The changes proposed in this Bill are aimed at implementing the recommendations of the 2019 review of the National Disability Insurance Scheme (NDIS) Act and the new NDIS Participant Service Guarantee by David Tune AO PSM (the ‘Tune Review) and the Independent Review of the Act by Ernst & Young in 2015.
Many of the changes recommended by the Tune Review were welcomed however, Labor Senators do not agree that the Bill is fully faithful to those recommendations or with this report’s finding that the Bill be passed in its current form.
The Minister for the NDIS recently characterised NDIS participants as ‘welfare recipients’ and stated that the scheme was never meant to provide support for life. These comments are in direct conflict with the insurance principles of the scheme and the eligibility requirements set out in section 24 of the NDIS Act requiring participants’ impairment to be permanent.
The Minister’s misrepresentation of the NDIS’ purpose and function is cause for alarm while this Bill – which deals with matters relating to permanency and eligibility – is under consideration by the Parliament.
These comments and the Committee report, like much of the evidence provided by National Disability Insurance Agency (NDIA) and Department of Social Services (DSS) officials at the inquiry hearing, fails to address the numerous and legitimate concerns with this Bill outlined by legal experts, disability representatives and Labor Senators.
Consultation
Labor Senators do not agree with the statement at 2.1 that the Committee received extensive engagement from the disability community, service providers and other stakeholders during this inquiry.
Consultation on the Bill was not sufficient, with just four weeks allowed on the exposure draft while several states and territories were experiencing COVID‑19 outbreaks and lockdowns; and two weeks provided for submissions to the Community Affairs Legislation Committee Inquiry on the Bill.
Labor Senators do not agree with the Committee report at 2.74 that processes undertaken during the 2015 Independent Review of the NDIS Act, the 2019 Tune Review and other methods of engagement in the intervening period could be taken as consultation on this Bill. The final articulation of the Bill and delegated instruments is not by default supported because of views expressed in entirely different contexts and settings for the distinct purpose of a review held over two years prior.
Submitters shared concern at the rushed consultation and the lack of time to consider technically complex changes to the NDIS Act and Rules. This was a missed opportunity to genuinely deliver on the Government’s commitment to rebuild trust through genuine co-design following the proposal to introduce unwanted compulsory Independent Assessments.
Measures to improve NDIS participant experience such as deadlines for decisions implemented by the Participant Service Guarantee have been in place without the need for legislation. There is therefore no urgency to implement these aspects of the Bill.
Labor Senators acknowledge stakeholders’ overwhelming view provided to the Committee Inquiry was that the Bill has the bones of a welcome legislative change, but in its current form any benefit is outweighed by the potential to damage the scheme and should not proceed. The most serious concern was the potential to give the Minister and the NDIA CEO unprecedented and unnecessary powers. Professor Bruce Bonyhady AM from the Melbourne Disability Institute summarised this position in his opening statement:
In summary, this legislation represents a bid for control of the NDIS by the Commonwealth. No Commonwealth Minister should have this position of power. The NDIS must remain a joint and shared endeavour which unites all jurisdictions and the disability community. It should retain its current checks and balances. In its current form, the proposed legislation fails both these tests. However, if the five changes outlined in the MDI submission are accepted, the proposed rules can be satisfactorily co-designed and the many issues raised by others are satisfactorily resolved then I believe that the proposed legislation could be supported. But, to be frank, I can see very few positive benefits from this legislation and, at the moment, enormous risks to the vision of the NDIS.
The Government’s written and verbal submissions to the inquiry did little to alleviate these concerns or even directly address them. It is therefore not possible for Labor Senators to agree with the Committee recommendation that the Bill be passed in its current form.
Use of delegated legislation
While the Bill offers symbolic recognition of important matters such as co-design, clarifying eligibility, and the need to improve the ‘participant experience’, it is effectively undercut by the proposed rules. The dynamic was described by La Trobe University legal academic Dr Darren O’Donovan:
As 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. Fundamentally, I think, what the department is going to call 'flexibility', I call 'power'. What the department calls 'details for later', I call 'rights uncertainty'. We all want to work together to create certain, usable legislation, and in key areas we are putting the rules at the wrong levels, engaging in drafting which is unclear and pushing some sensitive issues onto the NDIA.
Section 209(8) of the NDIS Act provides for NDIS Rules to be categorised into Categories A to D. Category A requires rules to be approved with a unanimous support of all jurisdictions. Category D only requires consultation – a threshold met just by writing to state and territories to inform them of a rule change.
Labor Senators’ view is that the Bill’s reliance on Category D Rules only requiring consultation with states and territories throughout creates a ‘blank cheque’ for the Commonwealth to single-handedly decide who receives support and how much.
The Government has not been able to explain why Category D powers are needed or provide tangible comfort that they will be used for participants benefit, and not to reduce funding in plans or exit or refuse access to applicants and participants of the scheme. They will have the effect of increasing flexibility for the Minister and the CEO and create uncertainty for participants.
The Bill’s proposal to use Category D Rules to implement many of its provisions means the states and territories – which through bilateral agreements make significant financial contributions to the NDIS – will lose their say in the scheme and the Commonwealth Minister will as a result gain ‘God Powers’ to control where and who NDIS funding goes to. Dr Bruce Bonyhady from the MDI explained:
The proposal to make the rules in sections 14, 47A(6) and 48(5) Category D rules gives the Commonwealth Minister almost complete control of the NDIS. It therefore completely undermines the shared governance of the NDIS. The rules in relation to sections 14, 47A(6) and 48(5) should be Category A Rules. Alternatively, the rules in section 47A(6) should not be rules and placed in the legislation.
The Morrison Government’s record on the NDIS - $4.6 billion in underspent funding, unwanted independent assessments, and cuts without consultation – has not earned it the trust needed for the community to support these powers.
Wording in the Explanatory Memorandum that the changes are intended to benefit participants is an empty motherhood statement unless it is reflected in the legislation or an acceptable rule category.
Labor Senators share the concerns of submitters that Category D Rules will disrupt the shared governance of the NDIS by watering down the input of states and territories which contribute roughly half of the scheme’s funding. The position of states and territories opposing the use of Category D Rules seems to have been ignored by the Government.
The commitment by Minister Reynolds to publish the Rules associated with the Bill before it came to vote in Parliament was welcomed by Labor Senators. However, this does not mean the Rules have been adequately co-designed with the people who will be impacted by them nor that issues identified in the exposure draft process have been resolved.
Simply publishing the Rules also fails to address the concern that Category D Rules will be able to be easily modified from their current form, without the oversight of Parliament or meaningful involvement of state and territory governments.
The initial Rules were a placeholder while the Morrison Government attempted to usher through this Bill. The re-drafted Rules that have been made available since the hearing still contain numerous unresolved issues.
Labor Senators’ view is that the proposed Rules require further consultation and co-design, particularly to work through rules concerned with eligibility and access. Until the delegated legislation has been considered and are satisfactory to people with disability and their representatives, the legislation should not proceed.
Plan variation and reassessment
Labor Senators support the introduction of measures that would increase the flexibility of the planning process in cases of emergency or where only small changes to a plan are required. However, the CEO’s own power to modify plans should not be granted without limitation.
The soft limits on the CEO’s power to vary a plan in Section 47A(1) and the prescription for category D Rules to decide when to initiate a variation are not sufficient. Labor Senators instead refer to the Tune Review’s positioning that these circumstances should be included in the Act and any additional circumstances should be enabled through a rule making power.
DSS and the NDIA did stress that the proposed variation power would not vest the CEO with any more powers than those that currently exist under the current review power under section 48 of the NDIS Act. Labor Senators disagree with this one-dimensional comparison.
Plan variation should not be treated the same as a plan reassessment because a line-item variation would not be subject the same oversight and resourcing of a reassessment process, which requires extensive input and supporting evidence from the participant and allied health and medical experts.
Labor Senators believe the inclusion of 47A(4)(c) power to change a participant’s request to vary a plan into a request for a reassessment under s48 (1) will in fact deter participants from seeking a variation by exacerbating a problem articulated by the Tune Review at [2.34] in relation to the current review process:
Consultation feedback indicates that participants feel this process might mean that all their plan supports could be reassessed and reduced, rather than the review being limited to the matter in contention. For this reason, a significant number of participants indicated that they, despite needing additional or new supports, are choosing not to request unscheduled reviews of their plan. Although, it should be noted the legislation currently requires the NDIA to be satisfied all supports in the plan are reasonable and necessary, regardless of the reason the review was initiated or the type of change the participant asked for.
Evidence submitted to the inquiry did not support the addition of a Category D rule making power in section 14. Labor Senators remain concerned the intention to ‘outline when the NDIA can enter into alternative funding arrangements under section 14 to help participants access their supports in instances when the market does not respond or to assist early intervention for children under seven’ could enable the Minister to give the CEO broad powers to cut funding.
Eligibility and access
Proposed section 27(2) and (3) of the Bill empower the Minister to make rules which establish ‘requirements that must be satisfied’ for the purposes of meeting the permanence threshold to access the Scheme.
Rules made under this provision would create conditions for access to the Scheme designed to clarify access for people with psychosocial disability. The failure to meet any of these requirements means a person will not be able to access the Scheme – a departure from the current deeming provisions under this section.
Labor Senators do not agree that the ‘requirements’ for access should be Category D Rules placing eligibility for people with psychosocial disabilities at the Minister’s discretion.
The redrafted Rules relating to section 27 have not resolved problems raised by stakeholders in the exposure draft process. As Maurice Blackburn submitted:
We are concerned, however, that the provisions currently contained within the draft National Disability Insurance Scheme (Becoming a Participant) Rules 20217 may actually reduce clarity. More importantly, in practice, they could also further restrict eligibility and access.
The changes in 24(3) and 25(1A) clarifying permanence only refer to psychosocial disability, causing Labor Senators to be concerned that people with fluctuating conditions other than psychosocial – such as Multiple Sclerosis, Motor Neurone Disease, stroke, Acquired Brain Injury, Parkinson’s, Huntington’s and early onset dementia – will receive inequitable treatment under the NDIS. Public Interest Advocacy captured this issue in its submission:
This issue arises because of the different wording used for these impairments, depending on the nature of the disability – between ‘vary in intensity’ (which applies to all disabilities) and ‘episodic or fluctuating’ (which applies only to psychosocial disabilities). The use of different wording suggests a different meaning is attributable to these words, and as a consequence, psychosocial and non-psychosocial disabilities are treated differently when it comes to episodic or fluctuating impairments.
The Explanatory Memorandum states this is not the intention and when asked at the Senate Inquiry hearing NDIA CEO Martin Hoffman said, 'There is nothing in this bill that is about making those conditions more difficult or worse off.'
If these statements were genuine, Sections 24(3) and 25(1A) of the Bill would be amended to clarify that all impairments which are episodic or fluctuating in nature may be taken to be permanent, regardless of whether the impairment is attributable to a psychosocial or non-psychosocial disability.
Without changes that address the concerns of Labor Senators in this dissenting report, and proper co-design and consultation with people with disabilities, this Bill cannot be viewed as anything other than a further attack on the NDIS by the Morrison government.
Recommendation
Labor Senators recommend that the Government engage in genuine co-design and consultation on the Bill and Rules before either proceed.
Recommendation
Labor senators recommend that the Bill not be passed in its current form.
Recommendation
Labor senators recommend that the Bill be amended to:
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’;
Make Rules in relation to section 14 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.
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 Nita GreenSenator Helen Polley