mee 9 Te r
. The Honourable Craig Crawford MP
“ Minister for Seniors and Disability Services and
caemeen’ Minister for Aboriginal and Torres Strait Islander Partnerships
Goverment
Our ref: 06151-2021 1 William Street Brisbane
PO Box 15397 City East
Queensland 4002 Australia
Telephone +61 7 3008 3700 Email sdsatsip@ministerial.qid.gov.au
ABN 25791 185155
Committee Secretary
Senate Community Affairs Legislation Committee
PO Box 6100
Parliament House
CANBERRA ACT 2600
community.affairs.sen@aph.qov.au
Dear Committee Secretary
| refer to the National Disability Insurance Scheme Amendment (Participant Service Guarantee
and Other Measures) Bill 2021 (the Bill) before the Senate Community Affairs Legislation
Committee (the Committee) for Inquiry and report.
As the Queensland Minister for Disability Services, | am the nominated Queensland
representative for the Disability Reform Ministers’ Meeting (DRMM). As a joint shareholder and significant financial contributor to the operation of the National Disability Insurance Scheme
(NDIS), | consider it incumbent on me to provide the following submission on two key issues,
which have been the subject of previous feedback to the Commonwealth by Queensland and
other jurisdictions, for the Committee’s consideration.
Categorisation of Rules
| particularly wish to draw the Committee’s attention to the proposed categorisation of NDIS
Rules under the Bill in relation to decision making by the National Disability Insurance Agency (NDIA) about the provision of funding, and about the variation or re-assessment of NDIS
participants’ plans.
| note the explanatory memorandum for the National Disability Insurance Scheme Bill 2012
(Cth) outlined that the categorisation of NDIS Rules is to be based on the following criteria agreed with host jurisdictions:
e Category A Rules relate to significant policy matters with financial implications for the Commonwealth, States, and Territories, and so require the unanimous agreement of jurisdictions to make or amend.
e Category B Rules relate to a particular jurisdiction, and so only require the agreement of that jurisdiction.
e Category C Rules relate to policy issues that are not expected to have a financial impact and require agreement of the Commonwealth and a majority of States and Territories.
e Category D Rules are administrative in nature, requiring only that the Commonwealth consult States and Territories before making or amending the Rules.
During public consultation on the exposure draft Bill, Queensland, other jurisdictions, and stakeholders, raised concerns about the proposed inappropriate categorisation of certain Rules to be made under heads of power created by the Bill. In particular, the exposure draft Bill categorises proposed new Rules governing the NDIA’s decision making about the provision of funding to assist participants to receive supports, and the variation or re-assessment of participants’ plans, as Category D Rules.
ee
In addition to the potential impacts on the supports available to NDIS participants, Rules made under these new heads of power created by the Bill have significant inherent policy and financial implications for NDIS’s operation. For this reason, Queensland recommended that the
Bill be amended to rightly categorise these as Category A Rules.
However, | note the Bill retains the categorisation of these as Category D Rules, as proposed
in the exposure draft. In particular, the following provisions of the Bill create heads of power to make Category D Rules under the National Disability Insurance Scheme Act 2013 (Cth): e schedule 1, item 62—in relation to Rules made under: — proposed new section 47A(6) (governing NDIA decisions about the variation of participants’ plans) as inserted by schedule 1, item 23 of the Bill — proposed new section 48(5) (governing NDIA decisions about the reassessment of participants’ plans) as inserted by schedule 1, item 24 of the Bill e schedule 2, item 53—in relation to Rules made under proposed new section 14(3) (governing NDIA decisions about the provision of funding to assist participants to receive supports) as inserted by schedule 2, item 11 of the Bill.
This has the effect of empowering the Commonwealth to unilaterally determine the substantive considerations which must be taken into account by the NDIA in making certain decisions directly impacting the allocation and use of NDIS funding, without the agreement of States and
Territories as joint shareholders in the NDIS.
During public consultation on the exposure draft Bill, stakeholders expressed concerns about the Commonwealth’s over-reliance on NDIS Rules, and particularly Category D Rules which only require consultation with States and Territories, to unilaterally make decisions which should rightly be made collaboratively. Having regard to the agreed criteria for categorising Rules—with Category D Rules to be used in relation to minor, administrative matters only and
clear stakeholder feedback on the exposure draft Bill, | consider this remains an inappropriate
categorisation of the proposed new Rules which is not supported.
Choice and control In its engagement with the Commonwealth over the measures contained in the Bill,
Queensland, like many stakeholders, has continued to emphasise the critical need for NDIS legislation to uphold the principle of choice and control in all decision making processes.
A reoccurring issue Queensland is hearing from stakeholders is that over time, legislative changes are incrementally increasing the NDIA’s powers to make decisions unilaterally.
Queensland stakeholders remain concerned the measures in the Bill empowering the NDIA to make certain decisions do not adequately uphold the central importance of participants’ active engagement in the co-design of decisions affecting them, and could result in decisions that do
not reflect participants’ goals, wishes, or choice.
For example, proposed new section 47A, as inserted by schedule 1, item 23 of the Bill, provides a broad power for the NDIA to vary a person’s plan on its own initiative. It is acknowledged the section now includes a requirement — inserted in response to feedback from public consultation — that each variation must be prepared with the participant. However, the drafting leaves open the extent to which an NDIS participant must be involved in the variation process, and does not make clear the centrality of the participant’s meaningful, active
involvement.
Queensland recommends the Committee closely scrutinise the decision making powers created by the Bill, and the feedback provided by stakeholders in this regard, to ensure choice and control is genuinely embedded in all relevant decision making processes.
me
Transparency in reporting on the Participant Service Guarantee
| note the Bill includes amendments to enable the Commonwealth Ombudsman to report
annually on the NDIA’s performance against the Participant Service Guarantee, and requires the Ombudsman’s report to be tabled in Parliament (Schedule 1, Item 55 of the Bill). To optimise transparency, and as recommended by the former Queensland Productivity Commission (QPC) in its April 2021 final report of its Inquiry into the NDIS market in Queensland, Queensland considers the legislation should further require that the NDIA’s response to the Ombudsman’s Annual Report be provided to the Disability Reform Ministers’ Meeting for discussion and tabled in Parliament. Additionally, and as further recommended by the QPC, where the NDIA has not delivered on any performance outcomes in the reporting year, the legislation should include a requirement that the Ombudsman’s report identify
proposed remedial actions. Thank you for this opportunity to contribute to this Inquiry.
If you require any further information, please contact my Chief of Staff, on
Yours sincerely
The Honourable Craig Crawford MP
Minister for Seniors and Disability Services and
Minister for Aboriginal and Torres Strait Islander Partnerships
is / )) 2021
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