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Sophie on the NDIS changes

4 March, 2024:

I rise in support of the broad intention of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024, but, after consultation with many in the disability community, I have significant concerns that there is the chance for unwanted and unintended consequences with this bill. It is well known that, since its introduction almost 11 years ago, the cost, structure and operation of the National Disability Insurance Scheme has become unsustainable. The NDIS has been stretched to its limits largely because it has expanded to provide services for conditions it was never intended to cover. It is generally agreed that something has to change, and this bill aims to start that process of change.

It is also well known that the NDIS has absolutely transformed the lives of hundreds of thousands of people with disabilities. It has been described as one of the most complex and ambitious pieces of public policy in the world. It is truly an example of progressive social and economic policy that this country can be proud of. Ensuring its continuation and sustainability should be one of our nation's top priorities.

I was pleased to see that, when this government was elected in 2022, it set about a process of understanding the problems with the NDIS. It commissioned a yearlong review, and the 329-page report of this review outlines 26 recommendations to be implemented over the next five years. Of the review's 26 recommendations, the very first was that the Australian government, along with the state and territory governments, should jointly invest in foundational disability supports, with particular investment in supports for children with disability and developmental concerns. This was recommended so that the NDIS would no longer be the sole source of disability support and, therefore, the federal government would no longer be the sole source of funding for it.

By way of a bit of background to this proposed change, when the NDIS was introduced, state and local governments gradually abandoned the vast majority of services they once provided to people with disability. Those services comprised what are known as 'foundational supports', and people were previously able to access those supports through local and state services without needing to apply to be a participant in the NDIS. Ten years on, however, the NDIS has had to completely take over responsibility for those foundational supports from the states and territories. This has contributed in a major way to the NDIS becoming unsustainable.

The recommendations stemming from the NDIS review aim to reverse this change and to make the state and federal systems work better together. Once the report was released, National Cabinet agreed that the states would double their annual contributions to the NDIS in return for the federal government paying for half of the foundational supports. As part of the restructured NDIS, these foundational supports would again be provided by state based institutions and systems, including schools, early childhood centres and health care. Then, in the first half of this year, the federal government set about drafting this first tranche of legislation, implementing the recommendations of the review, and this is the bill we're debating today.

But there are some very troubling things going on in the NDIS right now, even before this legislation has passed. My office is been swamped with pleas for help from desperate constituents. In addition to the well-known problems with the administration of the operation of the NDIS through the NDIA, resulting from a decade of neglect by the previous coalition government, this current government seems to have commenced already a process of slimming the NDIS down. This has taken the form of participants, including in my electorate of Mackellar, receiving letters from the government informing them that their participation in the scheme is going to be the subject of a review—not a review of their plan or the budget they receive but their eligibility to be a participant in the scheme at all.

Further, some letters go on to require specialist medical reports for the purpose of the review, to be provided within 28 days. Anyone who has had to receive specialist medical treatment lately would know it's barely possible to get an appointment, let alone a report, within 28 days. These letters have been received by families with members who are significantly and permanently disabled. To think that they could do the work necessary to participate in a full-scale eligibility review within 28 days is unthinkable, and extremely stressful for these people—terrifying, actually, to be told that within 28 days your child, your mother, your uncle or even you could be cut off from every support you currently receive. I urge the minister for the NDIS to look into these reports urgently, to ensure that no more Mackellar families, or families from around Australia, find themselves in this distressing situation.

But back to the bill. As I said at the outset, I support the intent of this legislation, because everyone agrees that something has to be done to keep the NDIS viable. But there is a raft of issues with it, expressed most emphatically and pertinently by the disability community. When the final report of the NDIS review was released, Disability Advocacy Network Australia, Dana, alongside other disability representative organisations, stated: continued access to support for people with disability is necessary and non-negotiable. Any changes to how support is provided, either inside or outside the Scheme, must not lead to any gaps in the support we receive.

Unfortunately, in Dana's view, this legislation does not meet that stated imperative. It considers that it will potentially raise the cost of the NDIS and shut people out of vital support. And Dana is far from alone. I mention them as one example of what has become a chorus of concern reaching out to my office. The fundamental complaint about the bill from disability advocates is that there is no way to assess the full impact of the proposed changes because so much of it will be contained in subsequent delegated legislation which is not yet drafted. This means that the federal minister and the states will have the power to develop crucial new elements. The government has also stated that it failed to legislate its intention to develop the detail of the bill in consultation with the community. The disability community is deeply troubled by this, and insists that meaningful codesign of changes is so important that it must be written into the primary legislation.

There are other, more detailed, complaints about the legislation which are common in the disability community. They include that there is a fundamental lack of capability within the NDIA to implement this bill and that it is built on untested assumptions of automation. When we say 'automation' here, we're not talking about a new computer system but a fundamental change to the foundations of the NDIS which introduces new processes and concepts not yet legislated that will impact over 600,000 participants, thousands of providers and hundreds of thousands of other people caught up in the NDIS ecosystem. More than one person with knowledge of both systems has compared what is now being proposed for the NDIS with the automation that underpinned robodebt.

Another concern is that the new needs assessment tool has no detail, and the disability community has again not yet been consulted. The tool will only assess disability, not medical needs, and the current proposal suggests that either an allied health professional or a social worker will conduct the needs assessment. Social workers have a crucial role in the disability ecosystem but are not qualified to be conducting needs assessments. There is also a significant and troubling change to the definition of 'reasonable and necessary' in the bill—a well-established core concept under the current NDIS legislation.

One of the most concerning areas of change is with the process to review participant rights and plans. This draft of the legislation makes it possible for participants to be cut off from the scheme if their plan is subject to a review and they (a) fail to provide requested information within 90 days or (b) fail to have a required medical assessment within 28 days of it being requested of them. I've already commented on the difficulties my constituents are having with this section of the bill even prior to it being passed. In addition, disability advocates are confused as to whether participants' plans will be reviewable or not, including the needs assessment, which forms the entire basis of participants' supports.

The states too are worried. Despite having struck a deal in December with federal government to fund foundational supports on a fifty-fifty basis, state premiers and territory chiefs consider that the changes proposed in this bill go further than what was agreed. In a joint letter to the minister just a couple of weeks ago, all the premiers and chief ministers said: The Bill will make immediate and fundamental changes to the way the NDIS operates, including how access to the Scheme is determined, how participant needs are assessed and how participant budgets are set.

We are deeply concerned that this way of going about the reform—including through this Bill—will lead to worse outcomes for more Australians with disability and their families.

In summary, I understand the need to reform the NDIS to make it sustainable, but I am concerned that this bill, as currently drafted, may have unintended consequences for participants. I would urge the government to hasten slowly, listen deeply to the concerns of the disability community and make sure we get this right. I would like at this moment to also thank the minister for his commitment to the NDIS and for his generous consultation with the crossbench. Thank you.