Chapter 1Introduction
1.1The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 (the bill) was introduced to the House of Representatives on 27 March 2024.
1.2On 27 March 2024, the Senate referred the provisions of the bill to the Senate Community Affairs Legislation Committee (committee) for inquiry and report by 20 June 2024.
1.3On 5 June 2024, the bill passed the House of Representatives with 29 government amendments and one amendment circulated by the Member for Kooyong, DrMonique Ryan MP. Whilst these provisions have not been referred to the committee for inquiry and report, they are discussed throughout this report as many amend key aspects of the bill, and directly relate to concerns raised by inquiry participants.
Structure of the report
1.4This report contains two chapters. This chapter sets out:
the purpose of the bill;
background information relating to the National Disability Insurance Scheme (NDIS, the Scheme) and the context for these reforms;
an overview of the bill’s key provisions;
an overview of amendments made to the bill during the course of the inquiry; and
general information outlining the conduct of the inquiry and other committees’ consideration of the bill.
1.5Chapter 2 examines the key issues raised by submitters and concludes with the committee’s view and recommendations.
Purpose of the bill
1.6In a joint submission, the Department of Social Services (the Department, DSS), the National Disability Insurance Agency (NDIA) and the NDIS Quality and Safeguards Commission (NDIS Commission) (together, the Agencies), outlined that the bill addresses ‘priority recommendations’ from the NDIS Review (see below) and ‘represents the first tranche of amendments’ to the National Disability Insurance Scheme Act 2013 (NDIS Act) to improve participant experience.
1.7As the Agencies’ submission outlines, NDIS reform has been the focus of all state and territory First Ministers through National Cabinet, reflecting the importance all jurisdictions placed on Scheme certainty and sustainability for participants and their providers.
1.8The Hon Bill Shorten MP, Minister for the NDIS (the Minister) explained these objectives further in his second reading speech:
The legislative approach taken is that we seek to establish an enabling architecture for rules and future reforms to restore the original intent, integrity, consistency and transparency of the scheme.
… it's a first step in responding to the NDIS review findings, and to the disability community who so generously of themselves gave their experiences and insights.
1.9The Minister further underlined the role of National Cabinet in the second reading speech:
The review's final report, released publicly on 7 December 2023, made 26 recommendations and 139 supporting actions to government, all based on what the panel heard from more than 10,000 people and organisations, and what they read in almost 4,000 submissions.
National Cabinet considered the final report and, as part of the initial response, agreed that the Commonwealth would work with state and territory governments to implement legislative and other changes.
I do acknowledge the remarkable goodwill of state premiers and territory chief ministers in agreeing to work as one for Australians with disability.
I certainly applaud their commitment last December to finance additional disability services outside the NDIS program—the 'foundational supports' that we speak of—and I also acknowledge that they have agreed to contribute more to the NDIS from 1 July 2028.
Australians with disability are relying on us to make good on our promises.
1.10As the Minister explained, this bill is the beginning of the journey towards an improved NDIS and addressing priority recommendations from the NDIS Review that was jointly commissioned by all jurisdictions and provided a road map for reform.
1.11Over the course of 2023, National Cabinet agreed to a new Sustainability Framework and an initial tranche of reforms, including the introduction of this bill by the Commonwealth:
First Ministers committed to an NDIS Financial Sustainability Framework to ensure the NDIS can continue to provide life-changing outcomes for future generations of Australians with disability.
… The Framework is the next step, and will provide an annual growth target in the total costs of the Scheme of no more than 8 per cent by 1 July 2026, with further moderation of growth as the scheme matures.
Governments share the goal of reaching long term sustainability for the Scheme and have elevated this objective to National Cabinet. A sustainable growth trajectory for the NDIS will support equity and fairness for all Australians living with disability, including for those not eligible for the NDIS, and ensure that every dollar goes to those who need it most.
1.12At its December 2023 meeting, National Cabinet ‘acknowledged the need for reforms to secure the future of the NDIS, ensuring it can continue to provide life-changing support to future generations of Australians with a disability’.
1.13Further:
As an initial response to the NDIS Review, National Cabinet agreed to work together to:
Implement legislative and other changes to the NDIS to improve the experience of participants and restore the original intent of the Scheme to support people with permanent and significant disability, within a broader ecosystem of supports.
Adjust state and territory NDIS contribution escalation rates, increasing from 4 per cent to be in line with actual Scheme growth, capped at 8 per cent, with the Commonwealth paying the remainder of Scheme costs growth, commencing from 1 July 2028.
… An initial tranche of legislation will be introduced into the Commonwealth Parliament in the first half of 2024, with rule changes phased in as developed.
… These commitments demonstrate Governments’ ongoing commitment to the NDIS. Discussions with the disability community will continue over the coming months as we work together to make the positive changes needed for people with disability.
1.14The Agencies outlined that the bill follows agreement by National Cabinet that the Federal Government would work with state and territory governments to implement legislative and other changes to ‘return the NDIS to its original intent of supporting people with permanent and significant disability, within a broader ecosystem of supports’.
1.15The Agencies added that the changes are critical to the experience of people with disability currently participating in the Scheme, whilst also ensuring the long‑term sustainability of the NDIS, ‘so that it is available to support Australians with disability for many years to come’.
1.16More specifically, the bill seeks to make various amendments to the NDIS Act, including to:
introduce a new definition of ‘NDIS supports’;
clarify entry pathways into the Scheme;
expand NDIS rules relating to access requirements;
provide for new framework plans;
create a new reasonable and necessary budget framework for the preparation of NDIS participants’ plans;
provide for a needs assessment process and the method for calculating the total amounts for participants’ ‘flexible funding’ and ‘stated supports’, to be specified in NDIS rules and legislative instruments;
clarify the requirement that an NDIS participant who receives NDIS amounts for NDIS supports, may only spend that money in accordance with their plan;
enable the NDIA to change the plan management type, as well as imposing shorter funding periods; and
insert quality and safeguard amendments to enable the imposition of conditions on approval of quality auditors.
Background
1.17On 1 July 2013, the NDIS was launched with unanimous support from all political parties and all Australian governments.
1.18According to the NDIA, the NDIS ‘provides funding to eligible people with disability to gain more time with family and friends, greater independence, access to new skills, jobs, or volunteering in their community, and an improved quality of life’.
1.19The Scheme is jointly funded and governed by all Australian governments.
1.20As at 30 June 2023, the NDIS supported over 610 000 participants, at a cost of $35billion in 2022–23. Latest figures as at 31 March 2024, indicate that more than 649 000 participants are currently receiving support from the NDIS, with payments in the 9 months to 31 March 2024 totalling $30.9 billion.
1.21Over a decade since its establishment, the Scheme continues to be life-changing for thousands of people with disability, as well as their family and carers. However, well-established issues and challenges regarding the operations and financial sustainability of the Scheme continue to persist.
1.22These matters have been the subject of numerous inquiries and reviews, including, for example:
The Productivity Commission’s 2017 report regarding NDIS Costs;
Various inquiries and reports from the Parliamentary Joint Standing Committee on the NDIS;
The review of the NDIS Act in 2019, known as the ‘Tune Review’.
1.23The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, which was established on 5 April 2019, and which tabled its final report on 29 September 2023, also considered a number of issues relating specifically to the NDIS, within the broader scope of its inquiry.
The NDIS Review and further context for these reforms
1.24More recently, the Minister announced an Independent Review into the design, operations and sustainability of the NDIS (NDIS Review) on 18 October 2022. The Terms of Reference for the NDIS Review provided three overarching objectives:
put people with disability and their families back at the centre of the NDIS to create a more personal experience;
restore trust and confidence;
ensure the long-term sustainability of the NDIS.
1.25Co-chaired by Professor Bruce Bonyhady AM and Ms Lisa Paul AO PSM, the NDIS Review heard from over 10 000 people and organisations, through virtual and face-to-face consultations, phone interviews, and online submissions.
1.26The NDIS Review delivered its final report ‘Working together to deliver the NDIS’ to Australian governments in December 2023.The final report made 26 recommendations and 139 supporting actions, which according to DSS, the NDIA and the NDIS Commission, were intended to ‘provide a blueprint to renew the promise of the NDIS and deliver a more accessible and inclusive Australia’.
Relevant NDIS Review recommendations
1.27According to the Explanatory Memorandum, the amendments in the bill give effect to NDIS Review recommendation 3 and ‘interconnected elements’ in recommendations 5, 6, and 7. The amendments also support the partial implementation of recommendation 17.
1.28These recommendations of the NDIS Review are listed below:
Recommendation 3: Provide a fairer and more consistent participant pathway.
Recommendation 5: Provide better support for people with disability to make decisions about their lives.
Recommendation 6: Create a continuum of support for children under the age of 9 and their families.
Recommendation 7: Introduce a new approach to NDIS supports for psychosocial disability, focused on personal recovery, and develop mental health reforms to better support people with severe mental illness.
Recommendation 17: Develop and deliver a risk-proportionate model for the visibility and regulation of all providers and workers, and strengthen the regulatory response to long-standing and emerging quality and safeguards issues.
1.29Noting that the Government has stated that the NDIS Review recommendations will take years to implement, the Agencies submitted that changes made by the bill are ‘an important first step’ in implementing these recommendations, but ‘are not intended to be the only step’.
1.30The Agencies further explained the enabling functions of the bill in their joint submission:
The amendments made by the Bill enable progress of key NDIS Review recommendations to clarify the NDIS access requirements and the supports that the NDIS will provide a participant, to create a new budget-based planning framework, and provide more flexibility on how the NDIS Commissioner can take regulatory actions to protect NDIS participants from abuse, harm and neglect.
Financial impact
1.31The Explanatory Memorandum states that the changes in the bill are ‘expected to contribute to decisions made by National Cabinet to moderate cost growth of the NDIS in the medium to long-term and meet the 8 per cent sustainability target by 1 July 2026’. It also states that the immediate changes arising from the bill ‘can be operationalised’ by the NDIA from early 2024–25.
1.32Based on data up to December 2023, it is projected that without further action, NDIS payments would increase by $14.4 billion over four years from 1 July 2024, compared with 2023-24 Mid-Year Economic and Fiscal Outlook (MYEFO).
1.33As outlined in a supplementary submission from the Agencies, the NDIS reforms being undertaken by the Government are expected to moderate this additional growth, and ensure the Scheme ‘remains on track’ to achieve the NDIS Sustainability Framework growth target agreed by National Cabinet from 1 July 2026. The Agencies explained that the introduction of this bill ‘provides the scaffolding for these reforms, including the NDIS Review recommendations and clarifying legislation and rules to return the Scheme to its original intent’.
Key provisions of the bill
1.34This bill comprises two schedules, each containing multiple parts:
Schedule 1 – Main amendments
Part 1: Amendment of the National Disability Insurance Scheme Act 2013
Part 2: Consequential amendments
Part 3: Application and transitional provisions
Schedule 2 – Quality and safeguards amendments
Part 1: Amendments
Part 2: Application and transitional provisions
Commencement
1.35If passed by the Parliament, the whole of the Act would commence on the 28th day after the Act receives Royal Assent.
1.36Further, according to the Agencies, many of the aspects of the bill are operationalised by legislative instruments, and ‘do not practically commence until these instruments are made’.
Schedule 1 – Main amendments
1.37According to the Explanatory Memorandum, Schedule 1 of the bill establishes:
the new definition of NDIS supports;
the process for reassessment of participant status;
provision for participants to transition to a new framework plan;
provision for new framework plans that include a flexible budget, and budget for stated supports;
old framework plans to have a total funding amount;
updates to circumstances in which the NDIA will manage funds;
specification of the requirement that participants spend money only on NDIS supports and in accordance with their plan; and
exemptions for NDIS rules from sunsetting.
1.38Key provisions are outlined further in the sections below.
Amendments to the outline and definition of the NDIS Act
1.39Item 3 would amend the simplified outline of the NDIS Act, as provided in section 8. It repeals paragraph (c) of the simplified outline’s first paragraph which makes reference to ‘reasonable and necessary supports’, and replaces it with a new proposed paragraph which would outline that the NDIS comprises, amongst other things, ‘individual plans under which certain supports (called NDIS supports) will be funded for certain people (called participants)’.
1.40Items 4 to 13 would amend section 9 of the NDIS Act which deals with definitions, inserting new definitions for the following terms, to deal with amendments made by the bill:
flexible funding;
funding component amount;
funding period;
NDIS supports (see also item 14);
needs assessment report;
new framework plan;
old framework plan;
reasonable and necessary budget (see also item 36);
stated support; and
total funding amount.
1.41The following existing definitions would also be amended to deal with the proposed provisions made by this bill:
NDIS amount;
participant;
reassessment date; and
statement of participant supports.
Definition of NDIS support
1.42Item 14 inserts proposed section 10 which provides a definition for ‘NDIS support’, as referenced in item 6. Proposed paragraph 10(a) establishes that a support can only be an NDIS support, if the support:
(i)is necessary to support the person to live and be included in the community, and to prevent isolation or segregation of the person from the community;
(ii)will facilitate personal mobility of the person in the manner and at the time of the person’s choice;
(iii)is a mobility aid or device, or assistive technology, live assistance or intermediaries that will facilitate personal mobility of the person;
(iv)is a health service that the person needs because of the person’s impairment or because of the interaction of the person’s impairment with various barriers;
(v)is a habilitation or rehabilitation service;
(vi)is a service that will assist the person to access a support covered by subparagraph (iv) or (v);
(vii)will minimise the prospects of the person acquiring a further impairment or prevent the person from acquiring a further impairment;
(viii)is provided by way of sickness benefits.
1.43According to the Explanatory Memorandum, the definition serves two purposes:
(i)to provide a constitutional underpinning for the new planning framework (see item 36) by outlining the kinds of supports the Commonwealth is constitutionally capable of funding; and
(ii)via proposed paragraphs (b) and (c), allow NDIS rules to be made to narrow the scope of these constitutionally valid supports to those that are appropriately funded by the NDIS.
1.44NDIS rules made for the purposes of proposed paragraphs 10(b) and 10(c) will be ‘Category A’ rules, therefore requiring the unanimous agreement of all States and Territories before they can be made.
1.45According to the Explanatory Memorandum, this new definition assists participants by ‘providing clear guidance’ on what supports they can access through the NDIS. It states that, for example, things such as holidays, groceries, payment of utility bills, online gambling, perfume, cosmetics, standard household appliances and whitegoods will not qualify as NDIS supports.
1.46On 22 May 2024, the Department provided a proposed exposure draft amendment to the bill’s definition of ‘NDIS supports’ to the committee. On 5June 2024, the Minister tabled, amongst other amendments, an amendment to these provisions of the bill, which subsequently passed the House of Representatives. These amendments are discussed later in this chapter, as well as in Chapter 2 of the report.
Clarification of entry pathways into the scheme
1.47Currently, the Chief Executive Officer (CEO) of the NDIA makes an access decision under section 21 of the NDIS Act, by being satisfied that a participant meets the age requirements, the residence requirements, and either the disability requirements, early intervention requirements, or both. Under existing legislation, there is no requirement for the CEO to separately decide whether a person meets the disability requirements or early intervention requirements.
1.48Item 18 would amend subsection 21(2) of the NDIS Act to require the CEO to separately consider and decide whether or not a participant meets the disability requirements, the early intervention requirements, or both.
1.49Relevantly, item 26 amends subsection 28(2) to require the CEO to give written notice to new participants, to specify whether they have become a participant under section 24 (by meeting the disability requirements), or section 25 (by early intervention requirements), or both.
Powers to end participation in the NDIS
1.50Section 30 of the NDIS Act deals with the revocation of participant status under the scheme, if a participant no longer meets the access criteria, including the residence requirements, the disability requirements, or the early intervention requirements.
1.51Item 30 repeals subsection 30(2) and would insert new, proposed subsections 30(2) to 30(8).
1.52Proposed paragraph 30(3)(a) would allow the CEO to request information from a participant or other person if the CEO is considering revoking a person’s status as a participant in the NDIS.
1.53Proposed subparagraph 30(3)(b)(i) would allow the CEO to request that a participant undergo an assessment and provide the CEO the report, if the CEO is considering revoking a person’s status as a participant in the NDIS.
1.54Proposed subparagraph 30(3)(b)(ii) would allow the CEO to request that a participant undergo a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide the CEO the report, if the CEO is considering revoking a person’s status as a participant in the NDIS.
1.55Proposed subsections 30(4) and 30(5) specify the time period in which such information must be provided to the CEO.
1.56Subsection 30(6) clarifies that the CEO must not revoke the participant’s status under the scheme if the CEO is satisfied that it was reasonable for the participant (or other relevant person), not to have complied with the request made by the CEO. The Explanatory Memorandum further explains circumstances under which this would apply, for example, if the participant was hospitalised, or could not obtain an appointment with a relevant medical professional within the stated period.
1.57Item 31 would insert proposed section 30A into the NDIS Act, which requires the CEO to consider the status of participants and decide, in certain circumstances to be prescribed by the NDIS rules, whether or not an existing participant meets the early intervention requirements, and if not, whether they meet the disability requirements.
1.58Proposed paragraph 30A(1)(c) provides that if the CEO decides that the participant does not meet either of the early intervention or disability requirements, the CEO must revoke the participant’s status as an NDIS participant.
1.59Proposed subsection 30A(2) establishes that the requirements with which the CEO must comply, the criteria which the CEO must apply, and the matters to which the CEO must, or must not have regard, are to be set out in the NDIS rules.
1.60Under this proposed section, proposed subsections 30A(4) to 30A(7) make provision for the CEO to request information and reports, and proposed subsection 30A(8) outlines requirements of the CEO regarding the notice of decisions.
1.61Some government amendments regarding these provisions were passed during the course of this inquiry, as outlined later in this chapter and discussed in Chapter 2.
New planning framework
1.62Section 32 of the NDIS Act deals with the situation in which the CEO must facilitate the preparation of a participant’s plan. Items 32 to 36 amend section 32 of the NDIS Act to deal with the addition of new framework plans.
1.63Item 36 provides for new framework plans. Proposed section 32A clarifies that there will be two kinds of plans under the NDIS, which according to the Explanatory Memorandum are:
new framework plans, which are prepared in accordance with Subdivision B
old framework plans, which are a plan prepared in accordance with SubdivisionC.
1.64Proposed section 32B provides that the Minister may determine, by legislative instrument, the classes of participants who are to receive new framework plans, and the period within which the CEO must give notice of the transition to each participant within that class.
1.65The Explanatory Memorandum explains that all participants will eventually transition to a new framework plan, and that the ‘transition to new framework plans will be gradual and occur by class of participants’. The Explanatory Memorandum also outlines that ‘[it] is envisaged that the timeframe for transition of NDIS participants from old framework plans to new framework plans will take up to 5 years’.
1.66Proposed section 32D sets out matters that must be included in a participant’s new framework plan.
1.67Firstly, proposed subsection 32D(1) establishes that a participant’s plan must include a statement, prepared by the participant, which outlines their goals, objectives and aspirations, as well as their environmental and personal context, including living arrangements, community supports, and social and economic participation.
1.68Subsection 32D(2) provides that a participant's plan must include a ‘statement of participant supports’ that is prepared with the participant and approved by the CEO.
1.69Proposed paragraphs under subsection 32D(2) would require the statement of participant supports to specify:
the participant's ‘reasonable and necessary budget’ (see Item XX)
the general supports (if any) that will be provided;
in regards to the needs assessment report (see Item XX) for the plan, whichever of the following applies:
that the participant meets the disability requirements;
that the participant meets the early intervention requirements;
that the participant meets both the disability and early intervention requirements;
the plan’s maximum period of effect, starting on the day the plan is approved;
any circumstances in which the NDIA must reassess the plan;
the management of the funding for supports under the plan; and
the management of other aspects of the plan.
1.70Proposed subsection 32D(3) establishes how general supports may be specified in a plan, proposed subsections 32D(4) and 32D(5) deal with time limits for the approval of statements of participant supports, and proposed subsection 32D(6) provides requirements for the CEO regarding the approval of statements of participant supports.
1.71Proposed subsection 32D(7) establishes a requirement that where funding for supports under a participant's plan is managed by the NDIA, supports are to be provided by a registered NDIS provider only.
1.72Item 78 of the bill sets out the circumstances for permitted variations for new framework plans, and item 83 provides requirements for the CEO when varying the statement of participant supports in a new framework plan.
Reasonable and necessary budgets
1.73As outlined earlier, item 9 inserts a reference to the term ‘reasonable and necessary budget’ into the list of definitions in section 9 of the NDIS Act.
1.74Under item 36, the bill’s proposed sections 32E to 32K establish how reasonable and necessary budgets will be developed under the Act.
1.75Proposed subsection 32E(1) provides that a participant's reasonable and necessary budget is made up of ‘flexible funding’ or ‘stated supports’ or both, as outlined further below.
Flexible funding
1.76Proposed subsection 32E(2) establishes that flexible funding will be available to a participant where their needs assessment report indicates they require at least some NDIS supports that are not stated supports (see section below). Flexible funding up to a specified ‘total funding amount’ will be provided under the plan for those supports.
1.77Provisions establish that a participant may spend their flexible funding on any NDIS supports, taking into account any restrictions on how this funding may be spent as established under subsections 32F(6) and 32F(7).
1.78Provisions under proposed section 32F also provide that flexible funding is to be allocated within a participant's plan to a specified ‘funding period’ of no more than 12 months.
1.79Proposed subsection 32F(5) establishes that if a participant does not spend the entirety of their flexible funding amount in that period, the next funding period will be increased by the excess amount that was not spent in the preceding period – that is that the excess amount will ‘roll over’.
1.80The Explanatory Memorandum states that funding would not roll-over from the end of a plan, into a new plan.
Stated supports
1.81Proposed subsection 32E(3) establishes that if a participant’s needs assessment indicates that the participant requires a particular support or class of supports, and such supports are both an NDIS support and a stated support for the participant, the reasonable and necessary budget must provide for such supports.
1.82Proposed paragraph 32E(3)(d) provides that funding for stated supports can only be spent on:
the support, or class of supports, for which the particular funding is provided; and
supports that are NDIS supports for the participant.
1.83According to the Explanatory Memorandum, funding for stated supports cannot be spent for any other purpose, including acquiring other NDIS supports.
1.84The Explanatory Memorandum also clarifies that stated supports are provided under a reasonable and necessary budget for ‘specific high-cost items’ and that NDIS rules will prescribe supports that are stated supports for participants or classes of participants. Further, it outlined that high-cost assistive technology, home modifications, and supported independent living may all be stated supports.
1.85As with provisions relating to flexible funding, under proposed section 32G, the bill establishes that funding for a stated support is to be allocated within a participant's plan to a specified ‘funding period’ of no more than 12 months’.
1.86However, proposed subsection 32G(4) establishes that NDIS rules may prescribe certain supports that are not required to have funding periods.
1.87Also similar to provisions relating to flexible funding, proposed subsection 32G(6) provides that any unused funds for a stated support, or class of stated supports, may be rolled-over to the next funding period.
Requirements relating to the acquisition or provision of supports
1.88Proposed section 32H establishes that a participant’s reasonable and necessary budget may specify that funding (either flexible funding or for a stated support) will only be provided where certain requirements are met.
1.89Proposed subsection 32H(2) sets out that these requirements may include the following:
that supports are provided by a specified person or class of persons;
that a specified process be undertaken prior to the supports being acquired or provided;
that specified conditions be satisfied in relation to the participant, before the supports are acquired or provided;
that any requirements specified in new NDIS rules are complied with.
1.90In relation to these provisions, the Explanatory Memorandum explains that for example, a requirement may be that a participant obtain a certain number of quotes for home modifications or major assistive technology.
NDIS rules relating to reasonable and necessary budget provisions
1.91Proposed section 32J establishes a new NDIS rule-making power which sets out requirements with which the CEO must comply; methods or criteria that the CEO is to apply; and matters that the CEO may, must, or must not, take into account in making decisions under proposed sections 32F, 32G and 32H about reasonable and necessary budgets.
Calculating total funding amounts
1.92Proposed section 32K provides that total funding amounts in a participant's reasonable and necessary budget must be determined by applying information contained in the needs assessment report (see proposed section 32L explained below), in accordance with methods for working out such amounts, which may be determined by the Minister, by legislative instrument.
1.93Proposed subsection 32K(3) establishes that the Minister must, in making such a determination, have regard to the guiding principles set out in subsections 4(5) and 4(11) of the NDIS Act, as well as the ‘need to ensure the financial sustainability’ of the NDIS.
1.94Proposed subsection 32K(5) clarifies that the legislative instrument, as determined by the Minister, may establish different methods for different classes of participants, or classes of stated supports. This is without limiting subsection 33(3A) of the Acts Interpretation Act 1901.
Needs assessments
1.95Proposed subsection 32L(1) provides that the CEO must arrange for an assessment of a participant’s need for supports to be undertaken as soon as practicable, after the CEO commences the preparation of a plan for a participant.
1.96Proposed subsections 32L(2) to (4) deal with what an assessment covers and how an assessment may be undertaken, with subsection 32L(5) establishing that a report of the assessment must be prepared and provided to the CEO, as soon as practicable after the assessment is completed. Proposed subsection 32L(6) sets out that the report must include any information and meet any requirements determined by the Minister under proposed subsection 32L(8).
1.97Proposed subsection 32L(7) deals with replacement assessments and establishes that when deciding whether or not to approve a statement of participant supports, the CEO may decide that a replacement assessment of the participant's needs should be undertaken.
1.98Proposed paragraph 32L(7)(c) provides that if the CEO decides that a replacement assessment should be undertaken, then the CEO must arrange for that assessment, with proposed paragraph 32L(7)(d) establishing that the replacement assessment must be undertaken in accordance with proposed subsections 32L(2) to (6).
1.99Proposed subsection 32L(8) allows the Minister to determine, by legislative instrument, the following:
assessment tools to be used in undertaking needs assessments;
requirements for undertaking needs assessments;
information that must be included in a needs assessment report;
requirements that a needs assessment report must satisfy.
1.100Proposed subsection 32L(9) provides that in making a determination under proposed subsection 32L(8), the Minister may make different provision for different classes of participants, and under proposed subsection 32L(10), must have regard to the guiding principles set out in subsections 4(5) and 4(11) of the NDIS Act, as well as the ‘need to ensure the financial sustainability’ of the NDIS.
1.101Some government amendments regarding these provisions were passed during the course of this inquiry, as outlined later in this chapter.
Requests for information and reports for certain purposes
1.102Section 36 of the NDIS Act deals with information and reports for the purposes of preparing and approving a participant's plan. Item 52 of the bill inserts an additional purpose for which the CEO may make a request under subsection 36(2) of the NDIS Act, specifically to undertake an assessment under newly proposed section 32L.
1.103Proposed subsection 36(3), as inserted by item 54, provides that such a request made by the CEO, must specify a 28-day minimum timeframe for the information or reports to be received by the CEO, and if these are not received within this timeframe, the CEO must suspend the preparation of the new framework plan. This is unless the CEO is satisfied that it was reasonable for the person to have not complied with the request within the established timeframe, as per proposed subparagraph 36(3)(b)(ii).
1.104Proposed subsection 36(4) sets out a notification requirement if preparation of a new framework plan is suspended as a result of non-compliance with the timeframe set out under proposed subsection 36(3), and proposed subsection 36(5) deals with requests for information for the purposes of preparing, or deciding whether to approve a statement of participant supports for a participant.
Plan management changes
1.105Subsection 44(3) of the NDIS Act currently provides for NDIS rules that may prescribe criteria that the CEO is to have regard to in considering whether giving effect to certain plan management requests would pose an unreasonable risk to a participant.
1.106Item 70 inserts proposed paragraph 44(2A)(c) which applies to a request that a participant’s plan be managed by a plan nominee. This amendment establishes that a plan nominee may not manage the funding under a plan if the CEO is satisfied that section 46 (dealing with the acquittal of NDIS amounts) would be unlikely to be complied with.
1.107Item 71 amends the rule-making power in sections 44(3) of the NDIS Act, so that NDIS rules may also prescribe matters that the CEO is not to have regard to in deciding whether giving effect to certain plan management requests would pose an unreasonable risk to a participant.
1.108Item 73 inserts two new NDIS rule-making powers:
Proposed subsection 44(4) will allow NDIS rules to prescribe circumstances in which the management of funds under a plan by a participant, a registered plan management provider, or a plan nominee would be taken to present an unreasonable risk to the participant.
Proposed subsection 44(5) will allow NDIS rules to prescribe criteria that the CEO is to apply, and matters to which the CEO is, or is not, to have regard to in considering whether section 46 (dealing with the acquittal of NDIS amounts) would be unlikely to be complied with if funding for supports was managed under the plan by any of the following:
the participant;
a registered plan management provider;
a plan nominee.
1.109Section 45 of the NDIS Act deals with the payment of amounts under the NDIS. Item 74 inserts proposed subsections 45(4) to (6) which establish circumstances where and NDIS payment amount should not be paid under a participant's plan.
1.110In relation to proposed subsection 45(4), the Explanatory Memorandum explains that for a participant's new framework plan, the NDIA is not permitted to pay an NDIS amount to a person if the payment would result in the total amount of flexible funding in a plan being exceeded, or the total amount of funding for a stated support in a plan being exceeded. For a participant's old framework plan, the NDIA is not permitted to pay an NDIS amount to a person if the payment would result in a total funding amount or total component amount in a participant's plan being exceeded.
1.111Proposed subsection 45(5) establishes that 45(4) would not apply in relation to the payment of an NDIS amount if the CEO is satisfied that there are exceptional circumstances justifying the making of the payment without varying or replacing the participant's plan. Proposed subsection 45(6) provides that NDIS rules may prescribe what constitutes exceptional circumstances.
1.112Section 46 of the NDIS Act deals with the acquittal of NDIS amounts, including spending of those amounts and the retention of records.
1.113Item 75 repeals and replaces subsection 46(1) of the NDIS Act, so that a participant who receives an NDIS amount, or a person who receives an NDIS amount on behalf of a participant, may only spend the money on NDIS supports for the participant and in accordance with the participant's plan.
1.114Section 74 of the NDIS Act deals with the management of plans for children by persons with parental responsibility. Item 96 deals with a choice regarding plan management type. It permits a person with parental responsibility to make a plan management request that a child’s plan is managed wholly or partly by that person, a plan manager, or the NDIA. Except in certain circumstances, the CEO must comply with that request.
Review rights
1.115Items 100 to 102 of the bill amend subsection 99(1) of the NDIS Act which sets out a table of reviewable decisions, to ensure that newly created decisions established by the bill, are capable of being reviewed.
Categories of NDIS rule-making powers
1.116Items 115 to 122 insert new NDIS rule-making powers into the table at subsection 209(8) of the NDIS Act, to identify the category of the NDIS rule-making powers inserted by the bill.
Consequential, application and transitional provisions
1.117Item 123 amends section 12 of the Legislation (Exemptions and Other Matters) Regulation 2013 by inserting a new item into the table, specifically providing that NDIS rules and any other instrument made under the Act are exempt from sunsetting.
1.118Items 124 to 138 provide for a range of application and transitional provisions.
Schedule 2 – Quality and safeguard amendments
1.119According to the Explanatory Memorandum, the NDIS Review identified that gaps exist in the oversight of NDIS providers. To address these issues, the Review recommended that the NDIS Commission ‘develop and deliver a risk proportionate model of regulation and strengthen the regulatory response to long-standing and emerging quality and safeguards issues’.
1.120Schedule 2 of the bill enables the NDIS Commission to attach conditions to the approval of an approved quality auditor, and the strengthening of the NDIS Commissioner’s ability to take regulatory actions by delegating certain compliance and enforcement powers and functions.
Approval of quality auditors
1.121Item 1 inserts proposed subsection 73U(4A) which establishes a new power to make NDIS rules which specify conditions of the approval for a person or body to become an approved quality auditor.
1.122Item 2 inserts proposed subsection 73U(5A) which specifically authorises conditions that restrict the employment or engagement of a person, against whom a banning order has been made, by an approved quality auditor. This amendment also provides for conditions that require the approved quality auditor to not have, or to continue to have, such a person against whom a banning order has been made, as a member of their key personnel.
1.123Item 4 of Schedule 2 establishes proposed subsection 73U(9A) which enables NDIS rules to prescribe requirements with which the NDIS Quality and Safeguards Commissioner (Commissioner) must comply, criteria that the Commissioner is to apply, or matters to which the Commissioner may, must, or must not have regard to, in deciding:
whether to give, or refuse to give an approval to a quality auditor;
whether or not to make an approval that is subject to conditions; and
whether or not to vary or revoke an approval.
1.124Item 5 inserts a new requirement under proposed paragraph 73ZN(9)(d), for the Commissioner to notify an approved quality auditor, when a banning order is made against a person who is employed, or otherwise engaged by the approved quality auditor.
Delegation of powers
1.125Item 6 inserts proposed subsections 73U(4A) and (9A) as provisions for which the Minister may, in writing, delegate to the Commissioner their power under section 209 of the NDIS Act, to make NDIS rules.
1.126Item 7 repeals and replaces subsections 202B(1) and (2), to allow the Commissioner to delegate certain powers and functions to specified non-Senior Executive Service (SES) employees. In exercising this decision, the Commissioner must take into account whether the Australian Public Service employee’s position or office is sufficiently senior, or whether the employee has the appropriate qualifications or expertise to perform the power or function, when making the decision to delegate.
1.127Item 8 inserts a new NDIS rule-making power into the table at subsection 209(8) of the NDIS Act, to establish the category of NDIS rule-making powers inserted by Part 1 of Schedule 2 of the bill.
1.128Items 9 to 11 set out application and transitional provisions for the key amendments under Schedule 2 of the bill.
Amendments to the bill during the course of the inquiry
1.129On 22 May 2024, the Department provided the committee with an exposure draft copy of an amendment to the bill dealing with proposed section 10, at item 14 of Schedule 1, relating to the definition of NDIS supports.
1.130At a public hearing of the inquiry on 22 May 2024, Ms Robyn Shannon, Deputy Secretary of the Disability and Carers Stream at the Department, foreshadowed further government amendments to the bill.
1.131On 5 June 2024, the Minister moved government amendments (1) to (8) on sheet PA110, and government amendments (1) to (21) on sheet SK113 and presented two supplementary Explanatory Memoranda in relation to each sheet.
1.132Ms Kate Chaney MP, Member for Curtin, also moved amendments (1), (2), (4), (5), (6), (9) and (13) as circulated in the name of Dr Monique Ryan MP, Member for Kooyong.
1.133Copies of these documents are available on the bill’s website.
1.134Subsequently, the bill, as amended by all 29 government amendments, and amendment (1) moved in the name of the Member for Kooyong, was agreed to, and passed the House of Representatives.
1.135As mentioned at the beginning of this chapter, these amendments have not been referred to the committee for inquiry and report. However, given many of them amend key aspects of the bill, and directly relate to concerns raised by a number of inquiry participants, an overview of these provisions is provided below, primarily based on the supplementary Explanatory Memoranda.
Government amendments (1) to (8) on sheet PA110
1.136According to the Supplementary Explanatory Memorandum, this sheet ‘provides for a number of amendments designed to address key concerns that have been raised by the disability community, stakeholders and other parliamentarians’ since the bill was introduced on 27 March 2024, including feedback provided in the context of this inquiry.
Information gathering powers
1.137Amendments (1) to (4) relate to information gathering powers for the CEO and requests for assessments and examinations for the purposes of considering whether to revoke a person’s status as a participant in the Scheme, proposed by items 30 and 31 of the bill. As outlined in the Supplementary Explanatory Memorandum, these amendments will impose a further limitation in that the CEO can only make such requests, ‘if there is no other reasonable alternative way of obtaining the information’. Further, this limitation will require the CEO to have regard to other reasonable alternatives before making the request for an assessment or examination.
Co-design of legislative instruments
1.138Amendments (5) and (8) provide an explicit requirement for the Minister to have regard to the principle of co-design, as established in subsection 4(9A) of the NDIS Act, when making a legislative instruments under proposed sections 32K and 32L, as inserted by item 36 of the bill.
Provision of the needs assessment report to participants
1.139Amendment (6) inserts a new, proposed subsection 32L(6A) in item 36 of the bill, establishing a specific requirement for the CEO to provide a participant a copy of their needs assessment report ‘as soon as practicable’ after the CEO receives the report.
Review of needs assessment report
1.140Amendment (7) inserts a new legislative note under proposed subsection 32L(7), clarifying how internal and external review applies under this provision.
1.141According to the Supplementary Explanatory Memorandum, this note:
… confirms that the requirement for the CEO to arrange a replacement needs assessment if they are satisfied that it should be done must also be exercised upon review. This includes upon internal review (see section 100 of the Act) and external review by the Administrative Appeals Tribunal.
Government amendments 1 to 21 on sheet SK113
1.142According to the Supplementary Explanatory Memorandum, amendments in sheet SK113 make a number of clarifications to the bill.
NDIS supports
1.143Amendment (5) omits and replaces proposed section 10, as inserted by item 14 of the bill, and which provides a definition of ‘NDIS supports’. The Supplementary Explanatory Memorandum outlines the effect of this amendment in detail, but at a high level, it states that this new definition:
provides clarity around the supports that can be funded by the NDIS and those that cannot;
makes clear the constitutional basis for the new budget-based planning framework that was recommended by the NDIS Review; and
provides clarity and consistency across the entirety of the NDIS Act.
1.144Consequential to this amendment, new amendment (3) amends the definition of NDIS support in item 6 of Schedule 1 of the bill.
1.145Amendment (15) makes a minor amendment to item 115 of Schedule 1 of the bill, to establish that NDIS rules made under proposed subsections 10(1) and (4) are both Category A rules, within the meaning of section 209 of the NDIS Act, requiring agreement of the Commonwealth and all state and territory governments.
1.146Amendment (17) also provides for a transitional rule that will be in place only until final rules under proposed section 10 can be agreed.
Replacement assessments
1.147Amendments (7) and (8) amend proposed section 32L, which is inserted by item 36 of Schedule 1 of the bill, which provide that the CEO must arrange for an assessment of a participant's need for supports for the purposes of preparing a new framework plan.
1.148Amendment (7) amends proposed paragraph 32L(7) to remove the reference to the CEO being satisfied ‘in accordance with [NDIS] rules made for the purposes of this paragraph’, and amendment (8) inserts a new proposed subsection 32L(7A) which clarifies the rule-making power relating to how the CEO decides whether another needs assessment should be undertaken.
1.149Amendment (16) updates item 116 of schedule 1 of the bill, consequential to these amendments. According to the Supplementary Explanatory Memorandum, this will ensure that NDIS rules relating to replacement needs assessment reports, will be Category A rules.
Old framework plans
1.150Amendments (1), (2), (4), (9), (10), (12) and (13) relate to old framework plans.
1.151According to the Supplementary Explanatory Memorandum, amendments are proposed to clarify the operation of new subsections 33(2A) to 33(2E) and to ensure these provisions operate in the manner with which they were intended. It also states that these amendments will require the CEO to:
Specify a total funding amount for all reasonable and necessary supports funded in a participant’s plan,
Categorise reasonable and necessary supports into ‘groups’ of supports, with each group having an associated funding component amount, and
Either specify funding periods for all reasonable and necessary supports, taken as a whole, or for each group of supports.
1.152The Supplementary Explanatory Memorandum further advises that the primary change made by these amendments is the introduction of the concept of a ‘group’ of reasonable and necessary supports.
1.153Amendments (18) to (21) establish transitional amendments relating to old framework plans.
Other amendments
1.154Amendment (6) inserts a legislative note at the end of proposed subsection 32E(4) which relates to stated supports, and specifically provides that a support will be a stated support if it is declared in the NDIS rules. This note advises the reader that NDIS rules may declare a support for this purpose by identifying a class of supports, and refers to subsection 13(3) of the Legislation Act 2003.
1.155Amendment (11) amends item 78 of Schedule 1 of the bill to include proposed subparagraphs (ia) and (ib) in proposed paragraph 47A(1AB)(j). Subparagraph 47A(1AB)(j)(ia) ‘provides that the CEO can vary a participant’s reasonable and necessary budget if they are satisfied that the participant requires funding because the participant has experienced fraud or financial exploitation’. Further, new subparagraph 47A(1AB)(j)(ib) provides that the CEO can vary a participant’s reasonable and necessary budget if the CEO is satisfied that the variation is necessary to prevent or lessen a threat to the participant’s life, health or safety (whether current or future).
1.156Amendment (14) amends item 99 of Schedule 1 of the bill to insert a legislative note to proposed subsection 74(6), to provide an example of the types of rules that may be made under new subsection 74(6).
Amendment agreed to as circulated in the name of Dr Monique Ryan MP
1.157On 5 June 2024, Ms Kate Chaney MP, Member for Curtin, moved amendment(1), as circulated in the name of Dr Monique Ryan MP, Member for Kooyong, as outlined below:
(1) Page 2 (after line 16), after clause 3, insert:
4 Review
(1) The Minister must cause an independent review of the amendments made by this Act to be conducted as soon as practicable after the end of the 5-year period starting on the day this Act receives the Royal Assent.
(2) The persons who conduct the review must:
(a) consult with the public in conducting the review; and
(b) give the Minister a written report of the review in sufficient time to enable the Minister to comply with subsection (3).
(3) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 9 months after the end of that 5-year period.
1.158According to Ms Chaney MP, the amendment ‘relates to requiring an independent review after a five-year period that involves consultation with the public, with a written report to be tabled within nine months’.
Compatibility with human rights
1.159The bill’s Statement of Compatibility with Human Rights (the statement) notes that the bill engages the following rights:
Right to equality and non-discrimination
- Articles 3, 4, 5 and 12 of the Convention on the Rights of Persons with Disabilities (CRPD); and
- Articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR).
Rights of people with disability
- Articles 4(3) and 7 of the CRPD.
Rights to social security
- Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and
- Article 28 of the CRPD
Right to health
- Article 12(1) of the ICESCR; and
- Article 25 of the CRPD.
Right to privacy and reputation
- Article 17 of the ICCPR; and
- Article 22 of the CRPD.
- The statement concludes that the bill is compatible with human rights because it ‘advances the protection of the rights of people with disability in Australia, consistent with the CRPD, ICCPR and ICESCR’. To the extent that the bill may limit human rights, the statement declares that those limitations are ‘reasonable, necessary and proportionate’ to ensure the long-term integrity and sustainability of the NDIS, for the benefit of all persons with disability who have access to the NDIS.
Consideration by other committees
1.161Both the Parliamentary Joint Committee on Human Rights, and the Senate Standing Committee for the Scrutiny of Bills made a number of comments on the bill. Key issues raised by both committees are outlined in the following sections.
Parliamentary Joint Committee on Human Rights
1.162The Parliamentary Joint Committee on Human Rights (PJCHR) raised a number of concerns regarding the bill in its Report 4 of 2024, which tabled on 15 May 2024. These matters are summarised below.
Definition of NDIS support
1.163The PJCHR noted that proposals to introduce a new definition of NDIS support, and allow NDIS rules to potentially narrow the scope of that definition, may have the effect of reducing the type of supports that will be funded by the NDIS, and therefore available to participants.
1.164In its consideration of these provisions, the PJCHR reported that this measure would engage and may limit the rights of persons with disability, the rights to an adequate standard of living and health, the right to social security. To the extent that the measure applies to children, the PJCHR also outlined that the rights of the child would be engaged and possibly limited.
1.165Whilst the PJCHR acknowledged that the measure appears to pursue a legitimate objective and be rationally connected to that objective, it noted that ‘questions arise as to proportionality’.
1.166The PJCHR was of the view that further information is needed to assess the compatibility of these provisions with these human rights. It outlined four key matters for the Minister to provide additional advice on.
NDIS rules relating to access requirements
1.167The PJCHR noted that to the extent that the NDIS rules relate to access requirements for the Scheme, the measure engages the rights of persons with disability, the rights to an adequate standard of living, health and social security, and the rights of the child (insofar as the measure applies to children).
1.168The PJCHR outlined that whether such rights would be promoted or limited, would depend on the content of any NDIS rules made for the purposes of the measure, and therefore reported ‘it is not possible to conclude on the human rights compatibility of the measure as such an assessment will depend on the content of future NDIS rules’.
1.169The PJCHR concluded by drawing these human rights concerns to the attention of the Minister and Parliament, noting that as part of its usual scrutiny process, it would scrutinise any future NDIS rules and related legislative instruments for their compatibility with human rights.
Requests for information
1.170The PJCHR outlined that allowing the CEO to request information and reports from an NDIS participant, such as sensitive medical information, engages and may limit the right to privacy.
1.171It continued by acknowledging that whilst this measure appears to pursue a legitimate objective, and be rationally connected to that objective, questions arise in relation to proportionality.
1.172The PJCHR concluded that further information is required to assess the compatibility of this measure with the right to privacy, and therefore set out five key matters for the Minister to provide further advice on.
Working out total funding amounts for NDIS participants
1.173In regards to proposed section 32K of the bill, the PJCHR noted that the measure requires the Minster to have regard to the financial sustainability of the Scheme in determining matters relating to working out total funding amounts and assessing participants’ needs for supports.
1.174The PJCHR noted that to the extent that this results in fewer supports approved and funded for NDIS participants, and has an adverse impact on participants’ independence and quality of life, the measures would engage and may limit the rights of persons with disability, the rights to an adequate standard of living, health and social security, as well as the rights of the child (if the measures applied to children).
1.175The PJCHR pointed out that the statement of compatibility with human rights for the bill, did not address these measures. It considered that further information is required to assess the human rights implications of these measures, and therefore sought the Minister’s advice in relation to six further matters.
Approved quality auditor conditions
1.176In regards to the bill’s amendments to section 73U of the NDIS Act, which relates to approved quality auditors, the PJCHR noted that proposals requiring an approved quality auditor to terminate an employee or key personnel against whom a banning order has been made, engages and may limit the right to work.
1.177The PJCHR considered that the measure likely pursues a legitimate objective, but outlined that it is not clear that the measure is rationally connected to the stated objective. Further, the PJCHR raised concerns regarding proportionality, and noted that much will depend on individual circumstances of each case.
1.178The PJCHR concluded by drawing these human rights concerns to the attention of the Minister and Parliament.
Senate Standing Committee for the Scrutiny of Bills
1.179The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills committee) outlined a number of concerns regarding the bill in its Scrutiny Digest 6 of 2024, tabled on 15 May 2024. These matters are summarised below.
Exemptions from sunsetting; and significant matters in delegated legislation
1.180The Scrutiny of Bills committee noted some concerns in relation to Item 123 of Schedule 1 of the bill, which would establish that the NDIS rules and any other instrument made under the NDIS Act, are exempt from sunsetting.
1.181The Scrutiny of Bills committee noted the explanation provided within the bill’s Explanatory Memorandum regarding these amendments, but did not consider that the fact that an instrument is made to facilitate an intergovernmental scheme, is a reason in itself, for exempting an instrument from the usual sunsetting process. Further, it outlined:
… the committee does not consider the fact that a number of executive governments have reached agreement in relation to a particular matter precludes the need for parliamentary oversight of the laws resulting from such agreement … the committee is of the view that it would be entirely appropriate for the Commonwealth Parliament to maintain oversight of such instruments made and remade through the sunsetting process.
1.182The Scrutiny of Bills committee also noted that its concerns were ‘heightened’ given the ‘extensive rule-making powers that exist in the NDIS Act and which are proposed to be expanded in the bill’.
1.183It considered that if these matters remain in the rules, at a minimum, specific consultation requirements regarding the development of the NDIS rules with individuals affected should be included in the bill.
1.184Noting these concerns, the Scrutiny of Bills committee requested the Minister’s detailed advice in regard to three particular aspects of these matters.
Broad delegation of administrative powers; and availability for independent merits review
1.185The Scrutiny of Bills committee also commented on the bill’s amendments seeking to expand the decisions that the CEO can make. It outlined that it ‘prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated’ – preferably to holders of nominated offices or to members of the SES.
1.186The Scrutiny of Bills committee noted that whilst the bill does not introduce or amend the power of the CEO to delegate powers and functions, numerous provisions of the bill expand the scope of the CEO to make decisions on various matters. Therefore, the Scrutiny of Bills committee queried if consideration was given to whether the breadth of the existing delegation power remains appropriate, or whether it would be appropriate to legislatively constrain the delegation power in respect to the new powers and functions.
1.187The Scrutiny of Bills committee also noted that it is unclear whether these decisions, such as those provided for in items 36, 63 and 96 to 98, for example, are subject to independent merits review. It outlined its general expectation that if a bill empowers a decision-maker to make decisions which may affect rights, liberties or obligations, such decisions should ordinarily be subject to independent merits review.
1.188The Scrutiny of Bills committee also noted that its concerns were ‘heightened’ given the ‘breadth of the power for the CEO to delegate their administrative powers or functions, including the power to make decisions’. Noting these concerns, the Scrutiny of Bills committee requested the Minister’s detailed advice in regard to four particular aspects of these matters.
Incorporation of external materials
1.189In relation to items 114, 36 and 39 of Schedule 1 of the bill, the Scrutiny of Bills committee noted its general concern regarding bills which allow the incorporation of legislative provisions by reference to other documents, where such an approach:
raises the prospect of changes being made to the law in the absence of parliamentary scrutiny;
can create uncertainty in the law; and
means that those obliged to obey the law, may have inadequate access to its terms.
1.190The Scrutiny of Bills committee outlined its ‘consistent scrutiny view’ that where material is incorporated by reference into the law, it should be freely and readily available to all those who may be interested in the law. It requested the Minister’s further advice in regard to three particular aspects of this matter.
Conduct of the inquiry
1.191Details of the inquiry were made available on the committee’s website and the committee contacted organisations and individuals to invite them to make a submission to the inquiry. The committee received 205 submissions, and a number of supplementary submissions, which are listed at Appendix 1.
1.192The committee held three public hearings in Canberra, and via videoconference on 21 May, 22 May and 14 June 2024. Witnesses are listed at Appendix 2.
1.193On 22 May 2024, the Department provided a correction to the Explanatory Memorandum to the committee. The Minister then tabled this correction in the House of Representatives on 5 June 2024.
1.194As mentioned earlier, on 5 June 2024, 29 government amendments and seven amendments in the name of Dr Monique Ryan MP, Member for Kooyong, were moved in the House of Representatives.
1.195Subsequently, the bill, as amended by all 29 government amendments, and amendment (1) moved in the name of the Member for Kooyong, was agreed to, and passed the House of Representatives.
Note on references
1.196References to Committee Hansard in this report are to proof transcripts. Page numbers may vary between proof and official transcripts.
1.197References to the Explanatory Memorandum in this report are to the Replacement Explanatory Memorandum with corrections, as provided to the committee on 17 April 2024. Page numbers may vary between the original Explanatory Memorandum and the replacement.
Acknowledgement
1.198The committee thanks all those who contributed to the inquiry by making submissions, providing additional information, and appearing at public hearings. The committee is grateful to all those who have shared their expertise, knowledge, ideas, and personal stories with the aim of improving the Scheme for the future.
1.199In particular, the committee acknowledges the contributions of people with disability, their families and carers who shared their experiences and perspectives throughout the inquiry. The evidence of people with lived experience is crucial to identifying issues within the NDIS and improving its operation. The committee appreciates the time and effort that people have taken to share their often very personal stories.