As with the Objects, the Principles contained in the Act do not create enforceable rights. Their value is that they provide context for interpreting other key provisions, and show how the Act is intended to operate to advance the rights, interests, inclusion and participation of people with disabilities.
Many of the Principles are intended to reflect particular Articles of the Convention on the Rights of People with Disabilities, so the CRPD can aid advocacy based on the Principles.
General principles guiding actions under this Act
There are 17 general principles guiding actions under the Act. [s4]
- People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
- People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
These principles of equality and realising potential may be useful to obtain supports that enable the person to contribute and participate on an equal basis in Australian life.
- People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
This certainty principle may be useful where supports have been reduced without reason or their continuation is threatened by suspension or inadequate funding.
- People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
Though the NDIS aims to maximise choice and control, as reflected in the Objects, and promotes a model of supporting people with disability to make decisions, this may not always translate simply into real situations. Particular problems may arise where a person’s decision making capacity is underestimated or called into question and substitute decision making is considered or used. Independent advocacy can play a vital role in ensuring the person’s right to make his or her own decisions is not arbitrarily restricted or removed.
The question of what is considered reasonable risks should be considered by reference to the risks that people without disabilities are permitted to take without their decision-making capacity being called into question. This Principle can be used to support choices that may be made by a person with disability which might be regarded by some as risky but which nevertheless are similar to risks commonly taken in the general population. (See the right to make decisions)
It may also be possible to bring a risk into the reasonable range by implementing harm minimisation strategies or strategies that reduce the likelihood of the risk occurring.
- People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
This Principle is a core feature of the NDIS, and also appears in the Objects of the Act. The kinds of supports that will be provided as “reasonable and necessary supports” under the Scheme, is not straightforward. Detailed plan approval criteria will influence Agency decisions about the reasonableness and necessity of a particular support for a participant.
- People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.
For a greater understanding of the potential application and reach of this principle see Article 16 of the CRPD.
The NDIA has Operational Guidelines for Responding to Abuse, Neglect and Exploitation.
- People with disability have the same right as other members of Australian society to pursue any grievance.
This Principle has particular relevance to any circumstances in which a person with disability is prevented from exercising their legal rights to same extent as others. For greater understanding of the potential application and reach of this Principle see Article 13 of the CRPD and the associated commentary in the Disability Rights Now Civil Society Report to the United Nations Committee on the Rights of Persons with Disabilities.
- People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.
For a greater understanding of the potential application and reach of this principle see Article 12 of the UNCRPD and the associated commentary in the Disability Rights Now Civil Society Report to the United Nations Committee on the Rights of Persons with Disabilities
For people with limited decision making capacity, these General Principles, the objects and the principles relating to the participation of people with disability strengthen arguments for the use of supported decision making, which allows people to engage in decision making “to the full extent of their capacity”, over the use of substitute decision making, which deprives people of control.
- People with disability should be supported in all their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.
Effective communication and interaction with the Agency, whether involving special formats, translation or others supports, is vital to a person practically exercising maximum choice and control. (See Assistance from Agency). The diversity of people with disability, and the particular needs of Culturally and Linguistically Diverse, Non English Speaking Background and Aboriginal and Torres Strait Islander populations, should be catered to.
This principle provides support for ready access to independent advocacy support and decision making support for anyone who feels that they might otherwise be limited in their capacity to exercise choice and control.
- People with disability should have their privacy and dignity respected.
For a greater understanding of the potential application and reach of this principle see Article 22 of the UNCRPD and the associated commentary in the Disability Rights Now Civil Society Report to the United Nations Committee on the Rights of Persons with Disabilities
This principle is linked to the privacy provisions of the Act
- Reasonable and necessary supports for people with disability should:
- support people with disability to pursue their goals and maximise their independence; and
- support people with disability to live independently and to be included in the community as fully participating citizens; and
- develop and support the capacity of people with disability to undertake activities that enable them to participate in the mainstream community and in employment.
This principle elaborates on what should be achieved by the provision of reasonable and necessary supports. The goals of enabling greater inclusion and independence are central to the NDIS. The wording suggests that the enabled participation in employment should be through full inclusion in the workforce where possible, rather than in segregated work environments.
- The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
This Principle allows for consideration to be given in the planning process to the perspectives of family members and others closely involved with the person with disability.
- The role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by:
- promoting their independence and social and economic participation; and
- promoting choice and control in the pursuit of their goals and the planning and delivery of their supports; and
- maximising independent lifestyles of people with disability and their full inclusion in the mainstream community.
This Principle recognises the importance of advocacy in achieving the key aims of the scheme and in representing the interests of people with disabilities. Where advocacy is desired but not available due to limited availability or high demand, this principle may be useful in obtaining greater access to free independent advocacy.
The Principle may also be useful in any circumstance in which a person is being discouraged from using an independent advocate to represent their interests.
- People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
Principles to Determine Responsibilities of the NDIS and Other Service Systems are available but will continue to be developed as the scheme is launched and implemented. Imperfect coordination is likely to occur, and people who find gaps and overlaps in the cooperation between the NDIS and other government services may find this principle useful for obtaining appropriate supports or some assistance to coordinate supports for a more effective and efficient outcome.
- Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
- Positive personal and social development of people with disability, including children and young people, is to be promoted.
These principles echo central concepts included in the Objects. Quality and innovation are valued, as are optimal approaches to providing supports and promoting personal potential. Where methods being used are outdated or ineffective, this statement may be useful to advocate for improvement in the provision of supports.
- It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
- the progressive implementation of the National Disability Insurance Scheme; and
- the need to ensure the financial sustainability of the National Disability Insurance Scheme.
Advocates may find that the “need to ensure the financial sustainability”, (also included in the objects of the NDIS) may be used to justify a denial of supports. However, advocates could use this Principle to argue that the immediate provision of support will avoid additional costs being incurred in the future.
General principles guiding actions of people who may do acts or things on behalf of others
These general principles should guide actions where the Act requires or permits people to do things on behalf of others, stating an intention that things be done, so far as practicable, in accordance with the listed principles. Advocates may find them particularly useful where decision making processes have operated restrictively and have not allowed the person with disability to have a say, explain his or her preferences, or influence outcomes.
- people with disability should be involved in decision making processes that affect them, and where possible make decisions for themselves
This principle strengthens arguments for the primary use of supported decision making by stating that where possible people with disability should “make decisions for themselves” and should “be involved in decision making processes that affect them”.
The ideal of people with disability exercising control and making decisions to the greatest extent possible is a theme found throughout the Objects, the other General Principles and the principles relating to participation, and also reflects Article 12 of the CRPD.
- people with disability should be encouraged to engage in the life of the community
This principle may assist in making the case for the avoidance of segregated service settings.
It may also be of assistance in making a case for support to be provided to engage in a wide variety of community based activities.
- the judgements and decisions that people with disability would have made for themselves should be taken into account
This principle asks that the decision-maker make a serious attempt to understand and give effect to the exhibited preferences of the person in any decision made on their behalf.
- the cultural and linguistic circumstances of people with disability should be taken into account
Cultural background and identity will be relevant to how a person makes decisions and to the kinds of NDIS supports that it will be appropriate to provide.
The NDIS will need to be flexible in its processes to enable maximum participation from people with non-English-speaking backgrounds, and to accommodate the cultural and linguistic diversity of all participants.
Aboriginal and Torres Strait Islander status should also be considered and provided for in the administration of the scheme. Particular principles, information and resources are relevant when advocating for Culturally and Linguistically Diverse, Non English Speaking Background or Aboriginal and Torres Strait Islander people with disabilities.
- the supportive relationships, friendships and connections with others of people with disability should be recognised
This Principle may be used to argue for supports that enhance the ability of a person with disability to maintain and extend their supportive relationships.
Relationships of this kind assist in keeping people with disabilities safe from harm.
Principles relating to the participation of people with disability
The principles relating to participation continue particular key themes found in the Objects, and both sets of general principles: the importance of supporting and enabling people with disability to:
- make decisions and determine their own interests
- exercise maximum choice and control over matters affecting their lives
- participate in and contribute to community life to the extent of their ability
- be included and respected.
- People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.
This principle requires an assumption to be made that a person with disability has decision making capacity but allows for this assumption to be displaced by evidence relating to the particular circumstances concerned.
The Act elsewhere authorises the appointment of nominees where the Agency determines a person needs a substitute decision-maker, and the appointment of representatives for children, where the person with parental authority is not appropriate. However, people with disability can be provided with support to determine what is in their interest and make their own decisions through supported decision making.
- People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.
- The National Disability Insurance Scheme is to:
- respect the interests of people with disability in exercising choice and control about matters that affect them; and
- enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and
- support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability
A claim that a person lacks the necessary capacity to make decisions will need to be supported by sufficient evidence to displace the assumption of capacity. Where it is shown that an individual would struggle in making complex determinations and decisions alone, options for support and assistance to be provided through supported decision making must be explored. If the appointment of a substitute decision-maker is resorted to, such as a nominee or child’s representative, the person appointed should be someone who respects and understands the person’s perspectives and will encourage the person to contribute to each decision to the extent of his or her capacity. Communication should be supported at every stage. Independent advocacy focused on preventing the restriction of the person’s choice and control should ensure the values and priorities of these principles are upheld in practice.
Though not named “general principles”, these principles are relevant at various stages, as processes such as becoming a participant, planning and review of agency decisions will generally involve the participation of the person with disability.