 penalty units, or both.
73ZSFCompensation for damage to electronic equipment#
(1)This section applies if:
(a)as a result of electronic equipment being operated as mentioned in section 73ZSC or 73ZSD:
(i)damage is caused to the equipment; or
(ii)the data recorded on the equipment is damaged; or
(iii)programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b)the damage or corruption occurs because:
(i)insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii)insufficient care was exercised by the person operating the equipment.
(2)The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3)However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in:
(a)the Federal Court of Australia; or
(b)the Federal Circuit and Family Court of Australia (Division 2); or
(c)a court of a State or Territory that has jurisdiction in relation to the matter;
for such reasonable amount of compensation as the court determines.
(4)In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
73ZSGCivil penalty provisions#
Enforceable civil penalty provisions
(1)The following civil penalty provisions are enforceable under Part 4 of the Regulatory Powers Act:
(a)subsection 53(3);
(b)subsection 73ZSI(4);
(c)subsection 80(5);
(d)subsection 83(3D);
(e)subsection 84(8A);
(f)subsections 110(3) and (4);
(g)subsections 114(5) and (7);
(h)subsection 185(5A);
(i)subsection 189(2A).
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Authorised applicant
(2)For the purposes of Part 4 of the Regulatory Powers Act, the CEO is an authorised applicant in relation to the civil penalty provisions mentioned in subsection (1).
Relevant court
(3)For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions mentioned in subsection (1):
(a)the Federal Court;
(b)the Federal Circuit and Family Court of Australia (Division 2);
(c)a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Liability of Crown
(4)To avoid doubt, subsection 205(2) does not prevent the Crown from being liable to pay a pecuniary penalty under a civil penalty order under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions mentioned in subsection (1).
73ZSHInfringement notices#
Provisions subject to an infringement notice
(1)Subject to subsection (2), a civil penalty provision specified in subsection 73ZSG(1) is subject to an infringement notice under Part 5 of the Regulatory Powers Act.
Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
(2)A civil penalty provision mentioned in subsection (1) is not subject to such an infringement notice, in relation to a particular contravention, if the person who is believed to have contravened the provision is:
(a)a participant; or
(b)a prospective participant; or
(c)a plan nominee; or
(d)a person doing a thing required or permitted to be done by or in relation to a child in accordance with subsection 74(1).
Infringement officer
(3)For the purposes of Part 5 of the Regulatory Powers Act, the CEO is an infringement officer in relation to the provisions mentioned in subsection (1).
Relevant chief executive
(4)For the purposes of Part 5 of the Regulatory Powers Act, the CEO is the relevant chief executive in relation to the provisions mentioned in subsection (1).
Liability of Crown
(5)To avoid doubt, subsection 205(2) does not prevent the Crown from being liable to be given an infringement notice under Part 5 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1).
73ZSICompliance notices#
(1)Subject to subsection (2), the CEO may give to a person a written notice (a compliance notice) if the CEO:
(a)is satisfied that the person is not complying with this Act, to the extent the person’s conduct relates to the Agency’s functions; or
(b)is aware of information that suggests that the person may not be complying with this Act.
Note: Section 118 sets out the functions of the Agency.
(2)The CEO must not give a compliance notice to:
(a)a participant; or
(b)a prospective participant; or
(c)a plan nominee; or
(d)a person doing a thing required or permitted to be done by or in relation to a child in accordance with subsection 74(1).
(3)The compliance notice must:
(a)set out the name of the person to which the notice is given; and
(b)set out brief details of the non-compliance or possible non-compliance; and
(c)specify action that the person must take, or refrain from taking, in order to address the non-compliance or possible non-compliance; and
(d)specify a reasonable period within which the person must take, or refrain from taking, the specified action; and
(e)if the CEO considers it appropriate—specify a reasonable period within which the person must provide the CEO with evidence that the person has taken, or refrained from taking, the specified action; and
(f)state that a failure to comply with the notice is subject to a civil penalty; and
(g)set out any other matters specified in the National Disability Insurance Scheme rules for the purposes of this paragraph.
(4)A person contravenes this subsection if the person fails to comply with a compliance notice.
Civil penalty: 60 penalty units.
(5)The CEO may, by written notice given to a person, vary or revoke a compliance notice if the CEO considers that it is appropriate in all the circumstances to do so.
(6)In deciding whether to vary or revoke a compliance notice, the CEO must consider any submissions that are received from the provider before the end of the period mentioned in paragraph (3)(d).
73ZSJEnforceable undertakings#
Enforceable provisions
(1)Subject to subsection (2), the following provisions are enforceable under Part 6 of the Regulatory Powers Act:
(a)section 46;
(b)section 55;
(c)section 57;
(d)section 110;
(e)section 114;
(f)section 189.
Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.
(2)However, the CEO must not accept or enforce an undertaking under Part 6 of the Regulatory Powers Act, or under subsection (5) of this section, in relation to a civil penalty provision mentioned in subsection (1), from or against:
(a)a participant; or
(b)a plan nominee; or
(c)a person doing a thing required or permitted to be done by or in relation to a child in accordance with subsection 74(1).
Authorised person
(3)For the purposes of Part 6 of the Regulatory Powers Act, the CEO is an authorised person in relation to the provisions mentioned in subsection (1).
Relevant court
(4)For the purposes of Part 6 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions mentioned in subsection (1):
(a)the Federal Court;
(b)the Federal Circuit and Family Court of Australia (Division 2);
(c)a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Other undertakings
(5)An authorised person may accept any of the following undertakings:
(a)a written undertaking given by a person that the person will, in order to provide compensation for loss or damage suffered as a result of a contravention or alleged contravention by the person of a provision mentioned in subsection (1), pay another person an amount worked out in accordance with the undertaking;
(b)a written undertaking given by a person in connection with a matter relating to a contravention or alleged contravention by the person of a provision mentioned in subsection (1).
(6)An undertaking under subsection (5) must be expressed to be an undertaking under that subsection.
(7)The power in subsection (5) is in addition to the power of an authorised person under subsection 114(1) of the Regulatory Powers Act.
(8)Part 6 of the Regulatory Powers Act, other than subsection 114(1), applies to an undertaking accepted under subsection (5) of this section as if it were an undertaking accepted under subsection 114(1) of the Regulatory Powers Act.
73ZSKAppointment of NDIA inspectors and NDIA investigators#
(1)The CEO may, in writing, appoint a person who is one of the following as an NDIA inspector, an NDIA investigator, or both, for the purposes of this Chapter:
(a)a member of the staff of the Agency;
(b)a person assisting the CEO;
(c)a person performing services for the Commonwealth under a contract with the Commonwealth.
(2)The CEO must not appoint a person mentioned in subsection (1) unless the CEO is satisfied that:
(a)the person has suitable training or experience to properly exercise the powers for which the person will be authorised to use; and
(b)the person is otherwise an appropriate person to be appointed as an NDIA inspector, NDIA investigator or both (as the case requires).
(3)A person appointed under this section must, in exercising powers as such, comply with any directions of the CEO.
(4)If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.
73ZSLDetermination relating to exercise of regulatory powers#
(1)The Minister must, by legislative instrument, determine conditions that must be met by an authorised person before and during the exercise of monitoring or investigation powers under Part 2 or 3 of the Regulatory Powers Act, as it applies because of section 73ZSA or 73ZSB of this Act, in relation to a participant or prospective participant.
(2)Without limiting subsection (1), the determination must specify what the authorised person must consider in relation to:
(a)the circumstances of the participant or prospective participant; and
(b)the circumstances and nature of the conduct subject to the regulatory action; and
(c)the exercise of the powers in relation to the participant or prospective participant.
Example 1: Circumstances under paragraph (a) could include the participant or prospective participant’s: ability to understand the exercise of the regulatory power; ability to comply with requirements imposed in the exercise of the regulatory power; or personal, social or environmental circumstances.
Example 2: Circumstances and nature of the conduct under paragraph (b) could include: the nature and seriousness of the conduct; whether and to what extent the relevant conduct was beyond the participant’s control; or whether there are any less intrusive means to achieve the regulatory objective.
Example 3: Considerations in relation to the exercise of the powers under paragraph (c) could include: whether a participant should be assisted by a nominee; how to ensure that information related to the exercise of regulatory powers is communicated to the participant in accessible forms; or ensuring that a participant’s disability, or reliance on supports because of disability, is not taken to mean non-cooperation or evidence of intentional non-compliance.
Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the determination (see regulations made for the purposes of paragraph 54(2)(b) of that Act).
73ZSMDetermination relating to when powers must not be exercised#
The Minister may, by legislative instrument, determine circumstances in which the authorised person must not exercise monitoring or investigation powers under Part 2 or 3 of the Regulatory Powers Act, as it applies because of section 73ZSA or 73ZSB of this Act, in relation to a participant or prospective participant.
34 Before subsection 80(1)
Insert:
Duties of nominees
35 At the end of section 80
Add:
Civil penalty
(5)A person contravenes this subsection if:
(a)the person is a nominee of a participant; and
(b)the person knowingly engages in conduct; and
(c)the conduct breaches the duty imposed by subsection (1).
Civil penalty for contravention of this subsection: 60 penalty units.
36 Before subsection 83(1)
Insert:
CEO may give nominee written notice to inform Agency
37 After subsection 83(3)
Insert:
Nominee must inform Agency
(3A)A nominee of a participant must inform the Agency, in accordance with subsections (3B) and (3C), if:
(a)either:
(i)an event or change of circumstances happens; or
(ii)the nominee becomes aware that an event or change of circumstances is likely to happen; and
(b)the event or change of circumstances is likely to affect:
(i)the ability of the nominee to act as the plan nominee or correspondence nominee of the participant (as the case may be); or
(ii)the ability of the CEO to give notices to the nominee under this Act; or
(iii)the ability of the nominee to comply with notices given to the nominee by the CEO under this Act.
(3B)For the purposes of subsection (3A), the nominee must inform the Agency as soon as reasonably practicable after:
(a)the event or change of circumstances happens; or
(b)the nominee first becomes aware that the event or change of circumstances is likely to happen.
(3C)For the purposes of subsection (3A), the nominee must inform the Agency of:
(a)the event or change in circumstance; and
(b)how the event or change in circumstance is likely to affect the following:
(i)the ability of the nominee to act as the plan nominee or correspondence nominee of the participant (as the case may be);
(ii)the ability of the CEO to give notices to the nominee under this Act;
(iii)the ability of the nominee to comply with notices given to the nominee by the CEO under this Act;
(iv)any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph.
Civil penalty
(3D)A person contravenes this subsection if:
(a)the person is subject to a requirement under subsection (3A); and
(b)the person refuses or fails to comply with the requirement.
Civil penalty: 30 penalty units.
Extension to various matters etc.
38 Before subsection 84(1)
Insert:
CEO may require nominee to give statement
39 Before subsection 84(6)
Insert:
Offence
40 After subsection 84(8)
Insert:
Civil penalty
(8A)A person contravenes this subsection if:
(a)the person is a plan nominee; and
(b)the person refuses or fails to comply with a notice under subsection (1).
Civil penalty: 30 penalty units.
(8B)Subsection (8A) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see section 96 of the Regulatory Powers Act.
Extension to various matters etc.
41 Paragraph 90(4)(a)
Omit “section 83”, substitute “subsection 83(1)”.
42 After subsection 90(4)
Insert:
(4A)The CEO may, by written instrument, suspend or cancel one or more of a nominee’s appointments if:
(a)the nominee informs the Agency under subsection 83(3A) that an event or change of circumstances has happened or is likely to happen; and
(b)having regard to that information, the CEO is satisfied that it is appropriate to do so.
43 Subsection 90(5) (heading)
Omit “a notice under”.
44 Paragraph 90(5)(a)
Omit “section 83 or 84”, substitute “subsection 83(1) or 84(1)”.
45 After subsection 90(5)
Insert:
(5A)The CEO may, by written instrument, suspend or cancel one or more of a nominee’s appointments if:
(a)the nominee is required to inform the Agency under subsection 83(3A) that an event or change of circumstances has happened or is likely to happen; and
(b)the nominee does not comply with the requirement.
46 Section 97
Omit “guilty of an offence against this Act”, substitute “liable criminally or civilly under this Act, or the Crimes Act 1914, the Criminal Code or the Regulatory Powers Act as those Acts apply in relation to this Act,”.
47 Section 98
Omit “subject to any criminal liability under this Act”, substitute “criminally liable, or liable to an action, suit or other civil proceeding, under this Act, or the Crimes Act 1914, the Criminal Code or the Regulatory Powers Act as those Acts apply in relation to this Act,”.
48 Subsection 99(1) (after table item 16B)
Insert:
| 16C | a decision to give a compliance notice to a person | subsection 73ZSI(1) | CEO |
| 16D | a decision to vary or revoke a compliance notice | subsection 73ZSI(5) | CEO |
49 Paragraph 109(3)(a)
Omit “subsection 110(1) or (2)”, substitute “subsection 110(1), (2), (3) or (4)”.
50 Section 110 (heading)
Omit “Offence—potential”, substitute “Potential”.
51 Before subsection 110(1)
Insert:
Offences
52 At the end of section 110
Add:
Civil penalties
(3)A person (the potential compensation payer) contravenes this subsection if:
(a)the potential compensation payer is given a notice under subsection 109(1) in relation to a participant or prospective participant; and
(b)before or after receiving the notice, the potential compensation payer becomes liable to pay compensation to the participant or prospective participant; and
(c)the potential compensation payer does not give written notice to the CEO of the liability within 7 days after becoming liable or receiving the notice, whichever is later.
Civil penalty: 60 penalty units.
(4)An insurer contravenes this subsection if:
(a)the insurer is given a notice under subsection 109(2) in relation to a claim by a participant or prospective participant; and
(b)before or after receiving the notice, the insurer becomes liable to indemnify the potential compensation payer, either wholly or partly, in relation to the claim; and
(c)the insurer does not give written notice to the CEO of the liability within 7 days of becoming liable or receiving the notice, whichever is later.
Civil penalty for contravention of this subsection: 60 penalty units.
53 Subsection 111(5)
Omit “(offences)”, substitute “(offences and civil penalties)”.
54 Section 114 (heading)
Omit “Offence—making”, substitute “Making”.
55 Before subsection 114(1)
Insert:
Offences
56 At the end of subsections 114(2) and (4)
Add:
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
57 At the end of section 114
Add:
Civil penalties
(5)A person (the potential compensation payer) contravenes this subsection if:
(a)the potential compensation payer has been given a notice under subsection 109(1) or 111(1) in relation to the payment of compensation to a participant or prospective participant; and
(b)the potential compensation payer makes the compensation payment to the participant or prospective participant.
Civil penalty: 60 penalty units.
(6)Subsection (5) does not apply if:
(a)in the case of a notice under section 109—the CEO has given the potential compensation payer written notice that the notice is revoked; or
(b)in the case of a notice under section 111—the potential compensation payer has paid to the Agency the amount specified in the notice; or
(c)the CEO has given the potential compensation payer written permission to pay the amount.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see section 96 of the Regulatory Powers Act.
(7)An insurer contravenes this subsection if:
(a)the insurer has been given a notice under subsection 109(2) or 111(2) in relation to a liability to indemnify a person; and
(b)the insurer makes a payment in relation to that liability.
Civil penalty: 60 penalty units.
(8)Subsection (7) does not apply if:
(a)in the case of a notice under section 109—the CEO has given the insurer written notice that the notice is revoked; or
(b)in the case of a notice under section 111—the insurer has paid to the Agency the amount specified in the notice; or
(c)the CEO has given the insurer written permission to pay the amount.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see section 96 of the Regulatory Powers Act.
58 After paragraph 118(1)(ba)
Insert:
(bb)to secure compliance with, and enforce, the provisions in relation to which Part 3C of Chapter 4 applies by exercising the powers conferred by that Part;
59 Paragraph 181E(d)
Repeal the paragraph, substitute:
(d)to secure compliance with this Act (other than in relation to matters within the Agency’s functions) through effective compliance and enforcement arrangements, including through the monitoring and investigation functions conferred on the Commissioner by Part 3B of Chapter 4;
60 Before subsection 185(1)
Insert:
CEO may give notice
61 Before subsection 185(4)
Insert:
Offence
62 At the end of subsection 185(5)
Add:
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
63 After subsection 185(5)
Insert:
Civil penalty
(5A)A financial institution contravenes this subsection if the financial institution does not comply with a notice given to it under subsection (1) or (2).
Civil penalty: 300 penalty units.
(5B)Subsection (5A) does not apply to a financial institution if the financial institution is incapable of complying with the notice.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see section 96 of the Regulatory Powers Act.
Offset of debts
64 Section 189 (heading)
Omit “Offence—refusal”, substitute “Refusal”.
65 Before subsection 189(1)
Insert:
Offence
66 After subsection 189(2)
Insert:
Civil penalty
(2A)A person contravenes this subsection if the person refuses or fails to comply with a requirement under this Division to give information or produce a document.
Civil penalty: 30 penalty units.
(2B)Subsection (2A) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see section 96 of the Regulatory Powers Act.
Reasonable excuse
67 After section 202
Insert:
202AADelegation of compliance and enforcement powers by the CEO#
(1)The CEO may, in writing, delegate the CEO’s powers and functions under Part 3C of Chapter 4 (compliance and enforcement in relation to Agency responsibilities) to APS employees of the Agency in accordance with the following table:
| Delegation of compliance and enforcement powers by CEO | ||
|---|---|---|
| Item | The CEO may delegate the following powers and functions … | to the following APS employees in the Agency … |
| 1 | any of the powers and functions under that Part, including:(a) powers under the Regulatory Powers Act in relation to the provisions of this Act; and(b) powers and functions under the Regulatory Powers Act that are incidental to a power mentioned in paragraph (a) | an SES employee, or an acting SES employee, in the Agency |
| 2 | a power or function under subsection 73ZSH(3) or (4) (infringement notices), including:(a) powers under Part 5 of the Regulatory Powers Act in relation to the provisions of this Act; and(b) powers and functions under the Regulatory Powers Act that are incidental to a power mentioned in paragraph (a) | an APS employee in the Agency who holds, or performs the duties of, an Executive Level 2, or equivalent, position |
| 3 | a power or function under section 73ZSI (compliance notices) | an APS employee in the Agency who holds, or performs the duties of, an Executive Level 1 or 2, or equivalent, position |
Note 1: The expressions SES employee, acting SES employee and APS employee are defined in section 2B of the Acts Interpretation Act 1901.
Note 2: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.
(2)Before delegating a power or function under subsection (1) to an APS employee covered by item 2 or 3 of the table in that subsection, the CEO must have regard to:
(a)if the power or function is delegated to an APS employee holding, occupying, or performing the duties of, a specified office or position—whether the office or position is sufficiently senior for the employee to exercise the power or perform the function; or
(b)otherwise—whether the employee has appropriate qualifications or expertise to exercise the power or perform the function.
(3)A person exercising powers or performing functions under a delegation under subsection (1) must comply with any directions of the CEO.
68 Section 202B (at the end of the heading)
Add “by the Commissioner”.
69 Subsection 202B(1)
After “(compliance and enforcement”, insert “in relation to Commissioner functions”.
70 Subsection 202B(1) (table heading)
Repeal the heading, substitute:
Delegation of compliance and enforcement powers by Commissioner
70A Subsection 202B(1) (at the end of the table)
Add:
| 4 | a power or function under section 73ZN (banning orders), 73ZO (variation or revocation of banning orders), 73ZOA (anti-promotion orders) or 73ZOC (variation or revocation of anti-promotion orders) | an APS employee in the Commission who holds, or performs the duties of, an Executive Level 2, or equivalent, position |
70B Subsection 202B(2)
Omit “or 3”, substitute “, 3 or 4”.
71 Subsection 205(3)
Omit “or 73ZL”, substitute “, 73ZL, 73ZSG or 73ZSH”.
72 Section 205 (note)
Repeal the note, substitute:
Note: Sections 73ZK and 73ZSG deal with civil penalty orders and sections 73ZL and 73ZSH deal with infringement notices.
73 Subsection 209(8) (table item 4, column headed “Description”, after paragraph (t))
Insert:
(ta) paragraph 73ZSI(3)(g);
74 Application of amendments
(1) Subsection 53(3) of the National Disability Insurance Scheme Act 2013, as inserted by this Part, applies in relation to a person if the person becomes subject to a requirement under subsection (1) of that section on or after the commencement of this item.
(2) Subsection 84(8A) of the National Disability Insurance Scheme Act 2013, as inserted by this Part, applies in relation to a person if the person is given a notice under subsection (1) of that section on or after the commencement of this item.
(3) Subsection 110(3) of the National Disability Insurance Scheme Act 2013, as inserted by this Part, applies in relation to a person if:
(a)the person is given a notice under subsection 109(1) of that Act on or after the commencement of this item; and
(b)the person becomes liable as mentioned in paragraph 110(3)(a) of that Act (as inserted by this Part) on or after the commencement of this item.
(4) Subsection 110(4) of the National Disability Insurance Scheme Act 2013, as inserted by this Part, applies in relation to an insurer if:
(a)the insurer is given a notice under subsection 109(2) of that Act on or after the commencement of this item; and
(b)the insurer becomes liable as mentioned in paragraph 110(3)(b) of that Act (as inserted by this Part) on or after the commencement of this item.
(5) Subsection 114(5) of the National Disability Insurance Scheme Act 2013, as inserted by this Part, applies in relation to a person if the person is given a notice under subsection 109(1) or 111(1) in relation to the payment of compensation to a participant or prospective participant on or after the commencement of this item.
(6) Subsection 114(7) of the National Disability Insurance Scheme Act 2013, as inserted by this Part, applies in relation to an insurer if the insurer is given a notice under subsection 109(2) or 111(2) in relation to in relation to a liability to indemnify a person on or after the commencement of this item.
(7) Subsection 185(5A) of the National Disability Insurance Scheme Act 2013, as inserted by this Part, applies in relation to a financial institution if the financial institution is given a notice under subsection (1) or (2) of that section on or after the commencement of this item.
(8) Subsection 189(2A) of the National Disability Insurance Scheme Act 2013, as inserted by this Part, applies in relation to a person if the person becomes subject to a requirement under Division 3 of Part 1 of Chapter 7 of that Act on or after the commencement of this item.
(9) The amendments made by this Part, other than the amendments referred to in subitems (1) to (8), apply in relation to conduct engaged in on or after the commencement of this item.
Part 3 · Information gathering powers
National Disability Insurance Scheme Act 2013#
76 At the end of subsection 53(2)
Add:
; (f) the functions of the Agency.
77 Before subsection 54(2)
Insert:
Contents of notice
78 At the end of subsection 54(2)
Add:
; (f) that failure to comply with the notice may expose the person to a civil penalty under subsection 53(3); and
(g)that the person is not required to give the information or produce the document if doing so might tend to incriminate the person or expose the person to a penalty.
79 At the end of section 54
Add:
Notice may require person to appear and answer questions
(4)The notice:
(a)may require the person to give the information by appearing before a specified Agency officer to answer questions; and
(b)if it does—must specify a time and place at which the person is to appear, which must be at least 14 days after the notice is given.
80 Paragraph 56(2)(d)
Repeal the paragraph, substitute:
(d)if the notice is given by the CEO:
(i)the Agency officer to whom the information is to be given or the document is to be produced; and
(ii)that failure to comply with the notice may be an offence under subsection 57(1); and
(iii)if the person is an individual—that the individual is not required to give the information or produce the document if doing so might tend to incriminate the individual or expose the individual to a penalty; and
81 Paragraph 118(1)(ba)
Omit “and respond”, substitute “, respond and assist in the prosecution of criminal activity in relation”.
82 Application provision
The amendments of sections 53, 54 and 56 of the National Disability Insurance Scheme Act 2013 made by this Part apply in relation to a notice given on or after the day this item commences.
Part 4 · Retention of records
45BKeeping and retaining records relating to claims etc.#
NDIS providers
(1)An NDIS provider must, for the period mentioned in subsection (2), keep and retain a record that relates to:
(a)a claim for the payment of an NDIS amount; or
(b)the provision of an NDIS support to which a claim for the payment of an NDIS amount relates;
if the record is of a kind prescribed by the National Disability Insurance Scheme rules.
Note: See also subsection 182(4) (debts due to the Agency).
(2)The period is:
(a)unless paragraph (b) applies—the period of 7 years beginning on the day the claim is made; or
(b)if the National Disability Insurance Scheme rules prescribe a period (the shorter period) that ends before the end of the period mentioned in paragraph (a)—the shorter period.
(3)A person contravenes this subsection if:
(a)the person is subject to a requirement under subsection (1) to keep and retain a record for a period; and
(b)the person refuses or fails to comply with the requirement.
Civil penalty: 120 penalty units.
(4)Subsection (3) does not apply to a person if the circumstances prescribed by the National Disability Insurance Scheme rules apply to the person.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see section 96 of the Regulatory Powers Act.
Participants
(5)A participant who makes a claim for the payment of an NDIS amount must, for the period mentioned in subsection (6), keep and retain a record that relates to:
(a)the claim; or
(b)the provision of an NDIS support to which the claim relates;
if the record is of a kind prescribed by the National Disability Insurance Scheme rules.
Note: See also subsection 182(4) (debts due to the Agency).
(6)The period is:
(a)unless paragraph (b) applies—the period of 3 years beginning on the day the claim is made; or
(b)if the National Disability Insurance Scheme rules prescribe a period (the shorter period) that ends before the end of the period mentioned in paragraph (a)—the shorter period.
Other persons
(7)If a person, who is not an NDIS provider or a participant, makes a claim for the payment of an NDIS amount, the person must, for the period mentioned in subsection (8), keep and retain a record that relates to:
(a)the claim; or
(b)the provision of an NDIS support to which the claim relates;
if the record is of a kind prescribed by the National Disability Insurance Scheme rules.
Note: See also subsection 182(4) (debts due to the Agency).
(8)The period is:
(a)unless paragraph (b) applies—the period of 5 years beginning on the day the claim is made; or
(b)if the National Disability Insurance Scheme rules prescribe a period (the shorter period) that ends before the end of the period mentioned in paragraph (a)—the shorter period.
Language requirements
(9)If a person is required to keep and retain a record in accordance with this section, the record must be in English, or be readily accessible and convertible into English.
84 Subsections 46(2) and (3)
Repeal the subsections.
85 Paragraph 92(1)(a)
Omit “subsection 46(2)”, substitute “subsection 45B(7)”.
86 Subsection 182(4)
Repeal the subsection, substitute:
(4)An amount that is equal to an NDIS amount is a debt due to the Agency by a person if:
(a)the person makes a claim for the payment of the NDIS amount; and
(b)the person receives the NDIS amount; and
(c)the person is required under section 45B to keep and retain a record that relates to the claim, or the provision of an NDIS support to which the claim relates, for a period; and
(d)the person does not comply with the requirement; and
(e)the person cannot otherwise demonstrate an entitlement to receive the NDIS amount.
87 Subsection 209(8) (table item 4, column headed “Description”, paragraph (c))
Omit “46”, substitute “45B”.
88 Application of amendments
Section 45B of the National Disability Insurance Scheme Act 2013, as inserted by this Part, applies in relation to a claim for the payment of an NDIS amount that is made on or after the commencement of this item.
Part 5 · Reducing claim times
National Disability Insurance Scheme Act 2013#
89 Paragraph 45A(5)(a)
Omit “2 years”, substitute “90 days”.
Part 6 · Registered plan management providers
National Disability Insurance Scheme Act 2013#
90 Section 9 (definition of registered plan management provider)
Omit “paragraph 73E(2)(a)”, substitute “subsection 73E(2A)”.
91 Section 9
Insert:
(2A)Subject to subsection 73EA(1), a person may be registered to manage the funding of supports under participants’ plans.
(2B)Despite subsections (1), (2) and (2A):
(a)the Commissioner must not register a person under subsection (2) if the person is:
(i)registered under subsection (2A); or
(ii)applying to be registered as mentioned in paragraph 73C(1)(b); and
(b)the Commissioner must not register a person under subsection (2A) if the person is:
(i)registered under subsection (2); or
(ii)applying to be registered as mentioned in paragraph 73C(1)(a) or (c) or subsection 73C(2).
96 Subsection 73E(3)
Omit “and (2)”, substitute “, (2) and (2A)”.
97 After section 73E
Insert:
73EARegistration as a registered plan management provider#
(1)A person must not be registered to manage the funding of supports under participants’ plans unless a deed of arrangement that meets the requirements in subsection (2) is in force between the person and the Agency.
(2)A deed of arrangement must include the following:
(a)standards and processes to be met by the person in relation to integrity and governance, including reporting requirements to the Agency;
(b)standards to be met by the person in relation to staff, including requirements to be satisfied in relation to key personnel of the person;
(c)requirements to be met by the person for the handling and submitting of claims to the Agency, including verification of identity and verification of the provision of supports;
(d)standards and requirements to be met by the person in relation to information and communications technology and systems;
(e)requirements to be met by the person and key personnel of the person in relation to related parties and managing and divesting conflicts of interest.
(2A)A person is a related party of another person in any of the following circumstances:
(a)the person is a relative of the other person (within the meaning of section 9 of the Corporations Act 2001);
(b)either person is an associated entity of the other person (within the meaning of section 50AAA of the Corporations Act 2001);
(c)circumstances prescribed by the National Disability Insurance Scheme Rules for the purposes of this paragraph.
(3)The Agency must keep a public register of registered plan management providers.
73EBRequirement to have a deed of arrangement in place#
A person contravenes this section if:
(a)the person is a registered plan management provider; and
(b)a deed of arrangement that meets the requirements in subsection 73EA(2) is not in force between the person and the Agency; and
(c)the person manages the funding of supports under a participant’s plan.
Civil penalty: 250 penalty units.
98 At the end of subsection 73F(2)
Add:
; (j) if the person is a registered plan management provider—a condition that the person must not provide any supports or services other than plan management under the NDIS.
99 After paragraph 73ZK(1)(h)
Insert:
(ha)section 73EB;
100 Subsection 209(8) (table item 4, column headed “Description”, after paragraph (a))
Insert:
(aaa) paragraph (c) of the definition of related party in subsection 73EA(2A);
101 Transitional—registered plan management providers
Revocation of existing registrations
(1) The Commissioner may, in writing, revoke the registration of a person to manage the funding of supports under participants’ plans if:
(a)immediately before this item commences, the person was registered to manage the funding of supports under participants’ plans; and
(b)at a time after this item commences, a deed of arrangement that meets the requirements in subsection 73EA(2) of the National Disability Insurance Scheme Act 2013 is not in force between the person and the Agency.
Application of civil penalty provisions during transition period
(2) Section 73EB of the National Disability Insurance Scheme Act 2013, as in force after this item commences, does not apply in relation to conduct engaged in during the period of 6 months beginning on the day this item commences by a person if:
(a)immediately before this item commences, the statement of supports in a participant’s plan provides that funding for supports is to be managed wholly, or to any extent, by a registered plan management provider nominated by the participant; and
(b)the person is that nominated provider; and
(c)the conduct is management of funding for supports under the plan in accordance with the statement of supports.
Application of conditions during transition period
(3) If, immediately before this item commences, an NDIS provider is a registered plan management provider, paragraph 73F(2)(j) of the National Disability Insurance Scheme Act 2013, as in force after this item commences, does not apply in relation to the provider during the period of 6 months beginning on the day this item commences.
Part 7 · Immunity from producing documents or information
67GProduction of documents or information to courts etc.#
General rule
(1)A person is not required to produce a document, or disclose any information, matter or thing, to a court, tribunal, authority or other person or entity having the power to make such a requirement, if:
(a)the person is, or has been, a person mentioned in subsection (2); and
(b)the document, information, matter or thing has come to the knowledge, or into the possession, or to the notice, of the person because of:
(i)the performance or exercise of the person’s duties, functions or powers under this Act; or
(ii)the performance of services by the person for the Agency or the Commission.
(2)Each of the following is a person for the purposes of paragraph (1)(a):
(a)the CEO;
(b)a Board member;
(c)the Commissioner;
(d)a member of the Advisory Council;
(e)the scheme actuary;
(f)the reviewing actuary;
(g)an Agency officer;
(h)a Commission officer;
(i)a consultant engaged under section 171 or 181V;
(j)a person performing services:
(i)for the Agency under a contract with the Agency; or
(ii)for the Commission under a contract with the Commission.
(3)For the avoidance of doubt, a requirement to produce a document, or disclose any information, matter or thing, includes a requirement to produce or disclose the document, information, matter or thing:
(a)in writing; and
(b)by means of answering questions or giving evidence in an appearance before a person or entity; and
(c)by any other means.
Exceptions
(4)Subsection (1) does not apply to the extent that the production or disclosure is necessary for the purposes of:
(a)this Act or a legislative instrument made under this Act; or
(b)the Australian Crime Commission Act 2002; or
(c)the National Anti-Corruption Commission Act 2022; or
(d)the Royal Commissions Act 1902.
Part 8 · Prohibition on inducements
National Disability Insurance Scheme Act 2013#
103 Section 9
Insert:
cash-like products includes the following:
(a)a gift card, store card, voucher or similar article (whether in a physical or electronic form);
(b)a money order, postal order or similar order (whether in a physical or electronic form);
(c)digital currency.
104 After Division 4 of Part 3A of Chapter 4
Insert:
Division 4A · Prohibition on inducements
73VAInducement to provide supports etc. prohibited#
General prohibition
(1)An NDIS provider contravenes this subsection if:
(a)the provider:
(i)gives, or agrees or offers to give, a gift, benefit or other thing to a person; or
(ii)causes a gift, benefit or other thing to be given or offered to a person; and
(b)the giving, or agreeing or offering to give, the gift, benefit or thing is not the provision of a support or service to a participant; and
(c)the gift, benefit or thing is reasonably likely to induce the person to engage the provider to:
(i)provide, or continue to provide, a support or service to a participant under the participant’s plan; or
(ii)provide an additional support or service to a participant under the participant’s plan; or
(iii)increase the amount or intensity of a support or service the provider provides to a participant under the participant’s plan; or
(iv)manage, or continue to manage, the funding for supports under a participant’s plan.
Note: See section 42 for the meaning of managing the funding for supports under a participant’s plan.
(2)For the purposes of subsection (1), it does not matter whether the person is the participant.
Exception—legitimate pricing practices
(3)Subsection (1) does not apply in relation to an NDIS provider giving or offering, or agreeing or causing to give or offer, a discount, fee reduction or other benefit if the discount, fee reduction or other benefit is part of a legitimate pricing practice engaged in by the NDIS provider.
(4)For the purposes of subsection (3), the National Disability Insurance Scheme rules may prescribe:
(a)a practice that is, or is not, a legitimate pricing practice; and
(b)conditions that must be complied with in order for a practice to be a legitimate pricing practice.
Exception—merchandise of an NDIS provider
(5)Subsection (1) does not apply in relation to an NDIS provider giving or offering, or agreeing or causing to give or offer, merchandise of the NDIS provider.
(6)For the purposes of subsection (5), the National Disability Insurance Scheme rules may prescribe things that are, or are not, merchandise of an NDIS provider.
Exception—permitted conduct of NDIS provider
(7)Subsection (1) does not apply in relation to an NDIS provider giving or offering, or agreeing or causing to give or offer, a gift, benefit or other thing if:
(a)the doing of that act is within a class of conduct (permitted conduct) of a kind prescribed by the National Disability Insurance Scheme rules; and
(b)the requirements (if any) prescribed by the National Disability Insurance Scheme rules for that class of permitted conduct are met in relation to the provider.
National Disability Insurance Scheme rules may not prescribe giving of alcohol etc. as permitted conduct
(8)The National Disability Insurance Scheme rules made for the purposes of paragraph (7)(a) of this section may not prescribe as permitted conduct the giving or offering of, or agreeing or causing to give or offer, any of the following:
(a)alcohol;
(b)pharmaceuticals and drugs, the possession of which is a contravention of a law of the Commonwealth, a State or a Territory;
(c)any of the following (within the meaning of the Public Health (Tobacco and Other Products) Act 2023):
(i)cigarettes;
(ii)cigars;
(iii)tobacco products;
(iv)tobacco product accessories;
(v)e-cigarettes;
(vi)e-cigarette accessories;
(e)electronic devices.
Offence
(9)A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 2 years or 120 penalty units (or both).
Civil penalty
(10)A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty:
(a)for a serious contravention by an NDIS provider—10,000 penalty units; or
(b)in any other case—250 penalty units.
105 Subsection 209(8) (table item 4, column headed “Description”, after paragraph (l))
Insert:
(la)subsections 73VA(4), (6) and (7);
Part 9 · Additional penalties for fraudulent conduct
National Disability Insurance Scheme Act 2013#
106 Division 4 of Part 1 of Chapter 4
Repeal the Division, substitute:
Division 4 · Penalties for fraudulent conduct
59AFalse or misleading statements, information or documents to the Commission#
(1)A person contravenes this subsection if:
(a)the person makes a statement or provides information or a document to the Commissioner or a Commission officer; and
(b)the person does so knowing that the statement, information or document:
(i)is false or misleading; or
(ii)omits any matter or thing without which the statement, information or document is misleading; and
(c)the statement is made, or the information or document is provided, for the purposes of this Act (other than in, or in connection with, an application for registration).
Note: For false or misleading information or documents provided in, or in connection with, an application for registration, see section 73D.
Offence
(2)A person commits an offence if the person contravenes subsection (1).
Penalty:
(a)for a serious contravention by an NDIS provider—imprisonment for 5 years or 1,000 penalty units, or both; or
(b)in any other case—imprisonment for 12 months or 120 penalty units, or both.
Civil penalty
(3)A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty:
(a)for a serious contravention by an NDIS provider—10,000 penalty units; or
(b)in any other case—120 penalty units.
Defences
(4)Subsection (1) does not apply:
(a)as a result of subparagraph (1)(b)(i) if the statement, information or document is not false or misleading in a material particular; or
(b)as a result of subparagraph (1)(b)(ii) if the statement, information or document did not omit any matter or thing without which the statement, information or document is misleading in a material particular.
Note: A defendant bears an evidential burden in relation to a matter in this subsection: see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.
(5)Subsection (1) does not apply if:
(a)the person is a participant or a prospective participant; and
(b)before the statement was made, or information or document was provided, the Commissioner or a Commission Officer did not take reasonable steps to inform the person of the existence of the offence against subsection (2).
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.
(6)For the purposes of subsection (5), it is sufficient if the following form of words is used:
“Giving false or misleading information is a serious offence”.
59ABFalse or misleading statements, information or documents to the Agency#
(1)A person contravenes this subsection if:
(a)the person makes a statement or provides information or a document to the Agency or an Agency officer; and
(b)the person does so knowing that the statement, information or document:
(i)is false or misleading; or
(ii)omits any matter or thing without which the statement, information or document is misleading; and
(c)any of the following subparagraphs apply:
(i)the statement is made, or the information or document is provided, in or in connection with a request under Part 1 of Chapter 3;
(ii)the statement is made, or the information or document is provided, to a person who is exercising powers or performing functions under, or in connection with, Part 2 of Chapter 3;
(iii)the statement is made, or the information or document is provided, in compliance or purported compliance with a requirement under Division 1 or 2 of Part 1, or Division 1 of Part 5, of Chapter 4.
Note: See sections 97 and 98 for protections of nominees against criminal or civil liability in certain circumstances.
Offence
(2)A person commits an offence if the person contravenes subsection (1).
Penalty:
(a)for a serious contravention by an NDIS provider—imprisonment for 5 years or 1,000 penalty units, or both; or
(b)in any other case—imprisonment for 12 months or 120 penalty units, or both.
Civil penalty
(3)A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty:
(a)for a serious contravention by an NDIS provider—10,000 penalty units; or
(b)in any other case—120 penalty units.
Defences
(4)Subsection (1) does not apply:
(a)as a result of subparagraph (1)(b)(i) if the statement, information or document is not false or misleading in a material particular; or
(b)as a result of subparagraph (1)(b)(ii) if the statement, information or document did not omit any matter or thing without which the statement, information or document is misleading in a material particular.
Note: A defendant bears an evidential burden in relation to a matter in this subsection: see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.
(5)Subsection (1) does not apply if:
(a)the person is a participant or a prospective participant; and
(b)before the statement was made, or information or document was provided, the Agency or an Agency officer did not take reasonable steps to inform the person of the existence of the offence against subsection (2).
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.
(6)For the purposes of subsection (5), it is sufficient if the following form of words is used:
“Giving false or misleading information is a serious offence”.
59ACObtaining etc. payment that is not payable#
(1)A person contravenes this subsection if:
(a)the person engages in conduct that results in:
(i)a payment being made to the person or another person that is, or purports to be, a payment of an NDIS amount; or
(ii)an NDIS amount becoming payable or purportedly payable to, or in respect of, the person or another person; and
(b)the person knows that:
(i)the person or other person is not entitled to the payment of the NDIS amount; or
(ii)the NDIS amount paid or payable, is in excess of the amount that the person or other person is entitled to.
Offence
(2)A person commits an offence if the person contravenes subsection (1).
Penalty:
(a)for a serious contravention by an NDIS provider—imprisonment for 5 years or 1,000 penalty units, or both; or
(b)in any other case—imprisonment for 12 months or 120 penalty units, or both.
59ADObtaining etc. payment through fraud#
(1)A person contravenes this subsection if:
(a)the person engages in conduct that results in:
(i)a payment being made to the person or another person that is, or purports to be, a payment of an NDIS amount; or
(ii)an NDIS amount becoming payable or purportedly payable to, or in respect of, the person or another person; and
(b)the person knows that:
(i)the person or other person is not entitled to the payment of the NDIS amount; or
(ii)the NDIS amount paid or payable, is in excess of the amount that the person or other person is entitled to; and
(c)the person does so dishonestly, by a deception or by means of impersonation.
Offence
(2)A person commits an offence if the person contravenes subsection (1).
Penalty:
(a)for a serious contravention by an NDIS provider—imprisonment for 10 years or 2,000 penalty units, or both; or
(b)in any other case—imprisonment for 5 years or 1,000 penalty units, or both.
Dishonesty
(3)In a prosecution for an offence against subsection (2), the determination of dishonesty is a matter for the trier of fact.
Definitions
59AEConcealing, disposing etc. records required to be kept#
A person commits an offence if:
(a)the person is required under the Act to keep a record; and
(b)the person:
(i)conceals, disposes of, mutilates, alters or falsifies the record; or
(ii)causes or directs another person to conceal, dispose of, mutilate, alter or falsify the record; and
(c)the person does so with intent to:
(i)defraud; or
(ii)prevent, delay or obstruct the carrying out of an audit, review, investigation, monitoring, compliance or enforcement activity under the Act.
Penalty: Imprisonment for 2 years or 240 penalty units, or both.
59AFSerious contraventions of offences#
(1)If the prosecution intends to prove a serious contravention of an offence against subsection 59A(2), 59AB(2), 59AC(2) or 59AD(2), the charge must allege the serious contravention of that provision.
Note: For a serious contravention of a provision of this Act: see subsection 11B(1).
(2)In order to prove a serious contravention of subsection 59A(2), 59AB(2), 59AC(2) or 59AD(2), the prosecution must prove:
(a)a circumstance mentioned in paragraph 11B(1)(a) or (b) exists in relation to the defendant’s contravention of the provision; and
(b)the defendant knew of or was reckless as to the existence of the circumstance.
Alternative verdict
(3)In a prosecution for a serious contravention of an offence against subsection 59A(2), 59AB(2), 59AC(2) or 59AD(2), the trier of fact may find the defendant not guilty of that offence but guilty of an offence against that subsection if:
(a)the trier of fact:
(i)is not satisfied that the defendant is guilty of a serious contravention of the offence; but
(ii)is satisfied beyond reasonable doubt that the defendant is guilty of the offence; and
(b)the defendant has been accorded procedural fairness in relation to that finding of guilt.
107 Subparagraph 73ZF(1)(a)(i)
Repeal the subparagraph, substitute:
(b)an offence provision in:
(i)section 59A or 59AE; or
(ii)Part 3A, or this Part, of this Chapter; or
109 Paragraph 73ZK(1)(c)
Repeal the paragraph, substitute:
(c)subsection 59A(3);
110 Subsection 73ZL(1)
Omit “sections 59A and”, substitute “subsection 59A(3) and section”.
111 Paragraph 73ZSA(1)(c)
Repeal the paragraph, substitute:
(c)Part 1 of this Chapter (other than sections 55A and 59A);
112 After subparagraph 73ZSB(1)(a)(ii)
Insert:
(b)an offence provision in this Act other than in:
(i)section 59A; or
(ii)Part 3B of this Chapter;
114 After paragraph 73ZSG(1)(a)
Insert:
73ZSGASerious contraventions of civil penalty provisions#
(1)If an authorised applicant is applying under the Regulatory Powers Act for a civil penalty order in relation to a serious contravention of a civil penalty provision mentioned in subsection 73ZSG(1), the application under subsection 82(1) of that Act must specify the relevant serious contravention.
(2)If, in proceedings for a civil penalty order in relation to a serious contravention of a provision mentioned in subsection 73ZSG(1), the relevant court:
(a)is not satisfied that the person has committed a serious contravention of that provision; and
(b)is satisfied that the person has contravened that provision;
the relevant court may make a civil penalty order against the person not for the serious contravention but for the contravention of that provision.
116 Subsection 73ZSH(1)
After “73ZSG(1)”, insert “(other than subsection 59AB(3))”.
117 At the end of Division 3 of Part 5 of Chapter 4
Add:
98AOffence for abuse of position as nominee#
Offence for current nominee
(1)A person commits an offence if:
(a)the person is a plan nominee or a correspondence nominee of a participant; and
(b)the person:
(i)exercises any influence that the person has in their capacity as a plan nominee or a correspondence nominee of a participant; or
(ii)engages in any conduct when doing a thing under section 78 or 79 in the person’s capacity as a plan nominee or a correspondence nominee of a participant; or
(iii)uses any information that the person obtained in the person’s capacity as a plan nominee or a correspondence nominee of a participant; and
(c)the person does so with the intention of dishonestly:
(i)obtaining a benefit for the person or any other person; or
(ii)causing a detriment to another person.
Penalty: 120 penalty units.
Offence for former nominee
(2)A person commits an offence if:
(a)the person has ceased to be a plan nominee or a correspondence nominee of a participant; and
(b)the person obtained information in the person’s capacity as a plan nominee or a correspondence nominee of a participant; and
(c)the person uses the information with the intention of dishonestly:
(i)obtaining a benefit for the person or any other person; or
(ii)causing a detriment to another person.
Penalty: 120 penalty units.
Dishonesty
(3)In a prosecution for an offence against subsection (1) or (2), the determination of dishonesty is a matter for the trier of fact.
Definitions
(4)In this section:
dishonest means:
(a)dishonest according to the standards of ordinary people; and
(b)known by the defendant to be dishonest according to the standards of ordinary people.
118 Subsection 200(1)
After “offence against”, insert “Division 4 of Part 1 of Chapter 4 (other than subsection 59A(2)) or”.
119 Application of amendments
Division 4 of Part 1 of Chapter 4 and section 98A of the National Disability Insurance Scheme Act 2013, as inserted by this Part, apply in relation to conduct engaged in on and after the commencement of this item.
Schedule 3 · Governance arrangements
Part 1 · Decision-making on pricing
1A After section 32K
Insert:
32KAIncreasing funding for stated supports under new framework plans to reflect changes in maximum amounts under section 45C#
(2)The Minister may, by legislative instrument, determine, in relation to new framework plans generally, or a class of new framework plans:
(a)an increase, or a method for working out an increase, in relation to a specified stated support or a specified class of stated supports; and
(b)a day, or a method for working out a day, (the indexation day) on which the increase takes effect; and
(c)a method for applying the increase on the indexation day.
Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the determination (see regulations made for the purposes of paragraph 54(2)(b) of that Act).
(3)The Minister must determine an increase or method for working out an increase by reference to whether the making or variation of the determination under section 45C has resulted in a higher maximum amount than was previously the case for the acquisition or provision of the specified support or the supports in the specified class.
(4)On the indexation day, the determination has the effect, in relation to each new framework plan to which it applies, that the total funding amount for the specified stated support or specified class is taken to be increased in accordance with the method determined for the purposes of paragraph (2)(c).
Note: This means that the total funding amount for the support or class of supports, as increased, is the total funding amount that has effect for the purposes of references in this Act to the total amount of funding provided under a plan for a stated support or class of stated supports (for example, in paragraphs 45(4)(b)).
(5)The determination does not have the effect of altering, or requiring alterations to, the text of the plans to which it applies.
32KBIncreasing funding for flexibly funded supports under new framework plans to reflect changes in maximum amounts under section 45C#
(2)The Minister may, by legislative instrument, determine, in relation to new framework plans generally, or a class of new framework plans:
(a)an increase, or a method for working out an increase, in relation to a category of NDIS supports; and
(b)a day, or a method for working out a day, (the indexation day) on which the increase takes effect; and
(c)a method for applying the increase on the indexation day.
Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the determination (see regulations made for the purposes of paragraph 54(2)(b) of that Act).
(3)The Minister must determine an increase or method for working out an increase by reference to whether the making or variation of the determination under section 45C has resulted in a higher maximum amount than was previously the case for the acquisition or provision of the category of supports to which the determination relates.
(4)On the indexation day, if the category of supports to which the determination relates is included in the needs assessment report for a new framework plan to which the determination applies, the determination has the following effect in relation to the plan:
(a)the portion of the flexible funding under the plan that is attributable to the category of supports is taken to be increased in accordance with the method determined for the purposes of paragraph (2)(c); and
(b)the total funding amount for flexible funding under the plan is taken to be correspondingly increased.
Note: This means that the total funding amount for the category of supports as increased, is the total funding amount that has effect for the purposes of references in this Act to the total amount of funding provided under a plan for a stated support or class of stated supports (for example, in paragraphs 45(4)(a)).
(5)The determination does not have the effect of altering, or requiring alterations to, the text of the plans to which it applies.
National Disability Insurance Scheme Act 2013#
1 Subsection 33(2F)
After “or incorporating”, insert “, with or without modification,”.
2 After subsection 33(2F)
Insert:
(2G)Without limiting subsection (2F), that subsection applies even if the instrument or other writing was created for the purpose of being applied, adopted or incorporated by the determination. If the determination makes provision as mentioned in subsection (2F) in relation to a matter contained in an instrument or other writing created for that purpose:
(a)the Minister must ensure that the instrument or other writing is published on the Agency’s website; and
(b)the instrument or other writing is not a legislative instrument.
(2H)To the extent that the determination making provision as mentioned in subsection (2F) constitutes a subdelegation of the Minister’s power to make such determinations, that subdelegation is authorised.
3 Before section 35
Insert:
34BIncreasing funding under old framework plans to reflect changes in maximum amounts under section 45C#
(2)The Minister may, by legislative instrument, determine, in relation to old framework plans generally, or a class of old framework plans:
(a)an indexation factor, or a method for working out an indexation factor, for the funding component amount for a specified group of NDIS supports; and
(b)a day, or a method for working out a day, (the indexation day) on which the indexation factor is applied.
Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the determination (see regulations made for the purposes of paragraph 54(2)(b) of that Act).
(3)The Minister must determine the indexation factor or method by reference to whether the making or variation of the determination under section 45C has resulted in a higher maximum amount than was previously the case for the acquisition or provision of supports in the group to be specified as mentioned in paragraph (2)(a).
(4)On the indexation day, the determination has the following effect in relation to each old framework plan to which it applies:
(a)the amount of the funding component amount for supports in the specified group that is unclaimed immediately before the indexation day is taken to be increased by the indexation factor;
(b)the total funding amount is taken to be correspondingly increased.
Note: This means that the amounts as increased are the amounts that have effect for the purposes of references in this Act to a total funding amount or a funding component amount (for example, in paragraph 45(4)(c)).
(5)The determination does not have the effect of altering, or requiring alterations to, the text of the plans to which it applies.
4 Before section 46
Insert:
45CMaximum amounts payable under the National Disability Insurance Scheme—funding not managed by participants#
(1)The Minister may, by legislative instrument, determine the maximum amount, or the method for determining the maximum amount, for the acquisition or provision of an NDIS support or class of NDIS supports.
Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the determination (see regulations made for the purposes of paragraph 54(2)(b) of that Act).
(2)A determination under subsection (1) does not apply in relation to the acquisition or provision of a support or class of supports under a participant’s plan unless the funding for the support or class of supports is managed by:
(a)a registered plan management provider; or
(b)the Agency.
(3)The Agency must not pay an amount under the National Disability Insurance Scheme to any person in respect of the acquisition or provision of a support under a participant’s plan if the amount exceeds the maximum amount determined for the acquisition or provision of the support under subsection (1).
(4)The determination may also prescribe circumstances for the purposes of this subsection. Subsection (3) does not apply in relation to the payment of an amount if the CEO is satisfied that a prescribed circumstance exists.
(5)If a claim is made for the payment of an amount that exceeds the maximum amount specified for the acquisition or provision of a support in a determination under subsection (1), the Agency may:
(a)refuse to pay the amount; or
(b)pay the maximum amount specified for the support in the determination.
Note: The Agency refusing to pay an amount under this subsection does not, by itself, prevent a person from making a subsequent claim for the acquisition or provision of the support that does not exceed the maximum amount.
(6)A person is not entitled to the payment, from the Agency, of so much of an amount for the acquisition or provision of a support as exceeds the maximum amount specified for the acquisition or provision of the support in a determination under subsection (1).
Note: This means that so much of the payment as exceeds the maximum amount is a debt due to the Agency: see section 182.
(7)An NDIS provider must not charge more than the maximum amount determined under subsection (1) for the acquisition or provision of a support in circumstances where the determination applies in relation to the acquisition or provision.
(8)A determination under subsection (1) may specify requirements for particular processes to be undertaken by an NDIS provider or participant before supports are acquired or provided under a participant’s plan.
Note: For example, the determination may require a participant to obtain a particular number of quotes.
(9)Without limiting subsection 33(3A) of the Acts Interpretation Act 1901, a determination under subsection (1) of this section may make different provision in relation to the following:
(a)different kinds of supports or classes of supports, including, without limitation, in relation to:
(i)the intensity of the provision of the supports; or
(ii)whether the costs of providing the supports or classes of supports are greater due to the remoteness of the location in which they are provided; or
(iii)whether the supports or classes of supports are provided remotely or in person;
(b)different kinds of providers, including, without limitation, in relation to:
(i)qualifications or experience; or
(ii)whether the providers are registered NDIS providers;
(c)different kinds of participants, including, without limitation, in relation to how funding is managed under the participants’ plans;
(d)any other matters or circumstances.
(10)Without limiting subsection 33(3A) of the Acts Interpretation Act 1901, a determination under subsection (1) of this section may be of general application or be limited as provided in the determination.
(11)Despite subsection 14(2) of the Legislation Act 2003, a determination under subsection (1) of this section may make provision for or in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.
(12)Without limiting subsection (11), that subsection applies even if the instrument or other writing was created for the purpose of being applied, adopted or incorporated by the determination. If the determination makes provision as mentioned in subsection (11) in relation to a matter contained in an instrument or other writing created for that purpose:
(a)the Minister must ensure that the instrument or other writing is published on the Agency’s website; and
(b)the instrument or other writing is not a legislative instrument.
(13)To the extent that the determination making provision as mentioned in subsection (11) constitutes a subdelegation of the Minister’s power to make such determinations, that subdelegation is authorised.
(14)The Agency must, from time to time (on its own initiative or in response to a request from the Minister), provide advice about pricing of NDIS supports and classes of NDIS supports for the purposes of the Minister making determinations under subsection (1). The advice must have regard to the following considerations:
(a)the cost of safe, efficient, high-quality acquisition or provision of supports and value for money;
(b)supporting diversity and competition in the NDIS market, as far as practicable;
(c)supporting the financial sustainability of the National Disability Insurance Scheme.
(15)The advice must deal with any other matter relating to pricing of NDIS supports and classes of NDIS supports that the Minister has requested be dealt with.
(16)The advice may also deal with any other matter the CEO considers relevant to pricing of NDIS supports and classes of NDIS supports.
(16A)If the Agency provides advice to the Minister under subsection (14), the Agency must at the same time provide a summary of the advice to the Minister.
(16B)The Minister must cause a copy of advice provided to the Minister under subsection (14), or the summary of the advice provided under subsection (16A), to be tabled in each House of the Parliament within 5 sitting days after the Minister makes the determination to which the advice relates.
(17)When making a determination under subsection (1), the Minister must have regard to:
(a)any relevant advice provided by the Agency under subsection (14); and
(b)the need to ensure the financial sustainability of the National Disability Insurance Scheme; and
(c)the objects and principles of this Act.
5 After paragraph 118(1)(b)
Insert:
(baa)to provide advice about pricing of supports;
6 After subsection 121(3)
Insert:
(3AA)However, subsection (3) does not apply to a direction about the performance of the function mentioned in paragraph 118(1)(baa) (advice about pricing of supports).
7 Subsection 209(2)
After “incorporating”, insert “, with or without modification,”.
8 After subsection 209(2)
Insert:
(2AA)Without limiting subsection (2), that subsection applies even if the instrument or other writing is created for the purpose of being applied, adopted or incorporated by the National Disability Insurance Scheme rules. If the National Disability Insurance Scheme rules make provision as mentioned in subsection (2) in relation to a matter contained in an instrument or other writing created for that purpose:
(a)the Minister must ensure that the instrument or other writing is published on the Agency’s website; and
(b)the instrument or other writing is not a legislative instrument.
(2AB)To the extent that regulations making provision as mentioned in subsection (2) constitutes a subdelegation of the Minister’s power to make the National Disability Insurance Scheme rules under this Act, that subdelegation is authorised.
9 Application provision
(1) If, at the time the Minister makes the first determination under section 34B of the National Disability Insurance Scheme Act 2013, the determination under section 45C of that Act to which it relates is also the first determination under section 45C, subsection 34B(3) of that Act is taken to be replaced with subitem (2) for the purposes of making that first section 34B determination.
(2) The Minister must determine the indexation factor or method by reference to what the Minister, on the advice of the Agency, considers appropriate in all the circumstances.
Part 2 · Automation of administrative action
National Disability Insurance Scheme Act 2013#
10 Section 9
Insert:
administrative action has the meaning given by subsection 59B(3).
designated provision: see subsection 59B(2).
evaluative determination means:
(a)a discretion being exercised; or
(b)an evaluative judgement being made; or
(c)a state of mind being formed.
standard operating procedure instrument means an instrument made under subsection 59D(1).
11 At the end of Part 1 of Chapter 4
Add:
Division 5 · Automation of administrative action
59BAutomation of administrative action#
(1)The CEO may, in writing, arrange for the use, under the CEO’s oversight, of computer programs to take administrative action that may or must be taken by the CEO under a provision that is one of the following:
(a)a provision of this Act that is specified in subsection 59C(1);
(b)a provision of this Act that is specified in an instrument made under subsection 59C(2);
(c)a provision of a legislative instrument made under this Act that is specified in an instrument made under subsection 59C(2);
(d)a provision of a legislative instrument made under the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 that is specified in an instrument made under subsection 59C(2).
Note: This subsection is not intended to imply that the making of an arrangement is the only means by which a computer program may be used to take administrative action if that action would otherwise not require statutory authorisation in order to be validly taken. For example, statutory authorisation would not generally be needed if a computer program is only being used to assist a decision-maker to make a decision. Statutory authorisation would also not be needed in order to implement a provision that creates an outcome through the operation of law and does not involve an administrative decision being made, such as subsections 34A(2) and 34B(4) and section 50A.
(2)A provision covered by subsection (1) is a designated provision.
(3)Administrative action is any of the following:
(a)making, or refusing or failing to make, a decision, or a part of a decision, under a designated provision;
(b)exercising, or refusing or failing to exercise, a power under a designated provision;
(c)performing, or refusing or failing to perform, a function or duty under a designated provision;
(d)doing, or refusing or failing to do, anything (including giving a notice) related to making a decision or a part of a decision, exercising a power or performing a function or duty under a designated provision.
Note: A number of administrative actions may be covered by a particular designated provision. For example, a designated provision might provide for multiple decisions to be made as part of making a broader overarching decision. In this case, any of those administrative actions can be automated in accordance with an arrangement under subsection (1).
Evaluative administrative action
(4)Subsection (1) includes administrative action that involves one or more of the following:
(a)a discretion being exercised;
(b)an evaluative judgement being made;
(c)a state of mind being formed.
Note: Section 59D provides for the making of a standard operating procedure instrument in relation to this kind of administrative action.
CEO is treated as having taken administrative action
(5)Administrative action taken by the operation of a computer program under an arrangement under subsection (1) is treated, for all purposes, as administrative action taken by the CEO.
(6)To avoid doubt, the CEO is not prevented by subsection 100(5A) from personally reviewing a reviewable decision that the CEO is taken to have made under subsection (5) of this section.
Substituted actions
(7)The CEO may take administrative action (the substituted action) in substitution for administrative action the CEO is treated as having taken under subsection (5) if the CEO is satisfied that the administrative action taken by the operation of the computer program is not correct or preferable.
(8)The substituted action takes effect on:
(a)if the CEO specifies the day on which the substituted action takes effect (which may be earlier than the day the substituted action is taken)—that specified day; or
(b)otherwise—the day of the administrative action taken by the operation of the computer program.
(9)The day specified under paragraph (8)(a) may be earlier than the day the substituted action is taken, but not earlier than the day of the administrative action taken by the operation of the computer program.
CEO may still take administrative action
(10)An arrangement under subsection (1) does not prevent the CEO from taking administrative action under a designated provision.
Substituted action does not limit right to review or reconsideration of administrative action
(11)Subsection (7) does not limit any other provision of this Act or a legislative instrument mentioned in subsection (1) that provides for the review or reconsideration of an administrative action.
Arrangement not a legislative instrument
(12)An arrangement under subsection (1) is not a legislative instrument.
59CDesignated provisions#
Listed provisions
(1)For the purposes of paragraph 59B(1)(a), the following provisions of this Act are specified:
(a)section 33;
(b)section 45;
(c)section 45A;
(d)section 45C.
Specified provisions
(2)For the purposes of paragraphs 59B(1)(b), (c) and (d), the Minister may, by legislative instrument, specify a provision of:
(a)this Act; or
(b)a legislative instrument made under this Act; or
(c)a legislative instrument made under the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024.
(3)However, if administrative action taken under a provision involves one or more evaluative determinations, then before specifying the provision under subsection (2), the Minister must be satisfied that it is appropriate to do so.
59DCEO must make standard operating procedure instrument#
(1)The CEO must make a written instrument (a standard operating procedure instrument) if:
(a)particular administrative action is proposed to be:
(i)taken under a designated provision by the operation of a computer program (as authorised by section 59B); and
(ii)taken in relation to matters dealt with by the Agency; and
(b)the administrative action involves one or more evaluative determinations.
Content of instrument etc.
(2)If the CEO makes a standard operating procedure instrument:
(a)the instrument must not deal with matters other than evaluative determinations; and
(b)the CEO must, in relation to each evaluative determination, specify in the instrument particular circumstances in which the CEO is satisfied, if those circumstances exist or do not exist, that evaluative determination should always be made in a way specified in the instrument; and
(c)the CEO must, in specifying those circumstances, be satisfied that the instrument is consistent with how the evaluative determination may be made by the CEO.
Objective circumstances
(3)The CEO must be satisfied that the circumstances covered by paragraph (2)(b) are sufficiently objective in nature, such that their existence, or non-existence, can be ascertained by the operation of the computer program.
Computer program to be programmed consistently with instrument
(4)If the CEO makes a standard operating procedure instrument, the CEO must ensure that the arrangement under subsection 59B(1) provides for the making of each evaluative determination in a way that is consistent with the standard operating procedure instrument.
Instrument may deal with more than one administrative action
(5)A standard operating procedure instrument may deal with more than one administrative action.
CEO must publish proposed instrument
(5A)At least 7 days before making a standard operating procedure instrument, the CEO must cause a copy of the proposed instrument to be published on the Agency’s website.
Instrument is a notifiable instrument
(6)A standard operating procedure instrument is a notifiable instrument.
59EOversight and safeguards for automation of administrative action#
CEO to ensure administrative action is action that could be validly taken
(1)The CEO must take all reasonable steps to ensure that administrative action taken by the operation of a computer program under an arrangement under subsection 59B(1) is administrative action that the CEO could validly take under a designated provision.
(2)Without limiting subsection (1), the CEO must do the things (if any) determined by a legislative instrument made under subsection (9).
Note: Administrative action may still be invalid even if subsections (1) and (2) are complied with.
(3)A failure to comply with subsection (1) or (2) does not affect the validity of the administrative action taken by the operation of a computer program under an arrangement under subsection 59B(1).
Notification of decisions made by the operation of computer programs
(4)If:
(a)in accordance with section 59B, administrative action is taken by the operation of a computer program under an arrangement under subsection (1) of that section; and
(b)another provision of this Act or a legislative instrument mentioned in that subsection requires a notice of the administrative action to be given to a person;
the notice must inform the person of the fact that the administrative action was taken by the operation of a computer program.
(5)A failure to comply with subsection (4) does not affect the validity of the administrative action taken by the operation of the computer program.
Publication
(6)If the CEO makes an arrangement under subsection 59B(1) in relation to particular designated provisions, the CEO must cause a statement to be published on the Agency’s website:
(a)to the effect that the CEO has made such an arrangement; and
(b)setting out those particular designated provisions.
Details in annual report
(7)The CEO, when preparing the Agency’s annual report under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period, must include the following information in that report:
(a)the kinds of substituted actions taken by the CEO under subsection 59B(7) of this Act in that period;
(b)the kinds of administrative action taken by the operation of the computer program that the CEO was satisfied were not correct or preferable.
(8)The CEO may also include in the report any other information (other than personal information within the meaning of the Privacy Act 1988) about the operation of this Division in that period that the CEO considers appropriate.
Legislative instrument
(9)The Minister may, by legislative instrument, determine one or more things that the CEO must do for the purposes of subsection (2).
12 After subsection 202(2)
Insert:
(2A)Despite subsection (1), the CEO must not delegate any of the CEO’s powers under Division 5 of Part 1 of Chapter 4 (automation of administrative actions).
13 Application—annual reports
Subsections 59E(7) and (8) of the National Disability Insurance Scheme Act 2013, as inserted by this Part, apply in relation to an annual report under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period that begins on or after the commencement of this item.
Part 3 · Minor amendments
National Disability Insurance Scheme Act 2013#
14 Paragraph 20(2)(a)
Omit “21 days”, substitute “90 days”.
15 Paragraph 44(1)(aa)
Before “the participant”, insert “the CEO is aware that”.
16 Paragraph 44(2A)(aa)
Before “the plan nominee”, insert “the CEO is aware that”.
17 Application provision
The amendment of section 20 of the National Disability Insurance Scheme Act 2013, made by this Part, applies in relation to an access request made on or after the commencement of this item.
18 Paragraph 73ZKA(2)(b)
Omit “beyond reasonable doubt”.
19 Application provision
The amendment of subsection 73ZKA(2) of the National Disability Insurance Scheme Act 2013 made by this Part applies in relation to the making of a civil penalty order on or after the commencement of this item.
Part 4 · Whistleblower protections
National Disability Insurance Scheme Act 2013#
20 Division 7 of Part 3A of Chapter 4 (heading)
Repeal the heading, substitute:
Division 7 · Whistleblower protections
21 Before subsection 73ZA(2)
Insert:
22 Subsection 73ZA(3)
Repeal the subsection, substitute:
(3) The disclosure of the information by the discloser qualifies for protection under this Division if the disclosure is made:
(a) to a medical practitioner or psychologist; and
(b) for the purpose of obtaining medical or psychiatric care, treatment or counselling (including psychological counselling).
(4) The disclosure of the information by the discloser qualifies for protection under this Division if the disclosure is made:
(a) to an Australian legal practitioner; and
(b) for the purpose of obtaining legal advice or legal representation in connection with the operation of this Division in relation to the discloser.
(5) The disclosure of the information by the discloser qualifies for protection under this Division if the disclosure is made:
(a) to an officer or employee of a registered organisation or professional association; and
(b) for the purpose of obtaining advice or assistance from an officer or employee of the organisation or association in connection with the operation of this Division in relation to the discloser.
(6) The disclosure of the information by the discloser qualifies for protection under this Division if:
(a) the disclosure is made to a police officer; and
(b) the discloser has reasonable grounds to suspect that the information indicates that an NDIS provider has, or may have, contravened a provision of this Act.
(7) The disclosure of the information by the discloser qualifies for protection under this Division if the disclosure is made:
(a) to a Commonwealth-funded disability advocate; and
(b) for the purpose of obtaining advice or assistance from the advocate in connection with the operation of this Division in relation to the discloser.
(8) In this section:
Australian legal practitioner has the same meaning as in the Evidence Act 1995.
Commonwealth-funded disability advocate means a person, or an employee or officer of a person, that is a party to an agreement with the Commonwealth under the Disability Services and Inclusion Act 2023 in relation to the provision of advocacy supports or services.
Note: A list of Commonwealth-funded disability advocates is maintained and published by the Agency, the Commission and the Department on their respective websites.
medical practitioner means a person registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.
officer has the same meaning as in the Corporations Act 2001.
police officer means:
(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or
(b) a special member of the Australian Federal Police (within the meaning of that Act); or
(c) a member of the police force or police service of a State or Territory.
psychologist means a person registered or licensed as a psychologist under a law of a State or Territory that provides for the registration or licensing of psychologists.
registered organisation means an organisation registered, or an association recognised, under the Fair Work (Registered Organisations) Act 2009.
23 After section 73ZB
Insert:
73ZBAAClaims for protection#
(1)If, in civil or criminal proceedings (the primary proceedings) instituted against an individual in a court, the individual makes a claim (relevant to the primary proceedings) that, because of section 73ZB, the individual is not subject to any civil or criminal liability for making a particular disclosure:
(a)the individual bears the onus of adducing or pointing to evidence that suggests a reasonable possibility that the claim is made out; and
(b)if the individual discharges that onus—the party instituting the primary proceedings against the individual bears the onus of proving that the claim is not made out; and
(c)the court must deal with the claim in separate civil proceedings; and
(d)the court must adjourn the primary proceedings until the claim has been dealt with; and
(e)none of the following:
(i)any admission made by the individual in the separate civil proceedings;
(ii)any information given by the individual in the separate civil proceedings;
(iii)any other evidence adduced by the individual in the separate civil proceedings;
is admissible in evidence against the individual except in proceedings in respect of the falsity of the admission, information or evidence; and
(f)if the individual or another person gives evidence in the separate civil proceedings in support of the claim—giving that evidence does not amount to a waiver of privilege for the purposes of the primary proceedings or any other proceedings.
(2)To avoid doubt, a right under section 126K of the Evidence Act 1995 not to be compelled to give evidence is a privilege for the purposes of paragraph (1)(f) of this section.
24 At the end of section 73ZC
Add:
Burden of proof
(5)In proceedings for a civil penalty order against a person (the respondent) for a contravention of subsection (1) or (2):
(a)the applicant for the order bears the onus of adducing or pointing to evidence that suggests a reasonable possibility of the matters in:
(i)if subsection (1) applies—paragraphs (1)(a) and (b); or
(ii)if subsection (2) applies—paragraph (2)(a); and
(b)if that onus is discharged—the respondent bears the onus of proving that the claim is not made out.
Meaning of detriment
(6)In this section, detriment includes (without limitation) any of the following:
(a)dismissal of an employee;
(b)injury of an employee in the employee’s employment;
(c)alteration of an employee’s position or duties to the employee’s disadvantage;
(d)discrimination between an employee and other employees of the same employer;
(e)harassment or intimidation of a person;
(f)harm or injury to a person, including psychological harm;
(g)damage to a person’s property;
(h)damage to a person’s reputation;
(i)damage to a person’s business or financial position;
73ZDCompensation and other remedies—court orders#
A court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, subsection 73ZC(1) or (2), including any of the following orders:
(a)an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
(b)an order awarding compensation for loss, damage or injury that a person has suffered because of the contravention;
(c)an order for reinstatement of an individual;
(d)an order for exemplary damages.
26 At the end of Division 7 of Part 3A of Chapter 4
Add:
73ZDAAConcurrent operation of State and Territory laws#
This Division does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Division.
27 Application of amendments
Disclosures qualifying for protection
(1) The amendments of section 73ZA of the National Disability Insurance Scheme Act 2013 made by this Part apply in relation to a disclosure of information made on or after the commencement of this item (whether the information was obtained before, on or after that commencement).
Burden of proof
(2) Section 73ZBAA and subsection 73ZC(5) of the National Disability Insurance Scheme Act 2013, as inserted by this Part, apply in relation to a proceeding instituted on or after the commencement of this item.
Remedies
(3) Section 73ZD of the National Disability Insurance Scheme Act 2013, as substituted by this Part, applies in relation to a contravention or proposed contravention that occurs on or after the commencement of this item.
Part 5 · Debt recovery
Division 1A · Notice of debts due to the Agency
182ANotice requirements#
(1)This section applies if:
(a)a debt is due to the Agency by a person under section 182; and
(b)an arrangement for the payment of the debt has not been entered into under section 184; and
(c)the CEO does not intend to recover the debt from a financial institution under section 185.
Initial notice
(2)The CEO must give the person a written notice (the initial notice).
(3)The initial notice must specify the following:
(a)the date of the notice;
(b)the circumstances that gave rise to the debt;
(c)the value of the debt that the CEO intends to recover from the person;
(d)an invitation for the person to provide a response by written statement to the CEO in the approved form (if any);
(e)the period in which any response should be provided;
(f)the contact details for any questions concerning the debt;
(g)any other matter specified in the National Disability Insurance Scheme rules.
(4)The period specified under paragraph (3)(e) must be:
(a)for an NDIS provider—at least 14 days beginning on the date of the notice, unless circumstances specified in the National Disability Insurance Scheme rules for the purposes of this paragraph exist; or
(b)for any other person—at least 28 days beginning on the date of the notice, unless circumstances specified in the National Disability Insurance Scheme rules for the purposes of this paragraph exist.
Debt determination notice
(5)After the end of the period specified under paragraph (3)(e), the CEO must give the person a further written notice (the debt determination notice).
(6)The debt determination notice must specify:
(a)if the CEO does not intend to recover the debt from the person—whether this is because:
(i)the debt does not exist; or
(ii)the CEO intends to write off the debt or waive the Agency’s right to recover the debt in accordance with Division 4; or
(b)if the CEO intends to recover the debt from the person—the following:
(i)the date of the notice;
(ii)that the CEO intends to take action for the recovery for the debt under Division 2;
(iii)the circumstances that gave rise to the debt;
(iv)the date on which the debt arose;
(v)the outstanding amount of the debt as at the date of the notice;
(vi)the date on which the outstanding amount is due and payable;
(vii)the options available for repaying the debt;
(viii)information about writing off or waiving the debt;
(ix)the contact details for any questions concerning the debt;
(x)if the person provided a written statement in response to the initial notice—how this response was considered in informing the decision to recover the debt;
(xi)any other matter specified in the National Disability Insurance Scheme rules.
29 Paragraph 193(a)
Omit “$200”, substitute “$500”.
30 Subsection 209(8) (table item 4, column headed “Description”, after paragraph (w))
Insert:
(wa) section 182A;
31 Application provision
Section 182A of the National Disability Insurance Scheme Act 2013, as inserted by this Part, applies in relation to a debt that arises on or after commencement of this item.
Schedule 4 · New framework planning
National Disability Insurance Scheme Act 2013#
1 At the end of section 32B
Add:
(4)The CEO may revoke a notice given to a participant under subsection (2) if the CEO is satisfied it is not reasonably practicable to facilitate the preparation of new framework plans for the participant.
(5)If a notice to a participant is so revoked:
(a)the CEO must inform the participant in writing of the revocation and the effect of the revocation; and
(b)for the purposes of this Act, the notice is taken never to have been given to the participant.
(6)The revocation under subsection (4) of a notice given to a participant under subsection (2) does not prevent the CEO giving the participant a subsequent notice under subsection (2).
1A Paragraph 32D(2)(f)
Omit “Division 3);”, substitute “Division 3), and the funding (if any) that will be provided under the plan to or in relation to the participant for that management;”.
2 After paragraph 32H(2)(d)
Insert:
; (e) a requirement that the CEO be satisfied of matters relating to the acquisition or provision of the supports specified in the National Disability Insurance Scheme rules for the purposes of this paragraph.
3 Subsection 32K(1)
Repeal the subsection, substitute:
(1A)The following amounts specified in the reasonable and necessary budget for a participant’s plan are to be worked out in accordance with subsection (1):
(a)the total funding amount for flexible funding (see paragraph 32E(2)(a));
(b)the total funding amount for a stated support or class of stated supports (see paragraph 32G(2)(a)).
(1)To work out the amounts, apply the information included as required by paragraph 32L(6)(a) (about the participant’s relevant disability support needs) in the needs assessment report for the plan in accordance with the applicable method specified in the National Disability Insurance Scheme rules for the purposes of this subsection.
Note 1: In making National Disability Insurance Scheme rules for the purposes of this subsection, the Minister must have regard to the objects and principles of this Act (see in particular the principles set out in subsections 4(5), (9A) and (11)) and the financial sustainability of the National Disability Insurance Scheme: see subsection 209(3).
Note 2: In specifying a method for the purposes of this subsection, the National Disability Insurance Scheme rules may apply, adopt or incorporate any matter contained in a document prepared by the Agency (such as a document setting out prices or pricing benchmarks) as in force or existing from time to time: see subsection 209(2).
(2)Subsection (1) does not limit the information that may be used in working out the amounts.
4 Before subsection 32K(4)
Insert:
(3B)Without limiting subsection (1), a method specified in National Disability Insurance Scheme rules made for the purposes of that subsection may:
(a)make provision in relation to the identification of NDIS supports or stated supports, or groups or classes of NDIS supports or stated supports, needed by participants; and
(b)specify one or more levels of need for NDIS supports or stated supports, or groups or classes of NDIS supports or stated supports; and
(c)make provision in relation to the identification of a level of need for NDIS supports or stated supports, or groups or classes of NDIS supports or stated supports, for participants; and
(d)specify one or more funding amounts for specified levels of need for NDIS supports or stated supports or groups or classes of NDIS supports or stated supports.
(3C)A funding amount specified as mentioned in paragraph (3B)(d) may be more than, equal to or less than the actual cost of providing or acquiring the support or group or class of supports.
(3D)A method specified in National Disability Insurance Scheme rules made for the purposes of subsection (1) may specify a maximum amount of funding for a support or a group or class of supports.
(3E)A method specified in National Disability Insurance Scheme rules made for the purposes of subsection (1) must have the effect that no maximum specified for the purposes of subsection (3D) is exceeded in working out the total funding amount for flexible funding or total funding amount for a stated support or class of stated supports.
4A After subsection 32K(4)
Insert:
(4A)National Disability Insurance Scheme rules made for the purposes of subsection (1) as mentioned in subsection (4) may make provision in relation to a matter mentioned in subsection (4) in a way that involves the exercise of a discretion by the CEO, in the circumstance that a participant receives:
(a)a compensation payment; or
(b)supports in respect of personal injury, if the supports are funded or provided under a scheme of insurance or under a Commonwealth, State or Territory law.
5 Paragraph 32K(5)(b)
Omit “(1)(b)”, substitute “(1A)(b)”.
5A After subsection 32L(1)
Insert:
(1A)For the purposes of subsection (1), a participant’s disability support needs do not include managing the funding of supports under the participant’s plan.
6 Subsection 32L(2)
After “arise”, insert “directly”.
7 At the end of subsection 32L(2)
Add:
Note: In specifying an assessment tool or another requirement for the purposes of this subsection, the National Disability Insurance Scheme rules may apply, adopt or incorporate any matter contained in a document prepared by the Agency (such as a questionnaire or manual) as in force or existing from time to time: see subsection 209(2).
8 Subsection 32L(4)
Repeal the subsection, substitute:
(4)The assessment:
(a)must have regard to any information and reports requested under subsection 36(2) for the purposes of the assessment; and
(b)must have regard to any information prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and
(c)must not have regard to any information prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
Who may undertake an assessment
(4A)The assessment must be undertaken by:
(a)a member of the staff of the Agency mentioned in section 169; or
(b)a consultant engaged by the Agency under section 171; or
(c)a person prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
9 Paragraph 32L(6)(a)
Omit “identify”, substitute “include information about”.
10 Paragraph 32L(6)(a)
After “arising”, insert “directly”.
11 Paragraph 32L(7)(d)
Omit “to (6)”, substitute “to (6A)”.
12 Subsection 209(8) (table item 1, column headed “Description”, paragraph (cg))
Omit “paragraph 32H(2)(d)”, insert “paragraphs 32H(2)(d) and (e)”.
13 Subsection 209(8) (table item 1, column headed “Description”, paragraph (ci))
Repeal the paragraph, substitute:
(ci) subsection 32L(2), paragraphs 32L(4)(b) and (c) and subsections 32L(6) and (7A);
14 Subsection 209(8) (table item 4, column headed “Description”, after paragraph (ab))
Insert:
(ac) paragraph 32L(4A)(c);
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024#
15 Subitem 138(1) of Schedule 1
Omit “relating to the amendments or repeals made by this Schedule.”, substitute:
relating to the following:
(a)the amendments, repeals or insertions of provisions made by this Schedule;
(b)the amendment or repeal of provisions mentioned in paragraph (a) by the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Act 2026.
16 Subitem 138(4) of Schedule 1
Repeal the subitem, substitute:
(4) The following do not limit the rules that may be made for the purposes of subitem (1):
(a)this Schedule (other than subitem (3));
(b)Schedule 5 to the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Act 2026.
17 After paragraph 139(2)(d)
Insert:
(da)subsection 32K(3B);
(db)subsection 32K(3D);
(dc)subsection 32K(3E);
18 After paragraph 139(2)(e)
Insert:
(ea)paragraph 32L(4)(b);
(eb)paragraph 32L(4)(c);
19 Paragraph 139(4)(a)
After “(2)”, insert, “(2AA), (2AB),”.
20 Subitem 139(9)
After “this Schedule.”, insert “To avoid doubt, this includes a reference to that provision as amended by the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Act 2026.”.
Schedule 5 · Transitional rules
National Disability Insurance Scheme Act 2013#
1 Transitional rules
(1) The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to amendments or repeals made by this Act.
(2) Without limiting subitem (1), rules made under that subitem may provide that the provisions specified in subitem (3) have effect with any modifications prescribed by the rules. Those provisions then have effect as if they were so modified.
(3) The provisions are:
(a)a provision of the National Disability Insurance Scheme Act 2013; and
(b)a provision of a transitional nature (including a saving or application provision) in this Act.
Expiry of rules
(4) Rules made under subitem (1) are repealed:
(a)at the end of the period of 12 months beginning on the day after the rules are made; or
(b)if the rules specify an earlier time—at the specified earlier time.
Time limit on making rules
(5) Rules under subitem (1) relating to amendments or repeals made by Part 5 or 6 of Schedule 1 to this Act, or to Schedule 4 of this Act, must not be made after the end of the period of 12 months beginning on the day this subitem commences.
(5A) Rules under subitem (1) relating to amendments or repeals other than those mentioned in subitem (5) must not be made after the end of the period of 6 months beginning on the day this subitem commences.
Other limits
(6) To avoid doubt, the rules may not do the following:
(a)create an offence or civil penalty;
(b)provide powers of:
(i)arrest or detention; or
(ii)entry, search or seizure;
(c)impose a tax;
(d)set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e)directly amend the text of an Act.
(7) The following do not limit the rules that may be made under subitem (1):
(a)this Act (other than subitems (5) and (6));
(b)items 138 and 139 of Schedule 1 to the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024.
[Minister’s second reading speech made in—
House of Representatives on 14 May 2026
Senate on 12 August 2026]
(64/26)
Sourced from the Federal Register of Legislation at legislation.gov.au, © Commonwealth of Australia, licensed under CC BY 4.0. Compilations may have been reformatted.