Inquiry into the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024
Reference Information:
Date: 12 July 2024 Recipient: The Chair, Community Affairs Legislation Committee Address: PO Box 6100, Parliament House, Canberra ACT 2600 Salutation: Dear Senator Urquhart,
Deafness Forum Australia, as the national consumer representative body for the 4 million Australians who live with hearing loss or ear or balance disorders, people communicating using Australian Sign Language (Auslan), and their families and supporters, welcomes the opportunity to provide the Community Affairs Legislative Committee with further feedback on the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.
- Bill 2024.
For this submission, Deafness Forum Australia has consulted with people with lived experience of hearing loss who are existing participants of the National Disability Insurance Scheme, their families, and advocacy groups in the deafness and hearing loss space. Our insights are drawn from our experience as a National Peak Representative Organisation and as part of the National Disability Insurance Agency’s Disability Representative and Carer Organisations Reference Group.
We note that we are less than 18 months from a federal election and that it is crucial to lay the foundations of the new National Disability Insurance Scheme, so the substantive work of drafting the subordinate legislation can begin. We hope a resolution can be achieved across this consultation process that provides sufficient safeguards to protect the interests of National Disability Insurance Scheme participants to facilitate the progression of the Bill and have appreciated the government’s willingness to both consider and more importantly respond to community feedback on the Bill to date.
Perceptions in the disability community about the reform of the National Disability Insurance Scheme
The ongoing politicisation of the scheme has been an impediment to transparency around the overall direction of the NDIS reforms for many participants.
Ongoing public messaging around the increasing costs of the scheme to taxpayers of the concerns expressed across various parts of government about its ongoing financial sustainability, and high-profile crackdowns on issues like provider fraud, plan overspending, and the inappropriate use of plan funds, have led many in the disability community to fear that the reform of the National Disability Insurance Scheme will cut the supports and services they rely on, and force many people with disability off the Scheme altogether.
While no one would challenge the need for an economically sustainable NDIS, the question for many participants we’ve spoken to is whether a new NDIS will continue to support them, and there is a real and palpable fear that the progress toward social inclusion and equality that has been achieved through the NDIS will be lost across the reform process.
This fear for our cohort is further compounded by the silence around whether the states and territories have committed to foundational supports, as a fundamental aspect of the new disability eco-system which participants will be expected to rely on.
In our previous submission, Deafness Forum Australia, Submission to the Department of Social Services - National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024, dated 14 May 2024, we said that we did not doubt the Minister’s intention to engage with the disability community throughout the change process genuinely. However, we are troubled that the Department of Social Services appears to favour a select few Disability Representative Organisations with in-camera briefings and discussions while others representing significant disability cohorts and perhaps having different views on the Bill and its progress are struggling to be heard. There is a false assumption that a few organisations represent the complex and expansive views of disability representative organisations and the broader community.
As a result, many disability cohorts, including the 4 million Australians who have hearing loss which we advocate on behalf of, have only become aware of significant decisions purported to have been reached through co-design between the Department of Social Services and Disability Representative Organisations after the event.
We call on the Department of Social Services to reevaluate its approach to co-design. The best way to ensure a smooth transition across the reform process is to make sure the diverse voices of the disability community are at the table and that there is a collective understanding between Disability Representative Organisations and the government of what codesign means, and when codesign is necessary across the reform process.
Innovation and contemporary best practice as fundamental principles of the National Disability Insurance Scheme The National Disability Insurance Scheme is unusual as a social security mechanism in that innovation, contemporary best practice, and continuous improvement are guiding principles for the Schemei, alongside the recognition of the basic rights for all participants to determine their own best interests, exercise choice, and control, and engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.ii
This marks the Scheme as unique and allows for the potential to explore new and contemporary models of law-making that can respond to the needs of an invested and engaged disability community. We highlight this to remind legislators that the National Disability Insurance Scheme is different, and the extent to which the disability community has invested in the Scheme as a mechanism to realise their rights as citizens and community members should not be underestimated. There is a collective sense of ownership of the National Disability Insurance Scheme, which can be utilised to improve the Scheme’s overall effectiveness as a key element of Australia’s social welfare infrastructure.
We appreciate that most of the concerns we raised in our previous submission to the Committee have been addressed through further amendments to the Bill and that the current
Tangible commitments to ongoing co-design are necessary
A key remaining consideration for us is ‘future-proofing’ a commitment to co-design — not simply consultation — throughout the NDS reform process to ensure that people with disability can participate as equal partners in the decisions that affect their lives, irrespective of changes in government.
Co-design and consultation are not the same thing
In our previous submission, we stated that the standard requirements for consultation across the development of legislative instruments as prescribed under s. 17 of the Legislation Act 2003 (Cth) was not suitable in realising subsection 9A because it spoke to consultation, not co-design.
We note that the Minister directly responded to this concern in his letter to Disability Representative and Carer Organisations dated 21 June 2024 highlighting three recent amendments to the Bill - the inclusion of s. 211 which prescribes that information on any consultative processes is to be detailed in the explanatory statements of any legislative instruments made under the National Disability Insurance Scheme Act 1993 (Cth), and introduction of subsections 32K and 32L which embed the requirement for the Minister to have consideration for codesign under subsection 9A when making decisions regarding the needs assessment process and the calculation of a participant’s reasonable and necessary budget.
While we welcome an explicit expectation that Governments will work in codesign with the disability community across two significant changes, and a commitment to public transparency regarding any consultative processes undertaken in developing future laws around the function and operation of the scheme, these amendments do not secure the same opportunity to work in codesign with the government either across the other prescribed changes in the current Bill, or any changes that might occur through other legislative instruments in the future. Outside the instruments that are referenced in subsections 32K and 32L, any changes that occur through legislative instruments will only have the requirement of consultation, under s.17 of the Legislation Act 2003 (Cth), which is a significantly lower standard of engagement than co-design.
Consultation only requires the government to consider feedback once draft law has been developed. Co-design would require the Government to involve the disability community across the design and development of any legislative instruments that were created under the Act which could directly impact them as participants.
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An express provision framed similarly to s.17 of the Legislation Act is required in the National Disability Insurance Scheme Act to require the Minister to be
satisfied that appropriate and reasonable codesign has occurred
We require the addition of an express provision in the Bill that essentially replicates s.17 of the Legislation Act 2003 (Cth) subsections 1 and 2 but substitutes the requirement that a law-maker must be satisfied that appropriate and reasonable consultation has been undertaken with the requirement that appropriate and reasonable codesign has been undertaken in the development of any instrument created under the National Disability Insurance Scheme Act 1993 (Cth).
For example: (changes in bold)
(1) Before a legislative instrument is made under this Act, the rule - maker must be Satisfied that there has been undertaken any codesign that is:
(a) considered by the rule - maker to be appropriate; and
(b) reasonably practicable to undertake.
With the disability community and their representatives.
(2) In determining whether any codesign that was undertaken is appropriate, the rule - maker may have regard to any relevant matter, including the extent to which the codesign:
(a) drew on the knowledge of persons having expertise in fields relevant to the proposed instrument; and
(b) ensured that persons likely to be affected by the proposed instrument had an adequate opportunity to contribute across the development of its proposed content.
This would make it clear in the legislation that there is an intention during the development of any legislative instruments relating to the Act for the Minister to be satisfied that appropriate and reasonable codesign with the disability community has occurred, in line with 9A.
A Committee to develop a shared definition of codesign, and oversee its application across current and future reforms is necessary
At the same time, we request that the Government establish a standing committee with responsibility for developing a Statement of Principles for Codesign and overseeing the application of these agreed principles to effect co-design across the NDIS reform process.
This committee should have representation from the Department of Social Services, the National Disability Insurance Agency, codesign experts, and disability representative organisations.
Recommendation 2 That a standing committee of Disability Representative and Carer Organisations, representatives from the Department of Social Services and the National Disability Insurance Agency and co-design experts is established to develop a Statement of Principles for Codesign and more broadly promote and facilitate the application of codesign as prescribed across the Act.
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If the committee membership is representative of the diversity of voices across the disability community, it would address the concerns we raised regarding the department’s approach to code-design to date and establish a common definition of code-design and principles for the application of co-design between the disability and carer community, the Department, and the National Disability Insurance Agency for the first time.
The committee would be a tangible way of demonstrating that the government is committed to meaningful engagement with the disability community in reforming the scheme. It would be valuable as a resource to future Ministers and governments and serve as an example of a contemporary model of participatory democracy, and public policy innovation.
We observe that the work of the committee would have broad application across government.
The Disability Representative and Carer Organisations (DRCO) should be made into a permanent National Disability Insurance Agency reference group A further way to practically demonstrate an ongoing commitment to co-design with the disability community is to legislatively formalise the Disability Representative and Carer Organisations as a permanent reference group for the National Disability Insurance Agency. This group is already operational, has broad representation across the disability and carer cohorts, and is, by all accounts, working well. It provides an invaluable connection between NDIA decision-makers and senior staff across national disability representative and carer peak organisations.
Formalising the Disability Representative and Carer Organisations reference group as a permanent fixture of the National Disability Insurance Agency infrastructure, with appropriate ongoing resourcing, would provide ongoing assurance to the broader disability community that their representatives would be working in code-design with the agency across current and future changes to the Scheme.
Recommendation 3
That the existing Disability Representative and Carer Organisations (DRCO) reference group is legislatively formalized as a permanent NDIA reference group, similar to the Independent Advisory Council, with the aim of working in codesign with the NDIA and the Department across the ongoing refinement of the Scheme.
Deafness Forum Australia once again welcomes the opportunity to comment on the Bill on behalf of the 4 million Australians who live with hearing loss or ear or balance disorders, people communicating using Australian Sign Language (Auslan), and their families and supporters.
We invite any questions the Committee may have and do not require confidentiality for this letter, which can be made publicly available.
Yours sincerely,
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Hayley Stone National Director of Policy & Advocacy Deafness Forum Australia CANBERRA ACT
i National Disability Insurance Scheme Act 1993 (Cth) s. 4(15) i i National Disability Insurance Scheme Act 1993 (Cth) s. 4(8)