National Disability Insurance Scheme (Prescribed Program—Western Australia) Rules 2018

The instrument builds on several concepts drawn explicitly from the Act and related instruments, and it defines how those concepts are to be applied in the Western Australian context. The central concept is "prescribed program." For the purpose of subparagraph 21(2)(b)(iii) of the Act, the instrument prescribes the WA NDIS Model. That is, the WA NDIS Model is the designated state‑funded program which, when other criteria are met, authorises consideration of a person who does not satisfy the primary access criteria under subsection 21(1) of the Act (Part 2 para 2.1).

"Existing WA NDIS Participant" is another core term. The instrument ties its meaning to paragraph 8.4 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016, and also describes the WA NDIS Model participant as a participant under the Disability Services Act 1993 (WA) in the context of that model (Part 1 paras 1.2 and 3.5). The instrument’s definition therefore depends on an external instrument; practitioners must consult paragraph 8.4 of the Becoming a Participant Rules 2016 to determine who qualifies as an Existing WA NDIS Participant (Part 3 para 3.5).

Access request and CEO consideration are functional concepts carried over from the Act. The instrument reiterates that Existing WA NDIS Participants must make an access request to the Agency and will be considered against the access criteria by the CEO (Part 1 para 1.1; Part 2 Note 1). The instrument indicates that it is made for the purposes of subsection 21(2), which provides an alternative access route where the primary access criteria of subsection 21(1) are not met (Part 1 para 1.5; Part 2 para 2.1).

The instrument also clarifies scope boundaries. It expressly states that it does not relate to participant plan preparation or management, and it does not attempt to restrict how the CEO may be satisfied that a person meets the access criteria under the Act (Part 3 para 3.3). It further states that terminology and interpretive rules from the Act and general statutes apply, unless the instrument displays a contrary intention (Part 3 para 3.4).

Finally, the instrument engages an age‑related concept. It records that Existing WA NDIS Participants aged 65 or over are to be transitioned into the NDIS when they meet the other access conditions, provided they were under 65 when they originally became an Existing WA NDIS Participant (Part 1 para 1.4). That places a temporal criterion on age for the alternative access pathway in respect of the WA cohort.

These concepts are all procedural and definitional rather than substantive entitlement rules. The instrument performs the role of mapping an identified state‑funded program into the Act’s alternative access pathway, and it leaves the substantive determinations of access, plan content and funding to the Act, the Agency and the CEO.

The instrument primarily affects three groups: Existing WA NDIS Participants (as defined in paragraph 8.4 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016), the Commonwealth Agency responsible for administering the NDIS and making access decisions (the Agency and the CEO), and the Western Australian government as the administrator or funder of the WA NDIS Model under the Disability Services Act 1993 (WA) (Part 1 paras 1.1 to 1.3; Part 3 para 3.5).

Existing WA NDIS Participants who are receiving supports under the WA NDIS Model are the intended beneficiaries of the prescription. The instrument is explicit that these people must still make an access request to the Agency to be assessed for participation under the NDIS (Part 1 para 1.1). The instrument also spells out an age-related inclusion rule: people aged 65 or over may be transitioned into the NDIS under this instrument provided they were under 65 when they became an Existing WA NDIS Participant (Part 1 para 1.4). Therefore the cohort includes certain people above conventional NDIS age thresholds, subject to the stated temporal qualification.

The Agency (and specifically the CEO) is directly affected as decision maker. The CEO must consider each access request and be satisfied of the requirements of subsection 21(2), including paragraphs 21(2)(a), (b) and (c) (Part 2 Note 2). The instrument prescribes the WA NDIS Model for subparagraph 21(2)(b)(iii), which means the CEO is to treat the WA NDIS Model as a qualifying prescribed program when applying the alternative criteria in subsection 21(2) (Part 2 para 2.1).

The Western Australian government and its Department of Communities are affected by virtue of having administered the WA NDIS Model as a comparative model under the Disability Services Act 1993 (WA) prior to transition (Part 1 para 1.2). The instrument formalises the intergovernmental agreement to transition participants from a state model to the national scheme; this creates administrative obligations on WA agencies to maintain records and evidence of who was an Existing WA NDIS Participant and of the supports provided at relevant times (Part 1 paras 1.2 to 1.5; Part 2 Note 1).

Other affected stakeholders include service providers and legal or advocacy representatives who assist applicants with access requests. The instrument alters the legal pathway available to a specified cohort, which changes how requests are prepared, what documentary evidence will be relevant, and the timing considerations (for example proving receipt of supports at the time the CEO considers the access request) (Part 2 Note 1).

Finally, the instrument affects the scope of persons who may be considered for the NDIS by establishing the WA NDIS Model as a prescribed program. That changes the universe of people who can be assessed under subsection 21(2) as compared with a situation where no WA-prescribed program was declared. The instrument does not itself allocate funding or set participant plans; those matters remain within the Agency’s and the Act’s processes (Part 3 para 3.3).

This instrument imposes no new criminal offences, statutory fines or participant entitlements by itself. Instead, it creates an administrative duty and a corresponding right of access to consideration under an alternative statutory pathway in the Act. The principal duties and rights set out or implied by the instrument are administrative and evidentiary.

Duties on the applicant. An Existing WA NDIS Participant must make an access request to the Agency in order to be considered under the NDIS (Part 1 para 1.1). That is an affirmative duty to initiate the process. To meet the specific element of paragraph 21(2)(b), the applicant must be receiving supports under the WA NDIS Model at the time the CEO is considering their access request; this imposes a temporal evidentiary duty on applicants to show current receipt of WA NDIS Model supports when the CEO reviews the request (Part 2 Note 1).

Duties on the CEO/Agency. The CEO, as decision maker under the Act, must consider access requests and determine whether an applicant meets the alternative access criteria in subsection 21(2). The instrument requires the CEO to treat the WA NDIS Model as a prescribed program for the purposes of subparagraph 21(2)(b)(iii) when exercising that power (Part 2 para 2.1). The CEO must be satisfied of the requirements of paragraphs 21(2)(a) and (c) as well as paragraph 21(2)(b) to admit a person as a participant under the alternative route (Part 2 Note 2). The instrument stresses that it does not limit or affect the circumstances in which the CEO may be satisfied that a person meets the access criteria (Part 3 para 3.3), preserving administrative discretion.

Rights of applicants. The principal right the instrument produces is the right to be considered under the alternative access pathway of subsection 21(2) because their WA NDIS Model status is now a prescribed program, provided they comply with the access request procedure and the substantive criteria of the Act (Part 2 para 2.1; Part 2 Note 2). The instrument also records that people who were under 65 when they became Existing WA NDIS Participants remain eligible for transition even if they are aged 65 or over at the time of transition (Part 1 para 1.4). That right is conditional on the other statutory requirements.

Administrative limits and interpretive duties. The instrument points to interpretive rules and definitions from the Act, the Acts Interpretation Act 1901 and the Legislation Act 2003, indicating that decision makers must apply established statutory interpretation principles unless the instrument shows a contrary intention (Part 3 para 3.4). It also reproduces or identifies key definitions from the Act or other instruments for convenience, which places a duty on administrators and advisers to consult those source documents for precise meaning, particularly paragraph 8.4 of the Becoming a Participant Rules 2016 which defines "Existing WA NDIS Participant" (Part 3 para 3.5).

No direct duties on plan management. The instrument explicitly disclaims any relation to the preparation or management of participants’ plans, so it does not create duties for plan composition or implementation; those functions remain governed by the Act and the Agency’s planning processes (Part 3 para 3.3).

In short, the instrument creates administrative rights to be considered under a specified statutory pathway for a defined cohort, and it creates associated duties on applicants to make access requests and demonstrate receipt of WA NDIS Model supports, and duties on the CEO to apply subsection 21(2) with the WA NDIS Model treated as a prescribed program.

The instrument contains no provisions that create criminal offences, monetary penalties or enforcement mechanisms of its own. Its role is definitional and procedural; it prescribes the WA NDIS Model for the purposes of subsection 21(2) and otherwise directs how designated access requests are to be considered by the CEO (Part 2 para 2.1; Part 3 para 3.3). Enforcement of access decisions and any consequences of incorrect or fraudulent statements by applicants would therefore arise, if at all, under the Act or other existing laws, not under this instrument itself.

Responsibility for enforcement of the access process rests with the Agency and the CEO under the Act. The CEO is the decision maker for access and is required to be satisfied of the conditions in subsection 21(2) (including paragraphs 21(2)(a), (b) and (c)) before admitting a person as a participant when relying on the alternative access criteria (Part 2 Note 2). Thus any administrative review or internal Agency remedies relating to access decisions will be governed by the Act’s processes and any administrative law remedies available against decisions made under the Act.

Because the instrument relies on and reproduces definitions from external instruments and statutes, interpretive disputes likely turn on the Act, the Becoming a Participant Rules 2016 and statutory interpretation principles in the Acts Interpretation Act 1901 and the Legislation Act 2003, which the instrument references for interpretive rules (Part 3 paras 3.4 and 3.5). Any challenge to an access decision, or to the application of the prescribed program in a particular case, would therefore be routed through the statutory appeal, review or judicial review mechanisms that apply to CEO decisions under the Act rather than through any enforcement clause in this instrument.

Practically, the instrument creates two enforcement‑relevant conditions to be proved at the access stage. First, the person must make an access request (Part 1 para 1.1). Second, for paragraph 21(2)(b)(i) to be satisfied, the person must be receiving supports under the WA NDIS Model at the time the CEO considers the access request (Part 2 Note 1). If either of these is not satisfied, the CEO is not required to admit the person to the NDIS under the subsection 21(2) pathway. The instrument does not prescribe evidentiary standards or timelines for those determinations; those details reside in the Act and in Agency practice.

The instrument also states that it does not attempt to limit or affect the circumstances in which the CEO may be satisfied that a person meets the access criteria under the Act (Part 3 para 3.3). That signals continued discretionary latitude for the CEO, which shapes how enforcement and compliance are operationalised but does not itself create a new enforcement regime.

This instrument operates as a connecting rule among multiple legislative instruments. It is made under the authority of the National Disability Insurance Scheme Act 2013, specifically for the purposes of subsection 21(2) and section 209 of that Act (header; Part 1 para 1.5). It also expressly links to the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 by adopting definitions from paragraph 8.4 of those Rules for the meaning of "Existing WA NDIS Participant" and for the WA NDIS Model (Part 1 para 1.2; Part 3 para 3.5). The instrument further references the Disability Services Act 1993 (WA) as the legislative context in which the WA NDIS Model was administered (Part 1 para 1.2).

Statutory interpretation and cross‑reference rules from general federal statutes apply. The instrument points users to the Acts Interpretation Act 1901 and the Legislation Act 2003 for definitions and rules of interpretation that apply to Commonwealth legislation, stating that terms used in the Act have the same meaning in this instrument unless a contrary intention is displayed (Part 3 para 3.4). That situates the instrument within the larger framework of Commonwealth legislative interpretation.

Functionally, the instrument modifies how subsection 21(2) of the Act operates in relation to Western Australia by declaring the WA NDIS Model a prescribed program for subparagraph 21(2)(b)(iii) (Part 2 para 2.1). Thus the interaction is specific: where the Act allows a person to be considered under alternative access criteria if they are part of a prescribed program, this instrument supplies the prescribed program in the WA context. It does not change the Act’s substantive access criteria, it only supplies one of the triggering facts that the CEO may treat as meeting the statutory test for the alternative pathway (Part 2 Note 2).

The instrument does not alter plan preparation or management provisions in the Act. It explicitly disclaims any relation to plan preparation or management, thereby preserving the Act’s separate processes for plan-making and service provision (Part 3 para 3.3). The instrument also leaves undisturbed the CEO’s discretion on access matters within the Act’s framework (Part 3 para 3.3).

For Western Australian statutory law, the instrument recognises the WA NDIS Model as having been funded or administered by the WA Department of Communities under the Disability Services Act 1993 (WA) (Part 1 para 1.2). The transition contemplated by the instrument occurs as described in the Becoming a Participant Rules 2016, which set out progressive implementation arrangements between the Commonwealth and WA (Part 1 para 1.3). The WA NDIS Model will cease in each NDIS area upon transition to the NDIS, which implies an overlap period where both schemes operate and show the need for the prescription to bridge the two systems (Part 1 para 1.3).

In summary, this instrument links a particular WA statutory and administrative program into the Commonwealth Act’s alternative access mechanism, references and depends on definitions in the Becoming a Participant Rules 2016 and leaves the substantive and discretionary provisions of the Act and its planning provisions intact. It also invokes general statutory interpretation rules from the Acts Interpretation Act 1901 and the Legislation Act 2003.

The instrument contains an internal citation and a date of signature. It may be cited as the National Disability Insurance Scheme (Prescribed Program,Western Australia) Rules 2018 (Part 3 para 3.1). The instrument is dated 10 May 2018 and signed by the Hon Dan Tehan MP, Minister for Social Services (header). It also states that it commences on the day after it is registered (header).

The text supplied does not record any subsequent amendments or repeals to the instrument. There are no amendment clauses within the instrument itself and no schedule of variations in the text provided. The instrument reproduces or identifies key definitions from the Act and from the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 for convenience (Part 3 para 3.5), but that reproducing does not constitute an amendment history.

Because the instrument relies by reference on the Becoming a Participant Rules 2016 for particular definitions (notably paragraph 8.4), any amendments to that external instrument could affect the practical meaning of terms used here. The instrument itself does not specify a process for subsequent amendment; as a legislative instrument under the Act it is subject to the usual parliamentary or legislative instrument amendment processes applicable to Commonwealth legislative instruments. The instrument also relies on interpretive rules in the Acts Interpretation Act 1901 and the Legislation Act 2003 (Part 3 para 3.4), which could affect how any future amendments are interpreted.

If users require an authoritative record of amendment history beyond what appears in the instrument text provided, they should consult the Government’s legislative instruments register and the Act’s register entries to verify whether the instrument has been varied, superseded or repealed since 10 May 2018. The instrument itself contains no in‑text amendment chronology.

The instrument as supplied contains no references to litigation, judicial decisions, appeals or disputes. It names no cases and records no administrative law challenges. It merely cites the statutory provisions under which it is made, namely subsection 21(2) and section 209 of the National Disability Insurance Scheme Act 2013, and it cross‑refers to other legislative instruments such as the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 and state legislation such as the Disability Services Act 1993 (WA) (header; Part 1 paras 1.2 and 1.3; Part 3 paras 3.4 and 3.5).

Because the instrument prescribes a program to be taken into account in the Act’s access decision framework, any litigation arising from its application would be in the form of judicial review or merits review of access decisions made under the Act where the WA NDIS Model status is relevant. The instrument preserves the CEO’s discretion in access determinations (Part 3 para 3.3), and does not itself set out any appeal rights or dispute resolution pathways. Any litigation history relevant to the operation of the prescribed program must therefore be sought in decisions under the Act or under the Becoming a Participant Rules 2016, rather than in the instrument itself.

For practical purposes, practitioners should assume that disputes about whether a particular person qualifies as an Existing WA NDIS Participant in accordance with paragraph 8.4 of the Becoming a Participant Rules 2016, or about whether the CEO properly applied subsection 21(2) when considering an access request, would be litigated under the Act’s administrative processes or judicial review principles. The instrument contains no record of such litigation, and the text provided does not report any cases or judgments.

1. The prescription does not bypass the access request process. Although the WA NDIS Model is prescribed for the purposes of subparagraph 21(2)(b)(iii), the instrument makes clear that each Existing WA NDIS Participant must still make an access request to the Agency to become a participant under the NDIS, and the CEO must consider that request under the Act (Part 1 para 1.1; Part 2 Note 1). Practitioners should not assume that being an Existing WA NDIS Participant automatically confers NDIS participant status.

2. Receipt of supports must be current at the time of CEO consideration. To satisfy the element of paragraph 21(2)(b)(i), the person must be receiving supports under the WA NDIS Model at the time the CEO is considering their access request (Part 2 Note 1). That is a temporal requirement rather than a historical one, so evidence should be directed to the status of supports at the decision point.

3. The instrument depends on an external definition. "Existing WA NDIS Participant" and "WA NDIS Model" are defined by reference to paragraph 8.4 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Part 3 para 3.5). Practitioners must check paragraph 8.4 of that instrument to determine who is within the cohort. The instrument does not include the text of paragraph 8.4, so reliance on the instrument alone is insufficient.

4. Age qualification is temporal. The instrument allows inclusion of people aged 65 or over provided they were under 65 when they became an Existing WA NDIS Participant (Part 1 para 1.4). That creates a specific temporal test which requires administrative proof of the date on which someone first became an Existing WA NDIS Participant.

5. The instrument does not affect plan preparation or management. Any expectation that prescribing the WA NDIS Model also prescribes how plans are made or funded is incorrect. The instrument disclaims any relation to plan preparation or management and does not attempt to limit or affect when the CEO may be satisfied someone meets the access criteria (Part 3 para 3.3).

6. Definitions and interpretation default to the Act and general legislative rules. The instrument states that terms used in the Act have the same meaning in the instrument unless it displays a contrary intention, and it directs readers to the Acts Interpretation Act 1901 and the Legislation Act 2003 for interpretive rules (Part 3 para 3.4). Do not assume colloquial meanings; check statutory definitions.

7. No penalties or enforcement detail in the instrument. The instrument is administrative and does not create enforcement mechanics. Any compliance or dispute consequences arise under the Act and other laws. That affects procedural strategy where evidence or timing is contested (Part 3 para 3.3).

8. Transitional sequencing. The WA NDIS Model will cease in each NDIS area in Western Australia upon transition of that area to the NDIS, which implies overlapping responsibilities and the need to coordinate record keeping between WA agencies and the Agency during the transition period (Part 1 para 1.3). That can create practical complications for proving status and current receipt of supports, especially around the boundaries of local transition dates.

9. The instrument may be summarising other provisions. Paragraph 3.2 expressly states the instrument includes text that summarises provisions of the Act (Part 3 para 3.2). Where precise legal effect depends on the Act, go to the Act and to the referenced instruments rather than relying on the summary language in the instrument.

10. CEO discretion remains broad. The instrument does not constrain the CEO’s discretion as to when they are satisfied someone meets the access criteria under the Act (Part 3 para 3.3). Legal advice or advocacy challenging a decision must therefore engage with the Act’s criteria and the CEO’s justificatory reasons rather than the instrument’s prescriptive content alone.

For Existing WA NDIS Participants seeking to rely on this instrument to be considered for the NDIS, follow these practical steps grounded in the instrument’s text.

1. Make an access request to the Agency. The instrument requires each Existing WA NDIS Participant to make an access request to the Agency to be considered as a participant under the NDIS (Part 1 para 1.1). Do not wait for an automatic transfer.

2. Establish current receipt of WA NDIS Model supports. To meet paragraph 21(2)(b)(i) as applied via this instrument, you must be receiving supports under the WA NDIS Model at the time the CEO is considering your access request. Prepare contemporaneous evidence of ongoing supports, such as service agreements, provider invoices, service delivery logs and correspondence from the WA Department of Communities or service providers (Part 2 Note 1). Because the test is temporal, evidence close to the date of CEO consideration is most relevant.

3. Confirm your status under paragraph 8.4 of the Becoming a Participant Rules 2016. The instrument imports the definition of Existing WA NDIS Participant from paragraph 8.4 of the Becoming a Participant Rules 2016 (Part 3 para 3.5). Obtain and review paragraph 8.4 to confirm you meet that definition, and keep documentary proof of the date you first became an Existing WA NDIS Participant, particularly if age is relevant.

4. If age is relevant, document your dates. The instrument permits transition of people aged 65 or over provided they were under 65 when they became an Existing WA NDIS Participant (Part 1 para 1.4). If this applies, assemble definitive proof of the date you became an Existing WA NDIS Participant and of your date of birth.

5. Understand the CEO’s criteria and gather medical and functional evidence. The CEO must be satisfied that you meet the other elements of subsection 21(2), including paragraphs 21(2)(a) and (c) (Part 2 Note 2). Although this instrument does not repeat those provisions, applicants should prepare the medical, functional and support evidence ordinarily required for access decisions under the Act.

6. Keep records during transition periods. The WA NDIS Model will cease in each NDIS area on transition to the NDIS (Part 1 para 1.3). Because the instrument’s operation is linked to transitional timing, maintain records of service dates, transition notices and communications with WA agencies and the Agency to evidence continuous receipt of supports.

7. Seek Agency guidance and confirm decision timelines. Because the instrument does not set evidentiary standards or timeframes for CEO consideration, consult the Agency about submission formats, required documents and likely timelines to ensure evidence of receipt of supports is in place at the relevant decision moment (Part 3 para 3.3).

8. For WA agencies and service providers, maintain clear auditable records. If you are a WA government agency or funded provider, record who was an Existing WA NDIS Participant and the dates services were delivered. This assists participants to meet the temporal test and assists the Agency in verifying claims during access reviews (Part 1 paras 1.2 to 1.3; Part 2 Note 1).

9. Do not expect plan changes from this instrument alone. The instrument does not relate to plan preparation or management (Part 3 para 3.3). Once access is granted under the Act, plan development and funding follow the statutory and Agency processes; prepare for that separate interaction rather than assuming plan entitlement is set by the prescription.

10. Consult the Act and cross‑referenced instruments. The instrument depends on the Act, the Becoming a Participant Rules 2016 and interpretive statutes. For authoritative legal positions and for any contested cases, review the Act’s text, paragraph 8.4 of the Becoming a Participant Rules 2016, the Acts Interpretation Act 1901 and the Legislation Act 2003 (Part 3 paras 3.4 and 3.5).

For lawyers, advocates or compliance officers assisting clients, assemble a file containing: proof of WA NDIS Model participant status (per paragraph 8.4), contemporaneous evidence of ongoing supports, proof of date of first participation where age matters, medical and functional evidence aligned to subsection 21(2) requirements, and correspondence with the Agency. Use those materials to frame an access request that addresses the temporal receipt requirement and the statutory elements the CEO must be satisfied about.