Chapter 2Views on the bill
Introduction
2.1The committee received evidence which reflected the diverse range of views on the bill as well as more broadly on the current approach to reforming the National Disability Insurance Scheme (NDIS, the Scheme). Whilst some submitters were supportive of the bill, many inquiry participants raised concerns about some of the bill’s provisions and recommended amendments to strengthen the bill.
2.2The chapter first discusses the bill in the context of the NDIS reforms and implementation of the NDIS Review recommendations.
2.3It then explores key issues raised by submitters including matters related to co‑design; NDIS rules; definition of NDIS supports; needs assessments; new National Disability Insurance Agency (NDIA) Chief Executive Officer (CEO) powers; and other concerns. It also outlines the government amendments which directly respond to these concerns.
NDIS reforms
2.4Many submitters recognised the need for reforms and acknowledged the government’s efforts to ensure the scheme is sustainable into the future. Submitters outlined priority areas needing reforms and acknowledged that the bill is the first step in the NDIS reform process.
NDIS Review
2.5As discussed in Chapter 1, the NDIS Review made 26 recommendations and 139 supporting actions to achieve a more inclusive and fairer Australia for all people with disability. In their 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 Independent Review into the NDIS (NDIS Review) and represents the first tranche of amendments to the NDIS Act 2013 (NDIS Act) to improve participant experience.
2.6Many submitters acknowledged that the bill directly responded to some of the NDIS review recommendations and were broadly supportive of its intent to enable the implementation of key recommendations.
2.7For example, Ability First pointed out that the bill if passed ‘will directly address some of the recommendations of the NDIS Review’ and stated its broad support of the bill.
2.8However, some inquiry participants expressed concerns that a formal response from the government should have been made before the introduction of legislative changes. At a hearing, Mr Darryl Steff, the CEO of Down Syndrome Australia told the committee:
…the chronological approach, or the lack of a chronological approach, concerns us slightly, in that we don’t yet have a government response to the NDIS review report, yet we have legislation before us that enacts parts of the NDIS review.
Essential step
2.9The Agencies described the bill as an essential step to enable the implementation of the NDIS Review recommendations, which will take years to implement.
2.10This was echoed by Professor Bruce Bonyhady who Co-chaired the NDIS Review:
The legislation currently before you is consistent with our recommendations and gives effect to a number of our highest priority reforms. … My key point, however, is that the passage of this legislation is an essential step in the implementation of the NDIS review. We need the new structures described in this bill to be put in place as a first step towards the outcomes people with disability described to the review, like more consistency in budgets and flexibility in how they use their budgets.
2.11The Health Services Unions stated that ‘the changes proposed in the bill are sensible changes that give effect to the NDIS Review’s recommendations, which came from years of broad consultation’ and added:
We believe these changes avoid trade-offs between access to disability supports and limiting spending growth, ensure states and territories get back into the business of service provision, and ensure appropriate regulatory powers … these changes are just the scaffolding for future NDIS changes.
Cost control
2.12Some submitters recognised the need for cost control measures to ensure the sustainability of the scheme and were supportive of legislative changes that would reduce cost growth.
2.13For example, Aruma and Alliance20, which support the bill, believe it would ‘improve total scheme cost control arising from more people entering the scheme than it was originally designed for’.
2.14Similarly, Vision Australia explained its broad support for the bill in order to improve cost control:
Vision Australia appreciates the need to ensure future sustainability of the NDIS and we are broadly supportive of changes that will ensure that people with permanent and significant disability can access the supports they need to live, work and participate in their communities for many decades to come. Our support for the passage of the Bill is to improve total scheme cost control arising from more people entering the Scheme than it was originally designed for.
2.15Professor Bruce Bonyhady stressed the need to pass the bill to achieve cost control and ensure the sustainability of the scheme:
The scheme, as it is today, is not sustainable. Without the sustainability of the scheme, people with disability and their families have no certainty and have no rights. This legislation absolutely needs to pass.
NDIS Rules and legislative instruments
2.16Inquiry participants raised a range of concerns in relation to the NDIS Rules that are referred to within the bill’s provisions. These are examined below.
Types of rules
2.17The Agencies informed the committee that the bill inserts 30 new NDIS rule making powers and six new legislative instrument making powers. The Agencies stated that all new NDIS Rules and instruments ‘will be the subject of considered and detailed consultation and input from stakeholders, and the states and territories’.
2.18In an attachment to its submission, the Agencies also provided a table that outlines the NDIS rule and legislative instrument making powers that the bill would introduce. NDIS Rules are classified by topic, the rule amendment, the bill reference and the category of NDIS Rules.
2.19The new rules are classified under the following categories:
Category A (requires unanimous agreement from the states and territories);
Category C (requires a majority agreement from the states and territories and the Commonwealth);
Category D (requires consultation with states and territories); or
Disallowable Legislative instruments.
Role of the states and territories
2.20The Council for the Australian Federation (CAF) includes the First Ministers of all Australian states and territories and was ‘formed to support and enhance the Australian federal system by providing an intergovernmental forum for state and territory leaders in Australia’.
2.21In its submission, the CAF highlighted the elevated focus of all First Ministers on NDIS reform. The reforms have naturally risen up to reflect the need for governments to be joined up in their decision-making, reflecting the fact that the broader care economy and provision social services is interconnected across sectors and providers, impacting a range of portfolios and Ministers.
2.22As the CAF noted:
The NDIS operates in a cooperative, interconnected social services system. Reforms to the NDIS may have a significant impact on mainstream services, such as hospitals, schools and community service organisations.It is also vital that state and territory governments are given the opportunity for detailed cross-portfolio consultation on reforms in this space, to avoid unintended impacts to other essential service systems and to ensure service systems work together to achieve the best outcomes for people with disability.
Visibility of the rules and timing considerations
2.23Some submitters raised the difficulty of commenting on the proposed reforms within the bill, as the relevant NDIS Rules and instruments have not yet been drafted or released for public consideration. For instance, Disability Discrimination Commissioner, Ms Rosemary Kayess, said at a public hearing:
It’s very difficult to make an assessment of these provisions without an understanding of what’s going to be in the rules. It’s very unusual for a bill to be going through parliament without an understanding of what the rules that will operationalise it will be. That’s a major concern. Without the rules, it’s very difficult to make an assessment.
2.24Disability Advocacy Victoria and Victorian Rural Advocacy Network similarly noted the difficulty of evaluating the impact of the reforms in the absence of the Rules:
However, it is difficult to understand the full impact of the Bill and the changes that it proposes given the yet to be written Rules and other details, which have been committed to delegated legislation to be developed in co‑design with people with disability.
2.25The NDIS Occupational Therapy of Community Practice also contended that the bill ‘relegates essential Scheme architecture to the legislative instruments[s] (the Rules), rather than placing this architecture in the primary legislation’.
2.26Further, some submitters raised concerns regarding the level of scrutiny that the NDIS Rules would be subject to. Kiind, a peer support organisation in Western Australia commented that:
… this bill is delegated legislation, and the rules and other details are delegated to the Minister and/or CEO of the NDIA (National Disability Insurance Agency) to be figured out at a later stage without the need to go through parliamentary processes. This delegated authority is not democratic, and it is not co-design. Even if there is a good faith intention to use codesign methodology, the delegated power is held with the Minister, who could override any co-design process.
2.27The NDIS Occupational Therapy of Community Practice also contended that the use of the Rules:
creates risk of loss of Scheme integrity, and less visibility, accountability and parliamentary oversight of the development of key scaffolding for the future NDIS.
2.28The Department highlighted important timing considerations for the implementation of the NDIS reforms. Ms Robyn Shannon, Deputy Secretary of the Disability and Carers stream, explained that NDIS rules will be made after following a process of co-design and engagement with the disability community. Ms Shannon stressed that the bill ‘provides the architecture to enable the time to carefully co-design rules to commence alongside foundational supports’ and acknowledged that:
In some ways the work to get this piece of legislation up has been at pace and quite critical—and we acknowledge that—but that’s because we need to set up the framework so that we can take the time to work through the rules with people with disability and, indeed, states and territories. We recognise—and, indeed, the review recognised—that those are things that will take time to build.
2.29Aruma and Alliance20 similarly recognised that the bill itself does not give effect to immediate change, and instead creates the opportunity for the NDIA to create future rules.
2.30At a public hearing of the inquiry, Mr James MacIsaac, Group Manager of the NDIS Participants and Performance Group at the Department provided further clarification around how the government would engage with states and territories regarding category A rules:
Category A rules would be part of a process. We would be working with states and territories in terms of their involvement in the consideration of those rules. Usually most of the rules that are category A go to questions of access, and reasonable and necessary arrangements in the scheme, where there are clear state and territory interests in terms of their shared policy responsibility for the scheme.
Co-design
2.31The committee received evidence which highlighted the importance of co‑design between government and people with disability when developing NDIS reforms.
2.32For example, Down Syndrome NSW cited that the NDIS was ‘borne from codesign’ and that ‘it is this principle that must remain at the heart of the scheme and proposed reforms.’ Similarly, Ms Maryke Jonkers, President of People with Disability Australia called for:
… meaningful co-design, which means a seat at the table while each of these decisions is being made. This is a once-in-a-lifetime chance to get this right and make life better for people who live with disability.
Definitional considerations
2.33Some inquiry participants drew the committee’s attention to the issue of what the term ‘co-design’ entails. For example, Deaf Australia emphasised that ‘consultation is not co-design’, and Cat Walker and Uli Cartwright provided that instead, ‘co-design is a mechanism for us to take back control of our own stories’.
2.34On this point, Ms Maeve Kennedy, Senior Manager, Policy and Projects at Inclusion Australia, raised that there are different perspectives on what the term ‘co-design’ means, and noted that often the term ‘co-design’ is used when referring to consultation. Ms Kennedy expanded that:
We tend to think less about technical definitions and more about practice – that is, it’s actually about the practice of including people and working in an accessible way … It’s not, ‘We have an idea and want to get your feedback about it.’ It’s about starting together right from the beginning; what ideas do we collectively have and how can we make them happen in a way that works for everyone?
2.35In additional information provided to the committee, Mr Peter Gregory similarly noted that both consultation and co-design are approaches to involving stakeholders in decision-making processes, however they ‘differ significantly in terms of depth of engagement, power dynamics, and outcomes.’ Mr Gregory concluded that consultation is not co-design.
2.36Mr Gregory provided 10 key co-design principles to guide the development of social policies in collaboration with people with disabilities, which are as follows:
Equality and empowerment: Ensure that people with disabilities have equal power and influence in the policy development process, fostering an environment where their voices are heard and valued.
Accessibility: Provide accessible materials, venues, and communication methods to accommodate people with various disabilities to ensure full participation.
Inclusion: Actively involve a diverse range of people with disabilities to capture a broad spectrum of experiences and needs.
Respect and dignity: Treat all participants with respect, recognising their expertise in their own lived experiences and value their contributions.
Transparency: Maintain clear and open communication about the process, goals, and how feedback will be used, to build trust among participants.
Collaboration: Foster a collaborative environment where stakeholders, including people with disabilities, policymakers, and service providers, work together towards common goals. This can also mean that the voice of people with disabilities is privileged beyond other stakeholders because it is they who are the focus.
Flexibility: Be adaptable in methods and approaches to accommodate different needs and preferences of participants.
Capacity building: Provide resources, training, and support to empower people with disabilities to effectively participate in the policy development process.
Contextual safety: Understand and incorporate the social, cultural, and economic contexts in which people with disabilities live, ensuring that processes and policy responses are relevant and effective.
Sustainability: Aim for long-term impact by designing policies that are sustainable and adaptable, ensuring continued benefit to people with disabilities.
2.37The Department noted that engagement with the disability community will include ‘discussions papers on DSS Engage, face-to-face workshops and roundtables, as well as online engagement’, and that the NDIA:
… has been working with Disability Representative and Carer Organisations (DRCOs), our Independent Advisory Council (IAC) and Participant Reference Group (PRG) to improve their approach and confirm the next set of priority topics for co-design.
Co-design of NDIS Rules
2.38Some inquiry participants welcomed the commitment to co‑design outlined in the Explanatory Memorandum, and noted the Minister’s reference to collaboration and co-design in his second reading speech. However, many inquiry participants expressed concern that there is no commitment to co‑design within the provisions of the bill itself.
2.39The Agencies explained that co‑design would occur for NDIS rules and instruments, as reflected in the Explanatory Memorandum which states that ‘the new NDIS Rules will be designed and implemented with extensive consultation and co-design with the disability community’.
2.40However, some inquiry participants were of the view that a commitment to co‑design was insufficient. For example, Mr Darryl Steff, CEO of Down Syndrome Australia, stated that the organisation would like to see a requirement in the bill’s provisions for consultation and co-design, which he contended would be ‘futureproofing the legislation.’ Mr Steff expanded that without legislating co‑design and consultation on the NDIS Rules:
… we would absolutely have a concern that the current government might be saying the right things about how they’re going to approach that, but it’s not futureproofed for everybody going forward.
2.41Deafness Forum Australia appreciated that the Minister had stated his commitment to developing NDIS rules with the disability community. However, it also identified that the proposed reforms will occur over several years and highlighted that:
… we are now less than 18 months away from a federal election, and stewardship of the NDIS reforms will undoubtedly change across the next 5 years. It will be imperative for us to need to lock in a commitment to a codesign process with the Disability community in the Bill itself, to ensure that the voices of the disability community are front and centre across the reform process.
2.42Consequently, some inquiry participants recommended that section 4 of the bill, which currently outlines the general principles guiding actions under the Act, be amended to require co-design with people with disability. For example, Dr George Taleporos recommended:
Amend Section 4 of the bill to legislate a requirement for meaningful co‑design and consultation with people with disability and their representative organizations [sic] in designing and implementing NDIS reforms.
2.43Similarly, Women with Disabilities Australia, Women with Disabilities Victoria and Women with Disabilities ACT called for section 4 to:
mandate the involvement of people with disabilities in a leadership capacity throughout the design and implementation phases of NDIS reforms and any associated legal and regulatory frameworks.
Government commitment to co-design
2.44The Department noted that the current NDIS Act includes a general principle that ‘people with disability are centre to the National Disability Insurance Scheme and should be included in a co-design capacity’. The Department emphasised that the bill does not change this principle in the Act.
2.45Further, the Department stressed that the government ‘will keep the voices and needs of people with disability at the heart of all NDIS reforms’ and acknowledged that ‘co‑design is how we get better outcomes for people with disability’.
2.46Additionally, on 5 June 2024, an amendment to the bill regarding the principle of co-design was passed. As discussed in Chapter 1, government amendments (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 legislative instruments under proposed sections 32K (calculating total funding amounts) and 32L (needs assessments) of the bill.
2.47The associated Supplementary Explanatory Memorandum identified the comments and concerns raised in the committee’s inquiry regarding the co‑design of legislative instruments, and acknowledged that ‘assurances have been sought that delegated legislation is developed in genuine consultation with the disability community’.
2.48In response to these concerns, the Supplementary Explanatory Memorandum noted that the new amendments made the co‑design requirement in the Act more explicit, which:
… ensures that the requirement to include the disability community in co-design must be at the forefront of the Minister’s mind when making these instruments.
2.49According to the Supplementary Explanatory Memorandum, the Minister will also be required under the Legislation Act 2003 to ‘provide an explanation of the nature of the consultation that has occurred’ when making legislative instruments, which means that ‘the Minister will be required to inform Parliament, and the public, of the nature and extend of consultation’ that occurred.
2.50In regards to these amendments, Ms Sheetal Balakrishnan, Senior Solicitor at the Public Interest Advocacy Centre told the committee that ‘the amendments on co-design are helpful statements of principle but do not mitigate the community's concerns that a future minister insufficiently committed to co-design could easily circumvent them’. She explained that from a legal perspective, the requirement to have regard to the co-design principle does not make co-design a legislative requirement. She added:
Additionally, in our view, the legislation act does not offer sufficient safeguards to ensure consultation. We, therefore, maintain our view that when tabling a ministerial determination there should be an accompanying consultation statement setting out the views of disability representative organisations.
2.51Her colleague, Senior Solicitor Mr Mitchell Skipsey considered that ‘more concrete mechanisms’ could be put forward, suggesting that mandatory requirements for consultation statements be provided with legislative instruments when such instruments are tabled in the Senate. He outlined how this proposal could help to ensure transparency and accountability regarding co-design efforts from the Minister:
… [this could] really work with those Senate accountability mechanisms to make sure that, where the minister does consult appropriately and does engage in the right sort of engagement and co-design processes with the community, that's reflected and open for all to see. Where the minister perhaps hasn't done so, the Senate can pick that up and the public can pick that up and hold the government of the day accountable for that.
2.52Mr James MacIsaac, Group Manager of the NDIS Participants and Performance Group at the Department provided further detail around the co-design of NDIS rules. He explained how the government would work the disability community throughout this process:
The co-design processes that we would be working through with the disability community would go to a range of activities where we would be working with the NDIA around a number of their processes and their reference groups that have a focus on a number of scheme policy areas. They will involve activities such as various projects to help define problems and to help work through what the solutions might look like in terms of refining and implementing them over time. They'd involve co-design workshops in terms of specific issues and processes.
It could entail focus groups, interviews or engagement with participants, families and carers. There might be broader engagement events that would involve broader members of the public and stakeholders, webinars and information sessions. It could involve surveys, discussion papers and submissions. It would also, of course, involve any particular technical advice and support where appropriate and where needed—where we might be providing the need to assist with some of the technical elements of any rule-making arrangements. There would also be targeted approaches to underrepresented groups in terms of that broader strategy.
2.53Ms Catherine McAlpine, Chief Executive Officer of Inclusion Australia, also told the committee at a public hearing that:
I'm absolutely prepared to say that not everything in every detail of every rule or everything the government does needs to be co-designed. I think we really need to work out which are the primary things that do need co-design and which things can be done via other consultation and consultation methods.
Definition of NDIS supports
2.54As the vast majority of submitters expressed serious concerns around the proposed definition of NDIS supports in section 10 of the bill, on 22 May 2024 the department released an exposure draft for a proposed amendment on the department’s website. On 5 June 2024, an amendment to insert a new definition of NDIS support was passed in the House of Representatives.
2.55Key concerns in relation to the first iteration of the definition of NDIS supports included that it was too prescriptive, relied on the Applied Principles and Tables of Support (APTOS tables) and did not cover all the rights entrenched in the UN CRPD.
2.56For example, the Queenslanders with Disability Network stated:
Of concern to QDN is that the NDIS supports are not benchmarked against all elements of the United Nations Convention on the Rights of Persons with Disability (UNCRPD). Additionally, QDN members have expressed concern that the eight new categories of supports outlined in the Bill will be too restrictive […] QDN does not consider the APTOS principles fit-for-purpose and does not support APTOS being used as an interim measure.
2.57In relation the APTOS tables, some submitters expressed the view that their use was not fit-for-purpose during the transition phase. For example, Multicultural Disability Advocacy Association of NSW stated:
In regard to APTOS principles being used as an interim measure, we believe that using a set of principles that have been in place since 2015 and proven to be consistently challenging to apply, will be detrimental for participants. We call for an alternative interim solution to be put in place.
2.58Further, a number of submitters recommended the review of the definition of NDIS support to ensure all rights under the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD) are explicitly included in the bill.
Proposed amendment released on 22 May 2024
2.59At the public hearing on 22 May 2024, Ms Robyn Shannon, Deputy Secretary, Disability and Carers Stream from the department explained that ‘the government has listened carefully to feedback on the drafting and intended operation of specific provisions in the bill’. She advised in the relation to the proposed definition of NDIS supports:
On this issue, the government has agreed to introduce parliamentary Rights of Persons with Disabilities, or the CRPD, the definition will generally amendments that, if adopted, will replace the definition of NDIS support currently in the bill to clarify it and make it more accessible.
The proposed amendment to the NDIS supports provision will mean that, instead of making reference to specific articles under the Convention on the the Rights of Persons with Disabilities, or the CRPD, the definition will generally reference Australia’s obligations under the convention. The new structure of the section requires the minister to assess whether particular supports fall within the relative articles of the CRPD rather than the onus being placed on the participant, which was not the intention.
2.60Further, Mr James MacIsaac from the Department explained that:
The key change that we’ve made in regard to the provisions that the government is proposing to amend goes to taking out the specific reference to specific articles and to have the convention broadly apply, in terms of that definition. There will be category (a) rules that will be developed in regard to NDIS supports, going forward, that will be agreed with all states and territories, and there will be a co-design and engagement process around the development of those rules.
2.61At the hearing on 22 May 2024, Ms Sheetal Balakrishnan from the Public Interest Advocacy Centre shared her first impression of the proposed revised definition of NDIS supports with the committee:
…in relation to the definition of NDIS supports, our submission identified issues with proposed section 10(a) and the way it selectively incorporated the CRPD. We understand the committee has just this afternoon been provided with amendments proposed by the government, and those amendments would address the issues we identify in our submission.
Amendments agreed by the House of Representatives
2.62As discussed in Chapter 1, on 5 June 2024, government amendments in relation to the definition of NDIS supports were introduced and passed in the House of Representatives. The Supplementary Explanatory Memorandum explains that these amendments address the concerns raised by the disability community about:
a lack of clarity in the drafting of the provision, requiring participants to
undertake a complex analysis of whether a support may considered an NDIS support for them;
the fact that the original drafting of proposed section 10 listed certain articles of the Convention on the Rights of Persons with Disabilities (CRPD); and
the use of the Applied Principles and Tables of Supports agreed by First Ministers in 2015 (APTOS) as an interim approach to defining NDIS supports.
2.63According to the Supplementary Explanatory Memorandum, the concerns about the fact that the APTOS table is out of date and not sufficiently clear have been addressed through amending item 124 of Schedule 1 to the Bill to provide for a transitional rule that will be in place only until final rules under section 10 can be agreed. Further, it states that ‘this transitional approach will provide an opportunity for deep engagement with the disability community on the future approach to NDIS supports’.
Needs assessment
2.64The EM draws attention to the NDIS Review’s recommendation of creating new needs assessment processes, which the bill introduces in its provisions. The Agencies explained that ‘a participant’s reasonable and necessary budget will be based on a wholistic assessment of their support needs’, which may also identify necessary supports that are not funded or provided by the NDIS.
2.65The committee received significant evidence relating to the provisions on the support needs assessment (needs assessment), with many submitters holding concerns regarding new section 32L and its relevant subsections. These concerns, and the government’s response and amendments where relevant, are explored further below.
Assessment tools and assessors
2.66Section 32(L)(8) allows the Minister, via legislative instrument, to determine assessment tools to be used when undertaking a needs assessment. The EM explained that the tool(s) will be:
highly technical;
developed in consultation with the disability sector, and medical and professional experts;
reliant on international learning and best practice; and
evidence-based.
2.67The EM stated that it is expected that the tools will need to be changed and updated with use of experience, as well as other updates, like medical standards.
Co-design of the tools
2.68Noting that the needs assessment tool will be developed via legislative instrument, inquiry participants re-emphasised the need for the tool(s) to be the product of consultation and co-design with the disability community.
2.69For example, People with Disability Australia recommended that:
Any processes or tools developed for the purpose of assessing people with disability tools should be evidence-based, participant-centred, and developed via a genuine co-design process with the disability community to ensure they meet the needs of all participants effectively.
2.70South West Autism Network similarly commented that co-design, alongside research and testing, is essential to ensuring that the assessment tools are ‘reliable, accurate, and accessible for people with various communication, sensory, cognitive, cultural, language and literacy needs’.
2.71In his second reading speech, the Minister reaffirmed the government’s commitment to co-design of and consultation of the rules, stating:
I need to be clear: the needs assessment tools—there will need to be several—will be developed through an extensive consultation and co-design process with deep engagement with the disability community and relevant experts. We’ll use an iterative process of designing and testing with people with disability, as well as allied health professionals and people with technical expertise in the development of needs assessments. The process will be transparent. It’ll involve extensive testing of existing supports needs assessments with groups and disability types for whom they’re validated to inform the design of any new needs assessment.
2.72In its Supplementary Submission to the committee, the Agencies echoed that:
The needs assessment tool (or tools) will be developed through an extensive consultation and co-design process, involving deep engagement with the disability community and relevant experts.
Application of the tools and the standards/qualifications of assessors
2.73In addition to emphasising the need for co-design, submitters also acknowledged the Explanatory Memorandum’s reference to the tools being ‘highly technical’. Consequently, some submitters raised concerns on the potential limitations regarding the needs assessments, with the National Disability Services specifically highlighting concerns relating to the tools being able to capture ‘the needs of individuals with multiple and interrelated disability’.
2.74On this point, Disability Advocacy NSW raised whether the tools will be flexible and responsive:
Further explanation is needed about how the assessment tools will create a budget that is truly individualised and needs based. Particularly participants with multiple, complex and/or lesser-known disabilities would be disadvantaged by an assessment model that is not responsive or flexible to individual needs.
2.75As such, submitters stressed the importance of ensuring that assessors appropriately use the tools to ensure that participant needs are supported. Every Australian Counts, a grassroots campaign for the NDIS, contended that both tools and assessors alike must be flexible:
There must be a flexible approach to the needs assessment process and the tools chosen. Disability is diverse, and it’s common for people with disability to have more than one disability. A one-size-fits-all all approach will not work, and the assessments must be holistic in nature. Assessors must be flexible and responsive to the participant’s needs, varying the assessment process and tools used as required.
2.76Occupational Therapy Australia also identified that the person undertaking the needs assessment must be appropriately skilled and qualified, which was echoed by the South West Autism Network, who emphasised that assessors must be ‘suitably qualified, knowledgeable, and experienced in the participant’s disability type(s)’.
2.77In its Supplementary Submission to the inquiry, the Agencies provided further information on the tools and assessors, noting that some tools will require assessors to hold specific qualifications:
The individuals undertaking the needs assessment will be trained in the use of the instrument, with some assessment tools requiring specific qualifications for use. Training will also ensure that individuals are able to work with people with disability in a culturally informed way that is respectful of their dignity and individual autonomy.
Access to the needs assessment report
2.78A number of inquiry participants discussed section 32(L)(5), which would require a report of the needs assessment (needs assessment report) to be prepared and provided to the CEO as soon as practicable after the assessment has been completed.
2.79Concerns were raised that the bill’s provisions do not ensure that the participant would be provided the needs assessment report prior to it being given to the CEO. For example, Disability Advocacy Victoria and Victorian Rural Advocacy Network contended that this provision:
… is in conflict with the findings of the NDIS Review which stated that the needs assessment report should be provided to the participant before it is finalised. This needs to be added into the legislation so it is clear that participants will be provided with the needs assessment report before it is given to the CEO.
2.80Mental Health Australia similarly commented that the NDIS’ central policy imperative is ‘choice and control’, and that it would be more aligned with this policy to:
… offer the participant and family, carers and supporters (where this is the preference of the participant) the opportunity to not only receive, but also review, their needs assessment before it is provided to the NDIA.
2.81Sharing similar concerns, Disability Advocacy Network Australia recommended that the bill be amended to require the assessor to provide a copy of the final report to the participant, as well as the NDIA.
2.82In its original submission, the Agencies stated that the needs assessment report may be provided to the participant, allowing them to ‘clarify any points which they think have been misunderstood by the assessor, particularly where they do not accurately reflect their needs and circumstances’. The Agencies noted that this was consistent with the requirement that the needs assessment plans be prepared with the participant.
Government response and amendments
2.83The government amendments to the bill address the concern that the requirement for the CEO to provide a participant with a copy of their assessment report is not explicit in the legislation.
2.84The Supplementary Explanatory Memorandum acknowledged the significant evidence received by the committee on the importance of the needs assessment being provided to participants, and noted that:
… there has been significant concern expressed about the fact that the legislation does not specifically require the CEO to provide a participant with a copy of their own needs assessment report.
To address this, proposed amendments will insert this specific requirement. The amendment will require the CEO to give a participant a copy of their needs assessment report as soon as practicable after the CEO receives the report.
2.85At a public hearing held after such amendments had passed the House of Representatives, Mr Mitchell Skipsey, Senior Solicitor at Public Interest Advocacy Centre welcomed the clarification that needs assessment reports would be provided to participants:
In relation to giving a copy of the needs assessment to the participant, we think that the amendments do a good job of addressing that. In particular, there's a helpful provision there about the CEO giving a copy of the report to the participant and giving them the opportunity to comment. There's also helpful commentary in the explanatory memorandum that I think makes clear what the legislative intention is. So, on that front, we welcome those amendments; we think they're positive.
Right to review a needs assessment
2.86Inquiry participants also argued that participants must have the right to review a needs assessment.
2.87For example, the Multicultural Disability Advocacy Association of NSW submitted that the bill’s provisions do not indicate whether a participant will be able to flag whether their needs assessment ‘is appropriate or truly reflective of their needs’ and that it is concerned that a needs assessment ‘would not be a reviewable decision’, either via internal or external review.
2.88Professor Helen Dickinson, Professor of Public Service Research at the Public Service Research Group, University of New South Wales Canberra, similarly submitted that the bill does not state whether the needs assessment would be a reviewable decision. As such, Professor Dickinson explained that:
This means there is also a lack of a mechanism for decisions to be internally reviewed by the Agency (Section 99). There should be a clear provision within the legislation to allow individuals to appeal if a needs assessment has been of poor quality. Without there is a lack of ability to refer to the Administrative Appeals Tribunal for external review.
2.89At a public hearing, Mr Matthew Swainson, Chief Counsel at the National Disability Insurance Agency, provided further clarification on the review process of a needs assessment decision:
Firstly, that support-needs assessment will be provided to the participant to comment on and to correct information before the planning process is finished. Once the planning process is finished, they get an outcome. If they’re not happy with it or there’s something that is still not right, they’ll have a right to seek a section 100, and subsequently go to the AAT on that decision. Once it’s before the AAT, the AAT will absolutely be able to review the support-needs assessment and make a view as to whether or not that support-needs assessment will be correct, and we’ll be able to take steps to have that amended.
2.90In its supplementary submission to the inquiry, the Agencies reaffirmed that participants can seek a review of the statement of participant supports, in which they would be able to seek a review of all aspects of the statement, including their reasonable and necessary budget.
2.91The Agencies further explained that this does not mean that the entire assessment needs to be reconducted, and that it could ‘be a simple change to certain aspects of the needs assessment report’. In its supplementary submission, the Agencies also stressed that the Administrative Appeals Tribunal will be able to require the undertaking of a replacement needs assessment.
2.92The Minister also emphasised that the bill’s provisions do not change participant rights to external or internal review rights of the needs assessment:
This bill makes no changes to internal or external review rights in regard to participants’ plans. Under the proposed new planning framework, participants can seek internal and external review of their plan, which includes their reasonable and necessary budget based on a holistic needs assessment.
2.93However, to provide clarity, the Agencies explained that the government moved amendments to insert a legislative note, that make it clear that ‘decision makers on internal and external review can arrange for a replacement needs assessment’, which was agreed by the House of Representatives on 5 June 2024.
Budget flexibility
2.94A number of submitters expressed support for the provisions of the bill which enabled greater flexibility for individual participants’ budgets.
2.95For example, the National Aboriginal Community Controlled Health Organisation (NACCHO) expressed its support for ‘greater flexibility of funding,’ stating that:
… changes to the bill, around specifying funding, is required to support the introduction of alternative commissioning models for Aboriginal and Torres Strait Islander and remote communities, which NACCHO strongly supports.
2.96Additionally, the Health Services Union stated that its members had been concerned about pressure from plan managers to ‘“spend down,” funding left over in plans on items participants do not want,’ and that these changes to funding ‘will decrease anxiety for participants and workers and cut down on waste’.
2.97The Specialist Disability Accommodation Alliance also drew particular attention to this area, stating that it welcomed this more flexible approach to funding, which would ‘offer participants more choice and control to determine and pay for the supports they require’.
2.98On this point, the Agencies outlined that flexible funding would give participants ‘a much higher level of choice and control’ around tailoring their supports to their own needs. The Agencies elaborated that, under these changes:
… participants will no longer be constrained by line by-line plans that specify particular supports and support intensity.
Information-gathering powers of the CEO
2.99A number of submitters discussed item 30 of the bill relating to the process for revoking a person’s status as an NDIS participant. Under the proposed reforms, the CEO of the NDIA would have the power to request information from a participant or other individual if the CEO is considering revoking an NDIS participant’s status. The government responded to these concerns in amendments that were passed in the House of Representatives on 5 June 2024.
Compliance with requests for information
2.100A number of submitters expressed concern about the ability of NDIS participants to comply with CEO’s requests for additional information.
2.101In its submission, the Australian Centre for Disability Law described the potential issues its clients may face in obtaining requested documents, including ‘excessive wait times for appointments with specialists, high fees associated with appointments and lack of guidance as to what should be included in these further medical reports.’ It recommended that ‘clear guidelines,’ are given as to what information can be requested by the CEO.
2.102Disability Advocacy NSW also stated that it was concerned about the ability of the following cohorts to comply with these powers:
Participants with multiple and complex disabilities;
Participants with literacy issues and/or cognitive impairments;
Participants in Rural Regional Remote (RRR) areas who face additional barriers engaging with the NDIA.
2.103In addition to generally seeking more clarity about participants’ compliance with the CEO powers, Disability Advocacy NSW specifically asked that any notifications for information requests be delivered in a way that is timely and accessible, as well as allowing the participant sufficient time to respond.
2.104Mental Health Australia expressed concern about the ability of individuals with psychosocial disability to fulfil a request from the CEO for information:
People with psychosocial disability can face multiple barriers to complying with information requests. For example, there are long wait times for services across the mental health sector, which could significantly delay the provision mental health-related information to the NDIA. In addition, people with psychosocial disability are also subject to structural stigma, which, in the health system, can result in inequitable distribution of resources, undertreatment of health problems, withholding of services, and fragmented care,which can in turn impede a person's ability to obtain the requested information from health professionals in a timely manner.
2.105Mental Health Australia went on to describe these provisions as ‘overly punitive’, and proposed that the bill be amended so that any decisions to revoke a participant’s status ‘would only be taken as a last resort and after support is provided to assist the person to comply with the request for information’.
2.106Voicing similar concerns, Dr Darren O’Donovan, Senior Lecturer in Administrative Law at La Trobe University, proposed that the relevant provisions be amended to ensure that any request for information would not ‘result in or represent an undue burden on the participant’, and that:
… information-gathering powers must not impose consequences on participants where a third party fails to comply with a request for information.
2.107Some submitters drew particular attention to the 90 days allotted to a participant to respond to a request from the CEO for information. For example, Disability Advocacy Network Australia made the following recommendations:
Amend section 36 (3)(a) to extend the timeframe to respond to requests for information relating to a plan review to 90 days as a minimum and preserving the flexibility to amend in the event an extension is required; and
Amend sections 30 and 36 to provide flexibility in timeframes and the request where a person must rely on others to request information or is unable to provide that information for reasons outside of their control.
2.108However, the Agencies clarified in their submission that the powers of the CEO in this case are ‘discretionary’, explaining that:
… the CEO must not revoke the participant's status if satisfied it was reasonable for the relevant person not to have complied with the CEO’s request during the required timeframe. This ensures flexibility where a participant is unable to provide information due to their personal circumstances, for example because they are in hospital or because their disability has impacted on their ability to obtain the evidence requested within the appropriate timeframe, and also ensures the participant will not be penalised if another person, such as their treating medical professional, does not provide the requested information within the relevant timeframe.
2.109The Explanatory Memorandum provides further details regarding the kinds of circumstances under which the CEO would have discretion not to exercise these powers:
The CEO must not revoke the participant’s status 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 within 90 days. This may include for example, because they are hospitalised during that period or cannot obtain an appointment with a relevant medical professional within the stated period.
Result of revocation of participant status
2.110Additionally, some submitters raised questions over the processes for participants whose status has been revoked by the CEO.
2.111For example, the Queensland Council of Social Service recommended that a duty be imposed on the CEO ‘to ensure the accessibility of the format and language’ in which the notice of revocation is given.
Use and limits of the CEO’s powers
2.112Some inquiry participants expressed concern about the extent and application of the CEO’s powers to gather information from current NDIS participants.
2.113The Public Interest Advocacy Centre described these powers as ‘too broad,’ and characterised the consequences for non-compliance as ‘severe.’
2.114Accordingly, the Public Interest Advocacy Centre proposed the following changes to limit said powers:
Information-gathering powers not impose consequences on participants where a third party fails to comply with a request for information;
Information-gathering powers be limited to information that would not be unduly burdensome for a participant to produce;
Requests for a participant to undergo a medical, psychiatric, psychological or other examination should be subject to tight constraints;
All consequences for non-compliance with a request for information be discretionary, rather than mandatory; and
The CEO be able to withdraw a request for information once made.
Government response
2.115In their joint submission, the Agencies made clear that these powers were created to remedy a flaw in the existing policy framework:
At present, if a participant or their nominee does not respond to a request from the CEO to provide information for the purposes of eligibility reassessment, the NDIA must consider ongoing eligibility based on existing information, which is often out of date and no longer valid.
2.116This previous limitation on the powers of the CEO is described as ‘inconsistent’ with the powers granted to the CEO in regards to initial requests to access the NDIS. The Agencies also described potential issues arising from this inconsistency:
If participants fail to engage with the Agency when their ongoing access to the Scheme is being considered, the CEO is required to make a decision about their ongoing access on the basis of previously provided evidence which can be scant and is often outdated. This can lead to people remaining participants in the Scheme who would not be eligible if current information was available but could also result in participants who should remain eligible having their status revoked due to a lack of current evidence.
2.117Thus, these new powers are explained by the Agencies as a tool which will allow the CEO to make more informed and up-to-date decisions in regards to participants’ access to the scheme.
2.118Furthermore, the government amendments to the bill make clear that such an assessment could only be requested when the CEO is satisfied that the information could not otherwise be reasonably obtained.
Ability of participants to review a revocation of status
2.119Some submitters also sought clarity about the ability of NDIS participants to review any decision made to revoke their status.
2.120For example, National Legal Aid expresses concern over the wording of Section 99, and recommended that ‘section 99 of the NDIS Act is amended to refer to s30A(1) in its entirety,’ so that it is clear what decisions participants are entitled to review.
2.121However, in his public hearing testimony, Professor Bruce Bonyhady AM, Co‑chair of the NDIS Review, made clear that a needs assessment which ‘does not accurately reflect people’s needs and circumstances’ must be reviewable, and indicated the presence of such a mechanism within the legislation.
2.122Furthermore, the Agencies clarified in their joint submission that a decision to revoke a participant’s status is ‘reviewable,’ referring to item 100, which categorises the decision as such.
2.123The Agencies elaborated that an individual dissatisfied with the decision may request the CEO ‘to conduct a review of that decision’; this is the second tier of the decision-making model, known as an ‘internal review decision’. Should a participant wish to appeal the CEO’s review of the decision, they will have recourse to the Administrative Appeals Tribunal, which is ‘the third, and final, tier in the decision-making model’.
2.124In a subsequent amendment to the bill, the government inserted a legislative note to clarify the means of review, which reads:
In reviewing a decision to approve a statement of participant supports, a reviewer or the Administrative Appeals Tribunal has all the powers of the CEO in making the original decision and must therefore arrange for a replacement assessment to be undertaken if satisfied as mentioned in paragraph (b) (subject to any applicable National Disability Insurance Scheme rules).
Other issues
2.125Some submitters raised concerns that were not explicit in the bill’s provisions, which are explored below.
Foundational supports
2.126Some inquiry participants noted the lack of clarity in the bill’s provisions surrounding what foundational supports will look like. For example, Ms Sophie Cusworth, Acting Chief Executive Officer of Women with Disabilities Australia identified that the bill had been introduced ‘before we have clarity on the design of foundational supports, including their availability and eligibility criteria’. Relatedly, Ms Nicole Rogerson, Director of Autism Awareness Australia, raised that ‘in this point in time there is no definition or list’ of foundational supports, which consequently creates difficulty in commenting on whether foundational supports will be appropriate or not, as ‘we simply don’t know what they are’.
2.127Ms Cusworth therefore stressed that the design of foundational supports should occur simultaneously, in collaboration with state and territory governments and representative organisations, to ensure that participants are ‘not left without essential supports and services’.
Psychosocial disability supports and early intervention pathways
2.128Some submitters also noted the NDIS Review’s acknowledgement of the need for change for people with lived experience of psychosocial disability and commented on the need to improve psychosocial supports.
2.129For example, the Queensland Alliance for Mental Health stressed the need for a ‘strong, diverse system of foundational psychosocial supports’ that is co‑designed and ‘comprehensively’ resourced. The National Mental Health Consumer and Carer Forum also contended ‘a common and consistent understanding of psychosocial supports’ is necessary to improved outcomes for participants with psychosocial disability.
2.130In regards to early intervention pathways, Speech Pathology Australia noted concern regarding the definition of early intervention and its associated pathways, which it considered will have ‘far reaching impacts upon access to the NDIS’.
2.131Further, Consumers of Mental Health WA cited that consumers have made the inference that this pathway will lead to participants with psychosocial disability being ‘pushed into early intervention pathways that have delimited budgets and less available supports’.
2.132In response to concerns raised regarding the impact of the bill on psychosocial disability supports and early intervention pathways, Mr James MacIsaac, Group Manager, NDIS Participants and Performance Group at the Department informed the committee:
… the bill does not make any changes in relation to the provision of psychosocial supports. The bill establishes new rule-making powers that could enable the introduction of an early intervention pathway. The Australian government will work with the disability community to consider the recommendation in the NDIS review about the new early intervention pathways.
Protections for whistleblowers
2.133The Human Rights Law Centre raised that the current whistleblower protections under the existing Act are ‘stifling the voices of would-be NDIS whistleblowers’ and raised concerns that the bill does not address:
… underlying concerns about participant welfare, financial sustainability, fraud and eligibility without providing adequate safeguards for individuals who witness wrongdoing by workers and providers to speak up about their concerns.
2.134Ms Marie Johnson also commented that it is ‘not clear how and if Whistle‑blower protections apply’ and suggested that there are individuals who might want to provide evidence, ‘but are reluctant to do so due to concerns about protections’.
2.135Mr MacIsaac, Group Manager at the Department confirmed at a public hearing of the inquiry, that bill does not make any changes in relation to protections for whistleblowers.
Committee view
2.136The committee thanks all participants for their input to the inquiry. We acknowledge that many participants provided detailed submissions and proposals with recommendations to strengthen the bill and to ensure the proposed legislation appropriately enables the implementation of key recommendations of the NDIS Review. We thank them for their engagement.
2.137In particular, the committee recognises the significant contribution of witnesses who appeared across the three days of hearings, particularly those with disability, their family members and carers.
Context for reform
2.138The committee recognises that the bill is a part of a broader package of reforms necessary to setting the NDIS on a sustainable trajectory, and ensuring every dollar of NDIS funding goes to those who need it most.
2.139The committee recognises that the bill represents one step in the context of a wider and ongoing process of reforms to the NDIS agreed by all Australian jurisdictions through National Cabinet over the course of 2023 to ensure the long-term sustainability of the Scheme so that it can continue to provide life-changing outcomes for future generations of Australians.
2.140As outlined in the Minister’s second reading speech, the bill establishes an enabling framework for rules and future reforms with the objective of restoring the original intent of the Scheme and ensuring its sustainability for future generations of Australians.
2.141The committee notes that the majority of the changes outlined in this bill do not take effect until activated by future changes to NDIS rules and instruments. The committee acknowledges evidence received from the Department that these changes will be subject to co-design and engagement with the disability community and the states and territories to develop and agree these rules and instruments.
2.142The committee notes that while the NDIS is jointly funded by the Commonwealth and the states and territories, the Commonwealth is the majority funder and, as a result of limits on state and territory funding contributions, is currently solely exposed to cost escalation.
2.143Further, the committee notes the assurances from the Minister, and as outlined in evidence provided by the Agencies, that these rules will be co-designed with both the states and territories and the disability community.
Use of delegated legislation
2.144The committee heard that the bill enables new and expanded rule and instrument-making powers. Evidence received from the Department of Social Services describes the bill as establishing a framework for rules and future reforms. Practically, the committee understands that this means that the majority of the major reforms foreshadowed by the bill will only commence following the development of the new rules and instruments, rather than when the bill receives Royal Assent.
2.145While the committee acknowledges that this process is not unusual, it also heard concerns that, as this delegated legislation has not yet been released publicly, it presents difficulties for the disability community and the public to consider the impact these rules will have.
2.146The committee also notes that, as noted by the Council for the Australian Federation, the ‘NDIS operates in a cooperative, interconnected social services system’ and that Scheme decisions, and in particular rule changes enabled by the bill, may have impacts on other mainstream services.
2.147In light of this, increasingly First Ministers, via the National Cabinet, have been directly involved in decision making, and are likely to continue to be closely engaged as the reform detail is finalised following the passage of the bill.
2.148As National Cabinet has been more involved in decision making around the scheme, elevating decision-making would provide alternative pathways for rule-making.
2.149Given the significance of the NDIS rules, the committee is of the view that the government should provide additional detail and descriptions of the rules, as well as an explanation of the consultation and co-design process it intends to undertake to develop them, as soon as possible.The committee believes that this will support the disability community and public to better understand the impact of the bill and would provide some reassurance to the community before the rules are fully developed.
2.150The committee recommends the bill include amendments so that First Ministers are also recognised as Ministers for the purposes of Category A rule-making.
Commitment to co-design and consultation
2.151The significant use of delegated legislation in the bill underlines the importance of consultation and co-design of these rules, and the committee acknowledges the uncertainty raised by witnesses in their evidence to the committee about how this consultation and co-design will be undertaken.
2.152The committee acknowledges the government's stated commitment to involve people with disability and the disability sector in the co-design of the NDIS rules. While the committee heard evidence that this commitment on its own may fail to ensure meaningful co-design and consultation with people with disability and disability organisations, the committee notes the assurances of the government and the Department on this matter.
2.153There was also recognition from some witnesses that not all reforms require a full co-design process and that consultation may be sufficient for reforms of less significance or complexity.
2.154The committee notes that the government has already responded to these concerns by introducing an amendment, which was agreed to in the House of Representatives, to explicitly require the Minister to have regard to the principle of co-design when making legislative instruments under proposed sections 32K and 32L.
2.155The committee is of the view that these amendments, as agreed by the House of Representatives, are a measured and appropriate response to the concerns regarding co-design raised by inquiry participants and other stakeholders. The committee also accepts that the Minister will be required to provide an explanation of the nature and extent of the consultation that has occurred when making legislative instruments.
2.156There was evidence provided to the committee that the process of rule-making provided a level of assurance that proper consultation and co-design would occur.
2.157The Committee notes proposals from inquiry participants to ensure appropriate consultation occurs for disallowable instruments and that there was transparency on the outcomes of this consultation. The committee is of the view that additional transparency on the outcomes of consultation on the substance of the instrument will allow Parliament to make more considered decisions when instruments are tabled.
2.158The committee recommends that a consultation statement be tabled accompanying the legislative instrument that sets out consultations undertaken.
Definition of NDIS supports
2.159The committee heard significant concerns from a number of participants about the proposed new definition of NDIS supports. In particular, submitters raised concerns about the lack of clarity about what constitutes an NDIS support, the listing of certain but not all articles of the UN CRPD and the reliance on the APTOS tables as an interim measure.
2.160The committee acknowledges that the government has since introduced amendments aimed at addressing these concerns, which have been agreed to by the House of Representatives.
2.161The committee believes these amendments are a step in the right direction until the rules can be agreed. The committee urges the Department to engage as early and comprehensively as possible with the disability community on the future approach to defining an NDIS support.
2.162The committee is of the view that the government should provide additional detail on the rule-making process for the transitional rule to define NDIS supports and make public a draft of the transitional rule as soon as possible.
Replacement needs assessment
2.163The NDIS Review recommended the introduction of a new needs assessment process to determine the level of need more consistently for each participant and set budgets on that basis. The committee heard that this was a key recommendation of the NDIS Review, to improve the current planning process and provide greater flexibility to participants by providing a ‘whole of person’ budget.
2.164The committee welcomes the commitment to develop the needs assessment tools with experts and the disability community. The committee also notes that this will be an iterative process of co-design and testing with people with disability, researchers and other professionals.
2.165However, inquiry participants also made clear to the committee that needs assessment reports must be provided to participants. The government moved amendments specifying that a needs assessment report must be given to a participant, which was agreed to by the House of Representatives on 5 June 2024.
2.166The committee further acknowledges evidence that inquiry participants are concerned about ensuring the right to review a needs assessment. Inquiry participants highlighted the significance of the needs assessment in determining a participant’s budget in the future and whether they have sufficient funding to meet their disability needs.
2.167The Agencies explained that the bill’s provisions do not change participant rights to external or internal review of the needs assessment. To provide clarity on the matter, the government moved amendments, which were agreed to on 5 June 2024 by the House of Representatives.
2.168The Committee is of the view that the bill, as agreed to by the House of Representatives on 5 June 2024, has been adequately strengthened through appropriate amendments moved by the government.
CEO powers
2.169The bill provides the CEO of the NDIA with a range of powers. This includes information-gathering powers, imposition of conditions on funding, and the power to adjust a participants’ plan management preferences.
2.170The committee notes the concerns raised by inquiry submitters about the requirement to provide information to the NDIA CEO for the purpose of considering a participant’s status within 90 days. The committee acknowledges that it may, at times, be difficult for some participants to access the relevant professionals to obtain the required information within this timeframe.
2.171The committee acknowledges evidence received from the Department of Social Services that these additional powers are required for the effective administration of the NDIS. However, the committee also heard evidence from inquiry participants that the significance of these powers means that there must be additional guidance and safeguards within the primary legislation on how these powers can and cannot be used. This was of significant concern to a number of inquiry participants because of the potential impact of these powers being exercised, including a participant having their status in the NDIS revoked.
2.172However, the committee is reassured by evidence received from the Agencies that the CEO must not revoke the participant's status if satisfied it was reasonable for the person not to have complied with the request during the required timeframe. The committee agrees that this will ensure flexibility where a participant is unable to provide information due to personal circumstances, for example because of a hospital admission, if their disability has impacted on their ability to obtain the evidence requested, or because of other circumstances out of their control.
2.173The government also addressed some concerns raised by inquiry participants about the requirement for individuals to undergo assessments or examinations in amendments moved and agreed to in the House of Representatives on 5 June 2024. These amendments impose a further limitation to ensure that the CEO can only make such requests if there is no other reasonable alternative way of obtaining the information. This requirement will require the CEO to have regard to other alternatives before making the request for an assessment or examination.
2.174Nevertheless, adding more detail to when the powers are intended to be used would provide greater assurances to the disability community and the public on how these powers will and will not be used.
2.175The committee recommends that the Australian Government further clarify the circumstances under which the additional powers granted to the National Disability Insurance Agency Chief Executive Officer will be used.
Conclusion
2.176The committee is of the view that the bill, as agreed to by the House of Representatives on 5 June 2024, has been strengthened through the 29 amendments moved by the government as detailed in this report in recognition of concerns raised by the disability community, sector, and experts. Additionally, the amendment moved by Dr Monique Ryan MP, Member for Kooyong, requiring an independent review of the amendments made by this bill to be conducted in five years’ time, is another safeguard to ensure the NDIS Act remains fit-for-purpose into the future.
2.177The committee agrees that the NDIS needs to get back on track and is of the view that this bill is the beginning of the journey towards an improved NDIS and addressing priority recommendations from the NDIS Review. The committee is of the view that its prompt passage is necessary to restore certainty and sustainability for participants and their providers and to tackle fraudulent practices.
2.178Subject to the above recommendations, the committee recommends that the bill be passed.
Senator Marielle Smith
Chair