Chapter 1Introduction
1.1The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 (the bill) was introduced to the House of Representatives on 27 March 2024.
1.2On 27 March 2024, the Senate referred the provisions of the bill to the Senate Community Affairs Legislation Committee (the committee) for inquiry and report.
1.3The committee reported on 20 June 2024 and made four recommendations, including that the bill be passed.
1.4On 27 June 2024, the Senate re-referred the provisions of the bill, including examining any circulated amendments to the bill and the positions of state and territory governments, to the committee for further inquiry and report by 5 August 2024. The committee tabled a progress report on 5 August requesting an extension of time to report until 9 August 2024.
Background
1.5Following a three-month inquiry into this bill, the committee tabled a report on 20 June 2024, which is available on the committee's website. This report drew on 205 submissions and further evidence from a range of academics, legal experts, professional peak bodies, care workers, participants, advocates and government officials heard at three public hearings held on 21 May, 22 May and 14 June 2024.
1.6The committee's previous report made four recommendations, in line with key concerns raised by submitters and witnesses, that:
(1)the bill include amendments so that First Ministers are also recognised as Ministers for the purposes of Category A rule-making;
(2)a consultation statement be tabled accompanying the legislative instrument that sets out consultations undertaken;
(3)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; and
(4)subject to the above recommendations, that the bill be passed.
1.7On 5 June 2024, the bill passed the House of Representatives with 29 government amendments and one amendment from the crossbench. Further proposed amendments have also been circulated in the Senate by the government and the crossbench. The government amendments in the Senate respond to recommendations of the committee in the previous inquiry.
1.8In a second reading speech on 5 June 2024, the Hon Bill Shorten MP, Minister for the National Disability Insurance Scheme (NDIS, the Minister) described the intention of the bill and subsequent amendments:
Australians with disability deserve an NDIS that delivers the best outcomes for them and a scheme that is safe from exploitation. We cannot afford to wait one moment longer to get the NDIS back on track. While the scheme's doing amazing things, and changing the lives for hundreds of thousands of people, participants face confusion, uncertainty and, sadly, exploitation—in some cases, everyday—whilst on the NDIS. We do hear some of the bad news stories. The legislation before parliament will give us what we need to make the NDIS stronger, and to make it easier for participants and providers to use NDIS funding in the right way.
1.9The Minister also addressed the need to expedite the bill, to give NDIS participants and providers certainty, and to ensure the scheme's integrity by saving Australian taxpayers around $160 million a month in government expenditure:
Any delays would continue the illusion that providers or participants can just exhaust their NDIS funds and continue to ask for more funds without good reason. It would continue to create participant uncertainty about what they and their providers can do with NDIS funds. It would continue to allow the dodgy providers—admittedly, a small minority, but they exist nonetheless—to rapidly draw down funds from plans, enabling hit-and-run frauds by such providers. Every month this legislation is delayed will cost people with disability and the taxpayers $160 million in funds—taxpayer funding going out the door to dodgy plan managers and people ripping off the scheme, or going to providers delivering luxury holidays and even gambles. The good providers—the vast majority—are crying out for us to do something to stop bad providers taking advantage of people with disability. Families and participants deserve to be protected from unscrupulous operators.
1.10The substantial cost of delaying the bill was confirmed in a letter to the Minister from the actuary for the NDIS, which stated:
A two-month delay in the passage of the Bill is estimated to result in a $1.06 billion increase to NDIS expenditure over the forward estimates, including;
Delays in legislation amendments addressing intra plan inflation will result in an estimated $330 million increase to NDIS expenditure over the forward estimates
Delays in legislation amendments that enable development of a new budget model with NDIS participants and the disability community will result in an estimated $730 million increase to NDIS expenditure over the forward estimates.
Current inquiry
1.11The current inquiry relates to those amendments which passed the House of Representatives on 5 June 2024 and those proposed amendments circulated in the Senate over 26 and 27 June 2024, all of which are currently before the Senate.
1.12The committee notes that this report does not seek to re-prosecute issues examined in the previous report, specifically the purpose and key provisions of the bill and background information relating to the NDIS and the broader context for these reforms.
1.13The committee also notes that on 30 July 2024, the Department of Social Services released the Australian Government Response to the Disability Royal Commission. Of the 222 recommendations made by the Royal Commission, the Australian Government has accepted, or accepted in principle, 130 recommendations.
Structure of the report
1.14This report contains two chapters. This chapter sets out:
the purpose of the amendments to the bill made in the House of Representatives, as well as further proposed amendments circulated in the Senate; and
general information outlining the conduct of the inquiry and other committees' consideration of the bill.
1.15Chapter 2 contains:
the key issues raised by submitters and witnesses;
the positions of state and territory governments; and
the committee's view and recommendations.
Financial impact
1.16The supplementary explanatory memoranda relating to amendment sheets PA110, SK113 and PA112 each state that the amendments will not alter the financial impact of the bill.
1.17The explanatory memorandum (EM) states that the bill is 'expected to contribute to decisions made by National Cabinet to moderate cost growth of the NDIS in the medium to long-term and meet the 8 per cent sustainability target by 1 July 2026'.
Commencement
1.18If passed by the Parliament, the EM states that the whole of the Act would commence on the 28th day after the Act receives Royal Assent.
1.19The Minister noted that some parts of the bill would commence immediately–particularly those addressing the financial sustainability of the NDIS, whereas others were intended to support future changes to NDIS rules, which would be undertaken in consultation with participants and the disability community, and in agreement with jurisdictions 'consistent with the existing shared governance arrangements'.
Purpose of the amendments
1.20This section sets out the amendments to the bill currently before the Senate, specifically:
government amendments moved by the Minister, which passed the House of Representatives on 5 June 2024 (amendment sheets PA110 and SK113);
an amendment moved by Ms Kate Chaney MP, Member for Curtin, as circulated in the name of Dr Monique Ryan MP, Member for Kooyong, which passed the House of Representatives on 5 June 2024;
proposed amendments circulated by the government in the Senate (amendment sheet PA112); and
proposed amendments circulated by Senator Lidia Thorpe.
1.21Copies of these documents are available on the bill's website.
Amendments made in the House of Representatives
1.22On 5 June 2024, the Minister moved government amendments (1) to (8) on sheet PA110, and government amendments (1) to (21) on sheet SK113 and presented supplementary explanatory memoranda in relation to each sheet.
1.23These amendments seek to make changes to the bill, which amends the National Disability Insurance Scheme Act 2013 (the NDIS Act), to improve the participant experience and ensure the sustainability of the NDIS.
1.24In his second reading speech on 5 June 2024, the Minister explained that:
The changes in this bill recognise the government's ongoing commitment to delivering the independent review (NDIS Review) panel's vision for the future reforms of the NDIS.
1.25As stated by the supplementary explanatory memoranda, the amendments also seek to address some of the key concerns raised over the course of the committee's inquiry into the bill and particularly recommendations made by the committee in its previous report tabled on 20 June 2024.
Government amendments 1 to 8 on sheet PA110
1.26The supplementary EM relating to sheet PA110 summarises the proposed amendments as:
placing limitations on proposed new information gathering powers
clarifying that in making new legislative instruments, the Minister must have regard to the principle that people with disability are to be included in a co-design capacity
requiring the CEO to provide a needs assessment report to a participant
clarifying that a decision maker upon internal and external review can arrange for a replacement needs assessment.
Information gathering powers
1.27Amendments (1) through (4) amend items 30 and 31 of the bill relating to the information gathering powers of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA), specifically their 'ability to request certain information for the purposes of considering whether to revoke a person's status as a participant in the NDIS'. The EM details that:
Currently the CEO has no ability to request information for this purpose, which means that this consideration may be based on outdated or incorrect information.
1.28The amendments further provide that the CEO is limited to exercising these powers in circumstances in which they are satisfied that the information cannot be otherwise reasonably obtained.
Requirement for the Minister to have regard to the principle of co-design for legislative instruments
1.29Amendments (5) and (8) amend proposed sections 32K and 32L to explicitly require the Minister to have regard to subsection 4(9A), which is one of the general principles under the NDIS Act, that 'people with disability are central to the NDIS and should be included in a co-design capacity' in the development of legislative instruments.
1.30The proposed amendments will require the Minister to have regard to subsection 4(9A) when making legislative instruments under sections 32K and 32L.
Requirement for the timely provision of needs assessment reports to participants
1.31Amendment (6) inserts a new, proposed subsection 32L(6A) in item 36 of the bill, requiring that the CEO must endeavour to provide participants with a copy of their needs assessment report as soon as practicable after the CEO receives the report.
1.32The EM further provides that the needs assessment must:
…be provided to the participant before any further steps in the planning process can occur, including any planning conversations.
This will provide the participant with an opportunity to review the report and provide input and feedback before the CEO makes any planning decisions.
Review of needs assessment
1.33Responding to concerns about a participant's ability to seek a review of their needs assessment report, amendment (7) inserts a new legislative note under proposed subsection 32L(7) explaining how internal and external review apply to subsection 32L(7).
Government amendments 1 to 21 on sheet SK113
1.34The supplementary EM relating to sheet SK113 states that the proposed amendments would:
Replace the existing draft of proposed new section 10, and item 124 (which provides a transitional arrangement for that section),
Clarify the circumstances in which a replacement assessment report can be arranged under proposed new section 32L,
Clarify the new provisions in section 33 relating to funding component amounts and total funding amounts,
Prescribe certain circumstances in which the CEO may pay above a total funding amount for a plan, and circumstances in which a participant's reasonable and necessary budget can be varied, rather than leaving this detail to National Disability Insurance Scheme (NDIS) rules
Make other minor technical corrections and consequential amendments.
Definitional amendments
1.35Amendments (1) through (5) cover definitional amendments in the bill.
1.36Amendment (1) replaces the definition of 'funding component amount' to reflect that the amount is 'tied to a group of reasonable and necessary supports', as defined in proposed paragraph 33(2A)(c)'.
1.37Proposed paragraph 33(2A)(c) provides that the statement of participant supports must:
specify that funding will be provided under the plan to or in relation to the participant, for supports in each group identified under paragraph (b) of this subsection, up to an amount (a funding component amount) specified in the statement for the group that is worked out in accordance with any requirements determined under subsection (2E) for the purposes of this paragraph.
1.38Amendment (2) replaces the definition of 'funding period' as it relates to old framework plans, as defined in proposed paragraph 33(2A)(d).
1.39The EM states that the new definition of funding period in proposed paragraph 33(2A)(d) provides that the period relates to funding provided 'for reasonable and necessary supports during specified periods (each of which is a funding period)'.
1.40Amendment (3) amends the definition of 'NDIS support' in item 6 of Schedule 1 to clarify supports that are NDIS supports and those that are not by referencing the introduction of both an inclusive definition and an exclusive definition of NDIS support as set out by amendment (5).
1.41Amendment (5) replaces proposed section 10, which inserts a new definition of 'NDIS support' into the NDIS Act:
(1)Subject to subsection (4), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for:
(a)participants or prospective participants generally; or
(b)a class of participants or prospective participants that includes the person.
1.42According to the EM, this definition serves two purposes:
It makes clear the constitutional basis for the new budget setting framework recommended by the NDIS Review, and helps to clarify and identify the constitutional basis of the NDIS as a whole.
It assists participants and the disability community to understand what is (and always has been) capable of being funded by the NDIS having regard to intergovernmental agreements and constitutional considerations.
1.43The EM further provides that:
The definition of NDIS support relies, in part, on the creation of Category A NDIS rules, requiring the agreement of the Commonwealth and all States and Territories. Given the critical nature of this definition, it is necessary to have a transitional approach to defining NDIS support until final NDIS rules can be agreed.
1.44Noting the above, the definition of NDIS support set out in this bill may be subject to future changes in consultation with state and territory governments on the development of the NDIS rules. This is particularly relevant for the Category A NDIS rules, which require the unanimous agreement of states and territories.
1.45Amendment (4) amends item 13 of Schedule 1 to the bill, which inserts a minor technical correction to the definition of 'total funding amount' into section 9 of the Act. The EM clarifies that this amendment substitutes the words 'funded under' in place of 'specified in' in paragraph (c) of the definition.
Requirement to arrange replacement assessment reports
1.46Amendments (7) and (8) amend proposed paragraph 32L(7) to clarify the requirements on the CEO to arrange for replacement assessment reports in circumstances in which 'they are satisfied that another assessment should be undertaken' and in accordance with Category A NDIS rules.
1.47Amendment (16) updates item 116 of Schedule 1 to the bill as a consequence of changes to subsection 32L(7) made by amendments (7) and (8). According to the EM, amendment (16) ensures that rules relating to replacement needs assessment reports will be Category A rules and therefore require the unanimous agreement of states and territories.
Amendments relating to old framework plans
1.48Amendments (1), (2), (4), (9), (10), (12), (13) and (18) through (21) all relate to old framework plans. Broadly, these amendments introduce the following in old framework plans:
total funding amounts;
funding component amounts;
grouping ' reasonable and necessary' supports; and
transitional rules and provisions.
1.49The EM states that:
The primary change made by these amendments is the introduction of the concept of a 'group' of reasonable and necessary supports, for example, core supports. The requirements and procedure for categorising supports into groups will be included in the Ministerial determination made under subsection proposed 33(2E).
Other amendments
1.50Amendment (6) would insert a legislative note at the end of proposed new subsection 32E(4), which would be inserted by item 36 of Schedule 1 to the bill. The proposed note would clarify that the NDIS rules 'may declare a support for the purposes of this subsection by identifying a class of supports'.
1.51Amendment (11) amends item 78 of Schedule 1 to the Bill by including new subparagraphs (ia) and (ib) in proposed paragraph 47A(1AB)(j) to allow the NDIA CEO to vary a participant's reasonable and necessary budget in circumstances in which:
the CEO is satisfied that the participant requires funding because the participant has experienced fraud or financial exploitation; or
the CEO is satisfied that the variation is necessary to prevent or lessen a threat to the participant's life, health or safety (whether current or future).
1.52Amendment (14) amends item 99 of Schedule 1 to the bill, which would repeal and substitute existing subsection 74(6) and replace it with a new, consolidated version of that subsection. This amendment includes an example of the types of rules that could be made under the new subsection 74(6):
For example, National Disability Insurance Scheme rules could be made under this subsection that apply for the purposes of making a decision under paragraph (5)(a) whether a child is capable of making decisions for himself or herself.
1.53Amendment (15) amends item 115 of Schedule 1 to the bill, providing that NDIS rules made under subsections 10(1) and 10(4) will be Category A rules and therefore require the unanimous agreement of states and territories.
1.54Amendment (17) omits and replaces item 124 of Schedule 1 to the bill to provide the Minister with the powers to make a transitional rule which only applies for the purpose of section 10, until the final NDIS rules have been made.
1.55The EM notes that existing item 124 relies on the Applies Principles and Tables of Support (APTOS) and the EM notes that this amendment responds to concerns and public commentary that APTOS, as agreed by First Ministers in 2015, is out of date and inconsistent with the most recent agreements reached by the Disability Reform Ministerial Council'.
Amendment agreed to as circulated in the name of the Member for Kooyong
1.56On 5 June 2024, Ms Kate Chaney MP, Member for Curtin, moved the below amendment, as circulated in the name of Dr Monique Ryan MP, Member for Kooyong, in the House of Representatives.
4 Review
(1)The Minister must cause an independent review of the amendments made by this Act to be conducted as soon as practicable after the end of the 5-year period starting on the day this Act receives the Royal Assent.
(2)The persons who conduct the review must:
(a)consult with the public in conducting the review; and
(b)give the Minister a written report of the review in sufficient time to enable the Minister to comply with subsection (3).
(3)The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 9 months after the end of that 5-year period.
1.57In moving the amendment, the Member for Curtin stated:
Given the scale of these changes and the importance of getting this right, it seems appropriate to consider the impact of these amendments and have a look at how they're actually working. This is a huge piece of legislation regarding a very expensive scheme. On that basis, I think it would be reasonable to have a review of how the changes to the scheme are working after that period.
1.58The amendment was supported by the government, with the Minister commending it as 'a very good amendment'. It passed the House of Representatives on 5 June 2024.
Proposed amendments circulated in the Senate
Government amendments 1 to 18 on sheet PA112
1.59On 27 June 2024, the government circulated a further 18 proposed amendments to the bill in the Senate. The revised supplementary EM relating to sheet PA112 states that the proposed amendments would:
Allow First Ministers (in addition to Disability Ministers) to agree to National Disability Insurance Scheme (NDIS) rules
Clarify and introduce additional safeguards around the exercise of information gathering powers by the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Agency)
Amend the provisions relating to the 'needs assessment', to clarify that the assessment will holistically assess a person's disability support needs
Require the Minister to provide a consultation statement as part of the explanatory statement for all legislative instruments made under the Act.
1.60The revised supplementary explanatory memorandum provides that these amendments also seek to respond to the recommendations made by the committee in its previous report tabled on 20 June 2024.
Definition of host jurisdiction Minister
1.61Amendment (1) would expand the definition of host jurisdiction Minister in section 9 of the NDIS Act to include First Ministers of states and territories, in addition to members of the Ministerial Council who have portfolio responsibilities for the NDIS.
1.62The amended definition would define a host jurisdiction Minister as:
a Minister of the host jurisdiction who is:
a member of the Ministerial Council; or
if the host jurisdiction is a State—the Premier of the State; or
if the host jurisdiction is a Territory—the Chief Minister of the Territory.
1.63In effect, this amendment would enable First Ministers and Ministers with portfolio responsibilities for the NDIS to provide agreement for NDIS rule-making on behalf of their jurisdiction.
1.64The committee notes this amendment would directly action Recommendation 1 of the committee's previous report.
Information gathering powers of the CEO
1.65Amendments (2) through (5), (13) and (14) seek to clarify the circumstances under which the proposed information gathering powers of the CEO can be used.
1.66Amendments (2), (4) and (13) insert new subsections 30(3AA), 30A(5AA) and 36(2A) respectively, requiring that requests for information made by the CEO under section 30A of the Act must be provided in writing or in the participant's preferred manner of communication.
1.67Amendments (3), (5) and (14) insert new subsections 30(6A), 30A(7A) and 36(3A) respectively, providing guidance that the CEO must consider the reasonableness for a person not to have complied with a request for information and have regard to the following matters:
the length of time the person has had to provide the information (for example, a delay of 6 months may be appropriate in certain circumstances whereas a delay of 12 or 18 months may not be)
any previous failures by the participant to comply with a request for information made under this Act
any previous failures by the other person to comply with a request for information made under this Act in relation to the participant
the length of time since the CEO was last provided with information relevant to the decision whether or not to revoke the participant's status as a participant
whether the failure to comply with the request was beyond the control of the participant or other person because of a delay in the provision of information to the participant or other person
any matters prescribed by Category A NDIS rules
any other matters the CEO considers relevant.
1.68The committee notes that these amendments respond to concerns raised by submitters to the previous inquiry that the specified timeframes for responding to request for information may be difficult for some participants.
1.69The committee notes these amendments would directly action Recommendation 3 of the committee's previous report.
Needs assessment
1.70Amendments (6) through (11) seek to clarify the scope of the needs assessments to be conducted under proposed section 32L. Collectively, these amendments seek to confirm that the new planning framework used to conduct needs assessments will take a holistic approach to assessing a participant's disability related support needs.
1.71The EM states:
The intent of section 32L has always been that a needs assessment will assess a person holistically, looking at all of their disability related support needs, consistent with recommendations of the 2023 Independent Review into the National Disability Insurance Scheme (NDIS Review). While the assessment itself is holistic, funding for supports under the NDIS can only be provided in relation to impairments that meet the disability or early intervention requirements.
1.72Amendment (6) amends proposed subsection 32K(1) to clarify that NDIS funding 'can only be provided in respect of impairments that meet the disability requirements or early intervention requirements'.
1.73Amendment (7) would insert a new subsection 32K(3A) which provides that in making a determination under subsection 32K(2) 'the Minister must be satisfied that the determination adequately takes account of the variety of factors may affect a participant's need for NDIS supports'.
1.74Amendment (8) makes a minor amendment to subsection 32L(1) to substitute the term 'need for supports' to 'disability support needs', to clarify that the needs assessment must assess all of a participant's disability support needs.
1.75Amendment (9) omits subsection 32L(3), which reads:
The assessment must assess the participant's need for supports only in respect of impairments in respect of which the participant meets the disability requirements or the early intervention requirements.
1.76This omission enables the needs assessment to assess the participant's need for supports holistically, regardless of whether they meet the disability or early intervention requirements.
1.77Amendment (10) omits and substitutes subsection 32L(6) to clarify that a needs assessment report must:
identify the participant's disability support needs arising from impairments in relation to which the participant meets the disability requirements or the early intervention requirements, and
include any information, and meet any requirements, determined in a legislative instrument made by the Minister under subsection 32L(8).
1.78Amendment (11) amends paragraph 32L(8)(b) to clarify the power of the Minister under proposed subsection 32L(8) to determine the requirements for undertaking needs assessments, including for the purpose of assessing whether a participant's disability support needs result from impairments in relation to which the participant meets the disability requirements or the early intervention requirements.
Legislative notes
1.79Amendment (12) would insert two legislative notes at the end of subsection 34(1) of the Act to provide that:
the time at which a participant must meet the disability requirements or early intervention requirements is the time at which the CEO decides to approve the statement of participant supports; and
a participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors.
Category A NDIS Rules
1.80Amendments (15) through (17) make consequential amendments to amendments (3), (5) and (15) which would insert references to the new NDIS rule-making powers in item 1 in section 209 of the NDIS Act to classify these new rules Category A NDIS rules. As a result, these rules would necessarily require the unanimous agreement of all states and territories.
Commitment to consultation and co-design
1.81Amendment (18) would insert a new section 211 to the bill, which would prescribe that certain information about consultation must be included in explanatory statement to legislative instruments made under the NDIS Act.
1.82This amendment seeks to clarify and strengthen the existing requirement on the Minister under paragraph 15J(2)(d) of the Legislation Act 2003, to provide information about consultation undertaken on legislative instruments made under the NDIS Act.
1.83The amendment would require the Minister to provide explanatory statements adhering to the following requirements for all legislative instruments made under the NDIS Act moving forward:
describe the nature of the consultation
describe in general terms the persons, bodies or organisations who were consulted
contain a summary of the views expressed by those persons, bodies or organisations.
1.84The committee notes that this amendment responds to concerns raised by submitters to the previous inquiry that the Minister should be required to ensure appropriate consultation and co-design with the disability community on the design and implementation of legislative instruments made under the NDIS Act.
1.85The committee notes this amendment would directly action Recommendation 2 of the committee's previous report.
Amendments proposed by Senator Lidia Thorpe
1.86Over 26 June and 27 June 2024, Senator Lidia Thorpe circulated 12 proposed amendments to Schedule 1 of the bill. These amendments chiefly relate to:
consultation requirements relating to First Nations;
consideration of cultural participation;
First Nations representation on the NDIA Board; and
NDIS participants in, or transitioning out of, a custodial setting.
1.87Amendments (1) through (5) on sheet 2674 seek to expedite the timeframes for considering NDIS access requests for prospective participants who are to be released from a custodial setting.
1.88Amendments (1) through (2) on sheet 2673 would require the Minister to consult with, and consider the views expressed by Aboriginal or Torres Strait Islander people in the development of legislative instruments under the NDIS Act and the development of the NDIS rules.
1.89Amendments (1) and (2) on sheet 2672 would insert the word 'cultural' after the word 'social' in item 36 of the bill and on nine occasions in the NDIS Act, requiring consideration of the participant's cultural, as well as social and economic participation.
1.90Amendments (1) and (2) on sheet 2671 would require that at least one member of the NDIA Board must be an Aboriginal person or Torres Strait Islander person that has lived experience with disability.
1.91Amendment (1) on sheet 2670 seeks to ensure that support is appropriately funded or provided for participants or prospective participants who are in, or transitioning out of, a custodial setting.
Consideration by other committees
1.92Both the Parliamentary Joint Committee on Human Rights (PJCHR), and the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills committee) commented on both the bill and the amendments currently before the Senate.
1.93The PJCHR raised several concerns regarding the bill in its Report 4 of 2024, which tabled on 15 May 2024. These concerns are summarised in the committee's previous report.
1.94The Scrutiny of Bills committee also raised several concerns regarding the bill in its Scrutiny Digest 6 of 2024, tabled on 15 May 2024. These concerns are summarised in the committee's previous report.
1.95Key issues raised by both committees relating to the amendments currently before the Senate are outlined in the following sections.
Findings of the Parliamentary Joint Committee on Human Rights
1.96The PJCHR maintained its concerns regarding the bill, including the most recent amendments, in its Report 5 of 2024, which tabled on 26 June 2024. These concerns were specifically around:
the proposed definition of NDIS support;
the proposed information gathering powers of the CEO; and
the proposed approach to determining total funding amounts for NDIS participants.
Proposed definition of NDIS support
1.97The PJCHR maintained its concern that the proposed definition of NDIS support set out in the bill was too narrow in its scope and posed a risk of 'reducing the type of supports that will be funded by the NDIS and thus available for participants'.
1.98The PJCHR maintained its view that the proposed definition would engage and potentially limit the:
rights of persons with disability;
rights to an adequate standard of living and health;
right to social security; and
to the extent that the measure applies to children, the rights of the child.
1.99The PJCHR sought the advice of the Minister regarding the compatibility of this measure with these rights. The Minister responded that the amended definition was intended to:
provide clarity and certainty for people with disability when selecting their supports but it does not change the types of supports that have always been appropriate to purchase with NDIS funding.
1.100The Minister provided reassurance that the measure would not be retrogressive and that the amended definition would necessarily be individualised, noting that:
The test is whether a person has a need for the support as a result of their disability. For example, a participant who does not experience impacts on their mobility as a result of their disability will not require mobility aids.
1.101The PJCHR concluded that 'while the measure pursues a legitimate objective' the committee maintained its concern that the amended definition does not provide 'sufficient flexibility to ensure that any limitation on rights is proportionate in each case'.
1.102The PJCHR proposed two suggested actions in relation to this measure:
that the forthcoming NDIS rules allow for the NDIA to exercise discretion to provide supports beyond specified NDIS supports provided the participant has a demonstrated need as a result of their disability; and
that the statement of compatibility for the bill be updated to reflect the information provided by the Minister.
Proposed information gathering powers of the CEO
1.103The PJCHR maintained its concern that the proposed information gathering powers of the CEO, specifically the ability to request that a participant undergo an assessment or examination and provide personal information, including sensitive medical information, engages and may limit the right to privacy.
1.104The Minister provided reassurance that the proposed powers would only be used as prescribed in the forthcoming NDIS rules in circumstances where:
there is reasonable evidence to suggest that the participant does not meet one of the relevant criteria; and
the information requested is necessary for the purpose of considering whether the participant continues to meet the relevant criteria or not.
1.105The PJCHR acknowledged thatthat the proposed information gathering powers of the CEO were intended to support of the legitimate objectives of improving the quality and consistency of NDIA decisions and was satisfied that the circumstances in which the right to privacy may be likely to be limited are sufficiently circumscribed.
1.106The PJCHR proposed that the statement of compatibility with human rights for the bill be updated to reflect the information provided by the Minister.
Proposed approach to determining total funding amounts
1.107The PJCHR maintained its concern that the proposed approach to determining total funding amounts poses 'a risk that the measures may result in fewer supports being approved and funded for participants'.
1.108Specifically, the PJCHR expressed concern with the requirement that the Minister have regard to the financial sustainability of the NDIS when determining matters relating to working out total funding amounts and assessing participants' need for supports.
1.109The PJCHR maintained its view that the proposed approach to determining total funding amounts would engage and may limit the:
rights of persons with disability;
rights to an adequate standard of living and health;
right to social security; and
to the extent that the measure applies to children, the rights of the child.
1.110The Minister provided reassurance that the requirement to have regard to the financial sustainability of the NDIS would necessarily be considered alongside:
the principle that people with disability should be supported to receive reasonable and necessary supports, including early intervention supports
the principle that reasonable and necessary supports for people with disability should:
support people with disability to pursue their goals and maximise their independence
support people with disability to live independently and to be included in the community as fully participating citizens
develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
1.111With respect to balancing the competing priorities set out above, the Minister responded that 'generally equal weight should be given to each'.
1.112The PJCHR maintained its concern that while the financial sustainability of the NDIS is 'an important policy aim':
…there remains a risk that the measures may be retrogressive in practice, as without any legislative or other guidance, there is a risk that the financial sustainability of the NDIS may be given greater weight than other matters, such as the needs of participants, and there do not appear to be sufficient safeguards accompanying the measures to mitigate this risk. The committee therefore considers that it has not been demonstrated that the proposed limitations on rights would be proportionate in all cases.
1.113The PJCHR proposed two suggested actions in relation to this measure:
that the proportionality of the measures may be strengthened by:
guidance co-designed by people with disability; and
inclusion of the best interests of the child as a primary matter that the Minister must have regard to; and
that the statement of compatibility for the bill be updated to reflect the information provided by the Minister.
Findings of the Senate Standing Committee for the Scrutiny of Bills
1.114The Scrutiny of Bills committee maintained its concerns regarding the bill, including the most recent amendments, in its Scrutiny Digest 7 of 2024, tabled on 26 June 2024. These concerns were specifically around the:
exemption from sunsetting;
broad delegation of administrative powers or functions; and
the incorporation of external materials.
Exemption from sunsetting
1.115The Scrutiny of Bills committee reiterated its 'heightened' concerns regarding the proposed exemption of the forthcoming NDIS Rules and other instruments made under the NDIS Act from sunsetting, via the insertion of item 42AC into section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015.
1.116Sunsetting provides for the automatic repeal of delegated legislation ten years after registration on the Federal Register of Legislation, to provide the Parliament, Ministers and agencies with an opportunity to review delegated legislation.
1.117In response to concerns raised in relation to the proposed exemption from sunsetting, the Minister advised the committee that the forthcoming NDIS rules are 'likely already exempt from sunsetting under subsection 54(1) of the Legislation Act 2003 and that this amendment seeks to clarify the exemption from sunsetting'.
1.118The Minister provided further justification that 'it is not appropriate for the Commonwealth to unilaterally repeal instruments that require agreement from state and territory governments to be made' and that 'it would be disempowering for the disability community for them to sunset'.
1.119The Scrutiny of Bills committee stated that:
…the making of the NDIS rules is an exercise by the Commonwealth Executive of legislative power that has been delegated to it by the Commonwealth Parliament in pursuance of the objectives of a scheme legislated by the Parliament. As such, the committee is of the view that it would be entirely appropriate for the Parliament to maintain oversight of such instruments through the sunsetting process.
Broad delegation of administrative powers or functions
1.120The Scrutiny of Bills committee raised further concerns with the broad delegation of administrative powers or functions to the CEO, or their delegate under the NDIS Act, the regulations or the NDIS rules and also queried whether these decisions are to be subject to independent review.
1.121In response to these concerns, the Minister advised that:
…the bill does not expand the scope of the CEO's powers but rather confers necessary and appropriate powers that ensure the operation and implementation of new measures included in the bill.
1.122The Scrutiny of Bills committee maintained its concern that the proposed changes constitute an 'expansion of power' and expressed the view that the delegation of administrative powers and functions should 'be appropriately limited to individuals possessing appropriate training, qualifications, skills or experience, and this can be set out within the NDIS Act itself rather than relying on non-legislative operational guidance'.
Incorporation of external materials
1.123In relation to items 114, 36 and 39 of Schedule 1 of the bill, the Scrutiny of Bills committee had previously expressed concern that the incorporation of legislative provisions by reference to external materials and other documents that may not be readily or easily available may inhibit parliamentary scrutiny and create uncertainty for those obliged to obey, or those interested in, the law.
1.124The Minister concurred that the terms of the law, including any incorporated reference material, should be able to readily and freely accessible and committed that all incorporated documents would be available on the NDIA's website.
1.125The Scrutiny of Bills committee was satisfied with the Minister's commitment and made no further comment on the matter.
Conduct of the inquiry
1.126As noted above, the previous report of the committee considered 205 submissions and evidence from a range of academics, legal experts, professional peak bodies, care workers, participants, advocates and government officials over three public hearings held on 21 May, 22 May and 14 June 2024.
1.127In addition, the re-referred inquiry received 314 submissions, and a number of supplementary submissions, which are listed at Appendix 1.
1.128The committee also received correspondence from approximately 90 individuals as part of an advocacy campaign via the digital lobbying platform DoGooder. An example submission from this campaign was published as Submission 151.
1.129The committee heard further evidence from a range of stakeholders and government officials during three public hearings held in Canberra, and via videoconference, on 24 July, 25 July and 6 August 2024. Witnesses are listed at Appendix 2.
Note on references
1.130References to Committee Hansard in this report are to proof transcripts. Page numbers may vary between proof and official transcripts.
1.131References to explanatory memoranda in this report are to a range of materials, including revised, corrected and supplementary explanatory memoranda. The specific explanatory memoranda document is referenced in the footnotes.
Acknowledgements
1.132The committee thanks all those who contributed to the inquiry by making submissions, providing additional information, and appearing at public hearings. The committee is grateful to all those who have shared their experience, expertise, knowledge and ideas in support of improving the bill and amendments.
1.133In particular, the committee acknowledges the contributions of people living with disabilities, their families, kinship networks and carers, who shared their personal experiences and perspectives throughout the inquiry. The evidence of people with lived experience is critical to identifying issues within the NDIS and improving its operation.