Summary
The Australian Greens are deeply grateful for the time, expertise, and staunch advocacy of the disability community. This has been a very turbulent time for the future of the National Disability Insurance Scheme (NDIS) and it is disabled people and their representative organisations who have continued to lead and persist in upholding the human rights based promise of the NDIS.
The changes proposed in this legislation are complex, technical and present a wide variety of challenges and risks.
The hope that this legislation would be uncontroversial and straightforward after the distress caused by Independent Assessments has not come to fruition. It is deeply unfortunate and unacceptable that once again the disability community has not been included in a co-design capacity for reforms that affect them.
The design and consultation processes that took place for this legislation were insufficient and unsatisfactory. These changes were proposed at a time where a number of states and territories in Australia were managing highly distressing COVID-19 outbreaks, requiring the community to divert their resources and time away from that threat to address this one.
Further, the community were not given enough time to properly scrutinise and provide feedback to the proposed changes, and their very reasonable requests for an extension from the Commonwealth were rejected for unsubstantiated reasons. To this end, ACT Disability Minister Emma Davidson MLA expressed the following view in her opening statement to the inquiry hearing:
...I'm feeling this distressed about the COVID outbreak that began in August, I can only imagine how emotionally draining and deeply traumatising it has been for people whose health is most at risk. In the middle of all this, Minister Reynolds gave us four weeks to consult with a community in lockdown on changes she had said would be non-controversial—but of course they're not. This was an opportunity to rebuild trust, and instead we have this. I asked her to show some kindness to the ACT disability community and allow us more time so we didn't have to ask people who were and still are exhausted and stressed to give their time and energy for these consultations—just a bit more time; that's all. The minister did not give us more time, and so here we are.
The continued practice of policy creation in isolation of the community, and without genuine commitment to co-design and open consultation is unacceptable and lends itself to flawed policy solutions. “Nothing about us, without us” is the mantra of the disability rights movement and it is time for the National Disability Insurance Agency, the Department of Social Services and the Commonwealth Government to codify this into its leadership and processes.
There are critical mechanisms of governance, administration and decision-making powers captured within the proposed changes which pose unacceptable, and to date, unmitigated risks to the future of the NDIS. Therefore, we cannot support the legislation in its current form.
The Greens note the views expressed in the majority committee report with concern. The conclusions and recommendation do not accurately reflect the nature of the evidence provided to the inquiry. The Greens are concerned that there is a significant disconnect between the evidence presented by the vast majority of submitters and witnesses and the recommendation made in the majority committee report. The community gave very clear evidence that the bill in its current form cannot and should not pass.
Key Issues
Over-reliance on delegated legislation and the concentration of decision-making powers
The Greens take issue with the overreliance on delegated legislation and concentrating the process of determining rules which govern the NDIS within the Commonwealth.
This legislation proposes to make Category D rules in sections 14, 47A(6) and 48(5). As was stated in the submission by Professor Bruce Bonyhady from the Melbourne Disability Institute, these rules will have the effect of giving the Commonwealth Minister ‘almost complete control of the NDIS’ as they relate to the core functions of the scheme, that is, providing funding to persons or entities the provision of reasonable and necessary supports and decisions about what will or will not be in people’s plans.
Further, these new rules have not been finalised and publicly released at this point in time, leaving legislators and the community without an opportunity to holistically assess the reforms package before the parliament is asked to vote. This is entirely inappropriate and unacceptable given that these rules will govern how people can access the scheme, who is eligible to access the scheme, and powers that the NDIA have to make changes to people's plans.
These rules have significant financial and governance implications for the NDIS and as such should either be designated in Category A which requires the unanimous support of state/territory governments (who are co-funders of the scheme and scheme partners), or be codified in the legislation itself.
To this end, Emma Davidson MLA, the ACT Minister for Disability, submitted that:
In my view, this gradual reduction in the authority vested in the combined governance of the Commonwealth and the jurisdictions does not align with the intent of the original establishment of the Scheme. I note that the NDIS website states ‘The national scheme has funding and governance shared among all governments. All Australian governments are involved in decisions relating to the scheme’s policy, funding and governance.’ My concern is that this will become increasingly less true.
The issue with these changes also goes to certainty. Having rules which govern who can access the scheme, how peoples plans can be changed, and how and who funds can be provided to should allow for certainty for participants and service providers, however, the proposed changes will enable the Commonwealth Minister to make changes to these whenever they see fit without requiring deliberative and consensus-reaching processes to ensure that they work for all.
As stated by Dr Darren O’Donovan in his evidence to the committee:
...the bipartisan Joint Committee on Human Rights has stressed, if you can't map the use of powers, if you don't have rules confining and structuring power in your hand, you're drifting out of a rights-centred space. There are parts of this package that are just a bit too unstable. They will drive that inconsistency and bureaucracy that we all want to avoid.
The Australian Greens further note and support the evidence provided by the Public Interest Advocacy Centre (PIAC) in relation to this issue. In their submission to the committee they state that:
Our overarching concern with the Bill is the continued reliance on delegated legislation for significant aspects of the NDIS. This includes a number of new rule-making powers in the Bill, and a number of proposed new rules. Our concerns around this continued expansion of rule- making power are compounded by the expansion of discretionary powers of the CEO. The combination of these aspects represents poor legislative and administrative practice and should be avoided.
Given the extent of concern raised by evidence to the inquiry, the Greens will be seeking to amend the legislation to codify rules within the legislation and in Category A rules to provide certainty and accountability for core functions of the NDIS.
CEO Variation and Reassessment Powers
Section 47A of the bill contains provisions which allow for a participant to request that their plan be varied without a full plan reassessment, this is a supportable provision which will build in greater flexibility.
However, this section of the bill also contains a power that enables the CEO to vary a person’s plan on their own initiative which is insufficiently constrained and with no requirement to seek the participant’s express consent.
The Australian Greens cannot support the inclusion of such broad and consequential power as it leaves participants exposed to significant risk and uncertainty about how these powers will be used.
Further, the Greens disagree with the position of the government, the Department of Social Services and the NDIA that these powers to vary a person’s plan are consistent with existing powers in the Act. This proposed change is a departure from the powers existing in the act which allow for the CEO to initiate a review of a person's whole plan. In contrast, these changes will effectively empower the CEO and their delegates to unilaterally make line-item changes to people’s plans and it opens up the possibility that people’s supports and services could be cut or changed without their say so.
In addition, the drafting of this new power is such that there are no legislative constraints for the conditions under which the CEO can use these ‘own motion’ variation powers, creating considerable uncertainty for participants about whether they will see elements of their plans changed or reduced sporadically. We remain incredibly concerned about this specific power in the context of large-scale cuts being made to people’s plans at the moment.
This power is insufficiently justified or constrained and we are deeply concerned it will be inappropriately used to achieve the outcomes of the ‘Independent Assessments’ policy–that is, to cut the costs of peoples plans to reduce overall scheme costs.
To this end, the Greens support and endorse the recommendations made by a large number of submitters to the inquiry to significantly amend this section of the bill to strengthen the constraints and limitations that ought to accompany such significant powers.
Eligibility requirements and changes for psychosocial disability
The Greens have serious concerns about the proposed changes to definitions and concepts which relate to eligibility for the NDIS that are undefined and open to interpretation.
Section 27(2) & (3) of the bill provides for a new rule-making power outlining ‘requirements’ to be outlined in the rules. This is a departure from what currently exists in section 27 which provides that ‘criteria’ or ‘circumstances’ can be prescribed by the rules to guide decisions determining permanence of impairment. The difference between what exists and what is being proposed carries significant consequences for eligibility determinations for access to the NDIS.
As was stated in a submission by PIAC:
If a person does not meet the criteria or circumstances prescribed in the rules for permanence, it does not necessarily mean they do not meet the disability requirements under the Act – the CEO (or delegate) must still consider the requirements by reference to the legislation.
Proposed s 27(2) and (3) however, empower the Minister to make rules which establish ‘requirements that must be satisfied’ for the purposes of meeting the permanence threshold for access to the Scheme. That is, rules made under this provision would create conditions for access to the Scheme. The failure to meet any of these requirements means a person will not be able to access the Scheme.
Further, we are extremely concerned that the changes proposed under section 27(2) and (3) will function to limit the capacity of the Administrative Appeals Tribunal to deliberate and overturn decisions. To this end, Mr Tom Ballantyne, Principal Lawyer, Maurice Blackburn Lawyers stated in his evidence to the hearing that:
On a more practical level, when we look at the decisions that we see coming through from planners or the people inside the agency who are assessing the eligibility criteria or the substantially reduced functional capacity requirement: unfortunately, as I alluded to in my opening statement, they get it wrong. If you have a very prescriptive set of formula, you arguably reduce the ability of people to then challenge those decisions. The ability of the AAT to overturn a decision could be reduced. You're really narrowing the ability of people to potentially enter the scheme but you're also narrowing the ability of people to challenge poor decision-making, because the underlying rules become so prescriptive. There's less nuance and there's less interpretation. There might be more certainty, ultimately, but it might be a significantly reduced cohort of people who meet the criteria.
In addition, the Greens are concerned by proposed ss 24(3) and 25(1A) which carry alarming consequences for decisions relating to permanence of disability. These provisions are drafted to reflect a need to clarify permanence criteria for psychosocial disability, however, in doing so, there is an implication that impairments associated with non-psychosocial disability cannot use the same metric to establish permanence.
We share the concerns raised during the course of the inquiry that the use of different wording to establish permanence of impairment for different types of disability may cause confusion amongst NDIA decision-makers and exclude people from accessing the NDIS. Using the language ‘vary in intensity’ for non-psychosocial disability, and ‘episodic and fluctuating’ language for psychosocial disability creates conceptual confusion and may lead to unintended and negative outcomes for prospective participants of the NDIS.
The Greens support the analysis and recommendations made by PIAC and Dr Darren O’Donovan in relation to this issue. We cannot support such a significant and technical change which defines who can and cannot access the NDIS being relegated to delegated legislation. Any changes of this nature must be put in the Act itself and parliament should be given the opportunity to debate and decide on such matters.
Ultimately, the Greens are concerned that these changes could lead to people being rejected and refused supports when they actually meet the eligibility criteria, and we are also concerned that this could see an increase in appeals being made both internally and at the AAT. As such, we recommend amendments which will have the effect of removing sections 27(2) & (3) and amendment sections 24(3) & 25(1A).
Consultation, co-design and representation
The Australian Greens express significant concern about the process and time constraints that were placed upon the community through the exposure draft consultation and the committee inquiry that has taken place.
The exposure draft of this bill went out for consultation for a four week period, in the middle of COVID-19 delta variant outbreaks and lockdowns in multiple states and territories. The community expressed a clear view that they needed more time and this was disappointingly rejected by the government.
The process that this legislation has undergone has been rushed and is inconsistent with the commitments made by the government and the minister to rebuild trust and genuinely seek to undertake co-design and consultation with the community for changes made to NDIS and disability policy. The disconnect that exists between what was said and what has taken place only serves to exacerbate distress and mistrust in the community.
To this end, Every Australian Counts submitted that:
Members of our community have overwhelmingly responded to the news of these consultations with a mixture of heavy disappointment and cynicism about the very short consultation timeframes. They told us the amount of information to consider was far too much, far too complex, and far too time-intensive to read, understand, or respond to. This was exaggerated by the stress, exhaustion and anxiety about opening up at a time when people with disability are at terrible risk of COVID-19...This was exaggerated even more by the short passage of time since the long and traumatic fight against NDIS independent assessments – a process that left our community feeling exhausted, anxious, and very distrustful of the Federal Government and National Disability Insurance Agency's intentions for the NDIS both now and into the future.
Further, the Greens note and support evidence submitted by People with Disability Australia who called for this legislation to codify minimum representation of disabled people on the board of the NDIA as well as for a stronger positioning in relation to co-design. We endorse their recommendations to implement a minimum 50% requirement for disabled people on the NDIA board and a 50% minimum requirement for women and gender diverse people.
As stated by Dr Ben Gauntlett in his submission to the inquiry:
The CRPD is drafted with a clear focus on people with disability being decision-makers and not their formal or informal support networks. Observed experience of disability is not the same thing as lived experience of disability.
The Greens believe that representation in decision-making spaces is essential for good policy and as a means of upholding the human rights of our communities, as such, the Greens will be moving amendments to reflect this intention.
Recommendation
The Australian Greens recommend that this bill not be passed in its current form and that further consultation and genuine co-design occur in relation to any future reforms to the NDIS.
Recommendation
If the government insists on proceeding with the bill, then the Australian Greens recommend substantive amendments be made. To this end, we endorse the considerable and constructive changes proposed in submissions made to the inquiry by the disability community, legal advocacy and experts, and state and territory governments. Amendments to this bill should:
remove the power of the CEO to refuse a plan variation request and undertake a reassessment instead;
amend section 47A of the bill to either remove CEO powers to vary a participants plan on their own initiative or significantly limit this power;
designate rules in section 48(5) as Category A rules;
insert procedural fairness requirements for CEO’s exercise of reassessment power on own initiative. Section 48 to include a Category C rule making power to set our procedural fairness requirements for the CEO’s exercise of their power to reassess plans on their own initiative;
strengthen language in section 4(9A) – from ‘should’ to ‘must’;
move rules in relation to section 14 to Category A rules;
amend section 127(6) to specify that disabled people must sit on the board and that disabled people must make up minimum 50% of the board membership and that there should be consideration given to gender representation on board membership by requiring at least 50% representation of women and gender diverse people to serve on the board;
remove sections 27(2) and (3) of the bill;
amend sections 24(3) and 25(1A) of the bill to include all disabilities in relation to the ‘episodic’ and ‘fluctuating’ qualifiers for establishing permanence;
amend section 44 to more clearly provide a substantive standard of proof around the concept of ‘unreasonable risk’. Unreasonable risk should be connected to a risk of types of situations or harms to be prevented;
clarify the drafting in section 45 of the bill to clarify that this change is not intended to remove the ability of participants to continue paying their service provider in the method of their choosing;
insert new section 100(6B) requiring reasons to be provided following internal reviews.
Senator Janet RiceSenator Jordon Steele-John
Deputy Chair Senator for Western Australia
Senator for Victoria