Bill Shorten (Maribyrnong, Australian Labor Party, Minister for the National Disability Insurance Scheme) Share this | Hansard source

I might briefly reply to the member for Curtin's submissions on behalf of the member for Kooyong, who couldn't be with us. I acknowledge that both members, including the crossbench, have been very interested in NDIS development, and I appreciate the constructive discussions we've had. There'll be a subsequent amendment, which I think we agree on and which the crossbench is moving, but some of the government amendments that we just voted on did actually reflect some of the issues. They were an attempt—perhaps imperfect—to meet the crossbench concerns halfway. So some of the amendments we've already voted on go to some of the issues somewhat that the member for Curtin was raising.

Specifically, with regard to the proposed amendment to section 32H, we think that the test of 'unduly burdensome' is difficult to apply. We think it could defeat the purpose of the provision, which is to support agency commissioned supports. We're trying to deal with a situation where there are thin markets. We are not restricting choice and control, but the reality is that, where there are thin markets in regional and remote Australia, we need to look at direct commissioning, and that's what this is about.

With regard to the amendments to section 32K, we've tried to meet that halfway. I'm a believer in co-design and co-production with people with disability. That's what I've been doing for 17 years in this House. We accept the crossbench proposition that they'd like to see more focus on it. We feel the extent that this specific amendment goes to creates a legal risk of precedent setting across the government, but we have just voted in the House to ensure that a specific reference to considering the principle of co-design has to be taken into account.

With regard to the amendment to section 32L, the reason we don't like it, in shorthand, is that we think it creates an opening of the floodgates for the health system to transfer their costs into the NDIS, which is already a challenge. That's the substance of why we don't want to create expectations that the NDIS could fund support needs outside the scope of the NDIS and not relate it to impairments to meet the disability or early intervention requirements.

With regard to the amendment of section 32L, we've tried to cover that already in a different form with the last of our amendments that we just voted on. Our issue with why we couldn't quite go to the extent that the crossbench would have liked in this amendment is that we don't know the form of needs assessment there will be, and we therefore don't know the form that the reports will take. It's likely that the report will simply reflect the content of the needs assessment without providing commentary on it, so involvement of the participant may not be needed at that the point when they have a requirement to be involved either before or at the conclusion of the assessment of the plan. Potentially, the issue driving this amendment could be addressed by amendments confirming that a support needs assessment is provided to the participant with an opportunity to comment, and that's what we'd seek to do.

With section 32L(7), the next amendment, I worry that what we want to discourage is what you would call doctor shopping. That's essentially where people move between report writers until they get the report they want. We want to have a proper assessment, and we want a transparent assessment which the participant can agree to, disagree to or modify, but there is an issue now of people shopping around, and we just want to take that moral hazard off the table but still give the participant empowerment in the process, which is what we're doing.

With regard to the amendment to section 32L allowing the minister to determine the needs assessment, we worry that there's some legal risk with that. We think that the amendments are too vague; therefore, I'm advised that the risk is not insubstantial. We will consult. We already have a co-design requirement under subsection 4(9A) of the NDIS Act, as well as under the Legislation Act. We will work on talking with disability organisations, but we don't think this amendment is necessary to tell us to do that.

With regard to the amendment removing section 34(1)(aa), this paragraph provides that a reasonable and necessary support in an old framework plan must be necessary to address the needs of the participant arising from an impairment in relation to which the participant meets the disability or intervention requirements. This is a lever by which we can help make sure that the NDIA can constrain funding for impairments that would not be most appropriately supported through the NDIS.

The proposed amendment (11) doesn't prevent the CEO from making a further request, because we're not sure that that amendment would achieve the apparent policy approach.

With regard to the insertion of a new circumstance which is a variation of a participant's reasonably assumed budget, we think that this circumstance was not included for the new framework plans as it can fuel intraplan inflation.

We're trying to make sure that we respect where the amendments are coming from, but we also think that we've met them partway.

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