Paul Scarr (Queensland, Liberal Party, Shadow Assistant Minister for Multicultural Engagement) Share this | Hansard source

The NDIS is one of the most important schemes implemented by the Commonwealth government to assist Australians with a serious and permanent disability. It is absolutely crucial that any substantial amendment of that scheme be adequately reviewed by this Senate, the house of review, to make sure that it doesn't have unintended consequences and that, for the people who are most impacted by this amendment—those who are currently in the scheme, those who are trying to get in the scheme and their loved ones—this legislation and the regulations which will be made under it have gone through adequate review, and that has simply not occurred in this case. It has not occurred.

So we have a situation where those of my fellow coalition senators who are on the Community Affairs Legislation Committee, who have spoken in relation to the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 and who are passionate about this scheme and about the scheme delivering for the people it is intended to support—the many hundreds of thousands of people who are supported by this scheme—were forced to provide additional comments of one page, and this is what they said. I want to put this on the record:

The Coalition is unable to provide fully-informed commentary on the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 … due to the government's unwillingness to grant an extension to the committee for further scrutiny on sensible and necessary measures for the sustainability of the NDIS.

The coalition sought a very modest extension of the timetable to enable not so much the senators in this place but the people who will be directly impacted by this legislation to have their say. That's our job. We're a house of review, so, when the other place, the lower house, passes legislation, it is our job to closely scrutinise that legislation, even if it is introduced with the best of intentions, to make sure it does not have unintended consequences affecting, in some cases, the most vulnerable people in this country. This place has been deprived of the opportunity to have a proper, full process of scrutiny in relation to this legislation, and that is deeply concerning.

I want to continue reading from the additional comments of the coalition senators in relation to the committee report. They wrote one page, because they simply didn't have the time or the information to provide any further discussion. That's the issue with the consultation process that's been undertaken. Paragraph 1.2 says:

We note insufficient time has been provided for proper consultation with the sector and the community—

the people impacted by the bill—

who have expressed widespread misgivings about the current legislation.

So it's not the senators in this place who are saying that there hasn't been enough time for consultation and that we don't know enough about this bill and its consequences, including unintended consequences; it's the stakeholders representing the people most impacted by the bill who are saying that. They haven't had the opportunity to have their say in relation to the consequences of this bill. So, when we get up and say there has been inadequate consultation in relation to this bill, we are speaking for the hundreds of thousands of Australians who have told us that, through their stakeholder bodies and directly through letters to us as senators. I've received my fair share as well.

Paragraph 1.3 of the additional comments from coalition senators reads:

The opportunity to properly engage with this bill is important in bringing the NDIS back onto sustainable footing in a manner that does not disadvantage or impact negatively on participants most in need.

I will predict today that there are participants in this scheme who will be impacted negatively by this bill who have not had an opportunity to have their say on this bill. They don't know what's coming down the track in relation to this legislation because there has been inadequate consultation. Then we will see the government will be scrambling, because senators in this place will come forward with the stories of those people. The government will be scrambling all over the shop to try to amend something instead of doing the proper consultation upfront, which is how the process is meant to work.

Paragraph 1.4 reads:

It was also concerning that the committee was not given the opportunity to consult the sector on government amendments tabled on the day of the public hearing.

The way this place works is a piece of legislation is moved in the Senate, and it then gets referred to a committee. The committee then organises a public hearing. Before that public hearing, stakeholders are given an opportunity to make submissions in relation to the legislation. What happened in this case was the government tabled further amendments on the day the hearing started. How are you meant to conduct an appropriate public consultation process in such circumstances? It's a shambles, an absolute shambles!

Paragraph 1.5 reads:

The Coalition notes legislative instruments and rules are still under development and the committee has not been provided with substantial detail on this to date.

This is an extraordinarily important point. I wasn't sitting on the committee that looked at this legislation, but I have had a chance to look at the bill. Some of the most important documents under this bill are regulations and rules which will come into place after the legislation is passed, but no-one has seen them. The whole package should have been put up for close scrutiny at the same time—or at least the overarching principles, so that stakeholder groups and those impacted by the scheme had a reasonable opportunity to provide their feedback. Instead, we are passing legislation in the dark. We're in the dark because we don't know what the rules are going to be. We don't know what particular ministerial instruments are going to be.

I want to give you some examples—this is from the explanatory memorandum for the bill, which goes for some pages. I picked some examples from the first 10 pages just to give people listening to this debate a feel. Paragraph 3 in the outline says the bill provides for the needs assessment process—an absolutely critical process:

and the method for calculating the total amount of the participant's flexible funding and funding for stated supports for new framework plans to be specified in legislative instruments and NDIS rules.

It doesn't get more fundamental than that. The needs assessment process, the method for calculating the total amount of the participants' flexible funding, and funding for stated supports—the new framework plans—are going to be legislated instruments and regulations we haven't seen. We don't know what's going to be in them. The people impacted by this legislation don't know what's going to be in them. We are getting only half the story. We are expected to pass legislation in the dark—legislation that is going to have a material impact on hundreds of thousands of people.

I go to page 3 of the explanatory memorandum, which says:

Proposed new paragraph 10(b) provides that a support is an NDIS support—

and this is a key question as to whether or not something is classified as an NDIS support—

for a person who is a participant or prospective participant if the support is declared by NDIS rules to be a support …

Again, we haven't been given the draft rules—we don't know what is going to be in them. We're passing legislation in the dark. The next paragraph reads:

Proposed new paragraph 10(c) provides that a support is not an NDIS support for a person if the support is declared by NDIS rules to be a support that is not appropriately funded or provided through the NDIS for participants …

Again, it is all in the rules. We haven't got the rules. We are debating this in the dark.

Page 5 of the explanatory memorandum states:

This amendment provides the statutory foundation for the future early intervention pathway—

which is an extremely critical pathway, especially if you are dealing with young children who perhaps have autism or some other disability. It says:

Operationalising this pathway will require the establishment of Category A NDIS rules.

Do we have the rules? We don't have the rules. We're debating legislation in the dark.

On page 6, in relation to subsection 25(3), the EM states:

A second note alerts the reader—

and I'm going to alert the Senate and everyone else listening to this debate—

that NDIS rules may be made under section 27 that are relevant to the consideration of the early intervention requirements.

Again, it refers to the rules, which we don't have.

Page 7 of the EM states:

This item repeals and substitutes section 27 which allows for NDIS rules relating to the determination of any matter for the purposes of the disability requirements and early intervention requirements.

Again, we don't have the rules. It goes on:

Similar to the existing section 27, proposed new section 27 will allow NDIS rules to prescribe methods and criteria to be applied, or matters that may, must or must not be taken into account—

for relevant purposes.

Then the EM gives an example, and this sums it up. This is an example of someone called Kym:

Kym applies to the NDIS based on an impairment which results in psychosocial disability.

Kym's disability is highly episodic in nature, in that its impacts on her life fluctuate from time to time.

There is currently a great deal of ambiguity about how some access criteria should be applied to Kym's circumstances.

This is the explanatory memorandum, detailing how this new scheme relates to Kim:

This new power enables a rule to be made, clarifying how certain NDIS access criteria should be applied to Kym's unique circumstances.

As a result, Kym and her health professionals have a clearer idea about whether Kym is likely to be eligible to access the NDIS, what information is required to make an access request, and Kym's access decision is able to be clearly explained to her—

except it can't be explained to Kym and her health professionals because we don't have the rules. We're expected to pass legislation without having the rules. We're legislating in the dark. It says, 'This new power enables a rule to be made.' Where's the rule? What's going to be in the rule? Where do Kim and her health professionals have an opportunity to provide feedback in relation to the draft rule so that we, as a Senate, have an opportunity to consider that feedback and discharge our obligations as senators to closely review this legislation.

So the example given that supposedly makes everything clear to Kym and her health practitioners is all dependent upon a rule that we don't know. We haven't seen it. We don't know what's in it. We don't know what principles it applies, and we don't know how it will impact Kym and her health practitioners. On that basis, we're expected to pass legislation in this place. We're expected to pass legislation without knowing what's going to be in those rules and determinations.

Here's another one. There are something like 50 pages of the explanatory memorandum, and I'm only up to page 8 in terms of the relevance of the rules. Page 8 of the EM deals with the circumstances in which a person ceases to be a participant. That's obviously a key decision point. Someone has been a participant and then someone makes a decision that that person ceases to be a participant. That is a key decision point which will have profound consequences for that person and their family. This is what the EM says:

The subsection does, however, allow for Category A NDIS rules to specify the circumstances where payments can still be made for supports provided or acquired before a participant ceases to be a participant …

So, again, we've got to see the rules, but we don't have the rules. And the people who are most impacted by this legislation have not had the opportunity to see the rules. They have not had the opportunity to see what ministerial determinations might be issued under this bill, notwithstanding that those rules and determinations will have a profound impact on those participating in this scheme.

This is simply not good enough. One of the key functions of government is to provide support to those in need in our community, and in this case to enable the people obtaining that support to live with dignity and to have every opportunity to marshal all their skills and talents and apply those to the benefit of the wider community. It's one of the key factors underpinning this legislation. The minister has driven a process whereby there's been inadequate scrutiny and whereby the objections of those most impacted by this legislation have been overridden, and the minister refuses to budge and give all the information needed for intelligent debate of this bill.