Chapter 2Views on the bill
The NDIS is achieving great things—extraordinary things—and it has won a place in the heart of the nation. But, at the same time, people with disability and their families need a fair system, must have certainty about the future and should not be put in a position where they can be easily exploited. I therefore cannot overstate how essential it is that this legislation is now passed without further delay or significant changes to its current balance.
2.1Over the course of the inquiry the committee received evidence reflecting a range of views on the amendments to the bill currently before the Senate. Whilst submitters and witnesses were broadly supportive of the amendments, many raised concerns with some of the amendments.
2.2The committee also received a significant amount of evidence that spoke to the broader NDIS reform context but did not specifically address the amendments being considered in this inquiry. As noted in Chapter 1, the current inquiry relates to the amendments currently before the Senate and does not seek to re-examine issues examined in the first report, specifically the purpose and key provisions of the bill and background information relating to the National Disability Insurance Scheme (NDIS, the Scheme) and the broader context for these reforms.
2.3This chapter therefore examines key issues raised by submitters and witnesses on the amendments relating to:
unresolved issues around the definition of NDIS supports;
information gathering powers of the Chief Executive Officer (CEO);
consultation and co-design;
whole-of-person approach to determining support needs;
participant review rights;
debt raising provisions; and
the positions of state and territory governments.
Support for the amendments
2.4Some submitters and witnesses offered support for the amendments to the bill currently before the Senate and the government's NDIS reform agenda more generally.
2.5For example, Ms Elly Desmarchelier, a disability rights campaigner and NDIS participant, offered her support for the bill and amendments at the public hearing on 24July 2024, explaining that:
This bill and the amendments before us today deliver consistency, fairness, flexibility and the opportunity to put people with disability back at the centre of planning. I urge the committee to support the amendments before it, and I urge the Senate to move quickly to pass this bill.
2.6Ms Claire-Louise McCrackan, the CEO of Carers and Advocates Australia, also called for the bill to be passed, 'sooner rather than later'.
2.7Professor Bruce Bonyhady impressed upon the committee that the bill, and the amendments, should be urgently passed to ensure that the NDIS can achieve its promise, and purpose. He said that:
[T]hree reforms are essential at this time. People with disability and their families must be put back at the centre of the NDIS, we must restore trust and confidence in the scheme, and the NDIS must be sustainable. These three goals are inseparable. You cannot have one or two without the third. Today, the NDIS is not sustainable, it's not equitable and there are major problems with scheme integrity which are undermining confidence. In my view, as you consider this legislation, it is these issues—sustainability, equity and scheme integrity—which must now take priority so that the full NDIS vision can be delivered.
2.8This view was shared by Ms Robyn Shannon, Deputy Secretary of the Disability and Carers stream at the Department of Social Services (DSS), who explained that the bill is a starting point for further reforms:
It provides the scaffolding, the foundation—however you want to describe it. It gives us the mechanism to create those rule-making powers and then get on with the work together to make the rules.
Issues raised in evidence
Unresolved issues around the definition of NDIS supports
2.9The proposed definition of NDIS supports was a significant concern raised by many submitters to the previous inquiry that felt that it was too prescriptive, relied on the outdated Applied Principles and Tables of Support (APTOS tables) and did not cover all the rights entrenched in the United Nations Convention on the Rights of Persons with Disability (UNCRPD).
2.10Despite further amendments to the proposed definition of NDIS supports which responded to the concerns raised by submitters to the previous inquiry and removed APTOS tables from the bill, a number of submitters and witnesses maintained unresolved issues with what they perceived as 'narrowly defined NDIS supports that have restrictive lists of permitted and prohibited supports'.
2.11Mr Darryl Steff, the CEO of Down Syndrome Australia, shared his view that:
…the approach that the NDIA and the department are trying to take with, in particular, the section 10 definition of 'NDIS supports' is to define them as the current state of what is and is not an NDIS support. Therefore, you would hope that that means that there are not too many supports that are completely removed, and therefore people relying on foundational supports.
2.12At the public hearing, Mr Matthew Swainson, the Acting Deputy CEO of the National Disability Insurance Agency (NDIA), responded to these concerns citing that the proposed definition is intended to provide clarity for participants and those assisting them 'what they're actually allowed to use their budgets to spend on'.
2.13Noting these concerns, the definition of NDIS supports set out in this bill will be subject to future changes in consultation with state and territory governments on the development of the NDIS rules, particularly the Category A NDIS rules, which require the unanimous agreement of states and territories.
Information gathering powers of the CEO
2.14Several submitters and witnesses shared their concerns around the proposed information gathering powers of the CEO of the National NDIA. Responding to concerns raised in response to the original bill, and the committee's subsequent recommendation, the government has introduced amendments in the Senate to clarify the circumstances under which the proposed information gathering powers of the CEO can be used.
2.15The Justice and Equity Centre, welcomed the amendments in connection with information gathering powers, but called for further protections 'against operation of these powers'.
2.16Mr Steff asked for further clarification of how the NDIA CEO powers should be implemented, especially in circumstances where participants have not complied with requests for information:
We think there should be further amendments to sections 43 and 46 in particular, to identify what constitutes things like physical, mental and financial harm, and that some of those powers should be limited to being implemented only in certain circumstances, such as if there is repeat noncompliance with requests for information.
2.17Professor Bonyhady assured the committee that, in his view, the proposed CEO powers struck the right balance 'in terms of procedural fairness' because:
It enables the agency to collect the information that is absolutely essential for the scheme to be equitable and fair while, at the same time, ensuring that participants' rights are maintained in terms of what was expected of them.
2.18The DSS and NDIA in a joint submission stated that these amendments seek to 'provide additional clarity about how and when the CEO will exercise certain information gathering powers'.
2.19Ms Worswick, the Chief Counsel at DSS, explained the steps that were taken to respond to feedback from stakeholders regarding additional safeguarding:
Although requests for information from participants and other people under the Act are generally given in writing, it was seen as important by stakeholders that this be clarified in the legislation. It also ensures the CEO has the power to explicitly vary or revoke the request any time after it has been made. For example, if information was requested but then subsequently obtained from another source, it would no longer be required; that was made explicit in the provision.
2.20The committee notes that these amendments respond to concerns raised by submitters in the previous inquiry and propose additional safeguards. These amendments directly respond to Recommendation 3 of the committee in that report.
Commitment to consultation and co-design
2.21A number of submitters and witnesses welcomed the Minister's commitment to co-designing forthcoming legislative instruments and the NDIS rules with the disability community. The proposed government amendments require the Minister to provide a statement outlining what consultation and co-design have been undertaken for all legislative instruments under the NDIS Act (the Act).
2.22However, some argued that the proposed amendments relating to consultation and co-design do not sufficiently require the Minister to adhere to these processes, and therefore may allow future Ministers to potentially circumvent the co-design process by simply having conceptual 'regard' to co-design as a principle, without genuinely engaging in a co-design process.
2.23Every Australian Counts articulated this concern, submitting that:
The Bill requires the Minister to consider co-design principles but stops short of making co-design mandatory, potentially leaving future ministers the option to ignore input from people with disability and their representative organisations. Although the proposed amendment for transparency in consultations is a step forward, a legal commitment to co-design is essential to uphold the disability community's rights in shaping the NDIS.
2.24People with Disability Australia (PWDA) also acknowledged the government's commitment to co-design, but argued that 'the way people with disability are engaged must be made more explicit in the legislation'.
2.25Mr Tony Clark supported the bill and the amendments overall, stating:
Not moving forward would be catastrophic to the National Disability Insurance Scheme as a whole, given it will continue to erode public confidence.
2.26However, at the public hearing on 24 July 2024 he called for changes to the language around co-design, because the term can be interpreted differently by different people. Mr Clark called for the words 'regarding co-design' to be removed and instead for the government to:
…actually encourage and facilitate through legislation the development of clear standards, of definitions and of ways that we can actually start to engage, to undertake and to develop mutually positive arrangements and outcomes not only for the people who have to process and manage the program but, most importantly, for the people who are using it.
2.27At the public hearing on 24 July 2024, Dr George Taleporos, Independent Chair of Every Australian Counts and a Ministerial appointment to the NDIS Independent Advisory Council, stated that the co-design requirements need to extend beyond the process of co-design to acting in accordance with the outcomes of any co-design process. Dr Taleporos advised the committee:
The problem that we've had, though, is that we do all this co-design work and then the government comes along and says: 'No, no, no. This is what we're going to do.' As valuable and as wonderful as the work that the NDIA executives and staff are doing is, and as wonderful as their commitment is—I want to be on the record to say they are fully committed to co-design—it amounts to nothing when the government says: 'No, none of that. This is what we're going to do.' That is the problem that we have at the moment.
2.28The sentiment that 'having regard to' co-design is not the same as legally mandating co-design, and thus allows for ministerial circumvention of co-design, was expressed by several submitters.
2.29The DSS and NDIA, in their joint submission, clarified that the amendments currently before the Senate are intended to 'explicitly require the Minister to have regard to the principle of co-design when making certain new legislative instruments'. Ms Worswick explained the purpose of the amendment was to respond to feedback about the opportunity for stakeholders to be part of the making of instruments and rules under the Act and the committee's recommendation:
This amendment, in response to the committee's recommendation, requires an explicit explanatory statement to be included in legislative instruments made under the Act. Although the minister has that obligation to detail the consultation that has undertaken for a legislative instrument in any event by virtue of the Legislation Act and related matters—and that then is subject to parliamentary scrutiny—it was important for stakeholders to have confidence that they would see an explicit statement of that consultation. It clarifies and strengthens the obligations on the minister to include information about the degree and depth of the consultation that has been undertaken in the development of the content of the instruments.
2.30The committee also heard that the NDIA's commitment to co-design continues its work since late 2022. Mr Swainson told the committee:
Under the current leadership, we've been putting in an enormous amount of effort in terms of reforming the agency's operations, in bringing the participant back to the centre of everything we do. That started with our Reform for Outcomes program, which is about our workforce and better planning. We've been using co-design groups to inform that work, and that work will continue; no matter what happens with the agency, we need to continue to work with participants to make sure the scheme is designed with them and for them.
2.31The committee notes that these amendments respond 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. The committee welcomes this amendment, which directly actions Recommendation 2 of the committee's previous report.
Whole-of-person approach
2.32Several submitters and witnesses expressed concern that the proposed amendments do not require a whole-of-person approach to determining a participant's support needs and therefore risk providing inadequate supports for people living with multiple, complex and interrelated disabilities.
2.33Every Australian Counts submitted that the proposed approach imposed artificial distinctions that can result in funding gaps:
By limiting needs assessments and budget-setting methods to impairments that meet specific disability or early intervention criteria, the Bill imposes artificial distinctions that can result in insufficient funding for those with complex and interrelated needs. People with disability are impacted by all of our disabilities, not merely the ones that NDIA arbitrarily determine to have met access criteria.People with disabilities are whole people - our diagnoses cannot and should not be separated.
2.34At the public hearing on 24 July 2024, a number of witnesses acknowledged that while the proposed amendments seek to recognise whole-of-person support needs, the use of diagnostic lists determining what supports are, and are not, NDIS supports inherently risk extricating a participants NDIS needs from their non-NDIS needs, and thus failing to provide holistic support.
2.35For example, Ms Catherine McAlpine, the CEO of Inclusion Australia outlined the importance of NDIS discretion for people with very complex support needs in individualised circumstances:
It is critical that a needs assessment consider the whole of person. For example, the experience of being hard of hearing is very different and very impactful if you already have an intellectual disability, and it can be very hard to diagnose/distinguish the respective impacts of having both an intellectual disability and autism.
2.36Mr Darryl Steff, the CEO of Down Syndrome Australia, further provided explained that while generally supportive of many of the changes proposed in this area, there should be more clarity 'about which impairments have enabled the participant to access the scheme and for that to be communicated and identified to the participant'.
2.37Ms Nick Avery, the Deputy Chair of Every Australian Counts, shared these concerns that the proposed planning framework 'does not fully accommodate individuals with multiple and interrelated disabilities' and as a consequence 'the framework risks insufficient funding for those with complex needs'.
2.38However, the committee heard evidence from witnesses that supported the proposed amendments.
2.39Ms El Gibbs, the Deputy Chief Executive Officer of Disability Advocacy Network Australia, acknowledged the improved posture of the bill in relation to whole-of-person considerations since the previous inquiry, noting:
When we came to talk to you last time, we were talking particularly around the whole-of-person section of the bill and the need for amendments. The government has come a significant way around that. We believe there are still some things left to do, and that is in our submission, which will ensure a person's full set of disabilities can be listed, considered and challenged. That challenge is very important; it's a reviewable decision.
2.40Ms Desmarchelier, a disability advocate, offered support for the proposed amendments, describing them as strengthening the 'whole-of-person part of the needs based assessment'. She explained:
I want to be clear with people with disability here, because there is a fear campaign going on: this needs based assessment could not be further from what independent assessments were. Independent assessments were about functionality, about putting people with disability in boxes, about paternalistic, condescending questions—people coming in and saying, 'Show me how you make a sandwich.' These amendments ensure it's a holistic needs based assessment. They are about coming in and saying: 'In this part of your life, what supports do you need to just get on with it, to just do it? What support can we get you so you can get on with your life?' They're less about line items and more about the flexibility of budgets again. They're putting people with disability in the decision-making role.
2.41The committee heard that, consistent with the NDIS Review recommendations, there is an intention for an assessment to consider the whole person. At the public hearing, Mr Swainson explained:
There is a clear intent through this legislation, as recommended by the review, for the assessment to consider the whole person. However, those impairments or needs arising from the impairments are those which are intended to be funded by the scheme. This recognises a person's significant and permanent disability can be impacted by other factors, whether those are other health related concerns or impairments or environmental factors.
In terms of assessment, the intent is that the assessment considers all those factors and how they impact on a person's impairment for which the scheme is intended… This is intended to provide quite a clear and transparent mechanism for assessing and making clear what the law says about what will and won't be funded under the scheme, which we don't currently have.
2.42Ms Worswick, elaborated that while the assessment is intended to be holistic and 'take into account other environmental factors and other personal needs that the individual has that are quite distinct from their disability support needs', it still must be assessed within the limits of 'what the NDIS can ultimately and legitimately and properly fund'.
Participant review rights
2.43A number of submitters and witnesses raised concerns around the perceived lack of participant review rights, specifically in relation to participant's ability to seek a review of their needs assessment report.
2.44Ms Lindsay Ash, a Senior Solicitor with Legal Aid NSW, told the committee that the bill would have a 'significant impact on participants' review rights' and explained that:
This is twofold, because the bill introduces new types of decisions that are not reviewable, including not allowing participants to challenge the basis on which they gain access to the scheme, and because the planning based on needs assessment reports will limit the scope of what a decision-maker can do on review and make it harder for it a participant to obtain independent decisions about their support needs.
2.45The Justice and Equity Centre submitted that the amendments did not provide a sufficient 'legislative definition of a participant's right to a replacement needs assessment' because currently this was left to the Rules. The Justice and Equity Centre explained that:
…proposed subsection 32L(7A) would allow NDIS Rules to govern when a replacement assessment should or should not be undertaken. As a needs assessment informs the funding for supports in an NDIS plan, covering a period of up to five years, it is crucial to provide a participant with procedural rights to ensure their assessment is accurate. This warrants the right to a replacement assessment being secured in the NDIS Act.As set out at section 7.2 of our Previous Submission, the Bill must expressly provide a participant with the right to access one replacement assessment in relation to each NDIS plan developed for them. Following a replacement assessment, if a participant requests a further replacement assessment in relation to that same plan the CEO should have the discretion to arrange one where appropriate.
2.46Ms Avery from Every Australian Counts told the committee that the bill did not have a clear way for participants to appeal or replace needs assessments:
Provisions for replacement assessments remain vague, with no clear pathway for participants to request a replacement needs assessment. We recommend introducing amendments to make needs assessments a reviewable decision, allowing participants to appeal these assessments and related plan decisions. Further, there remains no right of appeal if the NDIA determines that a participant has incurred a debt, even if the debt was incurred through no fault of the participant or due to lack of information and support from the NDIA. All new decisions introduced by this bill must be reviewable, and no right of appeal should be removed.
2.47Ms Belinda Kochanowska, the Principal Lawyer and Founder of Intrepidus Law explained why it is important that decisions under the NDIS Act be reviewable:
It is a fundamental tenant of democracy and the rule of law that a citizen have procedural fairness to question a decision made by government that impacts them so intimately and to have the right to be heard or in particular provide further information and evidence about their disagreement with that government decision… there are a number of decisions included in the bill which lack review rights in circumstances which will significantly impact a person. It is essential these decisions are reviewable.
2.48Regarding a review of the needs assessment report, officials from the NDIA explained that the amendments were deliberately drafted in such a way to ensure that NDIS participants have a budget and access to supports–rather than having no budget or supports while going through a review process. Ms Shannon explained that the objective was to 'get both a good policy outcome that balances people's rights to review and a timely outcome that gets them some support'.
2.49As touched on in Chapter 1, government amendment (7) on sheet PA110 would insert a new legislative note under proposed subsection 32L(7) of the bill to clarify that a decision-maker, upon internal and external review, can arrange for a replacement needs assessment if the participant is not satisfied with their plan, including because they disagree with the needs assessment report that was used to develop their plan.
2.50The NDIA absolutely assured that the committee that the supports needs assessment process will be subject to review. Mr Swainson told the committee:
A participant is not losing their review rights under the arrangements which are reflected in the bill. It is just a quicker, simpler, easier process for a participant to access their review rights whilst moving forward and getting a plan in place.
2.51The NDIA provided further assurance that the Administrative Appeals Tribunal Act 1975 explicitly provides that the external reviewer, being the Administrative Appeals Tribunal (AAT), has before it all powers available to the original decision-maker, including the power to order a new needs assessment.
2.52In his second reading speech, the Minister provided additional assurance that the bill 'makes no changes to internal or external review rights in regard to participants' plans'.
Debt recovery provisions
2.53While it does not specifically relate to the amendments, some submitters and witnesses raised concerns around the proposed debt recovery provisions in the bill, citing the lack of sufficient protections for participants as reminiscent of the robodebt scheme.
2.54Mr Miles Browne, Managing Lawyer, Economic and Social Rights Program at National Legal Aid outlined his concerns about the small number of decisions that would be reviewable under the Act, arguing that the bill risks creating:
…an environment where a person can't just go and have a contest or a dispute with the agency about whether they should have a debt in the first place… it is very surprising, in legislation of this type, in a circumstance where we're going to see far more debts raised against participants, that these fundamental debt protections do not exist… in robodebt, at least people could seek a review of their debt.
2.55Dr Darren O'Donovan, Senior Lecturer, La Trobe Law School, outlined why he considered that the raising of a debt must be reviewable:
Debt raising itself needs to be reviewable. It surprises people in the 2013 Act. You can only review the refusal to waive a debt. But a debt in this bill is a compliance event that can change your plan management. So we need to have a review of the original birth of the debt. When a debt is created, I'd love a commission that is resourced to charge in and get to the bottom of it to ensure that we don't have elements of abuse in driving that debt. I would love to have an agency that comes in with the first idea of supported decision-making.
2.56The committee heard that there were no elements of automated decision making in connection with debt. Mr Swainson further explained that 'there is nothing in here which authorises an automated or algorithmic decision-making process'.
2.57In his second reading speech, the Minister rejected the suggestion that automated decision-making would be utilised to raise debts against NDIS participants:
There is nothing in this bill that has anything to do with robodebt and there is nothing in this bill that requires or allows automated decision-making or the use of algorithms.
State and territory views
2.58The Council for the Australian Federation (CAF) is the peak representative body for state and territory leaders in Australia. Through CAF, states and territories commented on the amendments to the bill.
2.59In their submission to the previous inquiry, CAF raised several concerns around the following matters:
The lack of meaningful consultation with the disability community, or with states and territories, on the legislation;
the risk of emerging service gaps for people with disability resulting from the complexity of the legislation;
the unsuitability of the proposed transitional mechanisms;
the lack of appropriate safeguards around the expanded powers of the Federal Minister and the NDIA; and
insufficient attention to the failures of the NDIS Act and the NDIS Quality and Safeguards Commission.
2.60In their submission to the current inquiry, CAF acknowledged that the proposed amendments address several of these concerns. However, they maintained their concern that the bill:
risks creating service gaps for people with disability by altering the operation of the NDIS before improvements are made to the broader disability ecosystem, including the implementation of Foundational Supports; and
does not sufficiently ensure that states and territories' role in scheme governance is maintained, to support safeguarding against unintended consequences which may lead to worse outcomes for NDIS participants.
2.61CAF's priority concerns are centred on Schedule 1 to the bill, and specifically the forthcoming Category A NDIS Rules that will require the unanimous agreement of states and territories in order to come in effect. CAF resubmitted their recommendation that Schedule 1 to the bill be amended to defer commencement until all Category A NDIS Rules should be developed and agreed.
2.62CAF submitted their support for Schedule 2 of the bill and conveyed the view that this schedule should commence 28 days after the Act receives Royal assent, in line with the current intent of the Bill.
2.63CAF reiterated that states and territories 'remain wholeheartedly committed to supporting disability system reform to improve the experience and outcomes of people with disability'.
2.64In their joint submission, the DSS and NDIA addressed the concerns of states and territories regarding Schedule 1 of the bill, outlining that the bill seeks to establish the 'enabling framework' required to support the development of the forthcoming NDIS rules and future reforms and that the majority of the changes 'do not take effect until activated by future changes to NDIS rules and instruments'.
2.65At the public hearing on 25 July 2025 officials from DSS assured that committee that the government is working closely with state and territory governments in good faith. Ms Shannon outlined the regular engagement and consultation with state and territory governments:
[W]e have a disability senior officials group that's meeting fortnightly. Noting that this work really commenced post National Cabinet in December last year, that group's met at least 10 times. It's meeting with quite an intense rhythm at the moment. There's also a disability department heads forum that I chair that has met eight times this year, where the legislation is typically a key agenda item. Ministers themselves meet through the Disability Reform Ministerial Council every six to 12 weeks, and they've met three times so far this year, with another meeting scheduled for later in August.
2.66CAF also raised concerns about the bill's ability to adequately address the issues of provider fraud and misconduct identified in the NDIS Review. Though Schedule 2 of the bill contains amendments which aim to improve quality and compliance measures in the NDIS, CAF argued that they did not go far enough:
States and territories are concerned that these provisions do not go far enough to address the serious known issues of provider fraud and misconduct. There are further opportunities to improve the integrity of the NDIS through legislative changes, which should be progressed and implemented as a priority.
2.67The committee notes that CAF, and state and territory leaders, declined repeated invitations to appear at a public hearing to engage in further dialogue on their concerns.
Consideration of the proposed amendments circulated by Senator Thorpe
2.68The First Peoples Disability Network (FPDN) expressed their strong support for the proposed amendments circulated by Senator Thorpe and noted that the amendments:
… represent the amendments FPDN has been advocating for, in addition to eliminating the uncertainty for people with disability leaving incarceration. The Amendments… amplify the rights and needs of First Nations people with disability.
2.69The ongoing work of the FPDN advocating for better outcomes for First Nations people with disability, their families and communities, and by extension, the amendments circulated by Senator Thorpe were also endorsed by SNAICC – National Voice for our Children, the peak body for Aboriginal and Torres Strait Islander children, the Victorian Mental Illness Awareness Council and the University of Queensland Union.
2.70At the public hearing on 25 July 2024, Ms Worswick indicated that the government was considering supporting amendments (1) and (2) on sheet 2671 circulated by Senator Thorpe, which would require that at least 1 member of the NDIA Board must be an Aboriginal person or Torres Strait Islander person who has lived experience with disability.
2.71This amendment is aligned with Recommendation 9.6 of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. In its response to the Royal Commission released on 30 July 2024, the government accepted this recommendation in principle.
2.72In their joint submission, the DSS and NDIA confirmed that the government would consider each of these amendments in the lead up to the Committee of the Whole stage in the Senate.
Committee view
2.73Since the National Disability Insurance Scheme was established in 2013, it has been transformative for many people with a disability and their families through increased economic, social and community participation. It is critical that changes to the NDIS are implemented in-step with NDIS participants, their advocates, families and kin networks, who depend on the scheme's ability to continue to provide quality, safe and sustainable supports into the future.
2.74The committee notes that the bill includes both provisions to ensure the sustainability and integrity of the NDIS that would be implemented immediately, as well as rule-making powers providing for future reforms to be developed in consultation with participants, the wider disability sector, and states and territories.
2.75It is the committee's view that it is essential that the government continues to undertake appropriate consultation and co-design with the disability community on the design and implementation of reforms to the NDIS.
2.76The committee notes that this is the second inquiry into the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024. On 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.
2.77The first inquiry reported on 20 June 2024 and made four recommendations, including that the bill be passed. These recommendations remain unchanged. This report and committee view is focussed on the circulated amendments to the bill and the views of state and territory governments.
2.78The committee is concerned by the significant costs of a delay of passage of the bill for the Australian taxpayer. In particular, the committee notes the estimates of the Scheme Actuary that the existing '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'. The significant costs connected to the delay was confirmed by the Scheme Actuary at a public hearing on 6 August 2024.
2.79The committee supports the further amendments which have passed the House of Representatives and the government amendments before the Senate. The committee is of the view that these amendments have improved the bill and notes that some of these amendments directly action the recommendations made by the committee in its previous report as discussed in Chapter 1.
2.80Specifically, the committee notes that the recommendations of its previous report have been addressed by the amendments proposed by the government in the Senate on sheet PA112:
Recommendation 1, that the bill include amendments so that First Ministers are also recognised as Ministers for the purposes of Category A rule-making, has been addressed by amendment (1);
Recommendation 2, that a consultation statement be tabled accompanying legislative instruments that sets out consultations undertaken, has been addressed by amendment (18); and
Recommendation 3, that the government further clarify the circumstances under which the additional powers granted to the National Disability Insurance Agency Chief Executive Officer will be used, has been addressed by amendments (2) through (5), (13) and (14).
2.81The committee also notes that the government's circulated amendments (6) and through (11) address the Committee's concerns, raised in its previous report, that it had 'received significant evidence relating to the provisions on support needs assessments, with many submitters holding concerns regarding new section 32L and its relevant subsections'. In particular, witnesses raised concerns about the ability of the assessment to deliver a 'whole of person budget'.The government amendments clarify the scope of the needs assessment conducted under new section 32L and make it clear that the needs assessment is undertaken by examining the entirety of a participant's disability related needs. They do not alter the position that funding may only be provided in respect of impairments that meet the disability requirements or early intervention requirements.
2.82The bill, and associated government amendments, are the first legislative step to implement the recommendations of the NDIS Review. This will restore the scheme to its original intent and put participants back at the centre of the NDIS.
2.83The committee notes concerns raised by submitters about debt recovery provisions in the bill, but is satisfied that the bill does not attempt to change or create any new debt recovery powers: section 182 of the Act remains the same. The committee considers that the proposed changes to section 46, which provide greater clarity in terms of what participants can and cannot spend their plan on, are measured and needed to ensure that funds are only used for supports appropriately funded by the NDIS.
2.84In relation to information gathering powers of the CEO, the committee notes the concerns raised by some stakeholders. The committee endorses the government's proposed amendments in response to the previous inquiry's recommendation on this issue, and considers that these amendments provide improved additional safeguards. The committee is also reassured by the evidence provided by officials that further safeguards on these powers will be contained in the forthcoming NDIS rules.
2.85With respect to the definition of supports in the NDIS, the committee notes the evidence from the NDIA that the proposed definition would help to clarify and identify the constitutional basis of the NDIS and has been drafted to provide the NDIA 'with the ability to give participants and providers clarity around what can and cannot be appropriately funded in the NDIS'. The committee notes that the development of the transitional and the Category A NDIS rules, which require the unanimous agreement of states and territories, will provide further opportunity for consultation on the definition of NDIS supports.
2.86The committee heard some evidence regarding the needs assessment process proposed by the bill. The committee considers that the amendments introduced by the government further ensure that the needs assessment will take a holistic approach to assessing a participant's disability support needs. The proposed changes also, importantly, provide a clear statement of what the NDIS will and will not fund. This transparency would provide important clarity for NDIS participants, their families and providers.
2.87The committee heard concerns of some submitters regarding external or internal review rights in connection with participant plans. However, the committee notes evidence from officials that the bill proposes no changes to existing rights. The proposed planning framework would provide participants with internal and external review of their plan, and this would include their reasonable and necessary budget arising from a holistic needs assessment.
2.88While some stakeholders have expressed concerns about consultation and co-design, the committee considers that the government has demonstrated a strong commitment to both. The government has responded to concerns raised by submitters to the previous inquiry, which led to the Recommendation 2 of the committee's previous report, that a consultation statement be tabled by the Minister accompanying a legislative instrument that sets out consultations undertaken on that instrument. These amendments would directly address this recommendation.
2.89The committee also acknowledges the amendments circulated by Senator Lidia Thorpe, as discussed in Chapter 1.Accepting Senator Thorpe's amendments (1) and (2) on sheet 2671, or a variation thereof, would implement Recommendation 9.6 of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability that the 'NDIS Act should be amended to provide that the NDIA Board must include at least one First Nations person at all times'.
2.90The committee heard from the NDIA that the bill introduces measures that aim to help participants and make it easy for participants to do the right thing.This is intended to strengthen the integrity of the scheme. However, the committee also heard that integrity is not a specific function of the NDIA and that this creates a level of uncertainty about the scope of functions that the NDIA are enabled to do to strengthen integrity. Officials provided evidence to the committee that more could be done to improve integrity in the NDIS, such as strengthening the claiming framework to ensure the validity of payments.
2.91The committee strongly encourages the government to consider potential further changes that would provide strengthened protections against provider fraud and to strengthen scheme integrity. This would also address the concerns of state and territory governments regarding provider fraud and misconduct identified in the NDIS Review, and the recommendation in CAF's submission that 'the Bill be amended to strengthen quality, safeguarding, fraud and compliance measures'.
2.92The committee thanks all participants for their input into both inquiries into this bill. We acknowledge the significant engagement from the disability community on this bill and the concerns raised by witnesses and submitters. The committee believes that people with disability deserve an NDIS that both delivers the best outcomes for them, and is safe from exploitation, and that the prompt passage of this bill is critical to restore certainty and sustainability for NDIS participants and their providers, and to strengthen the integrity of the NDIS.
2.93Additionally, the committee is of the view that the bill has been strengthened by the amendments introduced by the government in the Senate, in recognition of concerns raised by the disability community, sector, and experts, as well as the committee's previous report.
2.94The committee recommends that the bill be passed as soon as practicable.
Senator Marielle Smith
Chair