Submission to the Community Affairs Legislation Committee on the proposed NDI Bill

Dr Darren O’Donovan Senior Lecturer in Administrative Law, La Trobe Law School

The author respects the role of government, parliament and, most importantly, people with disability and their representatives, to embark on a process of debate and scheme reform. As the historic Disability Royal Commission underlined, we need an earlier outcome focus, whereby governments move upstream in the lifecycle of disability and related services. We should interrogate the degree to which NDIS commodifies community and inclusion. This dynamic can see spotty, reactive individualised supports delivered without tackling exclusion across society, unchanged social attitudes and Australia’s wholly insufficient discrimination and accessibility legal frameworks.

But our first step should not be asking people with disabilities to walk the acres of uncertainty and missing detail that feature in this draft Bill.

We need to go to work, led by people with disability and their representatives. Regardless of outcome, we must ensure co-design, oversight and the ongoing societal engagement with lives and wins of people with disability in whatever version of the scheme emerges.

This submission is a technical, legal contribution on themes of certainty, rule of law values and building ongoing relationships of accountability. My hope is it will be equal use to those who wish the Bill to be directly channelled towards the NDI Review and to those who have specific or broad concerns with the reform.

At the technical level, the current draft is undermined by:

• (1) An unstable definition of NDI supports which will be funded under the scheme (section 10, section 124). In its current form, this threatens to produce contestation, volatility and unintended consequences. It risks a narrowing of support beyond the stated intentions of Government.

• (2) An unstable approach to governing the interface between the NDIs and other support systems and to meeting the collective challenge of case managing people to effective outcomes. (section 10, section 124, section 32L(3), section 24(1)(d)). This risks generating another hedge maze of deniability where no one takes responsibility for outcomes.

• (3) The creation of broad administrative and rule-making powers not sufficiently confined by stated purposes, scrutiny or adequate standards of reasoning. Moving away from this working method would provide a better foundation for trust, effective oversight and co-design.

• (4) Lack of governance measures to ensure sufficient transparency, accountability and co-design in the scheme. New understandings of ‘reasonable and necessary’ necessitate a refreshed scheme of governance, evaluation and oversight.

Summary and Recommendations

The Bill is presented as the first step in:

   - Delivering a sustainability agenda centred upon a clearer targeting of needs, early intervention outcomes and designed support solutions in the scheme.
  - Promoting an earlier outcome focus, whereby governments move upstream in the life cycle of disability and services. This reform must see us interrogate the degree to which NDIS commodifies community and inclusion. This dynamic sees individualised supports delivered without tackling exclusion across society, unchanged social attitudes and Australia's wholly insufficient discrimination and accessibility legal frameworks.
   - Delivering flexible, certain and sufficient support to participants in the scheme based on stable criteria and subject to effective ethical and political oversight.
  - Ensuring we protect choice and control, drive outcomes and never return to the disempowering past of rationed, block funding.

To achieve its aims, this Bill must deliver:

         1. Clear definition of responsibilities, through an understandable, stable definition of the needs the NDIS will and will not cover.
         2. A legislative framework which presents clearly, and subjects to adequate parliamentary, ethical and economic scrutiny, the financial choices underpinning the servicing to which participants will be entitled.
         3. A legislative framework that identifies and delivers a clear and sufficient servicing vision for those people who qualify for NDIS to ensure it delivers effective outcomes.
         4. A Bill, which, upon passage, participants and providers will be able to organise their daily lives and futures around. We must avoid undue administrative burdens, disorganisation and disempowerment which all too often mark the accessing of basic support for people with disability in this country.

I’ve provided a range of constructive recommendations to achieve these virtues, as well as frank and fearless criticism where I felt it was merited.

My submission is divided into 8 overall sections:

     1. How we should best deliver functional, usable legislation that will lay the groundwork for an orderly and clear disability support ecosystem. (p 7)
     2. How we can ensure improved oversight and scrutiny over any future legislative instruments should the Bill pass. (p 9)
     3. Removing Section 124 as it constitutes a charter of, and for, bureaucracy and disputes in the scheme. (pp 9-12)
     4. Removing and substantially amending Section 10(a) as its poor drafting and uncertain ambit risks narrowing the range of NDIS supports which may be funded. (pp 12-23)
     5. Measures to ensure accountability for, and scrutiny of, the operation of the new budget method and related tools, in the event of the Bill's passage. (pp 23-24)
     6. Amendments to ensure a 'whole of person' focus underpin any future assessment processes. (pp 25-28)

7. Amendments to confine the compliance and enforcement powers of the Agency to ensure balance and affirm choice and control. (pp 29-32)
8. Measures to ensure adequate appeal rights and procedural fairness in relation to Agency decisions. (p 32)

My submission is dense, intentionally so. I want to underline for everyone that people with disability are entitled to the best technical statutory design. Sadly, they have not received this in the last decade, for a range of reasons. This can only be achieved through a patient process underpinned by adequate advocacy and legal assistance funding. The details are provided simply for anyone who finds use in them. I apologise for any typos or mistakes. As a frontline teacher at the coalface weeks from term’s end, I simply ran out of time.

Recommendations

Recommendation 1: Well Ordered, Principled Reform

(a) The Committee should recommend the creation of the Disability Reform Implementation Council to oversee the logical, holistic and ordered progression of implementation of the historic Disability Royal Commission recommendations and the NDIS Review. (b) The Commonwealth should sequence planned reforms so that the relevant Rules and foundational support programmes can be negotiated and developed between Commonwealth and State and Territory Governments. It should not risk unleashing any damaging dynamics at the interface/access pathways through the current wording of sections 10(a) and 124.

Recommendation 2: Ensuring Codesign

Insert provisions referring to legislative instruments made under proposed subsections 32L(8) and 32K(2):

(a) Requiring consultation with disability representative organisation and the obtaining of their views on any proposed determination (b) Requiring when the legislative instrument is tabled, the instrument must be accompanied by a consultation statement setting out the views of Disability Representative Organisations. (c) Specifying that a failure to engage in consultation (as defined under the Gunning principles) will result in the legislative instrument being invalid.

Recommendation 3: State-Federal Interface

(a) Section 124 should be sharply revised particularly so that it no longer incorporates the 2015 APTOS policy document. Reliance on such a document is not proper statutory design, will result in unstable interpretations. It does not reflect rule of law values of consistency, clarity and congruence. (b) The Commonwealth should sequence planned reforms so that the relevant Rules and foundational support programmes are negotiated and developed between Commonwealth and State and Territory Governments. (c) Future NDIS Rules defining scope of ‘NDIS supports’ should be developed carefully. They should be targeted and specific.

(d) Given their volatility the current draft sections 10 and s124 must not be permitted to shape access to the scheme under sections 24 and 25.

Recommendation 4: NDIS support definition

(a) Section 10(a) should be removed and substantially redrafted.

(b) Any broad constitutional limits operating on NDIS supports should be expressed in a provision separate from the definition of NDIS support, in like manner to section 16 of the Disability Services and Inclusion Act 2023.

(c) The Bill should provide a fulsome, unqualified statement of relevant constitutional heads of power which underpin the provision of NDIS support. This new provision should refer directly to the external affairs power and make reference to all relevant international legal obligations and frameworks partially implemented by NDIS supports.

(d) A revised section 10(a) should make direct reference to all relevant CRPD concepts and obligations, with particular reference to supports that enable full citizenship, equality, choice, and articles relating to employment, family life etc.

(e) The revised section 10(a) should provide that an NDIS support is a support:

• related to a person’s impairment or impairments and the resulting impacts on their capacity to function in their daily lives and which,
• furthers the purposes identified in sections 4(1), 4(4), 4(6), 4(8), 4(10), 4(11) and 4(16)” or is a support delivered with respect to implementing any of Australia’s international obligations under the Convention on the Rights of Persons with Disabilities [and other cognate treaties].

Recommendation 5: Budgets

A new scheme of governance must accompany any new approach to reasonable and necessary:

(1) Disability Representative Organisations are empowered to create a three yearly Framework for Data Capture, Evaluation and Publication. An Independent Evaluator should be appointed to co-ordinate the delivery of these scrutiny projects and reports on behalf of the disability community, not the Minister of the day. (2) Provision should be made for an Independent Evaluation of Unmet Need and Intersectional Disadvantage resulting from ‘the method’. These evaluations will make recommendations relating to the adequacy of funding levels and the need to adapt variables or assessment processes to address any disadvantage identified relating to low SES, CALD or other cohorts. (3) Provision should be made for Independent Evaluations of Participant Outcomes, Service Quality and Mainstream Dependencies. These targeted audits would assess, the degree to which outcomes within the scheme are being achieved under the prevailing funding envelope. The evaluations would also identify any broader determinants of poor outcomes within the NDIS. (4) To the extent that the method relies upon assumptions or models of servicing these must be published. Any scoring schemes or categorisation processes must also be published.

Recommendation 6: Assessments

(a) Section 32L(3) is removed, the scheme is returned to its whole of person, case management roots and issues of support are determined using a well-defined interface. (b) The Bill is otherwise amended to address the risk that 32L(3) results in the impacts of non-NDIS disabilities upon the delivery of NDIS supports going underfunded. (c) Section 32L and section 10(a) should be amended to refer to ‘impairments and the impact which these have on their functional capacity in their daily lives’. (d) I support the call to rethink changes to the Access rules powers, and to access generally, given my broader submissions on the section 10(a) and 124. (e) The NDIA must identify and record all eligible impairments. It must provide sufficient funding for the diagnosis requests the Bill’s emphasis on ‘attribution’ will create. (f) A commitment taking into account the person’s life environment in the assessment and funding process should be placed in primary legislation even if (a) is not adopted. (g) Government must provide the Committee with clarity on who will conduct the needs assessment. (h) Proposed subsection 32D(2)(c), which requires the CEO to be satisfied a participant meets the disability and/or early intervention requirements when approving the participant’s statement of participant supports, should be removed. Issues around attribution, intensity of qualifying disability should not be permitted stall out planning decision-making.

Recommendation 7: Compliance Powers

(a) Proposed section 32H should be amended to provide that CEO may not impose a requirement that would result in or represent an undue burden on the participant. (b) Information-gathering powers be limited to information that would not be ‘unduly burdensome’ for a participant to produce. (c) Information-gathering powers must not impose consequences on participants where a third party fails to comply with a request for information. (d) The Bill should require, in relation to all compliance and debt raising powers in the Act, that a participant will not subject to adverse consequences in circumstances where the decision to claim or receive the support reflected abuse, coercion or duress by a third party. (e) Proposed subsections 32F(7)(b) and 43(2C)(b) be amended to require ‘wilful, repeat non-compliance’ before consequence. (f) Amend the Act to provide that a determination under proposed subsections 32F(7)(b) and 43(2C)(b) if the risk of any future of non-compliance can be addressed through improved supported-decision making supports for the participant such as requiring communication with the Agency or an advocate under section 32H prior to the provision or claim for a particular support category.

(g) Subsection 47A(1AB)(j)(iii) should be removed: any ability to vary a plan should be specified in primary legislation.

(h) Subsections 30A(5) and 36(2) should be amended to provide that consequences for non-compliance with an information request are at the discretion of the CEO

(i) Additional mandatory examinations under sections 30, 30A, 36(2) should only occur where there are no other reasonably practicable means to obtain the necessary information. The examination is appropriate and adapted to minimise the prospects of any undue distress and upset for the participant and will not result in harm to the participant.

Recommendation 8: Procedural Fairness and Appeal Rights

(a) Amend subparagraph 32L(7) to provide for rights for participants to obtain and/or request a replacement assessment, with such decisions being made reviewable under section 99. (b) Participants be able to seek targeted review of the specific elements of the statement of supports, not just the approval of the statement as a whole (c) A decision about whether a participant meets the disability and/or early intervention requirements must be reviewable. (d) A decision to not pay an NDIS amount under proposed subsection 45(4) or raise a debt retrospectively must be reviewable. (e) As a report now required prior to the making of a statutory decision, the assessment report itself should be made reviewable under s99. It should also be made available to them prior to budget setting. (f) Amend the special circumstance provision to ensure no debt is payable in circumstances where the decision to claim or receive the support reflected abuse, coercion or duress by a third party.

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1. The Need to Deliver Usable, Functional Legislation

This Bill certainly ducks no questions – it provides formidable powers to work towards financial numbers in the scheme. On its own terms, the Bill represents an effort to backpedal to move forward. If you are backpedalling it is especially important to make your steps well considered and clear. Particularly given the profound nature of interests and rights that lie at the heart of the scheme.

The Bill is presented as the first step in:

• Delivering a sustainability agenda centred upon a clearer targeting of needs, early intervention outcomes and designed support solutions in the scheme.
• Promoting an earlier outcome focus, whereby governments move upstream in the life cycle of disability and services. This reform must see us interrogate the degree to which NDIS commodifies community and inclusion. This dynamic sees individualised supports delivered without tackling exclusion across society, unchanged social attitudes and Australia’s wholly insufficient discrimination and accessibility legal frameworks.
• Delivering flexible, certain and sufficient support to participants in the scheme based on stable criteria and subject to effective ethical and political oversight.
• Ensuring we protect choice and control, drive outcomes and never return to the disempowering past of rationed, block funding.

The Bill very deliberately paints in one small corner of a broader disability reform canvas. The question of how the broader reform is sequenced, is —vital to people with disability. I am concerned the current Bill will cultivate gaps in support due to deniability and confusion around service responsibility. Section 124, which involves pressing the APTOS principles into a purpose for they are entirely ill adapted does not set the conditions for well-ordered reform.

To begin to achieve its asserted aims, this Bill must deliver:

(e) Clear definition of responsibilities, through an understandable, stable definition of the needs the NDIS will and will not cover. (f) A legislative framework which presents clearly, and subjects to adequate parliamentary, ethical and economic scrutiny, the financial choices underpinning the servicing to which participants will be entitled. (g) A legislative framework that identifies and delivers a clear and sufficient servicing vision for those people who qualify for NDIS to ensure it delivers effective outcomes. (h) A Bill, which, upon passage, participants and providers will be able to organise their daily lives and futures around. We must avoid undue administrative burdens, disorganisation and disempowerment which all too often mark the accessing of basic support for people with disability in this country.

To achieve the best outcome here we need to approach this as a holistic reform. We must paint the whole canvas on the basis of codesign, clear communication and accountability. At the moment, important details are missing, not least the Government’s response to the Royal Commission and the actual NDIS Review recommendations.

Recommendation 1:

The Committee should recommend the creation of the Disability Reform Implementation Council to oversee the logical, holistic and ordered progression of implementation of the historic Disability Royal Commission recommendations and the NDIS Review.

The Commonwealth should sequence planned reforms so that the relevant Rules and foundational support programmes can be negotiated and developed between Commonwealth and State and Territory Governments. It should not risk unleashing any damaging dynamics at the interface through sections 10(a) and 124.

Reliance on Legislative Instruments: Ensuring Co-Design and Oversight

Under this Bill, needs become numbers by means of ‘the method’. But the legislative instrument specifying the funding individuals receive will only be subjected to reactive, condensed disallowance procedures. The assessment tools are made binding through the same mechanism. Such tools are also the product of ethical and legal principles as much as technical ‘expert’ choices – they require close scrutiny.

The assessment process and ‘the method’ represent two of the most important decisions in Australian social policy for a generation. On one view their normative foundation belongs in legislation. But there is absolutely no doubt the standard processes of disallowance must be adapted to ensure co-design and accountability.

Recommendation 2:

Insert provisions referring to legislative instruments made under proposed subsections 32L(8) and 32K(2):

(a) Requiring consultation with disability representative organisation and the obtaining of their views on any proposed determination
(b) Requiring when the legislative instrument is tabled, the instrument must be accompanied by a consultation statement setting out the views of Disability Representative Organisations.
(c) Specifying that a failure to engage in consultation (as defined under the Gunning principles) will result in the legislative instrument being invalid.

This recommendation reflects the consistent warnings I have delivered about the scheme’s overreliance on delegated legislation and turbid operational guidelines. As I submitted under the previous Government in 2022:

“The possibility of disallowance is not a panacea for effective oversight and governance…[there is a need]… for greater co-design and democratic legitimation of executive decisions relating to the Scheme.”

At a minimum, propose we adapt the standard process of disallowance to reflect a commitment to co-design, scrutiny and transparency. In a scheme marred by the dark governance of closely

held or redacted information, an enforceable duty to consult will anchor the scheme’s future in the community not bureaucratic venues.

The duty to consult should reflect the Gunning Principles,1 namely:

• Consultation must occur when proposals are still at a formative stage, not when issues have predetermined.
• There must be sufficient information to give ‘intelligent consideration’
• Information regarding the proposal must be sufficiently available, accessible, and easily interpretable for consultees to provide an informed response.
• There is adequate time and ‘conscientious consideration’ must be given to the consultation responses before a decision is made.

These are a proven mechanism for upholding the rights of people with disability to agency and impact assessment. They have been judicially recognised as a ‘prescription for fairness’ in policy-making.2

               3. Section 124: A Charter of, and for, Bureaucracy

Recommendation 3:

(a) Section 124 should be redrafted to no longer incorporate the 2015 APTOS policy document. Reliance on such a document is not proper statutory design, will result in stable interpretations. It does not reflect rule of law values of consistency, clarity and gruence,

(b) The Commonwealth should sequence planned reforms so that the relevant Rules and foundational support programmes can be negotiated and developed between Commonwealth and State and Territory Governments.

(c) Future NDIS Rules defining scope of ‘NDIS supports’ should be developed carefully. They should be targeted and specific.

(d) Given their volatility the current draft sections 10 and s124 must not be permitted to shape access to the scheme under sections 24 and 25 in manner contemplated by this Bill

For a decade, participants and their families have struggled with poorly drafted policy, rules and legislation. As the Minister has highlighted, we all need to work together and get on the same page. We need a well ordered definitions of agreed foundational supports, and state responsibility. This must then connect neatly to clear assertions of responsibility by the Federal Government. We need to stop participants being caught in bureaucratic border wars.

This will not be achieved by incorporating isolated elements of a badly drafted, opaque policy document. This will not promote rule of law values.

Participants and families are entitled to well designed statutory text, and related processes of parliamentary oversight and drafting. Despite its character as a transitional

   1 Formulated by Stephen Sedley QC (as he then was) in R v London Borough of Brent ex parte Gunning [1985] 

84 LGR 168. 2 R (Moseley) v LB Haringey [2014] UKSC 56. See for instance: See for instance the United Kingdom case of R (KE) v Bristol City Council [2018] EWHC 2103 (Admin)

provision, section 124 risks producing immediate systemic volatility about what is in and out

of the NDIS.

• The 2015 APTOS document is neither appropriate for or adapted to perform the function into which it is being pressed.

The design of section 124 itself acknowledge the ambiguities, overlaps and occlusions the 2015 document is riven with. The section does just give legal force to the Applied Principles document, it:

• Deliberately cherry picks elements of a broader document – the analysis prescribed is anchored in discrete phrases of the Tables rather than interpreting the document holistically. This is disrespectful of the standard process of legal interpretation.
• Demands a participant must confirm that the support they wish to avail of is ruled in by the bullet point language of a particular table.
• Demands a participant must also confirm the support is not ruled out by the bullet point language in the opposite side of tables
• This means any overlaps or ambiguities are resolved against the participants, rather reasoned off against each other.

The novel cherry picking of elements of a document, raises a substantial risk the intention is privileging the semantic/literal meaning of discrete phrases within the tables. The principles above the tables provide vital context to the tables. There is also an interrelationship of meaning between the phrases on the opposite side of the tables. Yet the way section 124 is structured appears to contemplate that something can be ‘in’ on one reading but ‘out’ on the other. That is only possible if one reads the phrase in unwelcome isolation.

None of this reflects coherent, well worked statutory design and interpretation which works to protect rule of law values.

The structure shows full awareness of APTOS’ inherent flaws: the document is a chain of ambiguous, duelling phrases. It risks the legal and policy equivalent of Schrodinger’s cat.

As someone whose life centres on teaching the highly technical and exhaustive process of statutory interpretation: Section 124 in its current form is a flawed model. It is unfair to have participants carry the uncertainty that results from federal-state tensions, when we can resolve it ourselves. And then one considers that if it passes, it becomes the trigger for compliance actions against participants under the Act.

None of this involves the author dictating what I think should be ‘in’ or ‘out’. There are many legitimate debates that can be had about which service should sit where. But section 124 does nothing to promote their stable, long-term resolution.

Case Example: Impact of Section 124 on Psychosocial Participants

The area of psychosocial disability is one which would be immediately affected by the passage of section 124. The following statement of state responsibility from APTOS would be made immediately binding:

“Services and therapies in which the primary function is to provide treatment* of mental illness targeted towards people affected by mental illness or a psychiatric condition, including acute

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and non- acute residential services, mental health crisis assessment services, hospital avoidance services and post-acute care services

Early intervention designed to impact on the progression of a mental illness or psychiatric condition, especially where delivered by health services (notwithstanding the note above).“

Treatment is defined here as activities associated with stabilisation and management of mental illness (including crisis, symptom and medication management) and establishment of pathways for longer term recovery).“).“3

Up to this point, the NDIS legislative framework has had no definition ‘stabilisation’ or ‘management’. After years of attempting to open the NDIS up to a concept of ‘recovery’, section 124 would risk defining any such activities as ‘out’.

The above definition of treatment is more expansive and less stable than the 2021/2 psychosocial pathway proposal which this Committee successfully discontinued. It could permit decision-makers to refuse support to a participant such as psychological support, physiotherapy or occupational therapy, even when the need for the support is NDIS impairment related and is not related to the time-limited treatment of a condition.

This is just one example of the substantial range of unintended consequences APTOS could generate. I do not, based on public statements, believe such an approach is the intention of the Bill’s authors, and ask them to reconsider. We need to carefully design early intervention outside and inside the scheme – sit down with the mental health sector and design early intervention programmes they speak about so powerful. We need to go right upstream to get the best outcome for, in the words of Professor McGorry, ‘the missing middle’.

Frankly, the faith that APTOS could yield a stable and certain interface eludes my understanding. Ironically, the NDIS rules themselves note that they were derived from APTOS. They had to be derived because it was simply never credible to regard a high level, vague document like APTOS as a clear source of binding legal definitions.

For instance, the APTOS Justice table is preceded by the following statement:

“Governments acknowledge that the NDIS interface with justice is complex. Consistent with the approach to all interface areas, the lessons learned from NDIS trial will assist governments in refining the supports most appropriately provided by the NDIS and those most appropriately provided by other service systems.”

No ever held out the APTOS document as anything other than a high level framework that might have some marginal relevance when using discretion. Even in that role, its generality and passive aggressive vagueness has seen it used only three times in published AAT decisions.

It is no substitute or supplement for well designed legal rules.

2. Does the ‘NDIS side’ of APTOS tables even capture all NDIS supports?

3 The treatment definition is provided in a linked footnote, I’ve adapted that here for clarity.

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The current draft of Section 124 makes a significant assumption that needs to be examined by the Committee. The section requires participants to establish one of the vague, bullet point labels in the APTOS ‘tables’ cover the support they are seeking. This assumes that the applied principles represent and were intended to represent a vision statement. In fact they were designed to inform discretionary judgments about interface disputes.

Not all NDSI supports raise interface disputes or relate the areas of life or service singled out by this 2015 document.

The dynamic is also compounded by the way the section 124 focuses on the discrete tables not the principles preceeding them. The Bill directs decision-makers to put on a set of counterproductive blinkers. This risks perverse, semantic interpretations conducted in isolation from the broader context of the document.

Substantial risks of support gaps attach to such a design.

3. Giving legal effect to isolated elements of the existing NDIS Rules

The Act repeats its approach of cherry picking isolated elements of texts in its approach to the current NDIS rules. It was open to simply say an NDIS support must be a support under the NDIS rules. Instead in two separate provision (section 10, section 124), we are required to assess first if the rules define a support as belonging in the NDIS. Then we assess if the same support, defined as in, can also be read as out.

The NDIS rules, like any statute, were designed to be read in a holistic manner. The terms within it interrelate, and their meaning is clarified by construing text, context and purpose. Such a ‘shreds and patches’ approach to legal meaning risks a volatile and unstable transition.

4. Section 10(a): An eccentric, unstable definition of NDSI support

The current draft of section 10(a) is uncertain in its ambit and liable to be unstable in its future interpretation. The section could trigger a range of contestation and possible unintended loss of supports.

Recommendation 4:

(c) Section 10(a) should be removed and substantially redrafted.

(d) Any constitutional limits on NDIS provisions should be expressed in a provision separate from the definition of NDIS support, in like manner to section 16 of the Disability Services and Inclusion Act 2023.

(c) The Bill should provide a fulsome, unqualified statement of the constitutional heads of power which underpin the provision of NDIS support. This new provision should refer directly to the external affairs power and make reference to –all relevant international legal obligations partially implemented by NDIS supports.

(d) The revised section 10(a) should make direct reference to all relevant CRPD concepts and obligations, with particular reference to supports that enable full citizenship, equality, choice, and articles relating to employment, family life etc.

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(e) The revised section 10(a) should provide that an NDIS support is a support:

• related to a person’s impairment or impairments and the resulting impacts on their capacity to function in their daily lives and
• “furthers the purposes identified in sections 4(1), 4(4), 4(6), 4(8), 4(10), 4(11) and 4(16)” or “is a support delivered with respect to implementing any of Australia’s international obligations under the Convention on the Rights of Persons with Disabilities”
• Given their volatility the current draft sections 10 and s124 must not be permitted to shape access to the scheme under sections 24 and 25.

The Bill presses this single subsection into many purposes. By doing so we have produced a mongrel oddball, which is, in my view, likely to produce volatile effects if enacted.

Given the centrality of the section to the scheme of the Bill it is vital to get this right and to be clear on the intent before passage. It is necessary to inflict some gruelling detail on the Committee.

The subsection has a number of purposes:

• To provide insight into the constitutional heads of power which support the Bill. As we will see, the Commonwealth appears to have decided to rely only selectively on its external affairs power.
• To define the NDIS supports which the working method will seek to fund.
• To define the NDIS supports which might trigger access to the scheme of early intervention participants.
• To support participants to identify non-NDIS supports, upon which flexible funding budgets must not spent. Non-compliance with section 10(a).

I will now, at some length identify the sources of instability in the current draft. I will also tackle the idea that we can attribute the design of the section to ‘constitutional limitations’.

Minimising Reliance on the External Affairs Power: The Bill’s Selective invocation of UNCRPD

The United Nations Convention on the Rights of the Persons with Disabilities provides a firm constitutional anchoring for the NDIS Act, and indeed for any measures such as foundational supports. A fulsome and forceful link exists between NDIS supports and core CRPD concepts, articles and implementation standards.

Section 16 of the recent Disability Inclusion and Services Act 2023 provides an example of how to express constitutional limits in legislation. It simply requires that grants provided under that legislation be one with respect to:

“implementing any of Australia’s international obligations under the Convention on the Rights of Persons with Disabilities;

…

implementing any of Australia’s international obligations under a Convention or Covenant …“

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The Bill as drafted turns its back on providing a clearly stated, secure constitutional anchor for the NDIS. A clear understanding of Australia’s international obligations is a key aspect of a reform looking to develop an effective person-centred, disability ecosystem. The Department is, of course, free to cherrypick elements of Convention it wishes to implement via NDIS support. But to be clear: the current draft of section 10(a) does not adequately describe the only supports the Commonwealth can validly deliver.

No one should be crying poor constitutionally. The Department should make its choices and defend them. Casting a technocratic logic around the line drawing being done does not assist government or the community.

If the Constitution were so prescriptive as to mandate the current wording, we would have seen signs of that in the past decade. The reality is, in fact, well expressed by Senior Member O’Donovan in the AAT decision of XNTW and National Disability Insurance Agency [2023] AATA 759 (14 April 2023):

“… Indeed, the Constitution itself is of no assistance as a starting point in this matter because while the states have responsibility for primary education, the Commonwealth has, through its ratification of the Convention on the Rights of Persons with Disabilities in combination with the external affairs power, acquired power to deal with matters concerning the education of persons with disabilities.

…Consequently, the measure of which system of delivery is the most ‘appropriate’ for supply of a support of the kind under consideration is not to be found in the Constitution, but somewhere else.”

Happily, in key respects, the NDIS differs substantially from established APS constitutional follies such as car parks and sports grants. To be sure, appropriation by the Commonwealth must be for ‘the purposes of the Commonwealth’. Self-evidently, it is not sufficient that the Commonwealth to spend money on any subject it simply decides is a ‘purpose of Commonwealth’. One must identify a head of constitutional power (or stream of executive power) to support that expenditure. But a sober analysis of the CRPD [and indeed other international treaties] delivers the necessary linkages with external affairs power:4

• When a law purports to give domestic effect to an international instrument, the primary question to be asked is: has the law selected means which are ‘reasonably capable of being considered appropriate and adapted to implementing the treaty’.
• Note the focus is on ‘implementing the treaty’ not just specific compliance with individual obligations per se. This potentially allows the Parliament more latitude when it legislates in purported reliance on a treaty than if the formula was expressed in terms of ‘obligation’.
• A law is valid even if it only partially implements a treaty, provided the deficiency is not so substantial as to deny the law the character of a measure implementing the treaty.
• The power to legislate about a subject matter is confined by the way in which that instrument deals with it. Thus, defining the scope of the CRPD and its terms is critical-

4 It is important that it is also commonly recognised that the external affairs power extends beyond strict treaty obligations to other norms such standards. The commonwealth thus enjoys a backstop position to any concerns it holds about the specificity of Convention provisions.

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you will see me doing this at length in the pages that follow. I can provide a list of missing elements of the CRPD on request.

5. ‘the mere fact that [implementing Acts] impair, undermine, make ineffective or supersede various State functions or laws is an ordinary consequence of the operation of federal Acts and does not affect their validity’ (Murphy J in the Tasmanian Dams case)

6. Ignoring the existing stated purposes of NDIS supports under section 4

The 2013 Act already has installed within it, in the principles and purposes sections, language which captures the full range of obligations engaged by NDIS supports. These sections feature language emphasising the concept of inclusive equality under the Convention, full citizenship and participation. They make clear that implementation of the Convention centres on securing for people with disability the enjoyment of all rights on an equal basis with others.5

Yet the Department has made a confounding decision not to integrate these in the definition of support.

Any future Court or tribunal will necessarily have to attribute intention to this visible choice:

• Section 10 is the designed provision with specific intent and prescriptive terms, determines what an NDIS support is.
• Section 4 describes the broad values and outcomes which such NDIS supports may serve, and the broad ends towards which any discretion under the Act may be channelled towards.

In statutory interpretation, choice equals meaning. The Department has made a choice here: to pick out certain language culled from particular Convention obligations. To step around other broader language and cross cutting obligations of the Convention. This is liable to create unknown, adverse effects on participants, as I’ll now work through.

Section 10(a)(i): Narrowing the definition of NDIS supports?

Section 10(a)(i) is the most problematic element of the entire section.

5 The nature of the equality obligations under the Convention is fascinating, one senses that DSS is somewhat challenged by what are termed the third generation character of the cross cutting equality obligations.

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At first glance, its language is taken from Article 19 CRPD [text in the footnote].6 But, the design of section 10(a)(i) is incongruent with the text and nature of Article 19. The language pressed into service by the Bill is used in an entirely different context in Article 19. Article 19 is focused on defining, in a broad and inclusive way, the obligation to support people’s equal right to choices, participation and inclusion in the community. Sub-paragraph b provides an example, then an illustrative instance of implementation. In doing so, it uses the word ‘and’ to ensure everything is covered.

This Bill plunders the phrasing for an entirely different purpose. To impose a requirement of proof upon NDIS participants. This requirement is double barrelled as a result of the ‘and’. A person must prove their requested support is necessary to promote living in community and prevent isolation or segregation. Such a wording cannot be said to reflect the Convention. The ‘and’ must be replaced by ‘or’.

At the level of design, certain things will be immediately clear to an interpreting court or tribunal:

• It selects limited language drawn from a single illustrative example of implementing a much broader Convention obligation.
• It deliberately evades the concepts of participation, choice and equality that shape the obligations defined in the chapeau, a and c of Article 19 CRPD.

The Bill does not reflect a full commitment to implement all required effective measures under Article 19. The subsection does not recognise the broad right in the opening paragraph, or the right to support choices expressed in (a), it evades the obligation to support de facto equality in (c). The language incorporated is literally just one example, one instance of implementing what is a broad Convention obligation. This rebuts the notion that constitutional limits are shaping the drafting of section 10(a).

Were I given this section to interpret, I would see the following construction as reasonably open:

• The NDIS is not intended to provide support for community access and participation for people beyond that which is necessary to avoid situations of isolation and segregation.
• Where a person is at, or has achieved, a baseline level of ‘inclusion’, supports which reflect their chosen modality of social and economic participation may not be

6 Article 19: States Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: a. Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement; b. Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; c. Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.

• supported. There may be particular implications for e.g. work related supports (as other

• submitters have identified).

• This interpretation is supported by a poorly written but important segment of the explanatory memorandum: ‘An NDIS support will only be an NDIS support, and therefore constitutionally supported, if the participant has a need for that support as a result of their impairment. This is consistent with recommendations of the NDIS Review around taking a needs based approach to planning and budget setting’. The shift towards needs from goals will be a powerful interpretive support for a narrow construction of this definition. The qualifying concept of a ‘need’ is nowhere defined but can be easily appealed to in any effort to confine the section.

• I see the section as refreshing disputes about when support requests reflect the choices of the participant versus when they reflect a need consequent upon disability. The manner in which Bill retreats from the current master concept of disability (a social model focused on overcoming barriers in society) to a narrower concept of impairment (loss of biomedical or psychosocial functioning) could support a more targeted construction.

I am of view that contestation regarding the ambit of this section is inevitable. The terms ‘inclusion’ and ‘segregation’ are open textured and uncertain in ambit. They are not highly developed within the Convention, because Article 19 positions them as instances or elements, rather than cornerstone, definitional concepts. Segregation imposes a specific threshold and could confine the reach of the subsection.

As an administrative lawyer, the Bill leaves key questions entirely unaddressed. For instance: is ‘inclusion’ assessed globally or in specifically relation to each field of life (economic, social etc). The Bill repeats, in a different context, the drafting flaws in the NDIS access rules that generated the Federal Court case of Foster.

Regardless of one’s substantive views on the appropriateness of tightening the definition, it is of no assistance to any process of reform to be mired in disputes over interpretation.

Flaws in Section 10(a)(ii)-(vii)

I lack the time to give full treatment to each part of section 10(a). The most important thing globally, is that the Department has chosen to be specific rather than adopt the standard expression signalling a broad commitment to implementation (section 16 of the Disability Services and Inclusion Act) This would support a court making a finding that NDIS supports reflect the specific forms of need drawn from particular Convention Articles.

By avoiding broader reliance upon the CRPD, those advancing narrow interpretations in the future can fall back on the maxim expressio unius est exclusio alterius (the expression of one thing is the exclusion of the other). The overarching character of each element of section 10(a) will support arguments that a term like ‘inclusion’ is not intended to be construed in a broad manner based on the Convention as a whole.

Subsections (ii) and (iii) – on mobility - again see the drafting focusing on only two of four illustrative instances of implementation specified in Article 20 CRPD. Interestingly, the language does not capture ‘providing training in mobility skills to persons with disabilities’

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which is specified in Article 20(c). The drafter perhaps feels that the language in the Act is broad enough to stretch to it. Such an assumption, however, unnecessarily risks implied exclusion of a category of support that is clearly constitutionally supported.

Subsection (iv) is interesting in the way it reverts away from impairment towards recognising needs generated by ‘the interaction of a person’s impairment with various barriers’. The latter phrase reflects the Convention’s inclusive, social model of disability [Article 2] which elevates disability as including, not just impairments, but how those:

“in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

This definition and approach to disability is made less prominent in the Bill. Its inclusion here may be invoked support a narrower interpretation of impairment related needs across the rest of the Bill.

This subsection is also anchored in the concept of health service ‘need’. Need is nowhere defined. I share the concerns of others regarding the threshold that may impose.

Subsection v is an extremely curt reference to Article 26 CRPD. Again, the Department has ignored the obligations bearing the language of independence and participation. Article 26 states:

“States Parties shall take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life. To that end, States Parties shall organize, strengthen and extend comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services…“

A number of interpretive risks are raised by the choice to make just a bare reference to labels of rehabilitation and habilitation. Even if the Convention understanding of these applies, the 2019 Report of the Office of the High Commissioner for Human Rights comments:

“It may not always be evident to distinguish where rehabilitation ends and other forms of support begin. Differentiating them contributes to better policy programming and implementation…it should be recognized that not all the services that persons with disabilities require to have better chances of being included in their communities have to do with ehabilitation…the term “rehabilitation” has come to be used broadly to designate policies aimed at the inclusion of persons with disabilities or disability-related policies in general. This is linked to the context in which habilitation and rehabilitation emerged, whereby action and policies related to persons with disabilities were primarily focused on “fixing” a person’s impairment as a precondition for their participation in society. Using the term “rehabilitation” in this broad manner is a throwback to the medical model of disability: the application of the term in this manner is thus outdated and incompatible with the Convention, and risks perpetuating stereotypes relating to persons with disabilities.

In recent years, umbrella concepts such as disability-inclusive policies and community-based inclusive development have been used to frame a broad range of disability-related policies and

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measures, of which rehabilitation in the sense of article 26 of the Convention is only one of its many elements.“8

Subsection (vi) is also anomalous. The Bill elects to expressly include required incidental supports to the delivery of health and rehabilitation. But doing so raises the risk that an interpreting tribunal or court will see an implied exclusion of supports incidental to supports elsewhere in the subsection. A needless straying into expressio unius est exclusio alterius arguments.

Section 10(a) (vii) is somewhat garbled. The word ‘further’ injects uncertainty about existing impairments. On one reading supports under this subsection are limited to impairments which are not currently in existence. The term ‘a further impairment’ can be construed as meaning, a new loss of biomedical functioning, separate from the pre-existing ones. Such view is opened up by the manner in which the subsection refers to ‘a further impairment’ when the relevant Convention Article refers to the broader concept of disability.

The draft has made a decision not to narrow the nature of impairments. The provision permits the expenditure of NDIS funds designed and calculated only to meet needs relating to NDIS impairment on non NDIS impairments. But individuals who cannibalise their budgets in such a manner may find themselves subject to Agency compliance or control if such spending impacts NDIS outcomes. That is of limited benefit and does not remedy the failure to take a whole of person approach in section 32L(3), discussed later.

The decision not to specify any qualifiers such as intellectual, cognitive, neurological, sensory or psychosocial could also have an unintended expansionary effect on the definition.

               The Final Port in the storm: 'Sickness Benefits'

Given the cumulative criticisms I have made of section 10(a) to this point, there is a fair chance that some participants will find themselves attempting to figure out what sickness benefits means. Section 10(a)(viii) would function as a ‘wicketkeeper’ of sorts. Its performance in such a role is likely to be patchy and contested.

 Section 10(a)(viii), if introduced, will ultimately reprise arguments the relationship a support has with disability versus the person's goals for their life. The debate will centre around whether a particular support is addressing 'needs or wants occasioned or consequent upon sickness' or whether those needs reflect the choices or standard human needs of the participant (who happens to be sick). It will transport us back to debates that featured in the AAT cases such as Milburn and Ewin but in a constitutional context. A context that features neither clear precedent nor substantial judicial commentary.
 Considerations of space and time mean I cannot provide a full legal advice on the ambit of 'sickness benefit' or section 10(a)(viii). What follows is a first pass reflection.

             Supports provided "by way of" constitutional sickness benefits

The wording of section 10(a)(viii) is quite specific. The primary orientation appears to be towards copperfastening the validity of flexible budgets. The language of ‘by way of’, makes

   8 https://documents.un.org/doc/undoc/gen/g19/012/52/pdf/g1901252.pdf

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What’s a Sickness Benefit?

It is clear that phrase “benefits” is not limited to the grant of money and may include the provision of a service. But in seeking to rely on section 10(a)(vii) in the future, NDIS participants would face two major sources of potential ambiguity and contestation.

Benefits must be tied to «needs» or «human wants» occasioned by sickness

High Court discussion of «benefits» has often centred on concepts of «needs» or «human wants». McTiernan J’s language of «[M]aterial aid … against … human wants» from the 1949 BMA Case arguably received re-endorsement in the Alexandra Private Geriatric Hospital Case and Williams [No 2]. The benefits must relieve against human wants which the person has by reason of being sick. It must address the direct consequences associated with being sick, the costs of which «that person would otherwise incur»:

«Provision of the benefit will relieve the person to whom it is provided from a cost which that person would otherwise incur. In the case of unemployment and sickness benefits, the aid will relieve against the costs of living when the individual’s capacity to work is not or

The subsection does not state that anything that has the character, or is in the nature, of a sickness benefit is an NDIS support that can be funded or provided. It arguably requires that the support is a constitutional sickness benefit - one the Commonwealth has chosen to provide and fund.

It is reasonably open for a court to find the provision requires that:

(i) The Commonwealth has, according to its laws and policies relating to the matter, seen fit to approve the provision of funding or has commissioned a private provider to provide a support on its behalf. (ii) That support has the necessary characteristics of a «sickness benefit».

This reflects the reality that s51(xxiiiA) is directed only at sickness benefits provided by the Commonwealth or its commissioned agents.

The Meaning Of ‘Sickness’

The key term sickness has received limited judicial treatment and has never been contested. The 1949 BMA Case provides us with the leading accepted statement of principle:

'In my opinion where the use of a syringe is necessary for the treatment of a disease, or
some other appliance is required either to treat or to remedy some physical incapacity, the
provision of such an article may properly be described as the provision of a "sickness
benefit." I see no reason why these words should be limited to the payment of money during
a period of sickness, which is the common form of friendly society sickness benefit. The
provision of a necessary instrument or appliance for the treatment of sickness, treating the
word "sickness" as including any form of ill-health or incapacity, is in my opinion the
provision of a sickness benefit.' [emphasis]

Clearly the highlighted words in the passage open the window to an expansive concept of sickness to include incapacity. Other aspects of the passage may, however, pull this back somewhat. There is reference to necessary for the treatment of a disease…, remedy some physical incapacity and a period of sickness. The literal meaning of the term sickness, and its placement next to pharmaceutical and hospital benefits, would also be taken into account. While overlaps between heads of power are common, and they are not to be read harmoniously, it is worth noting that invalid pensions are recognised separately in 51(xxiii).

A future finding that there is a distinction between sickness and permanent or at birth incapacity may issue. At the literal level, ‘sickness’ may be tied to forms of incapacity or illness that are short term, temporary and active or likely to emerge or recur. Judicial statements in Williams No (2) refer to ‘being sick’, present tense. This may limit reliance on ‘sickness benefit’ to those subject to treatment or clinical monitoring in environments such as nursing homes. Or to supports addressing health status or preventive health interventions already covered elsewhere in section 10(a).

Perhaps the best note to conclude on is the observation of the Full Federal in the Wong litigation (affirmed by Justice Kirby in the High Court appeal). The Federal Court noted that many items on the Medicare and PBS Schedule would not have the character of sickness benefit.

5. Ensuring Accountability for, and Scrutiny of, Budgets

Debate around ‘the method’ has still not progressed beyond ‘your budget will be based upon your assessment’. There is a marked generality and vagueness to such statements. Page 21 of the Explanatory Memorandum provides some hints of ongoing bureaucratic debates. While reference is made there to taking into account the person’s environment and location, interestingly, these do not make the text of the Bill.

The word ‘based’ glides over and compresses a range of policy options, ethical choices and methodology. Despite these tensions, under the current Bill, the basis for budgets will be ascribed a low and generic process of parliamentary scrutiny.

It is important to note that the NDIS Review - while undertaking a canvas of the available options – did not prescribe a specific form of ‘working out method’. They were correct in doing so. The moment ‘when needs become numbers’ involves political, ethical, economic and servicing judgments. We must all work together to scrutinise, oversee and debate the judgments the method will represent. It is not a technocratic exercise in the dismal science or aristocratic ruling by ‘expert’, but a fundamental moral statement by the Australian community.

Framing social policy in the technobabble of levels, points, formulae, deviations and the like, has provided useful political cover for difficult or unpopular choices in the past. Consider the disability support pension or our aged care funding instruments. Their very structure distances us from confronting ethically what is being done in our names, presenting things as the anti-septic application of expert judgment or models. Too often the narrow disciplinary logics of academics, actuaries, medical professionals are commissioned to substitute for mature ethical, political and economic debate.

In the aged care context, our older citizens were reduced to taking photos of their dinner plates to communicate the human reality of technically expressed ‘levels’ of funding. We must build oversight mechanisms which search out and interrogate exclusion or unmet need in any new model.

Recommendation 5:

A new scheme of governance must accompany any new approach to reasonable and necessary:

• (5) Disability Representative Organisations are empowered to create a three yearly Framework for Data Capture, Evaluation and Publication. An Independent Evaluator should be appointed to co-ordinate the delivery of these scrutiny projects and reports.
• (6) Provision should be made for an Independent Evaluation of Unmet Need and Intersectional Disadvantage resulting from ‘the method’. These evaluations will make recommendations relating to the adequacy of funding levels and the need to adapt variables or assessment processes to address any disadvantage identified relating to low SES, CALD or other cohorts.
• (7) Provision should be made for Independent Evaluations of Participant Outcomes, Service Quality and Mainstream Dependencies. These targeted audits would assess, the degree to which outcomes within the scheme are being achieved under

the prevailing funding envelope. The evaluations would also identify any broader determinants of poor outcomes within the NDIS. (8) To the extent that the method relies upon assumptions or models of servicing these must be published. Any scoring schemes or categorisation processes must also be published.

To underline the need for full parliamentary scrutiny and ongoing governance of these issues,
 here are some of the policy tensions which lie ahead. There are three dynamics which could
 in isolation, but more likely in combination, shape 'the method':

                            1. An Economist's Scheme of Distribution?

One approach to the method, would be to start from figures set by level linked to the overall
forward estimates. Clearly such a model offers a short term resolution of the 'headline debate'
around financial sustainability.

 Static figures - whether global or levels based - are, however, not a long term panacea. What
do the figures represent? An allocative distribution? Or a firm unchanging servicing vision?
What will happen if a figure is pegged at a level that underservices particular cohorts? Will the
need to hit the global figure see poorer, more expensive outcomes?

The NDIS reform debate has seen second order values such 'equity' and 'consistency' crowd
 out first order values such as 'sufficiency and 'needs'. The key things participants and families
need to know are:

      -  what needs the NDIS is going to meet for me or my child?
      -  And is the budget sufficient for great outcomes around those specific needs?

Something can be equitably insufficient and consistently underfunded. We must not
 substitute hard public conversations on need and sufficiency for circular, second order logics
 like equity and consistency.

A ‘scheme of distribution’ approach has a number of ongoing, potential risks:

 1.  Its focus on equity and consistency, sees the NDIS shaped by relative entitlements, with
     the result individual's budgets may reflect the number of participants or the intensity of
     disability levels and cohort distribution within the scheme.
 2. A one eyed focus on equity and consistency, raises a bureaucratic temptation to shrink the
    needs assessment into a process of scoring. A drive to produce 'a standard deviation of
     disability' may in the future see the scheme's budgetary process shrink into a process of
    comparison. Assessments must deliver grounded, professional statements of the person's
    needs in the context of their individual life. The method must be direct and understandable
   enough to tell us what needs the government of the day sees fit to fund.
 3. The language of 'levels' masks differential experiences and circumstances: particularly for
     regional Australians, those without informal supports, those with multiple disabilities. Do
  we focus on variables that deliver outcomes or prevent crisis? Or variables that deliver
    favoured notions of 'equity'? Saying budgets will be consistent and equitable ties an ethical
    gordian knot that can only be legitimately cut by accountable public representatives.

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An Actuary’s Projection?

The NDIS Act has always made vague reference to an ‘insurance based’ methodology (a contestable concept). As we learnt from the great planning collapse of 2020/2021, one may struggle to govern the scheme based on a static ‘reference package’ or replicating dynamics from sample cohorts. Equally however, actuarial projections can only provide us with data about where the scheme is and project forward.

Reliance on actuarial logic raises the following risks:

• An actuary’s projection may result in the scheme operating as a defensive ratchet. If an actuary finds that a particular cohort represents a balance sheet risk, the reaction may be lower investment to defray a hit the forward estimate for the scheme.
• But the point about data is to change it. An actuary’s projection identifies risks, but not how to treat them. Where exposure is identified, a core governance question will be how to address the risk. Does a low level of exits from an early intervention programme reflect (i) poor model of service (ii) underfunding? Does one react to financial risk by doubling down on outcomes or tacking spending into a more sustainable envelope?

Assessment Processes: Amendments to ensure a Whole of Person Focus

I have so far focused on ‘the method’ as the debate about assessment tools is well established after 2021. I do want, however, to stress the conceptual question that accompanies linking assessment to funding decision. It will be necessary to evaluate whether the assessment processes involve the ‘scoring’ of disability rather than laying the table for effective servicing. An assessment tool that aims to provide a number of baseline indicators to enable cross comparison of participants could look very different from an assessment tool that aims to capture service needs. We must have clarity on the terms of the method, and its relationship with the needs assessment.

The NDIS Review emphasised that the focus of analysis should be on the whole of person, what a person ‘can and can’t do’. At the technical level I believe using ‘impairment’ as a standalone term is not the best way to achieve or express this vision. The Bill should, outside the context of access, always use the compound term ‘impairments and the impact which these have on their functional capacity’ or, for convenience, ‘functional impairments’.

Recommendation 6

a) Section 32L(3) is removed, the scheme is returned to its whole of person, case management roots and issues of support are determined using a well-defined interface. b) The Bill is otherwise amended to address the risk that 32L(3) results in the impacts of non-NDIS disabilities upon the delivery of NDIS supports going underfunded. c) Section 32L and section 10(a) should be amended to refer to ‘impaireds and the impact which these have on their functional capacity in their daily lives’. d) I support calls to avoid changes to the access rules made in the DANA submission. e) The NDIA must identify and record all eligible impairments. It must provide sufficient funding for the diagnosis requests the Bill’s emphasis on attribution will create. f) The commitment taking into account the person’s life environment in the assessment and funding process should be placed in primary legislation even if (a) is not adopted. g) Government must provide the Committee with clarity on who will conduct the needs assessment. h) Proposed subsection 32D(2)(c), which requires the CEO to be satisfied a participant meets the disability and/or early intervention requirements when approving the participant’s statement of participant supports, should be removed. Issues around attribution, intensity of qualifying disability should not be permitted stall out planning decision-making.

Section 32L(3): unwieldy, resource intensive and not outcome-centred

Clearly by de-emphasising the bureaucratic convenience of the ‘list’ process, the Bill frees some participants from misdirected hunt for diagnosis that was never intended to be a focus on the statutory scheme.

Sadly, the Bill, then imposes an extraordinary diagnostic burden on some existing participants through section 32L(3). A significant administrative burden and diagnostic overhang is produced by requiring participants and decision-makers to identify and attribute the precise interrelationship of their disabilities. Participants will be required to attribute each loss of functioning to each specific disability. In some circumstances, given the complexities involved, this may simply not be possible. In many instances, the Agency itself has never picked up the ball on this issue, see the stinging rebuke in Sharp and National Disability Insurance Agency [2023] AATA 1323 (25 May 2023)

Section 32L(3) appears to be a response based on a misapprehension of recent tribunal decisions. These decisions, commencing with HRZI, stress the importance of identifying a person’s needs holistically in NDIS planning. They do not mandate the servicing all non-NDIS disabilities by the National Disability Insurance Agency. As Senior Member Bubetievski recently reminded the Agency:

“As the Respondent has so accurately pointed out in their submissions, the vast majority of requested supports for conditions of shorter duration or minimal severity would fall foul of the provisions of s 34 and the Support Rules. They would likely not be found to be value for money or to be best provided by the NDIS. The requirements in s 34(1) have been said to be both “stringent” and “cumulative” in that each one of them must be met in relation to each claimed support. Unless the decision-maker is positively satisfied that the criteria have all been met in respect of a given claimed support, the decision-maker is bound to decline to approve that claimed support. This is a difficult test, which means that many claimed supports will not be approved.”

For me the approach in this Bill fails to recognise an established reality in the scheme: that there are specific times when non-NDIS disability needs are integrally linked to the effective delivery of NDIS supports.

The approach of the AAT, and the original design of the NDIS ensured two things:

• The Agency must identify needs at the whole of person level, capturing how NDIS and non-NDIS disability interrelate to create a person’s reality. We must not slice the need, but we are called upon to divide the responsibility for servicing the disability.

• Where servicing a non-NDIS disability is integrally linked to effectively and safely delivering the NDIS support, the Agency may need to adapt funding to reflect the impact of non-NDIS disabilities. There is a necessary overlap and interaction here, that the Section 32L(3) is abstracting from. It risks an abstract evaluation of impairments isolated from the life context of the person.

When properly understood and reacted to, decisions like HRZI do not trigger expanded entitlements

When properly understood and reacted to, decisions like HRZI do not trigger expanded entitlements that appear to be the premise of 32L(3). They simply require governments to organise themselves to deliver outcomes.

Participants should not suffer due to the inability of states and federal government to regulate the interface or cooperate. Or for the Agency’s inability to support participants to navigate to other systems to have their needs met. Section 32L(3) sees the Bill place perceived bureaucratic convenience over engaging with, and making decisions about, people’s actual needs.

A core deliverable of this reform is stated to be a focus not on diagnosis but on functional assessment –

what a person can and cannot do in the context of their life.

Upon first encountering the Bill I was surprised to see the isolated concept of impairment appear regularly. It is important to note that ‘impairment’ under the Act is not - automatically - synonymous with functional capacity in daily living.

This is seen for instance, in the wording of section 24:

’The person has a disability [concept 1] that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments [concept 2] or the person has one or more impairments to which a psychosocial disability is attributable; and

(b) the impairment or impairments are, or are likely to be, permanent; and

(c) the impairment or impairments result in substantially reduced functional capacity [concept 3] to undertake one or more of the following activities…’

Under the 2013 Act, up to this point, the master concept for decision-making has been ‘disability’. To use a necklace analogy; disability is the string upon which ‘impairment’ and ‘functional capacity’ are placed. The focus on disability ensures that impairment is closely married to functional capacity, and a whole of person approach is taken.

At key points, this Bill shrinks the focus of statutory decisions (most notably funding) to ‘impairment’. This may have unintended consequences. While for medical professions, impaired is used as a progressive concept, the 2013 Act uses it in a more specific manner. It is separate from the person’s ability to perform tasks in their everday life. It is best understood as a loss of biomedical function that then causes a reduction in everyday functional capacity:

‘The concept of “impairment” is to be understood as involving loss of or damage to a physical, sensory or mental function.’

So, for instance, the Bill in section 10(a) refers to ‘acquiring a further impairment’. A court may point to the use of verb ‘acquire’ and ‘a further impairment’ as speaking to a fresh, loss of bodily function. We need to address the risk of populating a narrow understanding of impairement as referring to loss of biomedical functioning rather than impairment and the resulting loss of every day functional capacity.

The danger here is that future independent assessments may end up being driven by the abstract grading of ‘biomedical’ functioning or focus on general, task and context independent labels. They may abstract from what it takes for the person to perform the activity domain in the

Case Study: The Dangers of Abstracting Impairment from Life Context:

The recent case of Beaumont and National Disability Insurance Agency [2024] AATA 891 (30 April 2024) delivers a warning about the dangers of assessment processes or access rules which:

• fail to consider the environment (including economic deprivation) of participants
• adopt life context neutral baseline indicators to measure disability.

The applicant in this case lived in regional Australia, and had mobility challenges. In considering his access request appeal, the Tribunal warned of the importance of taking into the person’s life context in assessing functional capacity.

The Tribunal warned against the inequity caused by baseline indicators such as requiring that a person not be able to move more than 50 metres. It warned that such indicators are not outcome focused or reflective of the reality in regional Australia:

‘While this Tribunal is not bound by other Tribunal decisions, we note that such an approach, if used generally, might ignore the reality of people who live in rural or regional locations and that 50 meters would not get some people beyond the car park of their local shopping complex. The use of supposed base-line descriptors can ignore the context and location of people’s lives. In the case of Mr Beaumont, the 60km trip to the hospital for medical appointments is not optional and his ability to reach that service is central to our inquiry… an assessment of the extent to which a person’s functional capacity is ’reduced’ cannot be made in isolation from the experience of other people’s mobility and self-care in day-to-day life and our assessment must be based on Mr Beaumont’s actual life.’

The tribunal also criticised the way the Agency had recently created an assessment rule prejudicial to low SES participants:

‘The current guideline in place at the time of hearing states: „assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.‟ Inclusion of the word „prescribed„ arguably raises the threshold beyond that contemplated by rule 5.8(a)… In the Tribunal’s view, any requirement that a person possess or use assistive technology or equipment at the time of their application might have the undesirable outcome of advantaging applicants with greater financial resources over those from lower socio-economic backgrounds. It might also give an unfair advantage to those with greater knowledge of the legislative framework, who could bolster their access request through the purchase of equipment, supports or services at the time of their application.’

The decision underlines the importance of environmental factors and careful definition of assessment tool terms. We must have proper scrutiny of the assessment tools and monitor their impact.

Protecting Choice and Control: Confining the Agency’s Powers over Participants

The Act proposes a range of administrative powers around support delivery or management of funding. These are powers to prescribe requirements, create debts or risk manage participants.

The explanatory memorandum sets out a few select examples to justify the powers in question. Yet that does no more than allow us to see a purpose in certain instances. These scenarios should not distract us from a key question: are these powers adequately targeted or restrained?

Of these, section 32H is most in need of some kind of constraint. This vests into the hands of the CEO a currently unconfined power to prescribe requirements relating to the provision or acquisition of supports.

It is clear that some kind of controlled provision like section 32H should exist. The explanatory memorandum rightly instances really laudable and welcome reforms that might rely on the section. Alternative commissioning in Indigenous communities is a vital priority. We must respect the sovereignty of Indigenous communities to shape the delivery of scheme supports in a culturally safe and appropriate manner. You could equally use something like 32H to drive a vision of quality services.

But why did the Department choose to create a power of such ambit, when it could simply proceed in an ordered, incremental manner? The reforms instanced in the explanatory memorandum are very laudable: why not deliver on those with designed and targeted statutory text?

The section, confoundingly, specifies only illustrative examples of the power’s use in the Bill’s text. There are no restraints beyond a bare relationship with provision. Later, confining rules may be made, subject to government veto. But why should the creation of the power precede the creation of logic and restraint here?

Section 32H reflects an unfocused ‘enabling’ attitude when we need smart, targeted provisions that generate trust in the disability community.

Section 32H requires a clear statement of purpose, and restraints on its potential adverse impact. The CEO should not be permitted to impose an undue burden on participants.

The requirement of no undue burden should be centred on protecting core values and purposes:

• A requirement should not frustrate the effective delivery of support and the outcomes sought in the plan as a whole. [avoiding plan breakdown]
• A requirement should not impose undue burdens in terms of financial costs, practical resources or harm to the participant.
• A requirement should, to the reasonable satisfaction of the CEO, further the purposes of the Scheme as a whole.

I lack the time to provide a narrative for my proposed changes to the information gathering and compliance powers around revocation and planning.

We need to watch for the dangers of working out of a particular mental model for a participant: the deliberately non-compliant or evasion one. The Robodebt Royal Commission embodies the danger of a regulatory mental model centred on one particular, limited cohort resulting in imbalance and poor targeting impacting on the broader population. We need to avoid that with more careful design of these powers.

We should never forget that a central conclusion of that Report: the more administrative processes you run into unsupported people’s lives, the worse outcomes you will obtain.

We also need to stop approaching supported decision-making like a light switch in this country. As the Disability Royal Commission pointed out – our laws too often author daily realities that flee to two polar extremes: autonomy or incapacity. What people need is support. We should also reflect on how many of these debts and ‘non compliance’ are a product of our failure to design resilient payment systems.

In the short term, let us not do something counterproductive and ensure sensible targeting.

Recommendation 7:

  (j) Proposed section 32H should be amended to provide that CEO may not impose a
  requirement that would result in or represent an undue burden on the
    participant.

 (k) Information-gathering powers be limited to information that would not be
  ‘unduly burdensome’ for a participant to produce.

   (l) Information-gathering powers must not impose consequences on participants
  where a third party fails to comply with a request for information.

(m)The Bill should require, in relation to all compliance and debt raising powers in the Act, that a participant will not subject to adverse consequences in circumstances where the decision to claim or receive the support reflected abuse, coercion or duress by a third party.

 (n) Proposed subsections 32F(7)(b) and 43(2C)(b) be amended to require ‘wilful,
   repeat non-compliance’ before consequence.

 (o) Amend the Act to provide that a determination under proposed subsections
   32F(7)(b) and 43(2C)(b) if the risk of any future of non-compliance can be
   addressed through improved supported-decision making supports for the
   participant such as requiring communication with the Agency or an advocate
  under section 32H prior to the provision or claim for a particular support
   category.

 (p) Subsection 47A(1AB)(j)(iii) should be removed: any ability to vary a plan should
  be specified in primary legislation.

 (q) Subsections 30A(5) and 36(2) should be amended to provide that consequences
    for non-compliance with an information request are at the discretion of the CEO

(r) Additional mandatory examinations under sections 30, 30A, 36(2) should only occur where:

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• There are no other reasonably practicable means to obtain the necessary information.

• The examination is adapted to minimise the prospects of any undue distress and upset for the participant and will not result in harm to the participant.