Disability advocates and law experts concerned over new NDIS Bill

Law experts and advocates are sharing their concerns with the Senate Community Affairs Legislation Committee over the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021.

The first hearing into the Bill was held on Friday, with not only disability advocacy organisations and lawyers appearing, but also State and Territory Government representatives, Department of Social Services employees and the current and former Chief Executive Officers (CEOs) of the NDIS.

The Bill as it stands would allow a CEO of the National Disability Insurance Agency (NDIA) to change and influence what supports are funded across the scheme, according to Principal Lawyer at Maurice Blackburn, Tom Ballantyne.

“It does nothing to engender trust and does nothing to engender confidence in the scheme,” Mr Ballantyne says.

“It could be used to narrow the ability of people to enter the scheme and [their ability] to challenge decisions.

“The reality is if the power is there it might go in with best intentions but there’s no guarantee that future decisions would be made with those intentions.”

The Department of Social Services (DSS) says the reason behind giving the CEO of the NDIA the extra power to change a participant’s plan without the participant requesting it, is to enable minor administrative changes to be made without a full plan review.

DSS says this will remove some of the administrative burden of the review process for small changes to plans and will allow for supports to be arranged more quickly when needed.

But Senior Lecturer in Administrative Law at La Trobe University, Dr Darren O’Donovan, says while there are the “bones of a good Bill” in the drafted legislation, he is concerned about the “vague rules” surrounding it and the “unhealthy discretion” built in for the CEO.

“There are parts of this package that are just a bit too unstable,” he explains.

“Fundamentally what the Department calls flexible, I call power, and what the Department calls details for later, I call uncertainty.”

Critics are worried the Bill, if passed, will provide the CEO of the NDIA with the opportunity to cut plan funding to meet financial targets or restrict the cost of the NDIS.

When the CEO of the NDIA, Martin Hoffman, faced the Committee hearing, he denied that the Bill would give him any more power than what he currently has.

However, the rules which will be linked to the proposed legislation and outline the specifics of what Mr Hoffman’s powers will be are still being drafted.

Members of the Senate Committee criticised the DSS for not having the rules ready to be analysed.

The Department has committed to giving the drafted rules to the Senate before Senators are asked to vote on the Bill, but the Senate Committee may have to report before the rules are finalised.

Mary Henley-Collopy, Expert Consultant on the NDIS with the Australian Federation of Disability Organisations (AFDO), has concerns with the lack of understanding of the lived experience of people with disability which the Bill seems to embody.

She says if she loses NDIS support hours under the new legislation, because of powers given to the CEO of the NDIA, she could be forced into an aged care home.

“I am troubled by the absence of rules at this point of the legislation process,” Ms Henley-Collopy says.

“I am troubled by the drift towards administration and legislative efficiencies that shapes the support I can receive.”

Disability advocacy organisations, including AFDO, the First Peoples Disability Network and People with Disability Australia, outlined to the Committee their concerns about the lack of consultation involved in the Bill and the short timeframe for the Bill’s public consultation period.

Public consultation was capped at four weeks, which organisations say was not long enough to read and understand the legislative documents, let alone ask for feedback from their communities.

Australian Capital Territory Government Minister for Disability, Emma Davidson, told the Committee hearing the short consultation period also impacted State and Territory Governments.

She explains that with much of the east coast of Australia in lockdown, the short deadline was even more difficult to meet because resources were tied up supporting people with disability caught in lockdown.

“It wasn’t just the vaccinations. It was also trying to provide intensive case support for people who were NDIS participants that had either become close contacts or were COVID positive, and workforce support making sure that everyone was trained with PPE [personal protective equipment],” says Ms Davidson.

During the Committee hearing, DSS Group Manager of NDIS Participants and Performance, Peter Broadhead, confirmed requests to extend the consultation period had been received but defended how the consultation process was run.

However, many of the representatives who were part of the hearing agreed the Bill should not be passed without amendments, which was summed up by the first CEO of the NDIA, Bruce Bonyhady. 

“The Bill is not consistent with the vision of the NDIS, it’s not consistent with the founding principles, so it must not go ahead in its current form,” he said.

“For the NDIS to work as efficiently as possible we have to get the legislation and the rules right.”

The Committee is expected to report to the Senate on its findings about the Bill on 25 November.