Dissenting Report - Australian Greens

I look at this legislation and can see some of the small changes are going to make it easier for somebody to be removed from the NDIS, and easier for really significant cutbacks to their allocation, to their dollars—and the government wants to rush this through.[1]

1.1The Australian Greens are deeply grateful for the advocacy, submissions, time and expertise contributed to this inquiry by disabled people, their family members and representative organisations. We also wish to extend this gratitude to the many academics, legal experts, professional peak bodies, care workers and advocates who did the same.

1.2The work undertaken by witnesses and via submissions to the inquiry was remarkable and provided the committee with invaluable information. The Australian Greens acknowledge that providing this evidence to the committee was a daunting experience for many, requiring significant preparation, vulnerability and emotional labour.

1.3We recognise that the introduction of this bill and commencement of this inquiry took many by surprise and came at a time of exhaustion due to the massive workload created by The Royal Commission into violence, abuse, exploitation and neglect and the NDIS Review.

1.4Rarely has a committee inquiry considered a piece of legislation of such significance to disabled people, their families and communities. This inquiry presented the opportunity for the committee to support disabled people, their families and the community to engage deeply with a bill that will have profound implications for their lives and future.

1.5The committee also had the opportunity to thoroughly test the assumptions upon which the bill is based and rigorously examine the motivations that drove its creation. We had the opportunity to thoroughly assess the capacity and ability of key entities, like the states and territories, to deliver additional disability supports. We had the opportunity to rigorously scrutinise the harms that this bill could subject disabled people to and the ways it could make their lives, and the lives of their families, more difficult.

1.6It is with genuine alarm that the Australian Greens express the view that the inquiry was prevented from fully seizing these opportunities by the decision of government committee members to oppose an extension of the inquiry. Because of this decision not to extend the inquiry, the Australian Greens were not able to fully scrutinise all aspects of this Bill, including the amendments that were passed by the House of Representatives only two weeks before the reporting date.

1.7Furthermore, the draft committee report was circulated very close to the deadline of the meeting to adopt it, leaving only 45 working minutes for Western Australian senators to read and review the report.

1.8This report cites the witness statements and submissions of many of the organisations and individuals that took the time and effort to participate in this inquiry, but unfortunately there are many more powerful and insightful contributions that were not able to be included because of this time pressure. To all the contributors who have not been mentioned throughout this report, please know that your contributions have been noted and greatly appreciated by the Australian Greens.

1.9Finally we wish to also acknowledge the incredible work done by the committee Secretariat to enable the committee to hold the few hearings that were agreed to and to process the evidence provided to us.

Context surrounding the introduction of this Bill

1.10The Australian Government and Minister for the NDIS failed to provide a formal response to the NDIS Independent Review or the Royal Commission into Violence, Abuse, Neglect, and Exploitation of People with Disability (the DRC) before this bill was introduced to Parliament on 27th March, 2024. At the time of the tabling of this report no such responses have been delivered and the date of their delivery is unknown.

1.11As a result, neither the community nor the Parliament are aware of the Government’s position on the NDIS Review’s 26 recommendations and 139 actions, or the 222 recommendations of the DRC at the time of this bill being tabled.

1.12The Government's decision to introduce this bill before these vital responses have been provided was surprising, particularly given the Explanatory Memorandum of the bill frames the bill as a response to the recommendations of the NDIS review.

1.13The Government’s decision to attempt to have the Parliament pass this bill in the absence of these responses has denied the community and Members of Parliament the opportunity to consider the legislation in the full context of the changes that the Government wants to make to Australian disability law.

1.14This absence of any response to the DRC and NDIS Review looks like a mild oversight when compared with the Government's continued refusal to release key documents regarding the NDIS Financial Sustainability Framework. Despite departmental officials confirming that this bill will give effect to the 8 per cent “growth” target, the Government has consistently refused to make this Framework available to the public since the issue was raised in Senate Estimates over 6 months ago.

1.15Combined with the government's failure to research, model, or in any way inquire into the positive economic impact of the NDIS or the number of participants that will be removed from the NDIS due to this legislation, the community and Parliament are now being required to support a bill without access to the basic contextual information that underpins the Government's reforms.

1.16It was revealed during Senate Estimates that the Government spent $620,000 on a two year contract for a speechwriter in addition to $400,000 spent with RedBridge Group to conduct focus groups and message testing to identify how to best frame the changes proposed in the NDIS Bill. This messaging advises on how to elicit a level of ‘qualified tolerance’ from the community for reforms that would inevitably mean funding cuts to the scheme. From the reports commissioned by RedBridge Group:

When we presented rorts, fraud, and unreasonable pricing as posing an existential threat to the NDIS, we were able to create an environment in which respondents were amenable to reforms designed to counter these things.[2]

After presenting respondents with the above proof points that provide vital, believable context of reforms designed to benefit participants, we were able to elicit a degree of qualified tolerance for reforms. Respondents do not like these reforms but they may be willing to tolerate them where there are/is:

Carve-outs for exceptional circumstances (i.e. we’re not forcing everyone into the same box, and the most in need are still fully supported);

Initial goodwill generated by the measures to humanise the Scheme and to protect participants (and the Scheme) from exploitation. Conversely, there is a strong resistance to any discussion of costs alone as a driver of reforms; and

Alternative or ‘offsetting’ benefits in place. For example, in relation to the threshold for developmental delays, there is more (but not outright) acceptance once respondents had been treated with the idea of investing in mainstream supports for children (through schools/kinders/etc) to enable earlier intervention and improve the safety net. In relation to the Supported Independent Living (SIL) changes, these become more acceptable when couched in benefits around reducing social isolation and ensuring people don’t fall through the cracks. Conversely, proposing to ‘grandfather’ changes to SIL did not work as a way of ‘offsetting’ the impacts.[3]

1.17It is increasingly clear that the public is now watching the results of that polling play out in real time. The Government focuses on “rorts”, “cheats”, and the most absurd and unusual examples of NDIS usage, all of which can be traced back to the RedBridge reports.

1.18Just like the previous government proactively dropped stories on so-called "dole bludgers" to undermine the calls for a Royal Commission into Robodebt, is the view of the Australian Greens that this government is undermining the NDIS in the same way.

1.19Moreover, stories of fraud have been raised during Senate Estimates [4] without the Agency providing the qualifying data or proof around allegations of participants or providers using participant’s NDIS funding for things that are not disability-related.

1.20The committee has heard evidence that the bill does not address the causes of fraud, raising questions about how serious those allegations are, and how committed the Government actually is to stopping unscrupulous claims:

The Bill also fundamentally misses the mark in addressing current issues in the Scheme, such as fraud and quality and safeguarding issues… these amendments… do not deter providers from engaging in fraud during the registration process or during the provision of services. States and territories are concerned that these provisions do not go far enough to address the serious known issues of provider fraud and misconduct.[5]

1.21Further, the Explanatory Memorandum only mentions the word ‘fraud’ once, contradicting the messaging that this Bill is intended to address fraud within the NDIS.

1.22During the inquiry hearing on 14 June, the committee heard that there is a significant gap in the legislation relating to the protection of participants who report fraud:

I have a client right now who has witnessed really extreme human rights abuse to an NDIS participant as part of the NDIS scheme who can't safely and lawfully blow the whistle. How is that an effective system? Given the objects of this bill, how can this bill not take steps to improve the ability of people to speak up under this scheme? If the objects of this bill are to safeguard participants and to address fraud and integrity issues, then a failure to improve protections for people who will speak up is a critical hole.[6]

1.23This was further echoed by Villamanta Disability Rights Legal Service:

A participant is actually disincentivised from reporting fraud because they may well then be asked to repay a debt on the fraud for something they never received.[7]

1.24Rather than centring NDIS discussion solely around fraud, the Australian Greens believe that the Government should acknowledge the positive economic benefits of the NDIS to the broader Australian community, and the positive effects the scheme has had on disabled people's lives.

1.25Per Capita’s 2021 research [8] outlined that for every dollar the Government puts into the scheme, a conservative estimate of 2.25 dollars are returned to the broader economy. Furthermore, Per Capita estimated that for every $1 billion dollars diverted away from thescheme, the impacts could see a loss of around 10,000 jobs. If these legislative reforms pass, we will see $14.4 billion in cuts to the scheme. According to the research by Per Capita, this could see 144,000 jobs lost.

1.26The NDIS contributes significantly to the Australian economy, and the passing of this legislation would put that at risk.

Creation Of The Bill: Secretive Process, Rushed Inquiry

1.27The Bill proposes to make the most significant changes to the scheme, since its inception 10 years ago. Such significant changes should have been subject to thorough and transparent consultation with the disability community to build consensus around legislative change and ensure community support. However, the committee heard evidence that groups and individuals who were invited to participate in consultations were legally gagged by non-disclosure agreements [9] and not a single public consultation was held prior to the Bill's introduction.[10]

1.28In addition to this, the government made the active decision not to circulate a legislative exposure draft [11] denying the community the opportunity to provide feedback on the bill prior to introduction. Not providing an exposure draft, along with requiring stakeholders who were consulted about the Bill to sign non-disclosure agreements demonstrates a lack of respect for transparent policy creation processes, and a failure to meet the basic standards of parliamentary integrity.

1.29Given the magnitude of changes proposed in this Bill, the community should have had more opportunities for open consultation and co-design of the legislation, to ensure its rigour and effectiveness. More time is also needed by the Parliament to appropriately scrutinise the legislation, and to hear from the community about how it would affect them.

1.30Substantial amendments proposed by the Government were also published during the final hour of what was then intended to be the final hearing. Pressure from non-Government committee members and the disability community resulted in an additional half day hearing, but an extension was not granted to properly consider the impacts of these amendments.

1.31These decisions paint a picture of a Government that knew their Bill contained significant measures that would cause grave concern for disabled people and decided to push the bill through as fast as possible with the least possible scrutiny.

1.32The disability community, stakeholders and legal professionals reported to the committee their grave concerns for the consequences of this Bill during the course of this inquiry. In listening to the evidence given, reviewing the many submissions, and in also understanding that this Bill holds a budget saving commitment of $14.4 billion dollars over the forward estimates, the Australian Greens understand why the Government chose to keep the legislation a secret for as long as possible and why the Bill is being rushed through so quickly.

Changes through the bill are projected to moderate scheme growth by $14.4 billion over the forward estimates from 2024-25 and offset further projected increases in scheme costs.[12]

This is about reduction of support for people with disability to the tune of over $4.4 billion.[13]

1.33The Australian Greens hold concerns that the States and Territories have requested the Government slow down the passage of the Bill, and that their appearance at the hearings was noticeably missing.

The swiftness with which the Commonwealth is pursuing changes to constrain the NDIS… risks a fragmented and disconnected service system… We are deeply concerned that this way of going about the reform – including through this Bill – will lead to worse outcomes for more Australians with disability and their families.[14]

1.34Many more key witnesses also did not have the opportunity to provide their evidence during the hearings.

1.35The committee heard significant evidence from participants, family members, lawyers, advocates and academics about their dire concerns regarding this bill. For a Bill of this magnitude that will have such deep impacts for many disabled people, their families, carers and the workforce in the immediate term, the rushed nature of this inquiry is simply not good enough.

Concerns expressed by community

1.36The witness statements and submissions presented throughout this inquiry have highlighted grave concerns for the fundamental aspects of the NDIS: access to the scheme; choice and control; reasonable and necessary supports; and the right to appeal decisions that participants or applicants don’t agree with.

1.37The committee also heard concerns from participants about being subject to new assessments that have been compared with the “independent assessments” of the former Liberal Government, which were strongly rejected by the disability community.

1.38Some of the key concerns raised were around:

Reasonable and necessary supports

The bill proposes a shift from reasonable and necessary supports to a restrictive list of permitted supports, claimable from budgets based on yet-to-be-developed needs assessments. This approach risks denying necessary supports to people with complex needs and lacks the individuality and the flexibility that the NDIS promises.[15]

Revoking access

A new ground for revoking the status of a participant in the NDIS has been included in the Bill.[16]

Mandatory needs assessments

There are a lot of fears in the community at the moment, as to, for instance, the needs assessment not being consistent with the information that has already gone to the review.[17]

1.39Of additional concern are the implications for First Nations disabled people and regional and remote communities. During the third hearing of this inquiry, the First Peoples Disability Network expressed deep reservations that requirements for producing evidence within NDIS designated time frames will disadvantage First Nations disabled people, particularly those living in regional and remote areas. They also expressed further concerns around the cultural responsivity of assessment tools and tailored supports are also not addressed in this bill:

this legislation contains zero indication that they understand or care about First Nations people with disability. There's not a single mention of First Nations people, Closing the Gap, Indigenous people, Aboriginal people, or the International Convention on the Elimination of All Forms of Racial Discrimination in the bill at all. First Nations people need tailored supports, culturally responsive diagnostic tools and thriving, adequately funded community controlled organisations. Without these basic assurances, we have no reason to trust that the minister is going to give the appropriate attention to these needs when making rules was about what is and isn't an NDIS support.[18]

1.40It is evident that the lack of consultation with regional disabled people has led to further negative consequences for them in this Bill.

There's no understanding in these recommendations of the geographic distances that we have here and the impact they have on how we can access supports…. The way this bill is written, and the narrowing of supports to 'specified NDIS supports' is really risky.[19]

Inadequacy of Foundational Supports

Intrepidus Law rejects the bill as drafted, questions the haste with which it has been delivered and presses for attention and pressure to be applied to the states to first establish much-needed foundational supports as the priority in addressing scheme sustainability.[20]

1.41The Inquiry has heard from multiple witnesses and submissions of the Government’s reliance on the States and Territories delivering “foundational supports” in order to fill the gaps in support that would be created by the passing of this Bill. While The Australian Greens support a more broader scope of supports being available to disabled people, the committee heard that foundational supports are currently non-existent and must first be established by the States and Territories, which the Government itself acknowledged would take at least two years just to develop a strategy.[21]

...foundational supports are critical to the support of this. It's critical that they be designed and implemented before there's any change in any other aspects of the ecosystem.[22]

1.42This Bill would immediately enable the removal of participants from the scheme, and the denial of access for many more; pushing them back to those currently non-existent ‘foundational supports’. Indeed, the term “foundational supports” is ambiguous. The committee heard that foundational supports have not even been defined by the Government:

It also concerns me that we're sort of having this discussion about… foundational supports, when in actual fact we still don't know what foundational supports are. A few organisations might have an idea of what they would like it to be, but at this point in time there is no definition or list…[23]

To date there has been no decision as to the specific services that will be provided as Foundational Supports…[24]

1.43In enabling the stripping of supports and participants from the scheme, the Government has further failed to provide the committee or the community any data, modelling, or clarity around how many participants are calculated to have supports cut, or how many would be removed from the scheme altogether as a result of this Bill.

1.44Without an understanding of the magnitude of these grave outcomes, and with there being little to no supports available outside the NDIS for at least the next few years, this Bill should not be passed.

Detailed areas of concern

1.45The Australian Greens have specific concerns about the content of multiple sections of this Bill. Many of these concerns are laid out below, but it should be noted that this is not an exhaustive overview of the shortcomings of this Bill.

Removal of individualised reasonable and necessary supports

1.46This Bill introduces ‘NDIS Supports’ to replace the concept of ‘reasonable and necessary supports’ that exists in the current Act. In doing so, the Bill removes one of the fundamental pillars of the NDIS.

1.47The inclusion of ‘reasonable and necessary supports’ within the current legislation allows participants to be provided with individualised supports based on their circumstances, support needs, goals, and aspirations. Decisions regarding what is considered a ‘reasonable and necessary support’ are guided by clear legal tests contained within section 34. These tests include, but are not limited to, that the support will enable the participant to participate socially and economically; that the support represents value for money; and that the support is best provided by the NDIS.

1.48Under this Bill, this would be changed so that supports would instead be required to be explicitly named in the NDIS Rules to be defined as an NDIS support. The decision on what to include in this list of ‘NDIS supports’ would be made by the Minister, and is required to gain the agreement of all states and territories. Crucially, the definition of ‘NDIS supports’ would not be required to obtain agreement from participants that it would adequately meet their needs.

1.49The change to an allowable list of ‘NDIS supports’ has been criticised by many submissions to this inquiry. A key concern that has been raised is that essential supports participants are currently receiving will not be available to them under the new legislation. From the submission from Every Australian Counts:

The narrow definition of 'NDIS Supports' is overly restrictive and risks undermining individual choice and control which are meant to be core pillars of the scheme.[25]

1.50Section 10 of this Bill provides the framework for determining what will be listed as an NDIS support. It states that a support may only be declared an NDIS support if it implements Australia’s obligations under the Convention on the Rights of Persons with Disabilities, or if it enables the provision of sickness benefits. Multiple submissions to this inquiry noted that this definition does not require holistic implementation of Australia’s CRPD obligations, as summarised by Muriel Cummins during the hearings:

We've heard a lot today about how section 10 draws on some aspects of the UNCRPD but doesn't reflect it in its entirety.[26]

1.51Further requirements on allowable supports are introduced in Section 32H, which states that a participant’s budget can include requirements that must be met for certain supports to be provided. These requirements can include a specific person or group of people who provide the supports, some process that needs to be undertaken before supports are provided, or any other requirement as included in the NDIS Rules.

1.52This is a blatant attempt to control the choices that participants make. Choice and control is one of the central pillars of the NDIS and removing it in this way makes it clear that the Government prioritises their bottom line over the wellbeing of the disability community.

1.53The government should remove the concept of ‘NDIS Supports’ from the Bill entirely and return to ‘reasonable and necessary’ as the basis for providing supports to participants.

Requests for information or examination

1.54Subsections 30(2) and 30A(4) allow the CEO to request information from participants in order to make a decision about revoking access or changing the participant’s status (i.e. from early intervention status to disability status). According to the Explanatory Memorandum, this request could require the participant to undertake a medical, psychiatric, or other assessment or examination, possibly at their own expense. The participant would be required to obtain this evidence within 90 days or some other specified time period, or risk being removed from the scheme.

1.55This is concerning to The Australian Greens for a number of reasons, including significant risk of traumatisation or re-traumatisation; discrimination to participants in non-metro areas where wait lists to allied health providers are much longer; and insufficient safeguards set up to limit when and why this information can be requested.

People with disability have reported finding such assessments harmful, distressing and intimidating… the AAT heard of consequences of mandatory medical assessments that included ‘exacerbated anxiety and loss of confidence’, ‘a real risk of [the person] suffering physical injury’, and ‘severe depression that may even result in her taking her life if the assessment was to go ahead’.[27]

1.56The Government amendments passed in relation to this issue made some improvements, including requiring that the CEO be satisfied that the information gained is necessary and that an assessment or examination wouldn’t cause harm to the participant, but this does not go fair enough. The issue of who pays for the assessment is still not addressed, and there are insufficient safeguards to mitigate the long wait times for allied health providers that could result in a deadline not being met. Furthermore, the participant has no avenue to appeal the decision to request information - instead they rely on the judgement of the CEO about whether harm could be caused to them by such a request.

1.57The Public Interest Advocacy Centre noted in their supplementary submission to this inquiry that these Government amendments relating to requests for information, assessment, or examination “do not go far enough in protecting participants from the overly broad operation of these powers”. They also note that the amendments:

do not provide similar constraints on the equivalent, identically-worded, power for the CEO to compel medical assessments for the purpose of preparing a participant’s plan (as contained in subsection 36(2)(b)(ii)).[28]

1.58This Bill should be amended, and in particular subsections 30(2) and 30A(4) should be amended, to add the right for a participant to appeal the request for information, assessment, or examination as unnecessary or harmful.

Needs assessments and budget creation

1.59The Bill introduces a new framework for creation of participant plans, which includes needs assessments. They have been described by the Government in the Explanatory Memorandum as a more holistic and sensitive way to assess the support needs of a participant, but this has been disputed by some submissions.

32L(3)... subsection greatly narrows the scope for what supports will be considered under a ‘needs assessment’ and may mean that only part of the person is being considered through this approach, contrary to the ‘whole of person’ approach that is intended through this assessment.[29]

For a budget to be set at a whole-of-person level, a person's needs must be assessed at a whole-of-person level, otherwise this will result in an inadequate budget being set. As drafted, those provisions would adopt a view that has been rejected by the AAT, the Joint Standing Committee on the NDIS and the NDIS review.[30]

1.60The needs assessment report is intended to form the basis of the statement of participant supports via a ‘method’, though this method has not been defined at all in Bill. The statement of participant supports will then inform the creation of the budget. There have been concerns raised throughout the inquiry about consequential process components such as this method being delegated to the Rules instead of included in the main Act:

Defining features for this method should be detailed in the primary legislation. Without transparency principles outlined in the legislation, this process will not have parliamentary oversight, and we return to the issue of the method of budget-setting taking place in a ‘black-box’ i.e. utilising assessment scores in an unknown and potentially unproven manner.[31]

1.61There have been significant concerns expressed about the reviewability of the budget creation process and, in particular, the needs assessment:

It would be belated and inefficient to use that process [of reviewing the statement of supports] to detect issues with the needs assessment report, which would often be immediately apparent to the participant.[32]

It is of serious concern to Intrepidus Law that appeal rights are not being offered to participants with respect to proposed needs assessments. For any citizen to not have the right to appeal a government decision which so intimately impacts their life or could threaten their life is completely unacceptable… procedural fairness and appeal rights must be provided to participants of the scheme.[33]

1.62It should be noted that the Bill has been amended to add a note clarifying that needs assessments can be reviewed indirectly through a review of the statement of participant supports. However, this amendment does not address the concerns raised. This was expressed during the hearing on 14 June:

The statement of participant supports is reviewable, but that is not dependent on the assessment. The assessment—we don't know what it is, so we don't know if it works. We don't know if it's of any value or achieves any useful purpose. The only thing that could potentially be ordered is that another one is done. But one would have to assume that it's going to have the same inputs and therefore the same outputs, so it's not going to change anything. There's not even a power in there to have the participant correct fatally incorrect information; it could have the wrong name, the wrong anything. We see documents come out from the agency where the name of the person changes halfway through. We have seen materials where the wrong disability is stated. If that occurs—humans make errors; that's how we are—there is no right for the participant to request that the agency correct that and send it back to be done again. So, another assessment doesn't make much difference if you're going to get the exact same outcome.[34]

1.63Participants should be able to request that their needs assessment be reviewed on its own, rather than as a small part of a larger decision. It is essential that participants can verify that their needs assessment accurately reflects their support needs, goals, and aspirations, and this can only be achieved if the assessment report can be reviewed both formally and informally by the participant.

Plan self-management

1.64According to the Explanatory Memorandum, subsection 33(5) allows the CEO to change a participant’s plan from self-managed to agency managed if the participant has a history of over-spending. This is highly concerning as overspending can occur for a multitude of reasons, many of them valid, reasonable, and beyond the participant’s control.

1.65Furthermore, changing a participant’s plan to agency managed requires supports to only be provided through registered providers. In rural and remote areas, the availability of registered providers is highly variable so this would affect the quality of supports provided and, in some cases, mean that essential supports required by a participant are not available. For First Nations and culturally or linguistically diverse participants, being limited to registered providers can also result in non-culturally safe care.

Changing a participants plan to Agency (NDIA) Managed has dramatic impact on a participant's autonomy, choice and control; with serious repercussions impacting their access to supports – particularly in areas of thin markets such as regional and remote communities.[35]

1.66The ability to self manage and engage an unregistered provider should be decided on a case-by-case basis, guided by a rigorous risk assessment and supported decision making process. For any participant to have their right to self manage removed because of factors outside of their control is fundamentally unjust.

Ministerial Powers

1.67Of concern to the Australian Greens is the significant number of items in the Bill that allow the Minister to fundamentally change the substance of NDIS law through legislative instruments. These include:

The ability to categorise participants into “classes”

Determination of the method for calculating a plan budget

Determination of what will be involved in a needs assessment, including assessment tools, requirements for carrying out an assessment, information that must be included in a report, and requirements that a report must meet

Different rules for different classes of participants, if decided by the Minister

Determination of how to work out a budget

Any provision for the purpose of transition

1.68Delegating the power to determine key components of the NDIS to the Minister of the day would result in a huge loss of certainty for the disability community. Legislation will be able to be changed at a whim by the executive government of the day who would have the power to rewrite the fundamental makeup of how the NDIS works. Significantly less consultation would be required, and there would far less opportunity for scrutiny by the Parliament and the community.

1.69Specifically in relation to the Minister’s ability to categorise participants into “classes”, this power allows the Minister of the day to create segregationist policy and should be removed entirely from the Bill.

Classification systems determined by ‘identifiable characteristics’ are considered an outdated and archaic phenomenon when considered through an equality lens and have no place in contemporary disability policy.[36]

1.70The Greens believe that the items laid out in the above dot points should be detailed in the Bill rather than in delegated legislation, both to build trust with the disability community and to limit the amount of decision making power that is placed solely with the Minister.

1.71Where delegated legislation is necessary, there should be a requirement for authentic co-design rather than just a requirement to “consider the principle” of co-design, and exposure drafts of the legislation should be provided to the public as soon as they are available.

Of serious concern is the lack of legislated commitment to codesigning the new NDIS tools and processes in close partnership with people with disabilities and their representative organizations. Comprehensive codesign, research, testing and refinement of these reforms - in close partnership with diverse disability communities - must occur before any implementation.[37]

1.72Furthermore, the Government should amend the Bill to add a legislative requirement for authentic co-design with organisations that represent disabled people and their families, and the wider disability community. This requirement should apply to all subsequent legislation, guidelines and policies that accompany this Bill. Additionally, legislative instruments should be subject to the consent of all organisations and individuals engaged through the co-design process.

Recommendations

1.73It is the strong belief of the Australian Greens that this Bill should not pass in its current form, which includes the amendments passed by the House of Representatives which did not go nearly far enough. The above sections of this report detail some of the specific criticisms that have been raised during the course of this inquiry, but even with all of these criticisms addressed there would still be remaining aspects that would harm disabled people. Simply put, because of the decision by Government committee members not to extend this inquiry, there was not enough time to fully unpack the impacts of this Bill and to provide recommendations that would make it safe to pass.

Recommendation 1

1.74That the Bill not be supported.

Recommendation 2

1.75That the Government ensure foundational supports be comprehensively defined and implemented in states and territories.

Recommendation 3

1.76That the Government deliver a formal response to the Disability Royal Commission and the NDIS Review.

1.77Once these actions have been undertaken, the Government can return to the conversation of amending the NDIS Act but with a commitment to true, authentic co-design with disabled people to achieve change that will meaningfully improve the lives of the many people who rely on the NDIS.

Senator Jordon Steele-John

Footnotes

[1]Susan Hart, parent of a participant.

[2]https://dataresearch.ndis.gov.au/media/3966/download?attachment pg 1.

[3]https://dataresearch.ndis.gov.au/media/3966/download?attachment pg 4-5.

[4]https://www.aph.gov.au/Parliamentary_Business/Senate_Estimates/ca pdf from page 94, evidence provided from Mr John Dardo.

[5]Council for the Australian Federation (on behalf of all Australian States and Territories), Submission 46.

[6]Human Rights Law Centre.

[7]Villamanta Disability Rights Legal Service.

[8]https://percapita.org.au/our_work/false-economy-the-economic-benefits-of-the-ndis-and-the-consequences-of-government-cost-cutting/#:~:text=A%20conservative%20estimate%20of%20the,2021%20is%20around%20%2452.4%20billion.

[9]https://www.theguardian.com/australia-news/2024/mar/26/government-ndis-review-overhaul-criticism-greens-labor-ndas.

[10]https://www.dss.gov.au/the-ndis-amendment-bill-questions-and-answers#11.