Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) If this Act requires or permits a thing to be done by or in relation to a child, the thing is to be done by or in relation to:
(a) the person who has, or the persons who jointly have, parental responsibility for the child; or
(b) if the CEO is satisfied that this is not appropriate--a person determined in writing by the CEO.
(1A) If:
(a) a State or Territory Minister; or
(b) the head (however described) of a Department of State of a State or Territory;
has parental responsibility for the child, the CEO must not make a determination under paragraph (1)(b) in relation to the child unless the Minister or the head of the Department, as the case may be, has agreed in writing to the making of the determination.
(2) If a person mentioned in subsection (1) makes a plan management request for a participant who is a child, the person may request:
(a) that the person manage the plan wholly or to the extent specified in the request; or
(b) that the plan be managed wholly, or to the extent specified in the request, by a registered plan management provider nominated by the person to manage the plan; or
(c) that the plan be managed wholly, or to the extent specified in the request, by the Agency or a person specified by the Agency.
(3) The statement of participant supports in the plan must give effect to the plan management request, except as mentioned in subsections (3A) to (5).
(3A) If the plan is a new framework plan:
(a) the CEO may, if satisfied that a circumstance mentioned in subsection (3C) exists, decide that:
(i) a person mentioned in subsection (3B) is to manage a particular proportion of flexible funding provided under the plan; or
(ii) a person mentioned in subsection (3B) is to manage funding provided under the plan for a particular stated support or class of stated supports; and
(b) the statement of participant supports in the plan must give effect to the decision.
Note: The CEO may make more than one decision under subparagraph (a)(i) or (ii) for a particular plan if there is more than one person mentioned in subsection (3B) for whom such a decision can be made.
(3B) For the purposes of subparagraphs (3A)(a)(i) and (ii), the persons are as follows:
(a) the Agency;
(b) the person mentioned in subsection (1), if the person has made a request covered by paragraph (2)(a);
(c) a registered plan management provider, if the person mentioned in subsection (1) has made a request covered by paragraph (2)(b) that nominates the provider.
(3C) For the purposes of paragraph (3A)(a), the circumstances are as follows:
(a) the participant would be likely to suffer physical, mental or financial harm were the CEO to not make the decision;
(b) section 46 (acquittal of NDIS amounts) has not been complied with in relation to the plan or any of the participant's previous plans;
(c) a circumstance prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
(3D) Paragraph (3A)(b) does not apply to funding to the extent that subsection (4) or (4A) applies to the funding.
(4) The statement of participant supports in a participant's plan must not provide that the person referred to in paragraph (2)(a) is to manage the funding for supports under the participant's plan:
(a) to any extent, if the person is an insolvent under administration; or
(b) to a particular extent, if the CEO is satisfied:
(i) that management of the plan to that extent would present an unreasonable risk to the participant; or
(ii) that management of the plan to that extent would permit the person to manage matters that are prescribed by the National Disability Insurance Scheme rules as being matters that must not be managed by the person; or
(iii) that section 46 (acquittal of NDIS amounts) would be unlikely to be complied with if the person were to manage the funding for supports under the plan to that extent.
(4A) If:
(a) a person mentioned in subsection (1) has made a request covered by paragraph (2)(b); and
(b) the CEO is satisfied that the management of the funding for supports under the plan to a particular extent by the registered plan management provider nominated by the person would present an unreasonable risk to the participant;
the statement of participant supports in the participant's plan must not provide that the nominated provider is to manage the funding for supports under the plan to that extent.
(5) Subsections (1) and (2) of this section do not have effect in relation to a participant who is a child if:
(a) the CEO is satisfied that the child is capable of making decisions for himself or herself; and
(b) the CEO is satisfied that it is appropriate in the circumstances for those subsections not to apply to the child; and
(c) the CEO makes a determination that those subsections do not apply to the child.
(6) The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of this section, including but not limited to:
(a) requirements with which the CEO must comply; and
(b) methods or criteria that the CEO is to apply; and
(c) matters that the CEO may, must or must not take into account;
in making any decision under this section.
Note: For example, National Disability Insurance Scheme rules could be made under this subsection that apply for the purposes of making a decision under paragraph (5)(a) whether a child is capable of making decisions for himself or herself.
(7) A determination made under paragraph (5)(c) is not a legislative instrument.