NDIA Accountability Project

Addressing barriers to consultation for people with disability and sex workers

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8th November 2021

To: Senate Community Affairs Legislation Committee
E-mail: community.affairs.sen@aph.gov.au

Submission in response to the National
Disability Insurance Scheme
Amendment (Participant Service
Guarantee and Other Measures) Bill
2021

Touching Base Inc
Contact Details

Post:  PO Box 523, Newtown, NSW 2042
Email: info@touchingbase.org
Web:  www.touchingbase.org

Who we are

Touching Base inc developed out of the need to assist people with disability and sex workers to connect with each other, focusing on access, discrimination, human rights, legal issues and attitudinal barriers. Touching Base Inc has brought the disability sector and the sex industry together in respectful and meaningful ways, through education, policy development and training workshops for disability workers and sex workers

Consultation Conduct

The consultation process has presented a number of barriers to deny full participation by people with disability and their representative organisations.

Barriers have included:

  • Consultation timeframe is too short to fully investigate and review the extensive and complex legal material.

  • Lack of resourcing within Touching Base Inc to review and respond

  • Lack of resourcing within Touching Base Inc to support members to review, understand and participate meaningfully in the consultation process

  • No Easy Read version of the proposed changes has been produced to support organisations and individuals with the preparation of a submission

  • No trust in this legislation amendment to be fair when much of the Act will defer to Rules that are subject to change and which haven’t been presented for Senators to review.

Positive aspects

We are pleased to see, as promised, the Government has abandoned:

  • Proposed changes relating to independent assessments
  • Changes to ‘reasonable and necessary supports’

Reasons for decisions

We support proposed changes to sections 100(1B) and (1C) of the Act, which allows participants to request reasons for decisions made by the Agency, prior to any internal review application.

This is a positive change toward inclusion and transparency as it facilitates understanding of decisions made about them, for individuals at the initial stage – for example, initial decisions about access or participant plans.

The Bill now requires reasons for reviewable decisions to be provided: s 100(1). Under the previous draft, participants were allowed to request reasons. This new change means that reasons will have to be provided automatically, for all ‘reviewable decisions’.

There is still no corresponding requirement for reasons to be provided once a review of the reviewable decision has been made under s 100(6). Again, we consider this should be a legislated requirement, even if in practice, reasons are often provided.

Recommendations:

  1. The proposal be expanded to include provision of reasons for decisions to be made for all participants who are subject to a decision being made about them.

  2. A provision be inserted to make this a legislated requirement. Such a provision would ensure that every decision made by an NDIA reviewer must be accompanied by a statement of reasons under s.100.

Specific areas of concern in the proposed amendments

Many of the Rules we were concerned about in the draft material presented during

consultation by the Department of Social Services, have been categorised so that they

can be changed without the agreement of States and Territories.

This is of particular concern because the Act itself gives the Rules some quite considerable powers.

Expecting Parliament to vote on legislation that gives the Rules authority without having seen the Rules in question is unconscionable .

Plan variation without consultation

We disagree with proposed changes to Section 47A if it allows plans to be varied on the CEO’s own initiative, without request, consultation, or consent from the participant.

We are also very concerned that the CEO’s power to vary plans is not constrained. As DSC have noted, “The tabled Act says that if a participant requests a variation of their plan, the actual variation completed can be different from the one requested. This means that the participant can, in theory, request a change of plan management type and end up with their AT budget altered.” redacted1

Recommendation:

  1. Extension of CEO powers be omitted; they are sufficient in their current form

  2. No variation to plans must occur without consultation with participants and the legislation must include the right to appeal

Changes to the ‘Becoming a Participant’ Rules

New requirements for determining whether a person applying to become a participant has a ‘permanent’ impairment or ‘substantially reduced functional capacity’ are unclear in their definition.

redacted: s22(1)(a)(ii) - irrelevant material https://teamdsc.com.au/resources/ndis-act-amendments-tabled

Putting new ‘requirements’ into rules is a concern because these create new barriers to entry to the NDIS. Any changes to eligibility thresholds for the NDS should be made in the Act, where Parliament can debate any changes, rather than through the rules.

Recommendation:

  1. After appropriate consultation with people with disability and their representative organisations, provide agreed upon definitions of all terms such as ‘permanent’ impairment or ‘substantially reduced functional capacity’ to ensure objective decision making.

  2. Any changes to eligibility thresholds for the NDIS should be made in the Act via democratic Parliamentary processes, rather than unilaterally through the Rules.

Increase in discretionary powers of the CEO

The CEO’s discretionary power to make various decisions and changes has been increased beyond what was recommended in the Tune Review (e.g., No. 40, subsection 101).

This lack of constraint may result in arbitrary and subjective decisions being made by the CEO, potentially resulting in inequitable participant outcomes.

Recommendation:

  1. The proposed changes be revised to reflect the recommendations of the Tune Review regarding the degree of CEO discretion granted in line with the recommendations made in the review.

Changes to Plan Management and Payment of Supports

We are concerned about proposed changes to section 45 of the Act that may well result in the inability for self-managed participants to opt out of this system and pay for their own supports first, or to mix-and-match their preferred payment method.

The drafting of new section 45 states that payment is to be made ‘to the person determined by the CEO’. While the Government has clarified that this change is not intended to remove the ability for self-managed participants to continue their existing payment method, the drafting does not make this clear.

Recommendation:

  1. We would recommend a clarification to the drafting of section 45, ensure that self-managed participants can opt out of this system and pay for their own supports first, or mix-and-match their preferred payment method. This would allow the choice and control over payment methods to stay with the participants.

Please reject the expansion of the NDIS Rules and the Minister’s rule-making powers

With the proposed changes the NDIS framework remains extremely complex, and this package of changes only adds to the complexity, with new rules and principles in disparate locations. Many of these rules overlap and are not entirely consistent. This is unwieldy and makes it impossible for participants to navigate and follow the process.The failure to present the associated Rules requires a level of trust this Government has not earned from the disability sector.

We are very concerned that these changes give the Minister and the NDIA more capacity to define and redefine the scope of their own power.

Prior unilateral Ministerial decisions to prohibit sex services being funded under the NDIS - beyond their power to make

The Australian government has been gaslighting with their statement that they have consistently rejected the NDIA funding access to sex workers as it’s not in line with community standards. This contrasts with the first Liberal NDIS Minister Mitch Fifield, who said at The National Press Club 2 in 2013:

    This issue has come up before. When the Senate was having public hearings into the NDIS legislation, this particular proposition was put: would the sorts of services that you mentioned qualify as reasonable and necessary?

     I’m not going to, I guess, give an on-the-spot ruling, but what I will say is the NDIS isn’t there to provide a range of things which individuals, whether they have a disability or not, might seek to have as part of their life. It’s there to provide supports so that they can do and achieve things which are made a little more difficult because of the disability that they had.

2 National Press Club: Mitch Fifield - Wed 11 Dec 2013, 9:47am AED

I’ll leave the comments there. Partly because, you know, I don’t want to have a headline that says, you know, “Minister says x, y, z is in, shock horror”.

So I’m going to leave it there because the essence of the NDIS is working on a plan for an individual. Is: what are the goals, what the plans, what are the objectives for an individual? And each plan will be different, each plan will be personalised, and I’ll leave it at that.

Fifield’s position is consistent with the objects of the NDIS Act, as opposed to more recent Ministers.

Christian Porter was the first Liberal Minister to overstep their power by publicly stating a ban on funding sex services, when in fact State and Territory agreement is required to rule out a specific category of support.

The AAT the case WRMF decision clearly overruled Minister Porter’s unilateral prohibition and this was promptly appealed by the NDIA to the Federal Court.

The Federal Court clarified that the NDIS Minister & NDIA could not rule out sex services as a type of support to be funded without the unanimous agreement of State and Territories 3. The appeal was dismissed and NDIS funding was granted to the tune of $10,800 a year to access sex services to the woman who won the case.

NDIS Minister Stuart Robert subsequently tried to move a rule change through the Disability Reform Council but State and Territory Ministers rejected that move and requested further consultation with stakeholders before “developing a body of work to further inform decision making.”4

On August 21st this year Minister Reynolds informed Touching Base Inc that she intended to create rules to give effect to the government policy prohibiting the use of NDIA funds to access sex services or tools, as follows:

 3 S.35(1)(b) of the Act, … enables rules to be made prescribing reasonable and necessary supports that will not be funded under the National Disability Insurance Scheme. Such rules need to have the unanimous agreement of the host jurisdictions, therefore including the States and the Commonwealth, all of which contribute funds to pay for the Scheme. The requirement for unanimity arises from s.209 of the Act." (at para 43, [7]), FEDERAL COURT OF AUSTRALIA, National Disability Insurance Agency v WRMF [2020] FCAFC 79
 4 Confirmed in verbal conversation with advisor at Jeremy Rockliff’s Office (Tas Disability Minister)

Page 8

The Australian Government’s consistent position is that using NDIS funds to pay for the services of a sex worker is not in line with community expectations or the broader intent of the NDS. The Government considers that, as for any other person, the cost of sexual services for an NDIS participant should come from their general income, which may include income support provided by the government.

…, the Government considers it appropriate to limit any exclusion in relation to sex workers solely to paid sex work or a support that uses a device for a similar purpose.

Before taking a final position on Rules to give effect to this policy, Minister Reynolds has committed to listening to the concerns raised by people with disability, their families and disability organisations, such as your own, that support them.5

Then, on 1st November this year the NDIA CEO sent us a letter confirming the Governments’ backdown on seeking legislative change to enact their desired prohibition and instead informed that the NDIA is now creating a Sex Services policy consistent with the Federal Court decision WRMF .

The National Disability Insurance Agency (NDIA) is aware of the issues raised in your letter. The NDIA had been considering these further in light of the Government’s legislative intentions. The current legislative reform, included in the NDIS Amendment (Participant Service Guarantee and Other Measures) Bill 2021, will implement significant improvements for participants, their families and carers by reducing red tape, increasing flexibility and clarifying timeframes for decision-making by providing for the Participant Service Guarantee. They do not address the funding of Sexual Services by the NDIA.

The NDIA has continued to progress the development of a Sexual Services policy consistent with the outcomes of WRMF, and is currently working through implementation requirements. This includes consideration of any safety and regulation requirements for the delivery of such supports, and will require the Agency to work with our colleagues in the Department of Social Services and the NDIS Quality and Safeguards Commission.“ 6

What is disturbing in this news

What is disturbing in this news is that the NDIA Sex Services policy is now being prepared without consultation from the stakeholders promised by the Minister, and requested by State and Territory Ministers on the Disability Reform Council.

This raises the following important questions we have asked Senator Steele-John to put to the Federal Community Affairs Committee:

  • Considering Minister Reynolds and NDIA CEO’s recent public emphasis on the importance of co-design with people with disability, could you please inform us what consultation has occurred to date between the NDIA and relevant stakeholders, such as peak disability organisations and Touching Base Inc, in the development of a Sexual Services policy?

  • If this essential consultation has not yet happened, when is it planned to occur?

  • Due to considerable stigma and discrimination experienced by sex workers, they also have particular needs around confidentiality and privacy to protect their safety. How will the NDIA ensure the Sexual Services policy addresses their safety needs?

If the amending bill goes ahead in its current form, based on prior performance, we believe that the NDIA will not create a policy to enact the outcome of WRMF, but rather utilise the new powers granted to the Minister and CEO to create new “rules” to prohibit this type of support being funded. This would be a sneaky way of getting around the State and Territories firm disagreement with the Government policy and override the precedent delivered in the Federal Court decision on WRMF.

We attached a copy of recent correspondence as evidence:

  • Touching Base letter to Minister Linda Reynolds, 10th August 2021
  • Reply from the Minister, 23rd August 2021
  • Touching Base letter to NDIS CEO, 10th August 2021
  • Initial reply from NDIS CEO, 13th August 2021
  • Secondary reply from NDIS CEO, 1st November 2021

Recommendation:

  1. Extension of Ministers and CEO powers be omitted; they are sufficient in the NDIS Act in its current form.

Additional Recommendations

Touching Base strongly recommends the following:

  • A substantial percentage of people with disability on the Board and that the Chair be a delegated position for a person with disability. That suitable supports and reasonable adjustments be made to support this structure.

  • Define the term co-design being inserted into principles so that it requires full consultation at all stages of development, with people with disability and their representative organisations.

  • Ensure that the AAT has the authority to consider all matters concerning a participant’s plan on appeal.

Acknowledgement

In this submission Touching Base has heavily drawn upon information provided by PIAC and DSC.