McKim, Sen Nick

Senator McKIM (Tasmania—Australian Greens Whip) (11:45): I ask that the question be put separately in order to facilitate the Australian Greens voting separately on some of these matters. I ask that the question be put separately on the following amendments: on sheet SK120, amendments (22) and (24); and, on sheet SK118 revised, amendments (2), (3), (4), (6), (9) and (11). Could all of those be put separately to the rest please? The PRESIDENT: We will deal first with the amendments that the Australian Greens, as advised by Senator McKim, wish to vote differently on, to avoid confusion. The question is that government amendments (22) and (24) on sheet SK120 and amendments (2), (3), (4), (6), (9) and (11) on SK118 revised be agreed to. Government's circulated amendments— SHEET SK120 (22) Schedule 1, Part 1, page 57 (after line 30), at the end of the Part, add: 122A After subsection 209(6) Insert: (6A) A failure to comply with subsection (4), (5) or (6) does not invalidate the making of National Disability Insurance Scheme rules if the Minister reasonably believed, when making those rules: (a) for Category A National Disability Insurance Scheme rules: (i) that sections 209A, 209B and 209C, as applicable, were complied with in relation to the making of the rules; and (ii) that each host jurisdiction had agreed to the making of the rules; or (b) for Category B National Disability Insurance Scheme rules relating to an area, law or program of a host jurisdiction: (i) that section 209D was complied with in relation to the making of the rules; and (ii) that the host jurisdiction had agreed to the making of the rules; or (c) for Category C National Disability Insurance Scheme rules: (i) that section 209D was complied with in relation to the making of the rules; and (ii) that the Commonwealth and a majority of host jurisdictions had agreed to the making of the rules. 122B Subsections 209(8A) to (8C) Repeal the subsections. 122C After section 209 Insert: 209A Process for seeking agreement to Category A rules — normal process (1) In seeking the agreement of a host jurisdiction for the purposes of section 209 to the making of Category A National Disability Insurance Scheme rules, the Minister must (subject to subsection 209B(2)): (a) give a notice in writing to the Disability Minister for that host jurisdiction seeking the agreement of that host jurisdiction to the making of the rules and requesting the agreement be given before the end of 14 days beginning on the day the notice is given; and (b) provide a copy of the proposed rules to that Disability Minister. (2) The Disability Minister for a host jurisdiction may, before the end of the 14-day period, give the Minister and each other Disability Minister for a host jurisdiction: (a) a notice in writing that that host jurisdiction agrees to the making of the rules; or (b) a notice in writing that that host jurisdiction does not agree to the making of the rules. (3) A notice under paragraph (2)(b) must set out reasons why the host jurisdiction does not agree to the making of the rules. (4) Those reasons must be given having regard to the objects of this Act and the principles in section 4. (5) A notice under paragraph (2)(b) is taken: (a) never to have been given if it does not comply with subsection (3); and (b) not to have been invalidly given only because it does not comply with subsection (4). (6) If the Disability Minister for a host jurisdiction does not, before the end of the 14-day period, inform the Minister whether the host jurisdiction agrees to the making of the rules, then the host jurisdiction is taken to have agreed to the making of the rules. (7) If the Disability Minister for a host jurisdiction gives the Minister a notice under paragraph (2)(b) before the end of the 14-day period, the Minister may before the end of 7 days after the end of that period either: (a) do both of the following: (i) give a notice in writing to the Disability Minister for each host jurisdiction seeking the agreement of that host jurisdiction to the making of a different version of the rules and requesting the agreement be given before the end of 14 days beginning on the day the notice under this subparagraph is given; (ii) provide a copy of that different version to each of those Disability Ministers; or (b) if the Minister is of the opinion that the dispute resolution process set out in section 209C should apply in relation to the rules—give a notice in writing stating that opinion to the Prime Minister and to each Disability Minister for a host jurisdiction. (8) If the Minister gives notice, and provides a copy, of rules under paragraph (7)(a), then subsections (2) to (7) apply in relation to those rules as if: (a) notice of those rules had been given under paragraph (1)(a) and a copy of those rules had been provided under paragraph (1)(b); and (b) the 14-day period for the purposes of those subsections were the 14-day period mentioned in subparagraph (7)(a)(i). 209B Process for seeking agreement to certain Category A rules where no substantial financial or policy implications (1) This section applies if the Minister: (a) is proposing to make National Disability Insurance Scheme rules for the purposes of section 32K or 32L; and (b) considers that the rules do not have any substantial financial or policy implications for the National Disability Insurance Scheme. (2) The Minister may, instead of complying with subsection 209A(1): (a) give a notice in writing to the Disability Minister for each host jurisdiction that the Minister: (i) is proposing to make the rules; and (ii) considers that the rules do not have any substantial financial or policy implications for the National Disability Insurance Scheme; and (b) provide a copy of the proposed rules to that Disability Minister. (3) The Disability Minister for a host jurisdiction may, before the end of 7 days after the day the notice is given, give the Minister and each other Disability Minister for a host jurisdiction a notice in writing that that host jurisdiction does not agree to the making of the rules. (4) A notice under subsection (3) must set out reasons why the host jurisdiction does not agree to the making of the rules. (5) Those reasons must be given having regard to: (a) the objects of this Act and the principles in section 4; and (b) whether the rules have any substantialfinancial or policy implications for the National Disability Insurance Scheme. (6) A notice under subsection (3) is taken: (a) never to have been given if it does not comply with subsection (4); and (b) not to have been invalidly given only because it does not comply with subsection (5). (7) If no Disability Minister for a host jurisdiction gives a notice under subsection (3) in relation to the rules, then each host jurisdiction is taken to have agreed to the making of the rules. (8) If the Disability Minister for a host jurisdiction gives the Minister a notice under subsection (3) before the end of the 7-day period, the Minister may before the end of 7 days after the end of that period either: (a) do both of the following: (i) give a notice in writing to the Disability Minister for each host jurisdiction that the Minister is proposing to make a different version of the rules, if the Minister considers that the different version does not have any substantial financial or policy implications for the National Disability Insurance Scheme; (ii) provide a copy of that different version to each of those Disability Ministers; or (b) if the Minister is of the opinion that the dispute resolution process set out in section 209C should apply in relation to the rules—give a notice in writing stating that opinion to the Prime Minister and to each Disability Minister for a host jurisdiction. (9) If the Minister gives notice, and provides a copy, of rules under paragraph (8)(a), then subsections (3) to (8) apply in relation to those rules as if notice of those rules had been given under paragraph (2)(a) and a copy of those rules had been provided under paragraph (2)(b). 209C Dispute resolution process for Category A rules (1) This section sets out a dispute resolution process for the making of Category A National Disability Insurance Scheme rules. (2) The Prime Minister may, within 14 days after the day on which the Prime Minister is given a notice under paragraph 209A(7)(b) or 209B(8)(b) in relation to proposed Category A National Disability Insurance Scheme rules: (a) give a notice in writing to the First Minister of each host jurisdiction seeking the agreement of that host jurisdiction to the making of the rules and requesting the agreement be given before the end of 14 days beginning on the day the notice under this paragraph is given; and (b) provide a copy of the proposed rules to each First Minister. (3) The First Minister for a host jurisdiction may, before the end of the 14-day period, give the Prime Minister and each other First Minister for a host jurisdiction: (a) a notice in writing that that host jurisdiction agrees to the making of the rules; or (b) a notice in writing that that host jurisdiction does not agree to the making of the rules. (4) A notice under paragraph (3)(b) must set out reasons why the host jurisdiction does not agree to the making of the rules. (5) Those reasons must be given having regard to: (a) the objects of this Act and the principles in section 4; and (b) if notice was given under paragraph 209B(2)(a) or subparagraph 209B(8)(a)(i) in relation to the rules—whether the rules have any substantialfinancial or policy implications for the National Disability Insurance Scheme. (6) A notice under paragraph (3)(b) is taken: (a) never to have been given if it does not comply with subsection (4); and (b) not to have been invalidly given only because it does not comply with subsection (5). (7) If the First Minister for a host jurisdiction does not, before the end of the 14-day period, give the Prime Minister a notice under paragraph (3)(a) or (b), then the First Minister is taken for the purposes of subsections (8) and (9) to have given the Prime Minister a notice under paragraph (3)(a) that the host jurisdiction agrees to the making of the rules. (8) Each host jurisdiction is taken to have agreed to the making of the rules if a majority of the First Ministers of the host jurisdictions give the Prime Minister a notice under paragraph (3)(a) in relation to the rules before the end of the 14-day period. (9) If a majority of the First Ministers of the host jurisdictions do not give the Prime Minister notices under paragraph (3)(a) in relation to the rules before the end of the 14-day period, the Prime Minister may, before the end of 7 days after the end of the 14-day period: (a) give a notice in writing to the First Minister for each host jurisdiction seeking the agreement of that host jurisdiction to the making of a different version of the rules and requesting the agreement be given before the end of 14 days beginning on the day the notice under this paragraph is given; and (b) provide a copy of that different version to each of those First Ministers. (10) If the Prime Minister gives notice, and provides a copy, of rules under paragraphs (9)(a) and (b), then subsections (3) to (9) apply in relation to those rules as if: (a) notice of those rules had been given under paragraph (2)(a) and a copy of those rules had been provided under paragraph (2)(b); and (b) the 14-day period for the purposes of those subsections were the 14-day period mention in paragraph (9)(a). 209D Process for seeking agreement to Category B rules and Category C rules (1) In seeking the agreement of a host jurisdiction for the purposes of section 209 to the making of Category B National Disability Insurance Scheme rules or Category C National Disability Insurance Scheme rules, the Minister must: (a) give a notice (the original notice) in writing to one host jurisdiction Minister for that host jurisdiction seeking the agreement of that host jurisdiction to the making of the rules and requesting the agreement be given before the end of 28 days beginning on the day the notice is given; and (b) provide a copy of the proposed rules to that host jurisdiction Minister. (2) If, immediately before the end of that 28-day period: (a) no host jurisdiction Minister for a host jurisdiction has informed the Minister whether that host jurisdiction agrees to the making of the rules; and (b) no host jurisdiction Minister for that host jurisdiction has made a request under subsection (3); then, at the end of that period, that host jurisdiction is taken to have agreed to the making of the rules. (3) If, before the end of that 28-day period, a host jurisdiction Minister for a host jurisdiction gives a notice in writing to the Minister requesting a longer period within which that host jurisdiction may agree to the making of the rules: (a) that host jurisdiction may give that agreement before the end of 90 days beginning on the day the original notice was given; and (b) if, immediately before the end of that 90-day period, no host jurisdiction Minister for that host jurisdiction has informed the Minister whether that host jurisdiction agrees to the making of the rules, then, at the end of that period, that host jurisdiction is taken to have so agreed. (24) Schedule1, Part 3, page 64 (after line 14), at the end of the Part, add: 139 Transitional rules to apply for certain provisions until Category A rules commence (1) This item applies in relation to a provision covered by subitem (2) until the commencement of the first National Disability Insurance Scheme rules made for the purposes of the provision. (2) The following provisions of the National Disability Insurance Scheme Act 2013 are covered by this subitem: (a) subsection 32B(1); (b) subparagraph 32C(c)(ii); (c) subsection 32E(4); (d) subsection 32K(1); (e) subsection 32L(2); (f) subsection 32L(6); (g) subsection 32L(7A). (3) The provision has effect as if a reference in the provision to the National Disability Insurance Scheme rules were a reference to rules made under item 138 of this Schedule. (4) The following provisions of the National Disability Insurance Scheme Act 2013 apply (subject to subitems (5) to (8) of this item) in relation to the making of rules under item 138 for the purposes of a provision covered by subitem (2) of this item in the same way as those provisions apply in relation to the making of Category A National Disability Insurance Scheme rules: (a) subsections 209(1A), (2), (3), (4) and (6A); (b) sections 209A to 209C. (5) Subitem (6) applies if: (a) the Minister proposes to make rules under item 138 for the purposes of a provision covered by subitem (2) of this item; and (b) the Prime Minister gives notice, and provides a copy, of the rules under paragraphs 209C(2)(a) and (b), or (9)(a) and (b), of the National Disability Insurance Scheme Act 2013 (as those paragraphs apply because of subitem (4) of this item); and (c) a majority of the First Ministers of the host jurisdictions do not give the Prime Minister notices under paragraph 209C(3)(a) of that Act (as that paragraph applies because of subitem (4) of this item) in relation to the rules before the end of 14 days beginning on the day the notice mentioned in paragraph (b) of this subitem was given. (6) The Prime Minister may, before the end of 7 days after the end of the 14-day period, give the Minister written notice under this subitem that the Prime Minister considers that the Minister should not be prevented from making the rules and, if the Prime Minister does so, each host jurisdiction is taken to have agreed to the making of the rules. (7) To avoid doubt: (a) subsections 209C(6) and (7) of the National Disability Insurance Scheme Act 2013 apply in working out whether there is a majority for the purposes of paragraph (5)(c) of this item in the same way as they apply in working out whether there is a majority for the purposes of subsection 209C(8) or (9) of that Act; and (b) subitem (6) of this item does not limit subsection 209C(9) of that Act (as it applies because of subitem (4)). (8) Subparagraph 209(6A)(a)(i) of the National Disability Insurance Scheme Act 2013 applies as mentioned in subitem (4) as if: (a) a reference in that subparagraph to a provision of that Act included a reference to that provision as it applies because of that subitem; and (b) that subparagraph included a reference to this item, in addition to the provisions referred to in that subparagraph. (9) A reference in this item to a provision of the National Disability Insurance Scheme Act 2013 is a reference to that provision as in force on and after the commencement of this Schedule. _____ SHEET SK118 REVISED (2) Schedule 1, item 36, page 16 (after line 21), after section 32B, insert: 32BA Notice of impairments Giving notice of impairments (1) The CEO must give a participant a notice in writing in accordance with subsection (2): (a) as soon as practicable after the participant becomes a participant; or (b) if a circumstance specified in the National Disability Insurance Scheme rules for the purposes of this paragraph applies in relation to the participant. (2) The notice must state: (a) if the participant meets the disability requirements—the categories of impairments under subsection (3) that cover the impairments in relation to which the participant meets those requirements; and (b) if the participant meets the early intervention requirements because of subparagraph 25(1)(a)(i) or (ii)—the categories of impairments under subsection (3) that cover the impairments in relation to which the participant meets those requirements; and (c) if the participant meets the early intervention requirements because of subparagraph 25(1)(a)(iii)—that the participant has developmental delay. (3) Each of the following is a category of impairments for the purposes of paragraphs (2)(a) and (b): (a) intellectual impairments; (b) cognitive impairments; (c) neurological impairments; (d) sensory impairments; (e) physical impairments; (f) impairments to which a psychosocial disability is attributable. (4) A notice given under paragraph (1)(b) replaces any previous notice given under paragraph (1)(a) or (b) to the participant. Varying notice of impairments (5) The CEO may vary a notice given under subsection (1) if: (a) either: (i) the participant applies for the variation in accordance with subsection (6); or (ii) circumstances specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph exist; and (b) the CEO is satisfied that a statement in the notice is not, or is no longer, correct; and (c) any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this paragraph are met. (6) An application under subparagraph (5)(a)(i) must: (a) be in the form (if any) approved by the CEO; and (b) include any information, and be accompanied by any documents, required by the CEO; and (c) be made in accordance with any other requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph, which may include requirements as to the circumstances in which an application may, or may not, be made. (3) Schedule 1, page 42 (after line 16), after item 73, insert: 73A Section 45 (at the end of the heading) Add "—general". (4) Schedule 1, page 44 (after line 17), after item 74, insert: 74A After section 45 Insert: 45A Payment of amounts payable under the National Disability Insurance Scheme — need for a claim (1) An amount is not payable under the National Disability Insurance Scheme in respect of the acquisition or provision of a support under a participant's plan unless the CEO is satisfied that a claim for the payment has been made to the CEO in accordance with subsections (2), (3) and (5). (2) A claim may be made only by: (a) the person who, under the statement of supports in the plan, is to manage the funding for the support, unless paragraph (b) applies; or (b) if the person mentioned in paragraph (a) is the Agency—the person who provides the support to the participant. (3) A claim must: (a) be made in the approved form (if any); and (b) include any information, and be accompanied by any documents, required by the CEO. Note: Strict compliance with any approved form is not required—see section 25C of the Acts Interpretation Act 1901. (4) The CEO may treat a claim that does not meet the requirements of subsection (3) as having been made in accordance with that subsection if the CEO is satisfied that it is appropriate to do so. (5) A claim must be made in accordance with subsection (3) before the end of the following period starting on the day the support is provided to the participant: (a) unless paragraph (b) of this subsection applies—2 years; (b) if the National Disability Insurance Scheme rules prescribe a shorter period for that kind of claim—that period. (6) The CEO may treat a claim made after the end of the applicable period as having been made in accordance with subsection (5) if the CEO is satisfied that: (a) there are exceptional circumstances applying to the claim that justify the claim being made after the end of the applicable period; and (b) the claim was made within a reasonable period having regard to those circumstances. (7) A claim may be withdrawn by the person who makes the claim. The CEO is not required to take any action in relation to a claim that is withdrawn. (6) Schedule 1, page 55 (after line 2), after item 103, insert: 103A After paragraph 118(1)(b) Insert: (ba) to prevent, detect, investigate and respond to misuse or abuse of, or criminal activity involving, the National Disability Insurance Scheme (whether systemic or otherwise) where this relates to: (i) claims for payment under the National Disability Insurance Scheme, the payment of NDIS amounts or the use of funding provided under the National Disability Insurance Scheme; or (ii) information provided to the Agency by or in relation to a participant or prospective participant, including in connection with access requests, a person's continued status as a participant, the preparation, variation, reassessment or replacement of a participant's plan or the management of the funding for supports under a participant's plan; or (iii) the management of the funding for supports under a participant's plan by, or the duties or obligations of, a nominee or person who may do a thing because of section 74, including the appointment, or the suspension or cancellation of the appointment, of a nominee or the making or revocation of a determination under paragraph 74(1)(b); (9) Schedule 1, page 57 (after line 10), after item 117, insert: 117A Subsection 209(8) (table item 1, column headed "Description", before paragraph (eb)) Insert: (ead) paragraph 45A(5)(b); (11) Schedule 1, page 60 (after line 14), after item 128, insert: 128A Notice of impairments (1) Paragraph 32BA(1)(a) of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, applies in relation to a person who makes an access request on or after 1 January 2025. (2) Paragraph 32BA(1)(b) of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, applies in relation to a person who is a participant on or after that commencement, whether the person becomes a participant before, on or after that commencement.