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17 May 2024
Senate Standing Committee on Community Affairs
PO Box 6100
Parliament House
Canberra ACT 2600
By email: community.affairs.sen@aph.gov.au
Dear Committee
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024
Thank you for the opportunity to provide feedback on the aforementioned bill (the Bill). Aged and
Disability Advocacy Australia (ADA) appreciates the opportunity to provide feedback on the
important issues impacted by the Bill by amendment to the National Disability Insurance Scheme Act
(the NDIS Act).
About ADA Australia
ADA is a not for profit, independent, community-based advocacy and education service with more
than 30 years’ experience in informing, supporting, representing and advocating in the interests of
older people, and persons with disability in Queensland.
ADA also provides legal advocacy through ADA Law, a community legal centre and a division of ADA.
ADA Law provides specialized legal advice to older people and people with disability, including those
living with cognitive impairments or questioned capacity, on issues associated with human rights,
elder abuse, and health and disability legal issues related to decision-making.
ADA advocates and legal practitioners work with identified First Peoples advocates through the
Aboriginal and Torres Strait Islander Disability Network Queensland (ATSIDNQ), a network
established to support mob with disability and provide individual advocacy services for Aboriginal
and Torres Strait Islander people with disability.
We provide the following feedback for the Committee’s consideration.
Constitutionality and links to Convention on the Rights of Persons with Disability (the CRPD)
ADA appreciates the intention to amend the legislative framework of the National Disability
Insurance Scheme (NDIS) to improve the scheme’s alignment with the CRPD. This attempt appears in
clause 14 of the Bill, which seeks to amend section 10 of the NDIS Act with the introduction of a new
definition of ‘NDIS Support’.
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ADA has concerns with the proposed amendments to section 10.
The incorporation of some CRPD concepts into section 10 is problematic. The proposed amendment introduces a new and complex definition that complicates the understanding about what supports would be covered by the NDIS. Whilst it may broaden application to some supports that are not previously anticipated by the framework – for example, those associated with sickness and rehabilitation services, it will narrow what is a support in other areas.
We note also that the Bill provides that a NDIS support will be appropriate to fund if a support is declared so in the NDIS Rules and is not something that is stipulated to not be a support provided or funded by the NDIS. It is also noted that, as has nearly always been the case with proposed amendments to the NDIS Act, the NDIS Rules are relied on as the basis upon which a complete interpretation of the Act will rest, yet the content of the Rules cannot be known at this time.
In our view, the proposed changes set out in section 10(a)(i) – (viii) will introduce additional complexity and interpretative challenge for all parties in determining what can be a ‘NDIS Support’. It is difficult to understand why the drafters have elected to address the existing need to clarify what constitutes an ‘NDIS Support’ in this way. The proposal does not promote the ‘choice and control’ tenets of the NDIS, which are foundational to dignity and recognition of people with disability.
If it is the intention of the drafters that the insertion of some characteristics of the CRPD into section 10 are for the purpose of linking the NDIS legislative framework to constitutional power, we do not think this is necessary. In our view, the NDIS Act and the associated funding which it facilitates are constitutionally valid.
Reasonable and Necessary Supports and Needs Assessments
ADA has concerns that the drafting to clarify what supports will be determined to be reasonable and necessary does not meet the recommendations delivered by the NDIS Review, which emphasised the need for supports (and for the assessment of supports) to “take into account holistically the participant’s life circumstances.”
The review report continued, “Where assessments may assist the process, they should be transparent, valid, accepted by people with disability and appropriate to the circumstances of the participant.”
The drafting of clauses 46 and 47 may have the opposite effect, and is open to be interpreted as narrowing the permissible support needs to a ‘line item approach’ of the criteria identified under sections 24 or 25 of the NDIS Act. This risks further derogation of the choice and control principles, taking the legislation further away from the standards of the CRPD.
Should the current drafting of these clauses remain, the degree to which they will operate to restrict or support the holistic support of a participant may rest on the new assessment tool, which is yet to be developed.
ADA acknowledges the government’s stated intention to consult persons with disability, advocates and the disability sector in relation to the development of a needs assessment tool. It is our view that key characteristics of the assessment tool should be addressed in the primary legislation, and in doing so, that the NDIS Act provide assurances for persons with disability that such a tool when developed will operate to deliver a baseline of fairness, equity, accessibility, consistency and clarity for participants and applicants, with capacity to be adjusted as required to ensure that it fairly and appropriately accommodates the individual needs of marginalised cohorts. For example, the Act should require that a needs assessment of an Aboriginal and Torres Strait Islander person with
1 NDIS Review: Final Report, Working together to deliver the NDIS, 7 December 2023, https://www.ndisreview.gov.au/resources/reports/working-together-deliver-ndis
Powers and appeals
The Bill proposes to delegate a series of new powers to the NDIA regarding request of information from participants and imposing penalties for non-compliance. For example, clause 36 of the Bill inserts a power under a new section 32L(7) whereby the CEO, at their discretion, request that a participant undergo a secondary assessment (the replacement assessment) in order to approve the supports stated under the participant’s plan.
We note that there are no provisions in the Bill to address if the participant may request a replacement assessment. We strongly encourage amendment of the Bill to improve the transparency and review process of the needs assessment. This should include a requirement of the NDIA to:
- provide a copy of the needs assessment report so that it may be reviewed by participant;
- if requested by the applicant, their nominated support person or professional advocate (within an identified time period), provide an accessible and timely opportunity to discuss the report with the agency;
- facilitate a new (replacement) assessment where appropriate, by request of the participant, their nominated support person or professional advocate.
As currently drafted, the Bill does little to restrain government powers and discretion, and fails to offer adequate opportunity to a person with disability who seeks to review a report or decision that will determine approved supports. This is particularly troubling given the high percentage of NDIS participants that rely on some level of supported decision-making.
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recommended by the NDIS Review and to ensure that legislative amendments reflect the recommendation and community expectations.
Thank you again for the opportunity to comment. ADA would be pleased to further assist the Committee with its inquiry.
Yours faithfully
Geoff Rowe Chief Executive Officer