Abridged version: 5–7 key areas of the bill below you could focus your submission on. I hope this helps save some spoons

  There are no whistleblower protections written into the new NDIS Act changes. This
     is despite a decade of systemic reports of NDIA staff misconduct across all the
   functions of the agency.

   Broadly, the stated intention of the Act is to stop fraud and protect the “financial
    sustainability” of the Scheme, as well as clarify and simplify processes for applicants
  and participants of the Scheme.

  As explained here, without adequate whistleblower protections, that will not happen:

   https://www.hrlc.org.au/submissions/2024/06/12/ndis-act-reform

   Without first cleaning house and providing adequate avenues to report legal
  misconduct that will be investigated (and more importantly published), the Scheme
     will continue to be financially unsustainable.

Senate Committee is taking submissions until this Friday 12 July Focus on Share 1 lived experience 1–2 sentences or paragraphs are all we need GUIDE Agreed Ok ~ Amended/final proposal Next committee review X disagree

FOCUS• Needs ASSESSMENT priority issue for the community• fails to assess and fund participants at a ‘WHOLE OF PERSON’ level•X proposes that needs assessment and budget-setting method would be limited to considering needs that stem from IMPAIRMENTS that meet the EI or DISABILITY requirements for entry to the Scheme. X imposes artificial distinctions in the way a person with multiple and interrelated disabilities accesses supports X could result in them receiving inadequate funding for supports

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NOTHING has been amended or proposed so disability community has raised seriousconcerns• about this part of the Bill amendments proposed in the House of Representatives by Dr Monique Ryan MP-did• not get Gov support at that time Gov since responded to the community’s strong calls this issue be addressed.• In Senate Gov proposed amendments to clarify that needs assessments and budgetcalculations• will take into account a participant’s support needs:

• arising from an impairment that meets the disability or early intervention requirements; and
• where that impairment is impacted by another impairment that does not meet the disability or early intervention requirements Supplementary Explanatory Memorandum explains an impairment may be ‘impacted’ where it is ‘compounded or changed by other factors’.

Gov also proposed a similar amendment when determining whether a support is‘reasonable• and necessary’ for old framework plans.

Senate yet to consider and vote on these proposed amendments.• These amendments would bring the Bill more into line with the intentions of the Scheme,recommendations• made by the NDIS Review and the Joint Standing Committee on the NDIS, as well as decisions of the AAT regarding the need to take a whole of person approach to funding.

For this to workBill• still needs to be amended to ensure participants are told which of their impairments the NDIA believes meet the disability or early intervention requirements.

Right to receive needs assessment reportMany• concerns Bill did not give participants the right to view and comment on their needs assessment report before it is finalised

NDIS participants do not have a legislated right to make sure that information considered in needs assessment and budget calculations is not “incomplete, out-of-date, incorrect, or misleading”.

There is not a legislated process or right of review to fix flawed information in a needs assessment or budget calculation.

Participants do not have a legislated right to see the information used in needs assessment and budget calculations.

There is no enforcement mechanism if a NDIA delegate doesn’t comply with the agreed-upon protections in the bill.

• There is no express statement in the legislation that a decision that is not undertaken “with” the participant and that is not “collaborative” is invalid and cannot be enforced by the Agency 1
• There is no express statement in the legislation that the Agency must communicate with the participant using the participant’s preferred mode of contact and if they undertake a decision after only utilizing “other” modes that the participant rejects then the decision is invalid and cannot be enforced by the Agency.
• There is no express statement in the legislation that a decision that is undertaken without first giving the participant a copy of the needs assessment and allowing a “reasonable” period for consultation with the participant is invalid and cannot be enforced by the Agency.
• There is no express statement in the legislation that a decision that does not consider all impairments that “impact” a participant’s disability is invalid and cannot be enforced by the Agency.

Furthermore, Bill Shorten stated in 2023 that he believed any “AI” used in the planning process should be “transparent” and “open source”.

There is no requirement for either transparency in the AI algorithm or an open source release of all programming code used in these calculations.

https://www.itnews.com.au/news/automated-ndis-assessments-to-stay-but-wiih-huma n-element-593388

Algorithmic transparency

Shorten said yesterday that there “should always be an ethical framework around the use of AI” as well as transparency into how it is coded and implemented.

“My view is it should be ideally, wherever possible, open source so that people can see what’s going in,” Shorten said.

“And the best protection of data is to co-produce with citizens…the more that citizens feel they can control their own data, the more they trust the government.”

1 It should be made clear that non-collaborative decisions can be made where a person is incapacitated due to medical or mental health crisis, or the Agency cannot reach them via multiple attempts using the person’s preferred contact method as well as through other channels they may have recorded in the person’s file. Exceptions of this sort cannot be used to (for example) to attempt a single phone call from an unidentified “private number” and then tick-and-flick the decision, when the participant has stated all contact should be by email.

However, NDS users and applicants remain in the dark about how algorithms assess their eligibility or review the level of support they receive.

A requirement to disclose the actuarial information the Agency relies on (for “transparency”) and to open-source all AI software used by the Agency (or relevant contractors) should be written into the primary legislation.

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(E: Replacement assessments Bill did not initially make clear what rights a participant would have to challenge or replacean\ inappropriate needs assessment. rased as a concern by many submissions to the initial Senate Committee inquiry. Gov made several amendments to clarify how the Bill would approach needsassessments\ amendments and accompanying Explanatory Memoranda clarified that a needsassessment\ itself would not be subject to review. lly because it would be too difficult for an NDIA reviewer (on internal review), or aTribunal\ member (on external review), to review the method or conclusions within a report without the skills and expertise of the health professional who prepared it. say if a participant is unhappy with conclusions in their needs assessment report, theycan\ request a replacement needs assessment. Gov amendments also subtly shifted the legal test for considering whether to order areplacement\ needs assessment. Initially, NDIS Rules were to prescribe when a replacement needs assessment could bearranged. Now amendments enable a replacement needs assessment to be arranged where theCEO\ ‘is satisfied…it should be undertaken’ NDIS Rules may still dictate how the CEO decides whether or not it should beundertaken. Amendments also made clear that if a participant disagrees with the funding provided intheir\ NDIS plan, they can seek review of that funding decision; and an internal reviewer or Tribunal member would have the power to order a replacement needs assessment as part of that review process. However, a decision as to whether or not to order a replacement needs assessment would not be a reviewable decision. (E: other amendments proposed? nDS Rules could still shape or curtail the circumstances in which a person can get areplacement\ needs assessment, many submissions (including ours) pressed for the Bill to clearly define a participant’s right to a replacement needs assessment. In the House of Representatives, Dr Ryan proposed an amendment that would have established a participant’s right to obtain a replacement assessment upon request. This amendment would not have required a participant to show any problem with the initial assessment.

• Dr Ryan also proposed an amendment to allow a participant who had requested a second (or subsequent) replacement assessment, but had that request refused by the NDIA, to seek review of that decision.
• these amendments aligned with community submissions recommendations about replacement needs assessments Both amendments were not passed by the House of Representatives.• participant’s right to at least one replacement assessment should be legislated in the Bill. Participants should have a right to undertake a replacement assessment with their choice of health provider (or treatment team of providers in complex cases dealing with multiple impairments). They should not have to show any problem with the original assessment. There is no enforcement mechanism if a NDIA delegate doesn’t comply with the agreed-upon protections in the bill.
• There is no express statement in the legislation that a decision that is undertaken after denying a participant at least one replacement needs assessment is invalid and cannot be enforced by the Agency. There is no other government insurance plan or “sickness benefit” that excludes consideration of medical information from a sick, injured, or disabled person’s treatment team (including their GP, specialists, and/or allied health providers). There is no other government insurance plan or “sickness benefit” that excludes the right to external review of the medical information/opinions utilized in the decision. ‘Exceptional circumstances’ for additional funding
• Bill proposes preventing the NDIA from paying any money in relation to a participant’s NDIS plan if the participant has already spent their allocated funds. NDIA would only provide additional funding to a participant if ‘exceptional circumstances’ as defined in NDIS Rules applied meant that until those Rules were made, there was a risk the NDIA would be legally barred from providing additional funds to a participant who urgently needed supports. NDIS participants do not have a legislated right to have exceptional circumstances include where a delegate willfully prepares a plan that will not meet the participant’s needs. This includes where the delegate does not undertake a holistic consideration of the participant’s entire disability to include all impairments, including any that do not meet the access requirements. Information-gathering powers

concerns about the proposed new and broad powers allowing the NDIA to requestinformation• or documents from a participant (including by way of a mandatory medical assessment), and the consequences of not complying with such requests. concerns were echoed in many other submissions from the disability community to theSenate• Committee Inquiry. Bill has been amended to limit when the NDIA can compel a participant to undergo amandatory• medical assessment if the NDIA is considering whether to revoke their participant status. amendments mean the NDIA could only use these powers where the information couldnot• be reasonably obtained in any other way. While this is an important constraint, the NDIA will still be able to require mandatorymedical• assessments for the purposes of preparing an NDIS plan.

  The Agency should not be empowered to seek mandatory medical assessments
  where there is no corresponding right to review the contents of those assessments
   before they are relied upon and to also test the soundness of the assessments by
  way of putting the same information before the disabled person’s choice of doctors or
    their treatment team (including their GP, specialists, and allied health providers).

  The financial costs to test the soundness of Agency-sourced medical assessments
   should be borne by the Agency.

  The inability to see or test these reports is a huge breach of procedural fairness and
   natural justice. Procedural fairness is a common law right of all Australians in
  Commonwealth administrative decision-making. All other Australians have an
   inherent right to be informed of the evidence that will be relied on in administrative
   decisions, to be granted the opportunity to make submissions in response to that
   evidence, and to be granted adequate time to seek and prepare those submissions.

  Even in Migration/Visa administrative law, which has among the narrowest and least
   enforceable rights, there is still at least a tattered framework of procedural fairness
   available to the aggrieved person.

  There is no clearly worded statement in the changes to the NDIS Act of Parliament's
    intention to deny disabled people their right to procedural fairness. However, the
  changes as written (and in the absence of being provided copies of relevant
   information and being denied review rights of interim stages in the planning decision)
    result in a constructive denial of procedural fairness.

   This breaches rights under the Constitution as it denies judicial power. The High
   Court has re-stated many **hundreds of times** in the history of Australian
   jurisprudence that if Parliament intends to interfere with fundamental rights (such as
   the right to procedural fairness), it must be clearly and unambiguously stated in the
    legislation as passed.

There are no clear and unambiguous statements in the changes to the NDIS Act that Parliament is stripping disabled peoples’ entire right to procedural fairness where they require access to the NDIS.

As per: hhttps://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by -commonwealth-laws-alrc-report-129/14-procedural-fairness-2/procedural-fairness-th e-duty-and-its-content/

        14.11 ‘Procedural fairness’ means acting fairly in administrative decision
        making. It relates to the fairness of the procedure by which a decision is
       made, and not the fairness in a substantive sense of that decision.[12] A
        person may seek judicial review of an administrative decision on the basis
           that procedural fairness has not been observed.[13] In Re Refugee Tribunal;
      Ex parte Aala, the High Court held that the denial of procedural fairness
      by an officer of the Commonwealth, where the duty to observe it has not
      been validly limited or extinguished by statute, will result in a decision
     made in excess of jurisdiction and thus attract the issue of prohibition
       under s 75(v) of the Constitution.[14]

Gov proposed further amendments in the Senate require requests for information tobe made in writing, as well as adding legislative notes •to clarify the NDIA can withdraw or vary a request for information The amendments also list several factors the NDIA must consider in deciding whether itwas• reasonable for a participant to have failed to comply with an information request Consequences for non-compliance (a person’s NDIS participant status being revoked, orthe• suspension of their current NDIS plan and new plan preparation processes) would only apply if, after considering these factors, the NDIA decided the non-compliance was not reasonable. The factors include:·•how long the person was given to comply with the request; · whether the person has previously failed to comply with requests for information; · if the NDIA has other recent information they could rely on (instead of the requested information); · if the non-compliance was beyond the person’s control because they hadn’t been able to obtain the requested information in time. NDIA would also have to consider any other factor it thought was relevant, as well as anyother• factor listed in NDIS Rules for this purpose. These amendments provide some further clarity and protection against harshconsequences• of information-gathering requests. The Senate has not yet voted on these amendments.•X these amendments do not constrain the range and types of requests for information the NDIA can make; they only limit the risk of a participant facing adverse consequences for non-compliance.

• X The NDIA would still be allowed to request a very broad range of information; and
• decisions on how to respond to non-compliance may not take into account reasons why a
• participant might be reluctant to comply with an NDIA request (such as if the request was
• invasive, distressing or expensive).

Senate Committee Inquiry report recommended the ‘Government further clarify thecircumstances’\u2022 under which the NDIA’s new powers will be used.

One way this recommendation could be implemented would be through Governmentproposing\u2022 further amendments to the Bill and providing further detail in Explanatory Memoranda. This has not yet happened

Please see above - these powers breach NDIS applicants and participants fundamental right to privacy.

The legislation in this case does clearly state that it intends to violate the rights of the disabled where they require access to the Scheme.

The legislative changes do not clearly state that there is no right to procedural fairness. However, there is no legislative process to access a fair decision, nor any way to appeal it if an unfair decision is made.

There is no enforcement mechanism if a NDIA delegate doesn’t comply with the agreed-upon protections in the bill.

• There is no express statement in the legislation that a delegate fails to provide positive evidence of having had an adequate level of “regard” for all the elements necessary before requesting information, then the request is invalid and cannot be enforced by the Agency
• There is no clearly worded legislated alternative, such as being able to bring such decisions to the Commonwealth Ombudsman’s office and the OCO being empowered to enforce compliance with the NDIS Act.

Q: Constraints on obtaining supports, spending funds and plan management -X The Bill proposes new powers allowing the NDIA to impose conditions on how a participant obtains supports, restrict spending of flexible funding, or override a participant’s plan management request. Many in the disability community have expressed concern that these powers are too broad.

community called for the Bill to provide more guidance and safeguards on their use\u2022 An amendment from Dr Ryan proposed that the power to impose conditions on how aparticipant\u2022 obtains supports should only be used by the NDIA where it is ‘reasonably necessary’ to achieve a specific purpose consistent with the objects of the Scheme, and where to do so would not be ‘unduly burdensome’ for a participant

Dr Ryan’s amendment reflected the substance of our recommendation to the SenateCommittee\u2022 However, this amendment was not passed by the House of Representatives.

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The Senate Committee acknowledged the community is very concerned about the potential• impact of these new powers and recommended the Government provide clarity on the circumstances in which the new NDIA powers will be used. The Government has not introduced amendments or provided further clarity on these other• new NDIA powers.

This leaves NDIS supports and funding at the whim of the Minister of the day.

It breaches fundamental rights without clearly stated legislative intent to withhold those rights.

It breaches the fundamentals of contract law:

• It fails to take into account the superior resources of the Commonwealth and inability of NDIS participants to band together to negotiate for fair rights.
• It allows for repeated retrospective changes to NDIS supports.
• There is no express legislated requirement that participants be informed of changes to NDIS supports in language they understand before they are required to comply with Ministerial changes.
• The agreement for the provision of a lawfully decided plan is only enforceable against participants. In other words, there is only a legislated process to deny a participant a right to a lawful plan. Participants have no corresponding avenue to enforce their enumerated rights in the legislation against the agency.
• It allows punitive measures in excess of what is reasonable or ordinary in equivalent circumstances up to and including withholding access to vital assistance with activities of daily living (including eating, toileting and showering/bathing, being dressed, transferring from beds to other furniture) unless a participant lives with strangers (even where co-residence is unsafe), accepts services from providers who have subjected them to physical or sexual assault, harassment, bullying, unregulated restrictive pracices, financial coercion, or theft.
• There is no avenue of remedy or appeal if the agency deems that services will be withheld if the participant does not comply with relocation to live with strangers and/or accept services from unsafe and abusive providers.

The NDIA makes decisions everyday to deny vital services, withdraw access to self-management or plan management where there is no “debt” that has been confirmed in a “court of competent jurisdiction”, and orders participants to live with strangers or accept services from unsafe providers.

The argument that this unlawful, unsafe, and frankly sadistic behavior will stop with the proposed changes to the NDIS Act is nonsensical and the Senate should return the legislation to the House until it is re-written to respect fundamental rights, allow for merits reviews of all relevant exercises of power, provide adequate enforcement of aggrieved person’s rights, provide statutory penalties for NDIA staff (and contractors) who fail to comply with the Act, and protects whistleblowers.