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On 21 October 2021, the Senate referred the provisions of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (the bill) to the Community Affairs Legislation Committee for inquiry and report by 25 November 2021. The bill’s referral was contingent upon the bill’s introduction into the House of Representatives, which occurred on 28 October 2021.
Purpose of the bill
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The bill would amend the National Disability Insurance Scheme Act 2013 (NDIS Act) to implement recommendations arising out of a 2019 review of the Act by Mr David Tune AO PSM (Tune Review) and would implement the government’s ‘commitment to a focus on improving the experience and outcomes of people with disability who engage with the [NDIS]’.
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The bill would amend the NDIS Act to:
provide for the Participant Service Guarantee (the Guarantee) that will legislate timeframes and engagement principles for how the National Disability Insurance Agency (NDIA) undertakes key administrative processes;
simplify administrative processes in relation to making changes to a participant’s plan;
reduce other administrative burdens for participants and their families and carers;
clarify eligibility criteria for people with psychosocial disability; and
provide a simplified payments design to allow the Agency to make direct payments on behalf of participants.
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As recommended by the Tune Review, the bill would also:
include amendments in response to the 2015 Independent Review of the NDIS Act (2015 review); and
removes redundant references and rule making powers used during NDIS transition phase to ensure the Act is fit for purpose in a full scheme environment.
Background to the bill
The Tune Review
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The Government committed to deliver an NDIS Participant Service Guarantee in the lead up to the 2019 federal election. To develop the Guarantee, the Government commissioned Mr Tune to conduct a review of the NDIS Act ‘with a focus on streamlining NDIS processes and removing red tape for participants’.
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The Tune Review received 201 submissions, and 1,400 short and long‑form responses were received to an online survey published by the review. Extensive face-to-face consultation was undertaken, including workshops, focus groups and meetings with stakeholders from across the NDIS.
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The review’s final report was submitted to government in December 2019. It made 29 recommendations, all of which were either supported, or supported in principle, by the government. This bill, together with amendments that will be made to the NDIS Rules, would implement 14 of the 29 recommendations. The explanatory memorandum notes that other recommendations that are likely to require legislative changes will be considered in future, following the co-design of a new model to support access and planning.
2015 Independent Review
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In 2015, Ernst & Young (EY) was commissioned by the Commonwealth Government in consultation with the state and territory governments to conduct the 2015 review pursuant to section 208 of the NDIS Act. That provision required that such a review take place two years after the commencement of the NDIS. The purpose of the 2015 review was:
… to assess the operation of the NDIS Act, as well as to consider whether or not any amendments [could] be made to better enable government to further the objectives and principles of the NDIS Act.
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The 2015 review received 86 submissions and conducted targeted interviews with government and national peak bodies. The final report was submitted in December 2015. It found that there were opportunities to provide greater clarity to the legislative framework for the NDIS and provided 33 recommendations to the then Council of Australian Governments (COAG) for consideration. The explanatory memorandum notes that the recommendations endorsed by COAG included strengthening the objects and principles of the Act, linkages and capacity building and addressing other technical inadequacies of the legislation.
Exposure draft consultation
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On 9 September 2021, the Department of Social Services (the department) released an exposure draft of the bill for public consultation. As part of that process, 313 submissions were received and four public information sessions were held by the department. The consultation period closed on 7 October 2021.
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A number of key themes were identified during the consultation process which led to the following changes to the bill:
Commencement dates (section 2 of Bill) redefined;
with consequential changes to application, saving and transitional provisions (Items 63-71 of Schedule 1);
Variation and re-assessment of plans changes (Items 19-22, 23 – inserts section 47A, 24 – inserts sections 48, 49 and 49A, 39 – amends section 99, and 41 of Schedule 1);
Re-inclusion of 21 day measure for the CEO to commence facilitating the preparation of the participant’s plan under section 32 after the person becomes a participant (Item 14 of Schedule 1);
Giving reasons for decisions (Item 40 of Schedule 1);
Removing remaining references to participants ‘to the extent of their capacity’ and ‘to the extent of their ability’ (Items 13 and 14 of Schedule 2);
Changes to ‘managing the funding for supports’ (Items 27-29 of Schedule 2);
Changing to plan management arrangements under section 43 and 44 (Item 31 – amends section 43, and item 33 - amends section 44 and various cross references corrected in items 30 and 54 of Schedule 2);
Removing requirement re acquittal under subsection 46(1) (formerly Items 33 and 52(6) of Schedule 2 of the Exposure Draft);
Removing amendments to section 55 of the Act which would have enabled the CEO to obtain information from other persons in relation to matters prescribed in subsection 55(2) of the Act (formerly Item 38 of Schedule 2 of the Exposure Draft); and
Including additional criteria for Board appointments, that the Board collectively must possess, by adding a person with disability or a person that has lived experience with disability (Item 46 of Schedule 2).
Key provisions
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The bill contains three Schedules:
Schedule 1 sets out amendments that implement the Tune Review recommendations relating to the establishment of the Guarantee.
Schedule 2 includes amendments that the explanatory memorandum states would ‘more appropriately recognise the rights and diversity of persons with disability and to reflect the importance of their relationships with their families and carers’.
Schedule 3 makes administrative changes removing redundant references and rule making powers used during the transition to the NDIS.
Schedule 1 – Participant Service Guarantee
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Schedule 1 would amend the Act to provide for the Guarantee, in accordance with Recommendation 25 of the Tune Review. The explanatory memorandum identifies that the aim of the Guarantee ‘is to continue to improve the experience for participants and prospective participants with the NDIS and provide increased transparency around decision-making timeframes’.
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The explanatory memorandum divides the items in Schedule 1 into the following groupings:
Amendments to definitions (Items 1-3);
Amendments implementing timeframes under the Guarantee (Items 4-12, 14, 16, 34-36, 38, 42 and 43, 52-54);
Planning processes and reasons for decision-making (Items 30 and 40);
Performance metrics - Quarterly report to the Ministerial Council (Items 50-51);
Report by Commonwealth Ombudsman (Items 1 and 55);
Variation and reassessment of participant plans (Items 13, 15, 17-29, 31-33, 37, 39-42, 45-49);
Categorisation of NDIS Rules (Items 57-62); and
Application and Transitional Provisions (Items 63-71).
The Guarantee
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The Guarantee would be given effect through new provisions in the Act and new dedicated NDIS Rules to be titled the National Disability Insurance Scheme (Participant Service Guarantee) Rules (the Guarantee Rules). These would be Category C rules, which would require the agreement of a majority of state and territory governments.
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The explanatory memorandum sets out the three main components of the Guarantee as proposed in Schedule 1:
First, the Guarantee will provide certainty for current and prospective participants by setting timeframes within which key decisions in the NDIS process must be made, including decisions about a person’s access to the NDIS and changes to participants’ plans (these are contained within the Bill but may also be amended through the NDIS Rules).
Second, the Guarantee will allow for the NDIS Rules to prescribe specific service standards for the Agency and its workforce when working with people with disability and their families and carers. The NDIS Rules will also prescribe new timeframes for decision-making, performance metrics and other matters.
Third, the Guarantee will also provide for the Ombudsman to monitor and report on aspects of the NDIS (this is contained in Items 1 and 55 of Schedule 1, with the NDIS Rules made under subsection 204A(1) to prescribe the matters for the Ombudsman’s report).
Variations and reassessment of plans
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The bill would revoke the existing prohibition on the variance of a participant’s plan and would instead enable the CEO to vary a participant’s plan (except the participant’s statements of goals and aspirations), without requiring a plan reassessment to be undertaken, or a new plan to be created. Under proposed section 47A, the CEO would have the power to vary a participant’s plan either on the CEO’s own initiative or at the participant’s request, but in either case the participant must be involved in the variation. The explanatory memorandum states that ‘the intention is that any variation will be for the benefit of the participant’.
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In addition, section 48 would be amended to replace the word ‘review’ with ‘reassessment’ to distinguish this provision from reviews of decisions. The new provision would continue the existing power to review a participant’s plan, either on the CEO’s own initiative or on the request of the participant.
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The considerations that the CEO must have regard to in relation to any decision under sections 47A or 48 would be contained in Category D NDIS Rules, which would require the Commonwealth to consult with state and territory governments.
Schedule 2 – Flexibility measures
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Schedule 2 would amend chapters 3 and 4 of the Act ‘to better acknowledge the central role and rights of scheme participants and improve their experience of the NDIS’ by:
strengthening the objects and principles of the Act to acknowledge the central role of people with disability in co-design and the need to recognise and respect the relationship between people with disability and their families and carers (Items 1-6, 10, 12, 15);
giving the Agency more flexibility to support participants and their families to access NDIS supports, and help children with disability get access to early intervention supports (Item 11);
clarifying the eligibility criteria for persons with psychosocial disability (Items 16-24);
giving more protection to participants who want to use a registered plan management provider (Items 30-35); and
providing for a simplified payments design to allow the NDIA to make direct payments on behalf of participants (Items 36-37).
Strengthening goals and objectives
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Schedule 2 would amend section 4 of the NDIS Act, which sets out the general principles guiding actions under the Act, to:
specifically recognise and respect the relationship between people with disability and their families and carers;
remove moderating language;
reinforce that people with disability are central to the NDIS and should be included in a co-design capacity; and
reinforce the importance of a diverse, sustainable and well-developed NDIS market to enable people with disability to exercise their right to choice and control in obtaining supports.
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Similarly, Schedule 2 would specify the principles underlying the NDIA CEO’s functions and powers in Chapter 3 of the NDIS Act (Items 12-15). The explanatory memorandum states:
These items amend section 17A of the Act, which sets out the principles relating to the participation of people with disability in the Scheme. Item 12 clarifies the intended role of existing section 17A of the Act by inserting a new subsection requiring the CEO to have regard to principles relating to the participation of people with disability in performing the CEO’s functions and exercising the CEO’s powers in Chapter 3. Chapter 3 relates to participants and their plans. Item 13 and item 14 remove moderating language referring to the capabilities of people with disability, consistent with item I and item 2 relating to section 4. Item 15 inserts new subsection 17A(4) making it clear that the principles in section 17A add to those in section 4, rather than detracting from them.
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Schedule 2 would also ensure that the Minister must have regard to the objects and principles of the Act when making NDIS Rules, and to balance these against the need to ensure the existing requirement to consider the financial sustainability of the NDIS (Item 52).
Board appointments
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Schedule 2 would require that members of the Board of the NDIA be a person with disability, have lived experience with disability or have specified skills, experience or knowledge relevant to the Board’s operations (Items 46 to 48). Schedule 2 would also clarify the conditions of appointment of the Principal Member of the Independent Advisory Council (Items 49-50).
Plan management
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Schedule 2 would ensure that participants who request to ‘plan mange’ their NDIS funding be subject to the same considerations that apply when a participant seeks to ‘self-manage’ (Items 30 to 35). It would also enable the NDIA to pay service providers directly on behalf of participants through a new payment platform (Item 36).
Schedule 3 – Full scheme amendments
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The NDIS has been available across Australia and its external territories since 1 July 2020, with the last geographic rollout to Christmas Island and the Cocos (Keeling) Islands. Schedule 3 would make administrative changes removing redundant references and rule making powers used during transition to ensure the law is up to date.
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Schedule 3 would also make a number of technical amendments. These include amendments removing the ability to prescribe requirements relating to access during the transition period, which has now ended. This included, the timing for meeting the residency criteria (Item 19), the need to meet the age requirements (Item 21) and changes to residence requirements (Items 22-24).
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The changes in Schedule 3 would also remove redundant references to ‘registered provider of supports’ (Items 4, 16, 28, 33, 40 and 48). ‘Registered provider of supports’ was the term used for providers still regulated by State and Territory quality and safeguarding arrangements and not yet under the jurisdiction of the NDIS Commission. The NDIS Commission’s operations commenced at different times across the country; however, from 1 December 2020 the NDIS Commission had jurisdiction across Australia and the term is no longer required.
Financial implications of the bill
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The explanatory memorandum states that ‘there are no significant financial impacts of this bill’. It does note however, that $2 million has been committed over four years from 2020-21 ‘to enable the Commonwealth Ombudsman to monitor the [NDIA’s] performance in delivering the Guarantee’.
Consideration by other committees
Parliamentary Joint Committee on Human Rights
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The Parliamentary Joint Committee on Human Rights (human rights committee) acknowledged that aspects of the bill would promote or facilitate the realisation of some of Australia’s obligations under the Convention on the Rights of Persons with Disabilities. However, it raised concerns that the power to vary or reassess a participant’s plan on the CEO’s own initiative and without the participant’s consent engages and may limit a number of rights.
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The human rights committee sought the minister’s advice on the following matters:
(a)
what is the specific objective being pursued by enabling the CEO to vary or reassess a participant’s NDIS plan on their own initiative, and how does this promote general welfare;
(b)
why is the CEO's power to vary a participant's plan not limited to changes that would benefit the participant;
(c)
why is the participant's consent not required for a plan variation or reassessment;
(d)
in relation to the requirement to involve the participant in a plan variation:
(i)
will the participant be notified of the CEO's intention to initiate a plan variation prior to the CEO initiating the variation process;
(ii)
will the participant genuinely be able to influence the outcome of the CEO's decision to vary a plan;
(iii)
to what extent is the participant's consent an objective of the consultation process, and what weight will be given to the participant's will and preferences;
(iv)
will there be guidance to assist the CEO in effectively involving the participant in any decisions and processes that affect them; and
(v)
will the participant be able to access support, if desired, to effectively participate in the consultation process.
(e)
what other safeguards, if any, accompany the measure to ensure that any limitation on rights is proportionate; and
(f)
has consideration been given to alternative, less rights restrictive measures.
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At the time of writing, the minister’s response was yet to be published.
Senate Standing Committee for the Scrutiny of Bills
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The Senate Standing Committee for the Scrutiny of Bills (scrutiny committee) raised concerns about the inclusion of ‘significant matters, such as key details in relation to the implementation of the Participant Service Guarantee’ in delegated legislation, asserting that such matters ‘should be included in the primary legislation unless a sound justification for the use of delegated legislation is provided’. On that basis, the committee requested the minister’s advice as to:
why it is considered necessary and appropriate to leave key details in relation to the implementation of the Participant Service Guarantee to delegated legislation; and
whether the bill can be amended to include at least high-level guidance in relation to these matters on the face of the primary legislation.
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At the time of writing, the minister’s response was yet to be published.
Conduct of the inquiry
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In accordance with usual practice, the inquiry was advertised on the committee’s webpage. The committee called for submissions by 8 November 2021 and wrote to a range of stakeholders inviting them to submit.
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The committee received 78 submissions, listed at Appendix 1.
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The committee held one public hearing in Canberra on 12 November 2021. Details of those who appeared at the public hearing are outlined in Appendix 2.
Acknowledgement
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The committee thanks submitters and witnesses for their contributions to this inquiry.
Note on references
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References to Committee Hansard in this report are to proof transcripts. Page numbers may vary between proof and official transcripts.