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

I present two supplementary explanatory memoranda to the bill. I ask leave to move government amendments (1) to (8) on sheet PA110 and government amendments (1) to (21) on sheet SK113, as circulated, together.

Leave granted.

I move:

SHEET PA110

(1) Schedule 1, item 30, page 10 (line 24), before "that the participant", insert "subject to subsection (3A),".

(2) Schedule 1, item 30, page 10 (after line 32), after subsection 30(3), insert:

(3A) The CEO must not request that the participant undergo an assessment under subparagraph (3)(b)(i) or an examination under subparagraph (3)(b)(ii) unless the CEO is satisfied that the report of the assessment or examination would provide information that the CEO cannot otherwise reasonably obtain.

(3) Schedule 1, item 31, page 12 (line 30), before "that the participant", insert "subject to subsection (5A),".

(4) Schedule 1, item 31, page 13 (after line 5), after subsection 30A(5), insert:

(5A) The CEO must not request that the participant undergo an assessment under subparagraph (5)(b)(i) or an examination under subparagraph (5)(b)(ii) unless the CEO is satisfied that the report of the assessment or examination would provide information that the CEO cannot otherwise reasonably obtain.

(5) Schedule 1, item 36, page 25 (line 34), after "subsections 4(5)", insert ", (9A)".

(6) Schedule 1, item 36, page 27 (after line 18), after subsection 32L(6), insert:

(6A) The CEO must give the participant a copy of the report as soon as practicable after the CEO receives the report.

(7) Schedule 1, item 36, page 28 (after line 8), at the end of subsection 32L(7), add:

Note: In reviewing a decision to approve a statement of participant supports, a reviewer or the Administrative Appeals Tribunal has all the powers of the CEO in making the original decision and must therefore arrange for a replacement assessment to be undertaken if satisfied as mentioned in paragraph (b) (subject to any applicable National Disability Insurance Scheme rules).

(8) Schedule 1, item 36, page 28 (line 27), after "subsections 4(5)", insert ", (9A)".

_____

SHEET SK113

(1) Schedule 1, item 4, page 3 (lines 23 to 25), omit the definition of funding component amount,substitute:

funding component amount, for a group of reasonable and necessary supports funded under an old framework plan, has the meaning given by paragraph 33(2A)(c).

(2) Schedule 1, item 4, page 4 (lines 4 to 7), omit paragraph (c) of the definition of funding period, substitute:

(c) for funding provided under an old framework plan for all reasonable and necessary supports, or a group of reasonable and necessary supports, funded under the plan—has the meaning given by paragraph 33(2A)(d).

(3) Schedule 1, item 6, page 4 (line 14), omit "section 10", substitute "subsections 10(1) and (4)".

(4) Schedule 1, item 13, page 5 (line 25), omit "specified in", substitute "funded under".

(5) Schedule 1, item 14, page 6 (line 1) to page 7 (line 7), omit section 10, substitute:

10 Definition of NDIS support

Supports that are NDIS supports

(1) Subject to subsection (4), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for:

(a) participants or prospective participants generally; or

(b) a class of participants or prospective participants that includes the person.

Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

(2) Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:

(a) for rules to which paragraph (1)(a) applies—that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

(b) for rules to which paragraph (1)(b) applies—that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

(3) National Disability Insurance Scheme rules may declare a support for the purposes of subsection (1) only if at least one of the following applies:

(a) the declaration of the support implements Australia's obligations under:

(i) the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or

(ii) any other agreement with one or more other countries;

(b) the declaration of the support enables the provision of sickness benefits.

Note: For subparagraph (a)(i), the Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No. 12 ([2008] ATS 12) and could in 2024 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

Supports that are not NDIS supports

(4) The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:

(a) participants or prospective participants generally; or

(b) a class of participants or prospective participants.

Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

(5) Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (4), the Minister must be satisfied:

(a) for rules to which paragraph (4)(a) applies—that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

(b) for rules to which paragraph (4)(b) applies—that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

(6) Schedule 1, item 36, page 21 (after line 7), at the end of subsection 32E(4), add:

Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

(7) Schedule 1, item 36, page 27 (lines 25 to 27), omit "in accordance with National Disability Insurance Scheme rules made for the purposes of this paragraph".

(8) Schedule 1, item 36, page 28 (after line 8), after subsection 32L(7), insert:

(7A) The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of paragraph (7)(b), including by prescribing:

(a) circumstances in which the CEO must or must not decide under that paragraph that another assessment should be undertaken; or

(b) requirements with which the CEO must comply, methods or criteria that the CEO is to apply, or matters that the CEO may, must or must not take into account, in making a decision under that paragraph whether another assessment should be undertaken.

(9) Schedule 1, item 39, page 29 (line 13) to page 32 (line 12), omit the item, substitute:

39 After subsection 33(2)

Insert:

Total funding amounts, funding component amounts and funding periods

(2A) In addition to the matters mentioned in paragraphs (2)(a) to (e), the statement of participant supports must:

(a) specify that funding will be provided under the plan to or in relation to the participant, for all reasonable and necessary supports funded under the plan taken as a whole, up to a specified amount (the total funding amount) worked out under subsection (2B); and

(b) in accordance with any requirements determined under subsection (2E) for the purposes of this paragraph, categorise the reasonable and necessary supports specified under paragraph (2)(b) into one or more groups of supports identified in the statement; and

(c) specify that funding will be provided under the plan to or in relation to the participant, for supports in each group identified under paragraph (b) of this subsection, up to an amount (a funding component amount) specified in the statement for the group that is worked out in accordance with any requirements determined under subsection (2E) for the purposes of this paragraph; and

(d) specify that funding will be provided under the plan to or in relation to the participant for reasonable and necessary supports during specified periods (each of which is a funding period).

Note: For paragraph (b), if the statement specifies only a single reasonable and necessary support or class of such supports, the support or class may be categorised and identified as a single group.

(2B) For the purposes of paragraph (2A)(a), the total funding amount specified in a statement of participant supports must be an amount equal to:

(a) if the statement specifies more than one funding component amount—the sum of those amounts; or

(b) if the statement specifies a single funding component amount—that amount.

(2C) For the purposes of paragraph (2A)(d), the statement must:

(a) specify funding periods for funding for either:

(i) all reasonable and necessary supports funded under the plan, taken as a whole; or

(ii) each group of supports identified under paragraph (2A)(b); and

(b) specify when each funding period starts and ends; and

(c) specify, for each funding period:

(i) if funding periods are specified as mentioned in subparagraph (a)(i) of this subsection—the proportion of the total funding amount that will be provided as funding under the plan, during the funding period, for reasonable and necessary supports; or

(ii) if funding periods are specified as mentioned in subparagraph (a)(ii) of this subsection—the proportion of the funding component amount for the group of supports to which the funding period relates that will be provided as funding under the plan, during the funding period, for supports in the group; and

(d) if funding periods are specified as mentioned in subparagraph (a)(i) of this subsection—specify that the amount of funding for reasonable and necessary supports that will be provided during a funding period will be increased above the proportion specified for the funding period under subparagraph (c)(i) of this subsection by an amount equal to the amount by which:

(i) the amount of funding that could have been provided under the plan for reasonable and necessary supports during the immediately preceding funding period; exceeds

(ii) the amount of funding that was actually provided for such supports; and

(e) if funding periods are specified as mentioned in subparagraph (a)(ii) of this subsection—specify that the amount of funding, for supports in a group to which a funding component amount relates, that will be provided during a funding period for that group will be increased above the proportion specified for the funding period under subparagraph (c)(ii) of this subsection by an amount equal to the amount by which:

(i) the amount of funding that could have been provided under the plan for supports in that group during the immediately preceding funding period for that group; exceeds

(ii) the amount of funding that was actually provided for supports in that group.

(2D) For the purposes of paragraph (2C)(b):

(a) a funding period must be no more than 12 months; and

(b) the duration of a particular funding period may be different from the duration of any other funding period; and

(c) without limiting paragraph (b) of this subsection, if the funding periods are specified as mentioned in subparagraph (2C)(a)(ii), then the duration of the funding periods for one group of supports identified in the plan under paragraph (2A)(b) may be different from the duration of funding periods for any other group of supports identified in the plan under paragraph (2A)(b); and

(d) if funding periods are specified as mentioned in subparagraph (2C)(a)(i):

(i) the first funding period must start on a day worked out in accordance with any requirements determined under subsection (2E) for the purposes of this subparagraph; and

(ii) each other funding period must start immediately after the end of the immediately preceding funding period; and

(e) if funding periods are specified as mentioned in subparagraph (2C)(a)(ii):

(i) the first funding period for a group of supports must start on a day worked out in accordance with any requirements determined under subsection (2E) for the purposes of this subparagraph; and

(ii) each other funding period for the group of supports must start immediately after the end of the immediately preceding funding period for that group.

(2E) The Minister may, by legislative instrument, determine:

(a) requirements for categorising reasonable and necessary supports into groups for the purposes of paragraph (2A)(b); and

(b) how to work out a funding component amount for a group of supports; and

(c) how to work out when a first funding period is to start for the purposes of subparagraph (2D)(d)(i) or (e)(i); and

(d) requirements with which the CEO must comply, methods or criteria that the CEO is to apply, and matters that the CEO may, must or must not take into account, in doing any of the following:

(i) working out a funding component amount;

(ii) specifying funding periods for the purposes of paragraph (2C)(a);

(iii) deciding any other matter for the purposes of subsection (2A), (2C) or (2D).

Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the instrument (see regulations made for the purposes of paragraph 54(2)(b) of that Act).

(2F) Despite subsection 14(2) of the Legislation Act 2003, a determination under subsection (2E) of this section may make provision for or in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

How supports may be specified in plan

(10) Schedule 1, item 74, page 40 (line 17) to page 41 (line 29), omit the item, substitute:

74 At the end of section 45

Add:

(4) The Agency must not pay an amount under the National Disability Insurance Scheme to any person in respect of a participant's plan if:

(a) the plan is a new framework plan that provides that flexible funding will be provided under the plan and the payment would result in any of the following events occurring:

(i) the total amount of flexible funding provided under the plan exceeding the total funding amount specified in the plan under paragraph 32E(2)(a);

(ii) the total amount of flexible funding provided under the plan during a funding period exceeding the amount of funding that is to be provided under the plan during the funding period; or

(b) the plan is a new framework plan that provides that funding will be provided under the plan for a stated support, or class of stated supports, and the payment would result in any of the following events occurring:

(i) the total amount of funding provided under the plan for the stated support or class of stated supports exceeding any total funding amount specified in the plan under paragraph 32G(2)(a);

(ii) the total amount of funding provided under the plan for the stated support or class of stated supports during a funding period for the support or class of supports exceeding the amount of funding that is to be provided under the plan during the funding period for the support or class of supports; or

(c) the plan is an old framework plan and the payment would result in any of the following events occurring:

(i) the total amount of funding provided under the plan for reasonable and necessary supports exceeding the total funding amount specified in the plan;

(ii) the total amount of funding provided under the plan for reasonable and necessary supports in a group of supports to which a funding component amount relates exceeding that funding component amount;

(iii) if the plan specifies funding periods for all reasonable and necessary supports funded under the plan, taken as a whole—the total amount of funding provided under the plan for such supports during a funding period exceeding the amount of funding for such supports that is to be provided under the plan during the funding period;

(iv) if the plan specifies funding periods for one or more groups of reasonable and necessary supports—the total amount of funding provided under the plan for supports in such a group during a funding period for that group exceeding the amount of funding for supports in that group that is to be provided under the plan during the funding period.

(5) Subsection (4) does not apply in relation to the payment of an amount if the CEO is satisfied that:

(a) the relevant event would occur because the participant has experienced fraud or financial exploitation; or

(b) making the payment is necessary to prevent or lessen an imminent threat to an individual's life, health or safety; or

(c) the participant has been unable to request a variation or reassessment of the participant's plan because of one or more of the participant's impairments or a lack of decision-making support; or

(d) the participant has requested a variation of the participant's plan covered by subparagraph 47A(1)(d)(i) or (1AB)(j)(i) (crisis or emergency funding as a result of a significant change to the participant's support needs), and neither of the following apply:

(i) the CEO has made a decision on the request to vary the plan and the variation has taken effect;

(ii) the CEO has made a decision on the request not to vary the plan (including because of the operation of subsection 47A(5)); or

(e) a circumstance prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph exists.

(11) Schedule 1, item 78, page 45 (after line 19), after subparagraph 47A(1AB)(j)(i), insert:

(ia) the CEO is satisfied that the participant requires funding because the participant has experienced fraud or financial exploitation; or

(ib) the CEO is satisfied that the variation is necessary to prevent or lessen a threat to the participant's life, health or safety (whether current or future); or

(12) Schedule 1, item 80, page 46 (line 6) to page 47 (line 15), omit paragraphs 47A(1A)(ab) to (af), substitute:

(ab) if the statement of participant supports included in the plan specifies one or more funding component amounts—a variation of the categorisation of the reasonable and necessary supports, specified under paragraph 33(2)(b), into one or more groups of supports;

(ac) for the purposes of dealing with a variation covered by paragraph (ab) of this subsection—a variation of one or more funding component amounts, or the number of those amounts, specified in the statement of participant supports, other than a variation that would result in an increase in the total funding amount for the plan;

(ad) if the statement of participant supports included in the plan specifies funding periods for all reasonable and necessary supports funded under the plan, taken as a whole—the following variations of the statement:

(i) a variation of the number or duration of such funding periods;

(ii) a variation of the proportion of the total funding amount that will be provided as funding under the plan for reasonable and necessary supports during one or more funding periods;

(ae) if the statement of participant supports included in the plan specifies funding periods for one or more groups of reasonable and necessary supports—the following variations of the statement:

(i) a variation of the number or duration of the funding periods for such a group;

(ii) a variation of the proportion of the funding component amount for such a group that will be provided as funding under the plan, during one or more funding periods that group, for reasonable and necessary supports in that group;

(13) Schedule 1, item 82, page 47 (lines 22 to 28), omit subsection 47A(1B), substitute:

(1B) To avoid doubt:

(a) a variation covered by any of paragraphs (1A)(ab) to (ae) must be made in accordance with subsections 33(2A) to (2D) and any determination in force for the purposes of subsection 33(2E); and

(b) a total funding amount for an old framework plan cannot be varied except by a variation covered by paragraph (1A)(d) of this section.

Conditions not limited

(1C) The fact that a paragraph in subsection (1AA), (1AB) or (1A) covers only certain kinds of variations does not limit the power under paragraph (1)(b) for the National Disability Insurance Scheme rules to prescribe conditions that have the effect of limiting the kinds of variations that may be made under subsection (1).

(14) Schedule 1, item 99, page 52 (after line 1), at the end of subsection 74(6), add:

Note: For example, National Disability Insurance Scheme rules could be made under this subsection that apply for the purposes of making a decision under paragraph (5)(a) whether a child is capable of making decisions for himself or herself.

(15) Schedule 1, item 115, page 54 (line 4), omit paragraph (aaa), substitute:

(aaa) subsections 10(1) and (4);

(16) Schedule 1, item 116, page 54 (line 16), omit paragraph (ci), substitute:

(ci) subsection 32L(7A);

(17) Schedule 1, item 124, page 57 (line 2) to page 58 (line 13), omit the item, substitute:

124 NDIS supports

(1) This item applies until the commencement of the first National Disability Insurance Scheme rules made for the purposes of subsection 10(1) of the National Disability Insurance Scheme Act 2013, as inserted by this Schedule.

(2) Section 10 of that Act has effect as if a reference in that section to the National Disability Insurance Scheme rules were a reference to rules made under item 138 of this Schedule.

(18) Schedule 1, item 129, page 59 (line 20), omit "Sections", substitute "Subject to subitem (3), sections".

(19) Schedule 1, item 129, page 59 (after line 29), at the end of the item, add:

(3) Subsection 33(2A) of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, applies in relation to a statement of participant supports included in an old framework plan for a participant if:

(a) the statement is approved on or after the commencement (the determination commencement) of the first determination made under subsection 33(2E) of that Act (as inserted by this Schedule); and

(b) the decision to approve the statement is not covered by subitem (4).

(4) This subitem covers the following decisions made on or after the determination commencement:

(a) a decision made by a reviewer under subsection 100(6) of the National Disability Insurance Scheme Act 2013 on review of a decision made by a decision-maker before the determination commencement;

(b) a decision, made by the Administrative Appeals Tribunal, on review of a decision made by a reviewer under that subsection:

(i) before the determination commencement; or

(ii) on or after the determination commencement, if the decision reviewed by the reviewer was made by a decision-maker before the determination commencement.

(5) Subitem (3) applies whether the participant becomes a participant before, on or after the determination commencement.

(20) Schedule 1, item 135, page 61 (line 7), omit "Subsections 47A(1A) and (3)", substitute "(1) Paragraphs 47(1A)(a) and (ag), and subsection 47A(3),".

(21) Schedule 1, item 135, page 61 (after line 11), at the end of item 135, add:

(2) Paragraphs 47A(1A)(ab) to (af), and subsection 47A(1B), of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, apply in relation to the variation of an old framework plan if subsection 33(2A) of that Act applied in relation to the approval of the plan (see subitems 129(3) to (5)).

I'm happy to explain the amendments on the basis of any consideration of detail. We presented the bill in March and it follows the review, but we always understood that, in presenting the bill, we wanted the contribution of people in the disability sector. We were interested to hear days of hearings from the Senate committee and to talk to the disability sector in the event that they could make observations as to how we could further improve the initial bill. These amendments represent the recognition that we can improve the bill, courtesy of contributions from crossbenchers, from the disability sector and from submissions that we have received. I'm happy to engage in the debate.

Stephen Bates (Brisbane, Australian Greens) Share this | Link to this | Hansard source

I have a very quick statement on these amendments. The Greens believe these amendments are a rushed attempt to make a bad bill slightly more acceptable. They demonstrate that the government still has not heard the feedback they have assertively received from the disability community, as the identified issues have not come close to being properly addressed. While there are some parts of the government amendments that will not actively make the bill worse, the fundamental issues are unchanged. There are also some parts of these amendments that will increase ministerial power, and these are of great concern to us. The Greens have heard the disability community and we will continue to work with disabled people and their families to oppose this rushed bill which will do so much harm to disabled people.

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

I don't share the member's concerns and I don't think it's a fair characterisation of the process. The member says it's been rushed. We've had a four-year disability royal commission and a 12-month review into the whole scheme. I worry that the argument that there's too much rush is actually selling people with disability short, because there are problems which need to be dealt with now.

I don't know if the member heard my second reading contribution. It's forgivable if you didn't, but I'll just repeat a couple of the key points in it. There are issues which need to be resolved now. Every month we wait sees people with disability, the NDIS and taxpayers face costs of an extra $160 million. This is a real issue. We've moved amendments, and I'll go through them. There was a concern that somehow NDIS support needs were going to be narrowed. We've clarified that to make sure that, as we move from line to line, budgeting on a more flexible basis, we have a constitutional basis and some reasonable constraints. We've heard concerns about the use of the APTOS—the Applied Principles and Tables of Support, first agreed by first ministers in 2015 as an interim approach to defining NDIS supports—that it was out of date and not sufficiently clear. We've updated that, reflecting the concerns of the Public Interest Advocacy Centre.

Other amendments include technical amendments to clarify the operation of new provisions and to improve the operation of planning provisions in section 23. We want to provide certainty about the amount of funding that participants have available during a specified time and assist participants in managing their funding. Our amendments clarify exceptional circumstances when payments can be made above a relevant funding amount. Our amendments make clear the legislative instruments setting out the needs assessment process and the method for calculating reasonable and necessary budgets, and that the minister needs to have regard to section 4(9A), which states that 'people with disability are central to the NDIS'. So we're putting in a specific endorsement of the principle of co-design. We're placing limitations on the proposed new powers of the CEO to request a participant to attend an assessment or examination. But we do need some powers because, at the moment, there are 13,000 participants whom we are unable to contact. That's not a realistic proposition going forward.

We are expressly going to require the CEO to provide a needs assessment report to the participant. There's been talk in the scheme that, somehow, participants won't get to be consulted about their needs assessment. That's not true. There's also a myth, which has been circulated, that review rights around the needs assessment are being abolished—they're specifically not. In fact, I thank Dr Ryan and PIAC, the Public Interest Advocacy Centre, and others for making sure that we are doubled down on the basis of the existence of internal/external review processes.

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendments moved by the Minister for the National Disability Insurance Scheme be agreed to.

Question agreed to.

Kate Chaney (Curtin, Independent) Share this | Link to this | Hansard source

by leave—At the request of the member for Kooyong, I move amendments (2), (4), (5), (6) and (9) to (13), as circulated in her name, together:

(2) Schedule 1, item 36, page 24 (after line 25), after subsection 32H(1), insert:

(1A) However, such a requirement may only be specified if:

(a) the requirement is reasonably necessary to achieve a specific purpose consistent with the objects of the National Disability Insurance Scheme; and

(b) to do so would not be unduly burdensome for the participant, after considering:

(i) the potential separate or cumulative effects of financial costs associated with complying with the requirement; and

(ii) the practical effects of complying with the requirement; and

(iii) the participant's emotional and psychological distress in complying with the requirement.

(4) Schedule 1, item 36, page 26 (after line 28), at the end of section 32K, add:

(7) When a copy of a determination made under subsection (2) is tabled in each House of the Parliament under section 38 of the Legislation Act 2003, the Minister must cause to be tabled with that copy a consultation statement setting out the views of the Organisations consulted under paragraph (3)(a) about the determination.

(8) A determination made under subsection (2) is invalid and unenforceable if subsection (3) or (7) is not complied with in relation to the determination. This subsection has effect despite section 19 of the Legislation Act 2003.

(5) Schedule 1, item 36, page 27 (lines 5 to 8), omit subsection 32L(3), substitute:

(3) The assessment must assess the participant's need for supports based on a holistic understanding of the participant's disability support needs.

(6) Schedule 1, item 36, page 27 (line 15), after "prepared", insert "with the participant".

(9) Schedule 1, item 36, page 28 (after line 34), at the end of section 32L, add:

(12) When a copy of a determination made under subsection (8) is tabled in each House of the Parliament under section 38 of the Legislation Act 2003, the Minister must cause to be tabled with that copy a consultation statement setting out the views of the Organisations consulted under subsection (10) about the determination.

(13) A determination made under subsection (8) is invalid and unenforceable if subsection (10) or (12) is not complied with in relation to the determination. This subsection has effect despite section 19 of the Legislation Act 2003.

(10) Schedule 1, item 46, page 33 (lines 5 to 10), omit the item.

(11) Schedule 1, item 54, page 34 (line 29), after "within that period—", insert "withdraw the request or".

(12) Schedule 1, item 78, page 45 (line 30), at the end of subsection 47A(1AB) (before the note), add:

; (k) a minor variation that results in an increase to the funding of a stated support or class of stated supports that will be provided under the plan during one or more funding periods.

(13) Schedule 1, page 52 (after line 8), after item 102, insert:

102A Subsection 99(1) (before table item 5)

Insert:

102B Subsection 99(1) (after table item 5)

Insert:

I'm speaking on behalf of the member for Kooyong, who's not here today due to sickness. I'm pleased that the government has accepted some of the amendments proposed by the member for Kooyong and supported by the sector, specifically around requiring appropriate consultation and co-design in the development of rules about the needs assessment and support, which has been a real concern; embedding the review of the needs assessment and statement of participant supports; giving participants surety that they will be able to have those draft documents reviewed by the CEO on request; and giving participants the right to obtain and/or request a replacement assessment in relation to each statement of participant supports when they don't agree with the first needs assessment. The remaining amendments that I'll be discussing today provide some additional protections for participants and the sector. I would like to point out that a number of these amendments have been agreed quite quickly. It may be that some of these amendments are covered by the government amendments, and we'll be looking at them in great detail.

To run through those: in amendment (2), the proposed section 32H creates additional requirements for accessing support, which may include requiring supports provided by a specific person or specific conditions are satisfied. The advocacy groups are concerned that this wording could place an inappropriately broad range of potential constraints on participants' choice and control over their funding and supports, particularly where the discretion to impose those constraints would lie with the NDIA alone. Amendment (2) makes it clear that additional requirements could only be specified where necessary to achieve a specific purpose consistent with the objects of the scheme and where the imposition of that requirement would not be unduly burdensome for a participant.

Amendment (4) relates to consultation on delegated legislation. Under the proposed amendments put by the government, the minister has addressed this. Additional delegated legislation for needs assessment and budget-setting can be created, and this amendment (4) provides greater comfort about to consultation process by requiring the tabling of a consultation statement, which seems reasonable given the level of concern in the sector about the lack of consultation and co-design and the consequences of that. The government must develop the delegated legislation—the NDIS rules—via consultation, co-design and testing, which must include First Nations people with disability; people from disability-specific communities; people from rural, regional and remote locations; people with disability who are digitally excluded; people with disability from culturally and linguistically diverse backgrounds; and LGBTQIA+ people with disability. That's why there's that additional requirement in relation to the consultation process.

There are a number of additional amendments there that relate to holistic understanding of the participants' disability supports, which is a really important part; it is not linked to specific impairments—also in relation to the report of the assessment, to be prepared with the participant to make sure that there is appropriate engagement with a participant and also in relation to replicating the need for consultation in making determinations about the assessment process.

I encourage the government to look at these assessments and thank the minister for his engagement on these amendments. We'll be looking very closely at the delegated legislation to ensure that the disability community's concerns are addressed in the development of that delegated legislation.

Bill Shorten (Maribyrnong, Australian Labor Party, Minister for the National Disability Insurance Scheme) Share this | Link to 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.

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendments be agreed to.

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

I just want to make a very quick point, and then I'll hand over. We respect not just the crossbench contributions but the research behind them. We have met the issues around co-design. In my second reading speech I addressed that this is not giving new debt-raising powers, this is not giving the CEO new powers, and this is not getting rid of review processes. We look forward to the amendment about reviewing the bill in five years' time, and, because of the contribution from the amendments—if we haven't agreed to them in letter or in word—we have taken up the principle, certainly around co-design.

Stephen Bates (Brisbane, Australian Greens) Share this | Link to this | Hansard source

I'm just rising to say the Greens will be supporting these amendments moved by the member for Curtin on behalf of the member for Kooyong based on our current understanding of the bill and the impact it will have on NDIS participants and the wider disability community. The inquiry into this bill is still ongoing and will inform our position in the Senate as well as any other amendments. We will put forward our amendments in the Senate as well.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question before the House is that amendments (2), (4), (5), (6) and (9) to (13), moved by the member for Curtin, be agreed to.

Milton Dick (Speaker) Share this | Link to this | Hansard source

We shall move to the next set of amendments.

Kate Chaney (Curtin, Independent) Share this | Link to this | Hansard source

I move amendment (1), as circulated in the name of the member for Kooyong:

(1) Page 2 (after line 16), after clause 3, insert:

4 Review

(1) The Minister must cause an independent review of the amendments made by this Act to be conducted as soon as practicable after the end of the 5-year period starting on the day this Act receives the Royal Assent.

(2) The persons who conduct the review must:

(a) consult with the public in conducting the review; and

(b) give the Minister a written report of the review in sufficient time to enable the Minister to comply with subsection

(3) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 9 months after the end of that 5-year period.

Amendment (1) relates to requiring an independent review after a five-year period that involves consultation with the public, with a written report to be tabled within nine months. Given the scale of these changes and the importance of getting this right, it seems appropriate to consider the impact of these amendments and have a look at how they're actually working. This is a huge piece of legislation regarding a very expensive scheme. On that basis, I think it would be reasonable to have a review of how the changes to the scheme are working after that period.

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

The government thinks that this is a very good amendment. In recent times it hasn't been uncommon to include a requirement to review legislation after a set period of time.

A part of the reason that we're agreeing to this is that the NDIS doesn't belong to any political party or to any particular point of view. It belongs to Australia. The NDIS is a universal scheme which is based on the proposition that any of us or anyone that we love could have a disability.

The scheme is remarkable. It is very difficult necessarily to please everyone, not because that's the motivation but rather that for people who've fought hard to get a set of supports, the talk of any change is legitimately anxious making. But the alternative of doing nothing as opposed to changing the scheme would be disastrous. The alternative views that it's too hard or that we should be suspicious of anything, provide the shadows in which some service providers continue to exploit participants and we don't get the best outcomes.

I do compare the NDIS to Medicare, but Medicare is now 40-plus years old, and it's taken its time to develop, and it's had its ups and its downs. What is pleasing in Australia at the moment is that Medicare used to be a contested political item over a series of elections. The NDIS has this opportunity to move from being a contested issue into one where people of all political persuasions just want to make sure it works as well as it can, but there's no questioning that it should exist, and I think we've reached that point so far. I say to those who are worried about this legislation: we'll certainly listen to opposition amendments in the Senate—to amendments from the Greens political party and, indeed, from crossbenchers there—but the argument that somehow everything is too hard and we should delay things and keep delaying them sells short the future of the scheme and people with disability.

Disability advocates have a lot of muscle memory about previous policy changes, which disturbs them and makes them legitimately concerned about any proposals. But these proposals are not out of the blue. That is not a fair characterisation. I want to be very clear that we have had a one-year review by Bruce Bonyhady and Lisa Paul. There was a lot of consultation. It was independent—despite the odd snide attempt to say it wasn't. It was an honest endeavour to look at how we could improve the scheme.

I think what the review did and what the legislation assumes is that the NDIS is a giant chapter in the history of people with disability in this country. There had been work done before the NDIS, in human rights legislation and a range of areas, but the NDIS is indisputably a giant chapter because it provides economic agency and empowerment to people with disability and the people who love them. It is an endeavour to relieve aging carers' midnight anxiety about who will look after their adult family member when they no longer can. It is also a view that impairment is just one attribute of a human being and that the barriers society puts in people's path are what truly disables people. This scheme sees people in the whole. This legislation proposes that our processes to assess them should be in the whole.

This is not the only measure we're taking, as I've said previously in the House and elsewhere, but this legislation is another necessary step on the journey to creating a more inclusive Australia. The government have no hubris about it. We will continue listening to the contributions and continue to take seriously the views of others. That's why we're happy to support this amendment, in that spirit. I congratulate the member for Kooyong for working on this issue.

Question agreed to.

Bill, as amended, agreed to.