Claire Chandler (Tasmania, Liberal Party, Shadow Assistant Minister for Foreign Affairs) Share this | Link to this | Hansard source

The committee is considering the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 and amendment (1) on sheet 2649 moved by Senator Hughes. The question before the chair is that the amendment moved by Senator Hughes be agreed to. Senator Steele-John, are you seeking the call on that amendment?

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

No, not on that amendment, Chair. It was in relation to my line of questioning; I have further questions in relation to the bill broadly.

The TEMPORARY CHAIR: You have the call.

Minister, are you able to please confirm for the Senate whether the government has undertaken any investigation of the capacity to play that role of any workforce that is being considered for the role of needs assessor?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I think that your question is, in many respects, similar to the one that I responded to earlier today. It goes, I think, a little bit further, in that it seeks a response in relation to any work that the agency or the government may have done in relation to workforce issues more broadly. I can only say, in relation to the needs assessment process, that the government's view is that that work should occur once the needs assessment process has concluded. That is, of course, one of the major changes that was proposed by the NDIS review. It would result in each individual participant being given a flexible budget. That is a substantial change, in terms of the way that the process will unfold. It is, as I think you're pointing to, going to require the persons who are undertaking that needs assessment process to have a set of skills and capabilities. That is all to be worked through. That process of working through those issues commences on passage of this legislation, and it's our strong view that it ought not be pre-empted by the government in terms of the final outcomes.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

Thanks, Minister. Because there have been a number of amendments made at very late stages to parts of the bill, are you able to confirm for the Senate, just so that we are clear: the legislation that we are considering still requires that, once a person has gained access to the scheme and been accepted as a participant, there is a legislated requirement that remains within the bill for them to undergo a needs assessment. Is that correct?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

The short answer is yes, but the framework that applies to that is of course part of establishing the new needs assessment model, and the process of determining the model will be the subject of the consultation and co-design process that I outlined earlier today. It's anticipated that not all participants will be available on day one of the framework. There will be a phasing process to work through existing and new participants so that that is done in an orderly and fair way.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

Thank you, Minister. Can you confirm something, just so we are talking about the same thing. When you say 'framework process', are you referring to the new budget framework outlined in the bill?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Yes; it's the new individual budget framework based upon the new needs assessment model, which will be based on a holistic assessment of support needs and not solely on primary disability.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

When you talk about the transition that you reference there, you're referencing the transition from the old budget frameworks as referenced in the bill to the new budget frameworks referenced in the bill. Is that correct?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

The short answer is yes. I want to be precise, because there will be people listening. There are two ways of answering it, in an effort to be precise. One is moving from one framework to the other, but individuals will experience this at different speeds, as the processes are undertaken for individuals.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

Can you confirm that new participants entering the scheme will apply for access through whatever process is created, but, once there is access, they will begin on a new budget framework?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Yes. That's correct.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

Could you outline this for the Senate. Again, as a committee, we've heard some of these timeframes in evidence that we've received, but I just want to understand clearly the government's current intention. When does the government intend for participants who gain access to the scheme subsequent to the passage of this legislation to begin receiving new framework plans?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I thank the Senate for indulging me; I'm just making sure that we're precise. We expect—and this is subject to the vicissitudes of the co-design process—that that process ought to take in the vicinity of 12 to 18 months to work through. The government anticipates that participants will then be moved across to the new system over the course of five years. That is around five years. It is a large reform task. We intend, consistent with what I indicated before, to carefully work through those issues with the disability community and with experts and service providers in terms of the framework.

There are people who are currently on the scheme and, as you've indicated, Senator Steele-John, there will be new admissions to the scheme, and we anticipate that it will be of the order of a five-year period to work through all of those people. That will require, over the course of that 18 months, attention to be given by government to ensuring that there is, in a stable and orderly way, the workforce that is required to undertake those needs assessments consistent with the co-design needs assessment tool.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

For the context of the chamber, the reason why I am exploring these issues is that the question of timelines and impact is critical to the disability community's consideration of this legislation. Minister, thank you for reconfirming that that is the attempted timeline by the government in this regard. Can I get a little bit more detail there? Is it the government's intention that, in 12 to 18 months time, participants entering from that point will be subject to a needs assessment and then a new framework plan created for them and given to them?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

It will, in the government's view, take 12 to 18 months to introduce the new framework. We anticipate that it will take a five-year period to transition new and existing participants in the scheme over to the new framework. It will need to be determined, during the design of the needs assessment tool and the needs assessment process, what is the likely volume of new applicants and whether all new applicants will go through the process as you've outlined in your question or whether there will be some other streaming process to do that in a way that the capability the department and the agency possess can manage effectively.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

So the 12- to 18-month period refers to transitioning participants currently on old framework plans to new framework plans?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Just so I can be precise: the 12- to 18-month period is about the co-design process of the new framework. Once that is determined, then it is, in the government's view, going to take circa five years as each individual participant goes through that process and new applications for the scheme are assessed consistent with the new process. In relation to the question that you asked me prior to this last question: that means, for clarity's sake, 12 to 18 months. There are two classes of participants. Current participants can expect that it will take in the vicinity of five years to move through that cohort of participants. That process will be set out in the co-design framework process.

In relation to new applicants, it sounds to me desirable that all new applicants would come through on the new process at the commencement, but the government are not committing to that. We will work through that with the disability community, with experts and with organisations, as part of the co-design process, to see whether some additional streamlining or prioritisation process is desirable. And some of those workforce and capability issues that you've referred to will have to be attended to in determining whether, on day one, it is ready to go in terms of new applicants to the scheme.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

What work has the government undertaken to this point to determine the parameters and/or instructions that will be given to assessors?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

As I said when you began this line of questioning before lunch, all of these questions will have to be resolved in the co-design process that I referred to. That is, as a government we are not pre-empting any of those questions and will rely upon that process to develop the new needs assessment tool in full.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

Will the agency cover the cost of the needs assessment?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

That is a decision for government at this stage. I think the NDIS review, as you would know, recommended that government fund the needs assessment process. That is a decision that is not yet made.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

Just so that we can be clear, given that it is a decision that has not yet been made, are we to take it that one of the things being considered is whether to, in fact, fund a needs assessment?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

As we walk through this process of determining the needs assessment model, that will determine who is undertaking the needs assessments. It's a procedural step that provides information required for the decision to approve the statement of participant supports. And, of course, there are rights of review in access to a needs assessment engaged there. A needs assessment can be challenged if a participant seeks an external or internal merits review of a decision to approve a statement of participant supports. There were amendments in the House to clarify that a replacement needs assessment must be arranged if the decision-maker is satisfied that this should occur and that category A NDIS rules can determine circumstances in which another needs assessment must be undertaken and matters that the CEO must have regard to in considering whether a replacement assessment should be obtained. A legislative note was also included in the amendments to clarify and confirm that the same requirements apply when a decision is being reviewed. So participants will be able to explain to the reviewer why they disagree with the assessment report and want a replacement report to be obtained.

I went through some of that detail just to say that the scope of the work of the needs assessors, if that is the correct term, who are undertaking that work and broader issues about the needs assessment process will be the subject of government decision-making. That is why a decision in relation to funding that work has not yet been undertaken—because there is still work to do through the co-design process to determine the needs assessment tool. That needs to be done before government makes a decision in relation to funding.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Mental Health and Suicide Prevention) Share this | Link to this | Hansard source

Senator Steele-John just raised an excellent point, and I really think we need to clarify this, because this is quite astounding. The question that Senator Steele-John asked was whether participants were going to be required to fund their own needs assessments. The fact that the government cannot just say no is extraordinary. The fact that there is any suggestion that participants, who aren't that enamoured of the whole needs assessment process, may be forced to pay for a needs assessment when they don't even understand what's in the needs assessment is breathtaking. The fact that that is not an out-and-out no is extraordinary. So, Minister, perhaps you or someone that you're speaking to might get onto the minister's office and find out very, very quickly if there is any expectation at all that participants will be put in a situation where they are forced to pay for a needs assessment that they are required to have in order to access an NDIS plan.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

The current situation for many participants is that they go and get some of this assessment work done. Families get it done for individuals, and they pay for that themselves and later seek some reimbursement in relation to those questions.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Mental Health and Suicide Prevention) Share this | Link to this | Hansard source

No, they don't get reimbursed, Minister. They do not get reimbursed.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I just want to make sure that what I'm saying is precise. Some participants are able to use their NDIS funding. This will require a further budget decision of government. That will be taken at the appropriate time and is not able to be undertaken until all of the work in the co-design process that we've spent some time discussing is finalised. A government decision to fund a particular activity prior to the activity being scoped out properly is not a sensible thing to ask government to do at this stage. But the NDIS Review panel was quite explicit in its own recommendation in relation to these issues, and obviously the government will have regard to that and to the work of the needs assessment tool development process.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

I have a few questions for the minister, but before I get to that I wanted to make a few observations about what I've seen happen over the last few months. There's this massive gap between when you actually talk to people on the NDIS about their experience of it and how life changing it has been for so many families. Sure, there is some fraud, and I welcome the minister's focus on that. But seeing that most of the narrative has been around painting NDIS participants and their families as criminals who are somehow living it up, living the good life on the NDIS, it does a real disservice to this debate and this really important issue.

Most of the participants you talk to are incredibly grateful for the support they receive to make a modification to their house to help them live comfortably. They're grateful for the hours of support they receive that help them access the community, go shopping and meet new people. I think we need to remind ourselves that the point of the NDIS is not just to allow people to survive but actually to allow people to be part of society and to contribute. That is the core of this system that was set up.

In truth, the biggest issues that are raised with me around genuine fraud are about providers inflating their prices to draw as much out of the NDIS as possible. I've seen invoices where a provider has charged an extremely vulnerable person around $60,000 for a week of respite care. That's clearly not good enough. Again, I thank Minister Shorten for focusing efforts to ensure this doesn't happen.

Minister, I want to ask about co-design. Clearly a central concern that's been raised from the beginning is about the genuineness of the government's offer to ensure reforms are co-designed with the disability community. I want to draw your attention to a consultation that's currently underway on the draft list of NDIS supports. The bill we are debating right now will enable this list to become a regulation, and this is a pretty big reform. It will essentially determine what's provided by the states and territories in some cases and what can be provided through the NDIS. This list is only open for consultation for a period of two weeks—two weeks! Organisations are contacting my office, raising concerns, saying they don't have the resources to respond to all of the issues in two weeks at the same time as they're watching this bill go through. So I am keen to get on the record your outline of what co-design means to the government and whether a two-week consultation would meet that definition.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Perhaps I can start at the beginning. At the beginning of your contribution, Senator Pocock, you indicated that there were criticisms of the operation of the scheme that were pretty unhelpful in the way they make our participants in the scheme and their families feel. I agree with you and I think the government agrees with you. It is not only for the proper public policy reasons that the reforms are being undertaken but also in order to establish public confidence in the long-term operation of the scheme.

The bill is in many respects enabling of reform rather than finally determining reform, and setting out a process to undertake reform rather than determining the kinds of questions that have been put thus far in the debate. It is designed to require the NDIA to provide participants with a clear status of the basis upon which they enter the scheme by meeting the disability requirements, the early intervention requirements or both. This bill will do some of that work. It will create a new reasonable and necessary budget framework for the preparation of NDIS participants' plans. It will set out the needs assessment process and it will set out the method for calculating the total amount of the participant's flexible funding, with funding for stated supports for new framework plans to be specified in legislative instruments and in NDIS rules. Much of this work must be undertaken by the co-design process, the consultative process that the government has set out. Earlier today I was taken to some of these issues.

Of course, the term 'co-design' has a meaning for people who deliver services from government. In the bureaucracy here in Canberra, people understand what 'co-design' means. Organisations who interact with government and represent people understand what it means. I'm not sure that it has an ordinary meaning for ordinary people in the street, who might not understand what that is designed to do. The minister has arranged for the department website to set out how co-design is supposed to operate from the department's perspective.

In relation to the list that you just took me to, that list has been developed with the states over the last month. It primarily reflects the current guidelines, with some practical changes, and government will continue to accept feedback on the lists over time. Just for clarity, the two-week process is in relation to the current draft. It is anticipated that there will continue to be—I hesitate to use this language—an iterative process of going backwards and forwards on the list. I think there is some discussion about elements of the list—of course in the debate in committee—but, in terms of the process that the department and the agency undertake, it is anticipated that that will continue for some time.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Minister, I'd like to take you back to a few statements that you made in your speech at the end of the second reading debate earlier today. One of the things you said is that this legislation was actually based—I think these were the words—on the NDIS review, the report for which the government received in November last year. Also, you said that it was based on the government reply to that review. Now, that's very interesting for two reasons. One is that I'm not aware that there is a government reply to the review, which is something that those in this chamber have been calling for so that we can understand the position you're taking in this legislation. The other is the waterfall of amendments that seem to have come out of nowhere. Can you advise, first of all, in relation to the government response: what government response were you referring to, and can you table it?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I'm getting some instruction, Senator Reynolds. As I indicated, the NDIS review made a number of recommendations, but a number of those recommendations are reflected in the legislation which is before the Senate this evening—in particular recommendations 3, 6, 7 and 8. A core recommendation from the NDIS review is that the scheme should provide a flexible budget for participants based on a consistent, transparent needs assessment. So the bill introduces a statutory framework to implement that recommendation, with the detail of how that assessment process should work to be further designed with the community. National Cabinet agreed in December 2023 to move legislation as an initial immediate response to the review. To the extent that the government is responding to the review, that is the response that I, perhaps inarticulately, indicated.

Of course, the legislation is not the last word in terms of the government's response to the review or to the reform question. So there will be further legislative work. The work that the legislation itself enables will commence if the legislation proceeds through the Senate.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Can you just confirm for me that the government response to the review, which it's now had for 10 months, give or take—did you say that you do have a government response but it hasn't been released and that that's what has informed this legislation, or did you misspeak in the Senate earlier?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I think we traversed this issue a bit in estimates as well. The Commonwealth and the states agreed at the DRMC to develop a response, and it's anticipated that that will be finalised by the end of this year. The release of that document is a decision for government in the normal way.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

You've had a review for 10 months. We've now got legislation that's been the subject of the most secretive process I've experienced here in 10 years. There were 27, 29—can you just confirm how many recommendations were in the report? How many of the four—recommendations 3, 6, 7 and 8 of the 27 or 29 recommendations—are in full and how many are in part? What sections of the bill relate to each of these recommendations from the NDIS review?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

If I've got anything further to add in terms of whether they are in full or not, I'll provide that later—if that assists. The amendments in this bill give effect to review recommendation 3 and interconnected elements in recommendations 5, 6 and 7. The amendments also support the partial implementation of recommendation 17.

I'll just point out for the chamber that the government is working through these issues carefully, in an orderly way. The task of reform here is a very significant task indeed. There was no reform in the unhappy 2013 to 2022 period. The government is taking responsibility here for undergoing a process of reform to make sure that this scheme is sustainable and has a deep reservoir of support across the community not just for 2024 and 2025 and not just for the budget forwards but for future generations. That will take time and careful work.

As should be evident from even a casual observation of this piece of legislation, it is designed to deal with a number of recommendations. It resolves some issues and sets up a process for the development with the disability community itself of a fair and sustainable approach to questions on things like the needs assessment. This process will go on for some time, in terms of both further legislative responses and working with the state and territory governments in a careful and thorough way. It is not a one-hit wonder.

I would anticipate that most Australians would understand that reform of a scheme of this magnitude that intersects with the rights and life experiences of so many Australian citizens ought to be done carefully and in the most collaborative way possible but also with some urgency. This bill will set up a process that will determine some of those questions, and there will be further reform in this area. I expect wave after wave of consistent approaches to that reform and improvement in terms of the delivery of services, the interaction with the disability community itself and the ongoing sustainability of the scheme.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

This is going to be a very, very long committee stage if you can't even answer my first, very basic question. I will come back to my question, Minister, and your first answer to it. My most basic of questions about this legislation was: what recommendations of the NDIS review is this implementing? If I heard you right, you first said recommendations 3, 6, 7 and 8. You came back for a second bite of the answer, and then you said there's a little bit of 5 and a little bit of 17 in there. Could you please go through each of those. To be very specific, it's not the detail of it yet, but could you indicate what parts of the bill are linked to recommendations 3, 6, 7, 5, 8 and 17. What parts of those sections are in the bill?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Again, I want to be precise about this as well. The amendments in the bill give effect to recommendation 3 of the NDIS review and to interconnected elements in recommendations 5, 6 and 7. They also support the partial implementation of recommendation 17. You are correct, Senator Reynolds, to point out that I did say recommendation 8 earlier. It's an error in my notes, and I take responsibility for that. Thank you for pointing it out.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

I thank the minister for that clarification, but could the minister actually explain what parts of this bill are implementing recommendation 3. You've said 5, 6 and 8 are interconnected—and no 8, but 17. What parts of the bill actually implement those recommendations in the review?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

On the basis of what is in front of me, the bill does the following things. In relation to access, the bill requires the National Disability Insurance Agency to provide participants with a clear statement of the basis on which they entered the scheme—by meeting either the disability requirements or the early intervention requirements or by meeting both. The bill will also clarify and expand the National Disability Insurance Scheme rules relating to access provisions, including the methods or criteria to be applied when making decisions about the disability and early intervention criteria, and the matters which must or must not be taken into account. Further, it creates the new reasonable and necessary budget framework for the preparation of NDIS participants' plans. The bill provides for the new framework plans to be developed in accordance with the new budget framework. Participants will receive funding based on whether they access the scheme on the basis of impairments that meet the disability requirements, the early intervention requirements or both.

The bill amends the act to provide for the needs assessment process and the method for calculating the total amount of a participant's flexible funding and funding for stated supports for new framework plans to be specified in legislative instruments and NDIS rules. These will be developed in consultation with people with disability—

Andrew Bragg (NSW, Liberal Party, Shadow Assistant Minister for Home Ownership) Share this | Link to this | Hansard source

A point of order, Senator Reynolds?

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Thank you, Minister, for that information on access and the reasonable and necessary budget framework, but my question goes to the recommendations in the review: how do they link, and to what parts of this bill?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

As I was indicating before—and now I have both electronic and paper material in front of me—recommendation 3 is essentially about providing a fairer and more consistent participant pathway. This bill amends the act in relation to access to establish a fairer and more consistent participant pathway; that is recommendation 3. We may need to provide more information in relation to which sections of the bill, but if you're looking for a cross-tabulation table of the bill with each recommendation, I'm not in a position to provide that to you. I can say that, in relation to recommendation 3, which is about participant pathways and providing a fairer and more consistent approach, the bill is designed to amend the act in relation to access to provide participants with a clear statement on the basis upon which they entered the scheme. As I indicated before—I won't go through it all again—in developing the access provisions, including the methods or criteria to be applied, when making decisions about the disability and early intervention criteria and the matters which must or must not be taken into account, that process in relation—

The TEMPORARY CHAIR: A point of order, Senator Reynolds?

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Yes, a point of order, or something that might help the minister: the minister said he didn't have the information available, so will the minister consider taking that on notice and perhaps coming back later this evening with the information?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

If one is seeking a cross-tabulation table, I indicated that that is not in front of me. If we're able to provide further information, I'm sure we'd be happy to. What I am doing is answering your question.

Recommendation 3 goes to pathways. I was just about to make the point that the act sets out a process for developing that criteria. Recommendation 6 goes to creating a continuum of support for children under the age of nine and their families. Recommendation 7 goes to introducing a new approach to NDIS supports for psychosocial disability, focused on personal recovery and developing mental health reforms to better support people with severe mental illness.

If there's additional information that we can provide about the relationship between those and the bill, we will, but, as I have indicated before, the bill will provide for a needs assessment process and the co-design process to finalise that in consultation with people with disability, the disability community, health and allied health technical professionals, and all states and territories, consistent with the governance arrangements. It will insert a new definition of 'NDIS support' and a series of measures focused on protecting participants. All those measures in the whole go to those recommendations that I referred to and that are useful and important parts of the government's response to the overall NDIS review.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

I find it absolutely extraordinary that we've got the NDIS bill before us, and the government purports to do two things. One is to implement the review, which we don't even have the government response to yet. I've asked several times now if the minister can explain how the review recommendations are actually reflected in this bill. Not only could the minister not even tell me how that occurs, but he was also reading from the review itself, not from the bill. This is the most basic of questions on this bill: how is it implementing—and in what sections? The next question was going to be, 'What amendments have been made in the 50 we've received before this and the 18 that we got three hours after we started committee today?' I find it extraordinary that this government can't even come in here and explain this bill beyond reading from the review report. There are almost no words for how incompetent this is.

Minister, by my count, there are at least 20 questions on notice from the inquiry into this legislation which have been taken. Minister, are you able to advise when they will be provided?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I will clarify this if what I am saying is wrong, Senator, but the office understands that those have been provided. As I said, I'll clarify if that's wrong, but that's my understanding.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Mental Health and Suicide Prevention) Share this | Link to this | Hansard source

I want to come back to this needs assessment because I'm becoming increasingly confused, which is very concerning considering the whole 5½ days of hearings that we had in this inquiry, which we've been assured is more than enough. One of the things that we heard throughout the hearings that we were allowed to have, that we were assured the government senators were available for, was that the needs assessments were going to be about fairness. They were going to be about equity. We heard the minister quote that families currently pay substantial sums of money to garner reports and the like in regard to their NDIS planning.

The needs assessment, as was told to us throughout these hearings, was to ensure there was equality of access; families would no longer be burdened with this cost because there would be this standard, functional needs assessment that would be made. Different disabilities would have different assessments. We were being assured, 'Don't worry; we will come to who is going to develop new ones versus using best practice already established so we can spend more money and make it more difficult and more complex to deliver.' You just quoted recommendation 3—and, to note Senator Reynolds's point, you were reading from the review, not the government's response or the legislation—which was for fairer and more consistent pathways. Again—equality of access, ensuring that everyone with a disability can have a functional needs assessment done and their plan made. They don't have to go and spend thousands of dollars with paediatricians, psychologists, OTs, speech therapists and behaviour analysts to deliver these reports for them, because they're going to have a functional assessment that the government is now saying, though it's not decided yet, that they may have to pay for themselves. I'm sure people in the disability community would want to know this: how much are they going to be charged?

And I know Senator Steele-John has asked questions about where the workforce is going to come from here, but is this an attempt to set up a new cottage industry? We're now going to have NDIS providers who deliver functional assessments. They are paid by the NDIS, no doubt at top dollar, to deliver these so-called NDIS approved needs assessments that will be delivered by outsourced providers. Is there another provider industry about to be set up? The point of this bill, the point of why we've been trying to work with the minister and what we've been saying since we were in government, is that sustainability is an issue. It was denied by Minister Shorten when he was the opposition spokesperson. It was pearl-clutching kabuki theatre players when anyone talked about sustainability when we were in government, but now, no, no, no, sustainability is an issue! But is this now setting up another little cottage industry of functional assessors who can go out and charge at top rate, which will then actually remove the equality of access because there will be families who can't access one, who can't afford to pay for a needs assessment or a functional assessment?

And then we'll run into the next problem: rural and regional access. People in remote communities won't be able to have one. Then the providers will have to charge all those big travel costs to go out there, won't they? And how many times do you think the travel costs will be charged? They might go out and do four assessments, but they'll charge those travel costs four times. We know that is what is happening. This is why the NDIS has sustainability issues. It is because so many of the providers are completely and utterly rorting the system and using participants to rort the system. This is where this legislation is not focused, and we have a long way to go on this committee stage.

Minister, please confirm or clarify: Are participants going to be required to pay for functional assessments? Will this be a new cottage industry set up of NDIS providers to deliver NDIS approved functional assessments?

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

You should have gone with independent assessments.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Mental Health and Suicide Prevention) Share this | Link to this | Hansard source

You didn't have to pay for those. People didn't like them. I wasn't a big fan myself, Linda, as you know, but you didn't have to pay for them. But now here we are. This is new information. Throughout these so-called 5½ days of hearings, where we got so much testimony and so much evidence that we should have all been just bowing down and going, 'Yay! Great piece of legislation'—so great that we got 18 amendments today from the government! You were so ready to pass it six weeks ago. I might just remind Minister Ayres that, in one of his most recent previous answers, he was just saying that it needs to be done carefully and ought to be done in the most collaborative way possible but also with urgency—with urgency! Well, let me tell you how urgent you think this bill is. Let me tell you how urgent: you don't even have it listed tomorrow! That's how urgent you think it is—it's not even on the papers tomorrow! You are a joke. This is absolutely embarrassing and insulting.

Minister Shorten claimed that this bill was ready to be passed six weeks ago, then ran an absolutely rubbish campaign on the cost. We had testimony from the actuary, and we'll come to more of that too. When we asked the actuary how he derived the billion-dollar figure that these couple of weeks of delay were going to cost, the actuary told us that what he went through was that they had worked on the assumption from the day this legislation was passed that the full five per cent of savings were straightaway—straight there. All the state governments were on board, foundational supports were ready to go and the five per cent savings were immediate. Funny, though, when we asked him about what the savings were estimated to be in the next financial year—around three per cent. In 2028-29 we're getting to 4.6 per cent.

In this fallacy of a smear campaign conducted by Minister Shorten, he was claiming this great loss that was going to be felt by the scheme because of a delay from having hearings. Wow, having some scrutiny of a bill that's required 18 amendments from you today—what a joke! The actuary's acknowledged that the billion-dollar figure you came up with is a fallacy because all of the assumptions around it are wrong. He's doing a figure based on a full rollout of every single fairyland idea you have of savings. Let me tell you: with this functional assessment and a possible new cottage industry, you guys are just blowing it up. Not only is it functional assessors—we'll get to the navigators as well.

We had a great inquiry. I asked a question about the navigators. The navigators that you're doing, because they're part of the review—'recommendation of navigators'. They're like a concierge service for both NDIS participants and not NDIS participants but funded by the NDIS. I asked: would these navigators perhaps replace support coordinators? The answer was given to me: 'Oh, no. They will be on top of.' So you will have a functional assessment, probably paid for by you. You will then have a meeting with a navigator, possibly, who tells you this is where you should go. Then you'll have a meeting with an LAC—we know that's been a complete disaster of a structure, because we know how many of the LACs then have to go to review from their referrals—and you'll then go to the planner in the agency who writes the plan. It then comes out and you may have a plan manager or be agency managed. So you're hitting four, five or six people before you've hit a service provider. Before you've seen a speech therapist, before you've seen a psychologist, before you've met with the behavioural therapist or the OT, you have seen a number of people—all paid for by the NDIS—to put a plan together. And we wonder why the scheme is blowing out!

It is not the fault of the participants. The emperor has no clothes, and this legislation is the definition of that. It is appalling. The urgency side is a fallacy because you don't even have it on the papers tomorrow, not even on the red. That's how urgent it is. And now we've had a spanner thrown in the works tonight that's never come up before—we were specifically told it was about equality and fairness of access—in that participants may be required to pay for the needs and functional assessments they don't even want in the first place but are mandatory in order to access the scheme. And you wonder why the disability community is up in arms.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

That's certainly not what I said, Senator Hughes. What I said was that further work is going to need to be undertaken in relation to the design of the needs assessment process and that a decision will be made in the budget context around payment.

If anybody wanted an insight into the dysfunction of the coalition's approach to these questions, they need only have listened to the last 10 minutes of this debate. The problem here is that no reform was undertaken in relation to these issues over the course of the period 2013 to 2022. No reform.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Mental Health and Suicide Prevention) Share this | Link to this | Hansard source

That is a lie! Stop misleading the chamber!

Andrew Bragg (NSW, Liberal Party, Shadow Assistant Minister for Home Ownership) Share this | Link to this | Hansard source

Order!

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Mental Health and Suicide Prevention) Share this | Link to this | Hansard source

It is a lie!

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

I took two bills through.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Chair, I think—

The TEMPORARY CHAIR: Order! We're going to have an orderly discussion here where the minister's going to be asked questions and then the minister will answer questions.

Raff Ciccone (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

You should withdraw 'lie'.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

One would think one would withdraw it, but sometimes senators aren't capable of self-reflection to be able to do that kind of thing.

So much of the contribution over the course of the last 20 minutes has been about defending the legacy of the coalition's inaction in government around these questions. So much of it is about that. It's a sort of thin-skinned approach and a sensitivity to criticism and a developing grievance politics felt on that side of the chamber about the inadequacy of the reform process. I understand that criticism while you're in government hurts people's feelings. I get it. But the most important issue here is not how people feel about their period in government; it's about what we do.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

I took two bills through. You just said we didn't do anything.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

There Senator Reynolds goes again, defending her period in government. That is not germane to the questions that are in front of this chamber that are engaged by this bill. This bill is a response in part to recommendations from the review panel report. It does the work that it says it is going to do and no more. There is more work, of course, to come. In relation to the requirement to pay for needs assessments, as I said, as part of the co-design process, further work will need to be undertaken around the design of that assessment process, and a decision will need to be made in a future budget context around payment.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

Thanks, Minister; it's good to know there will be further consultation. I'm hearing that people want to be consulted on the early stages of this list—in these two weeks—and would love that to be extended.

This list determines that community transport is not a NDIS support, and I'm told that this could throw a spanner in the works for so many people in communities across the country. I presume the intention is for states and territories to ensure that there are community transport services through foundational support funding. However, I'm interested to know if the ACT disability minister or any disability minister is aware that they may be on the hook to ensure these supports are available, potentially within the next few months, through foundational supports. Can you give the Senate any assurances about the work that has gone on with the relevant ministers around community transport?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I'll come back to you again, Senator, if there's anything additional that I can provide on this question. As it's explained to me, community transport is something that is essentially provided at this stage by the states, and it's not anticipated that there will be any change to the list in relation to that question.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

Senators, there are times in our roles when we may question the value of processes such as that which we are engaging in this evening. Sometimes, these debates can seem as though members of parliament are just burning up time, trying to achieve other strategic goals. What we just witnessed in this chamber is an example of exactly why parliamentary scrutiny is so important. The National Disability Insurance Scheme is one of the two pillars of our national social security system. It represents the very best of our community's values. It is the response demanded by the community of their governments to embody in social programs a commitment to fairness and equality. Responding to that demand was the impetus for creating the scheme in the first place.

We have just learned that this government, with the legislation it is attempting to pass through this parliament tonight, is proposing to subject the 660,000 participants who rely on the NDIS for basic supports to be able to get out of bed, have a shower, go to work, see their friends and be part of their communities—every single one of those participants—to a mandatory government-run needs assessment process, and they may well have to pay for it. Tonight we have had it confirmed that the government, as it seeks to pass this bill, cannot assure the 660,000 participants who rely on the NDIS that they will not be slugged with the bill for the mandatory assessment process that is proposed in this bill.

In case any member of the government is trying right now to weave around the mandatory nature of these assessments, let me refer you to section 32L(1) of your own piece of legislation:

The CEO must arrange for an assessment of a participant's need for supports to be undertaken as soon as practicable after the CEO commences the preparation of a plan for a participant.

There is no wiggle room here. Never in the course of the inquiry into this bill, nor in the course of the previous inquiry into this bill, has any member of the government come clean with the community that it is asking the Senate to pass a piece of legislation which will require a mandatory assessment that they may well have to pay for. It absolutely beggars belief.

Let us remember that right now there are folks on the scheme who've had to pay tens of thousands of dollars for specialist reports not because they were needed but because the agency you run required them to undertake those reports to continue to receive those supports. So before you jump up and say, 'Oh, well, tens of thousands of dollars are terrible, but this'll be cheaper,' let me tell you right now that, in my seven years in this job, I have lost count of the number of disabled people with permanent, basic, well-understood disabilities asking for commonsense supports who have been asked to undertake additional assessments not because the information was needed but because the bureaucracy, at the government's behest, was trying to find as many ways as possible to kick them off.

If you don't believe me, go and read the transcripts of countless Administrative Appeals Tribunal hearings and results that have demonstrated again and again that the government and the agency together have colluded in a process of requiring participants to give additional information as part of a process of bureaucratic abuse. That is what we experience now, and what we have learnt from the government this evening is that, under their bill, you'll be subjected to all of that, and you'll still have to pay for it. It is an absolute disgrace for you to come in here and attempt to pass this bill without being willing to commit this evening to covering the cost of the assessments that you require.

Disabled people don't want this. We're actually quite satisfied with the idea—and let's take this as a radical idea—that we would tell you what disability we have, that we would share with you the mountain of medical reports that we have acquired over the course of our lifetimes, that you'd have a look at it and that if you needed any additional information you'd foot the bill for it, because it's you who wants the information. Why should a disabled person with a permanent, well-demonstrated and well-documented impairment have to once again prove it to the government? It is ridiculous.

This whole process of pretending to the disability community that this bill is in our own interests, that it is good for us, is a myth designed by RedBridge polling and all your good mates as part of the speechwriting pools that you've created together. This myth was pulled apart during the course of these inquiries—inquiries that you opposed on the basis that your bill was signed, sealed and sorted. 'No changes or additions needed,' say the government, and then in the next minute there are 18 amendments, most of which do not relate at all to the evidence that was taken during the inquiries. The schedules I've read tonight make me laugh to the pit of my stomach. God, you've been busy, how you've been busy, finding new ways to give yourselves more powers.

During the course of this debate I have tried to engage and have committed myself to engaging in a process of analytical scrutiny of what is before us—and I will return to that. But, for goodness sake, to have come all this way, to have come all of these years into this process, to have required disabled people to expend so much energy and expertise for your government as part of the process of so-called reform that you have proposed to us over the last couple of years, to get here tonight, and you can't even confirm that the assessment you will require of us under law, this mandatory process, is one which we will not have to pay for in the middle of a cost-of-living crisis! So, Minister, I finish with this: can you confirm that section 32L(1) requires that the undertaking of a needs assessment is in fact a mandatory process?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

What I'll do before I answer that is respond to some of the assertions that you made. Imagine if we came here with a predetermined outcome. Imagine if we came here with an outcome in relation to what the needs assessment process was going to be. Imagine, if we advanced that proposition, what the chorus of complaints would be. Imagine that proposition. What we have set out here in the bill is a process for co-design of the needs assessment process that was asked for in the review of the legislation. That is what has been determined. It is absolutely proper—and it would indeed be very strange if it were any different, if the government were to say anything else—that decisions about the scope of payment, the response to that co-design process, will be a future budget decision of the government at the appropriate time. Now, if the response of our political opponents out here is to try and describe that perfectly reasonable outline in the florid and scaremongering terms that I've just heard, they ought to take responsibility for the kind of language that they use here, the kind of misrepresentations that they make in relation to these questions and the impact that has upon people.

Senator Steele-John, you said, through the chair, that there are deficiencies in the way that the agency conducts some of these assessments. You said that people, participants, sometimes—I'm not sure whether it's sometimes or often—have to pay a considerable amount of money to provide additional information in their assessments. Senator Reynolds said 'hear, hear' as if that hasn't been occurring for the last decade.

We as a government are establishing a process to develop a needs assessment framework that will apply to every participant.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Do they pay or not, Minister?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Again, another misrepresentation from Senator Reynolds, who appears not to understand how to do anything else. But the process—

Louise Pratt (WA, Australian Labor Party) Share this | Link to this | Hansard source

Order! Senator Reynolds, your chance to ask questions will be later.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

The process, the framework, will be determined in collaboration with the disability community—that is, stakeholders, participants themselves, their representative organisations—and, when that process is determined, the ordinary budget questions will be engaged with and dealt with. That's a normal process. It is a normal process, after the legislation was deferred—I think because of a political calculation of the coalition—that amendments will be introduced over the course of the debate. That is what is happening here. Amendments are being introduced over the course of the debate. It is a normal thing to occur for legislative debate to be scheduled in a way that the government determines so that we efficiently get to all of the legislative priorities of the government over the course of the week and the fortnight. There is nothing extraordinary about that, and the hyperbole that's been engaged in, particularly by those opposite, on these issues does not reflect very well on their commitment to policymaking and reform in this area.

There are two types of assessments: functional capacity assessments and needs assessments. The processes for both need to be worked through through co-design to determine cost and workforce, and Senator Steele-John has taken me to both of those issues over the course of the day—that is, the consequences of workforce have to be worked through in that co-design process. The shape of that framework will determine the cost, and the government will need to make an assessment of how cost is dealt with at the conclusion of that process, not at the beginning of that process. That is a normal discipline.

It is expected that the needs assessment process will be paid for by government. What's not yet determined is how these assessments will be conducted. They could be done externally or they could be done by the NDIA workforce. There is some history to these propositions. The functional capacity assessment needs to be determined. It's currently paid for by participants. The review recommended that the government pays for that. The government needs to consider, like a responsible government would, setting up a scheme that is sustainable for the future and what workforce is required to best support participants. Once the legislation has passed, we will coordinate a co-design process with the disability community to finalise those questions. Once that is concluded, then there will be, in the normal way, the kinds of budget processes that are engaged to resolve payment and workforce questions. Any other suggestion is mischievous and misrepresentation.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

I think it's worth asking you, Minister, to clarify a couple of things in relation to your contribution there. Tonight, in answer to my question—and it was a very simple question; I can read it back to you. My question to you was this: will the agency cover the costs of the needs assessment? You said in response to that question, 'That is a matter for government.' I then gave you multiple additional opportunities to confirm whether the agency will cover the cost of the needs assessment. You refused to do so, and in refusing to do so you have repeatedly cited the view of the government, it seems—though please feel free to clarify this—that it would be inappropriate for the government to clarify tonight whether the agency will cover the costs, for two reasons. Firstly, you have not yet determined the scope of work required in a needs assessment; and, secondly, you wish to engage in a process of co-design with the disability community as to the nature of the assessment.

On the first point, you ask us to accept as reasonable that the Senate would pass a piece of legislation requiring the undertaking of a mandatory process without understanding the ramifications of that mandatory process either for the workforce required to undertake that process or indeed for the individual upon whom that assessment will be carried out. Now, we can go into very significant detail as to the potential dangers that that process may expose the individual to. For examples of what that trauma could look like, it is fair enough to look at previous government proposals around this process. They can be serious. However, before you get anywhere near the trauma the individual may be exposed to, there is the basic question of cost. Who will pay for the assessment? You say, 'Can't tell you that because we haven't defined the scope of work.' Then why are you asking us to pass this bill?

You may well wish to determine down the line what the scope of work is, but wherever you land on those questions the assessment itself will still be mandatory, as it is required in the legislation—as the role of a needs assessor is laid out in legislation. The whole idea that, just because you haven't figured it out yet because you need to define that scope of work—which you do—we should therefore move on from this question and just pass the legislation without having that basic level of information is, I would put to the government, stretching the limit of credulity. You're asking us to just trust you that there will be enough people and that you'll define the scope of work in an appropriate way that will actually enable this assessment work to be carried out. I cannot see, and I would put to my fellow senators that we have been given no reason to believe, that we should trust the government in that regard.

Secondly, to your point of co-design: I am the most passionate advocate of co-design you could find in this building. I would be happy to debate, to scrutinise, to engage with any piece of legislation in relation to co-design the government may wish to bring. In all of the years that I have worked on that topic and explored what it would look like to bring co-design into being in a legislative context, I've never once come across an example where individuals, when brought together, opposed a question about a policy that they may wish to engage on and have actively volunteered that they really believe that a critical outcome of that co-design process is that they pay for yet another assessment of their need, function, ability or capacity. To bring that here tonight as a credible suggestion is just ridiculous. Let us remember the structural unemployment and the chronic poverty that we are subjected to as a community. To suggest that any disabled person or any representative organisation would come before a government, as part of a co-design process, and say, 'We really believe that we should pay for this; it's really important that we do,' is nonsense. And I think the government knows it's nonsense.

I think the government has been very happy to let the perception develop within the disability community that the needs assessment process will be paid for by the government. It has been very happy to let the disability community and disability representative organisations conclude that, because the NDIS review recommended that the cost of a needs assessment be covered by the government, that was the position of the government. What we have heard this evening is that that is not something the government's willing to commit to. It will need to wait for the usual budgetary processes. Fine. But why then ask us to pass this bill this evening in the absence of such a budgetary commitment?

We've not long gone through a budgetary process where there was an opportunity to at least earmark some funding, some public revenue, for a bit of a sandbox for the co-design process to take place within. You didn't do that. You're asking us to sign 660,000 people up to a process, up to a bill, that will require them to undergo a mandatory needs assessment process. You haven't been able to tell us this evening who will conduct that assessment, when and where, or how it will be paid for. You haven't been able to rule out that the participant themselves will have to pay for it. You haven't been able to confirm whether any work to understand whether any of the professions that might be required to engage in the work of delivering those needs assessments has been commenced or undertaken. So then I have to ask: why should the Senate accept the contention, in the absence of any of these basic pieces of information, that we should pass this bill?

Now, the government will probably respond to that by saying, 'Well, there is an urgent need to pass this enabling piece of legislation.' But, in relation to this bill and needs assessment, there's no enabling occurring. It is a stated, mandatory, legislated fact. You can consult and you can co-design—whatever you decide that means—what the assessment may or may not look like, but there is nothing that I have been able to identify or that the committee has been able to identify that enables a participant, at the end of the 18-month transition that the minister has outlined—or whenever we end up in that five-year process arriving at the destination of the required needs assessment—to opt out of a needs assessment and yet still receive funding. So that is my question to the minister: is there a section in this bill that enables a participant to opt out of undergoing a needs assessment and yet still receive an NDIS budget amount?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

There's a series of propositions in there; I'll just say to Senator Steele-John that there's a binary proposition here. The first proposition is a predetermined outcome in terms of the needs assessment framework. If there were a predetermined outcome, one might expect that there would be a decision of government in relation to budget. The second proposition is a process—in this case a co-design process, The government has opted, out of those two ways of dealing with this, to go with the co-design process—to design this with an open approach with the disability community and with experts that will go to the process, to the workforce and to the way that individuals and their families and carers interact with specialists and all the people who are engaged in the needs assessment framework. One of the questions that will, of course, be engaged in that will be the scope of that activity and what that means in terms of cost. If you open up the process to the community in the way that this bill enables, it is entirely proper for government to engage with that co-design process about those issues and engage the normal budget processes in the way that I've suggested or outlined on behalf of the government.

There are, as you've indicated, Senator Steele-John, a set of propositions that will be worked through, and some of them are very difficult—about the rights of individuals and how the process interacts with their sense of wellbeing; how it's done efficiently; and how it's done, as the review suggests, to provide a pathway for individuals that's well understood. I think the expression is 'a clear pathway'. All of those issues are engaged, and I think you quite properly apprehend that there are some difficult issues in there. But the truth is that they have to be resolved together—the process issues, the workforce issues and what I call the scope issues. How all those things interact, and the cost issues, will be dealt with over the course of what I think I indicated to you was likely to be a 12- to 18-month process. When that needs assessment framework comes back, it will come back in the format of a disallowable instrument. There will be absolute clarity for the people and organisations that have participated in the co-design process, for the public and, indeed, for the parliament about how that process will work.

The truth is that government matters. Who has decision-making capacity on some of these budget questions matters. I reckon Australians would have regard to the history here in relation to the slash and burn operation over there, what they have said about government spending even over the course of today and the kind of decisions that would be likely to emerge from government in relation to these issues.

It is not possible to have it both ways. The co-design process comes with a requirement for decisions to be made by government in conjunction with the community, and that will lead to a budget decision about how costs are allocated in the normal way. All I can say in relation to that, firstly, is that the review had a set of recommendations about that. As I said earlier, it is expected that needs assessments will be paid for by government. What is not yet determined is how these assessments will be conducted. That is why I have said consistently that a decision will need to be made in the budget context about payment. That is a normal and sensible way for these processes to be determined. The alternative would be for the needs assessment framework to come here without the co-design process in a predetermined way and be served up to the disability community and this parliament as a fait accompli, and this government will not do that. That's why this legislation is framed very much in a way where its role, particularly in terms of this issue, is to enable reform. I think you said 'enabling', Senator Steele-John. That is the approach that much of the bill delivers. It enables a process of reform. It is urgent that we get on with it.

Some of the answers will only be discovered in that co-design process. It is not fair, and it is misleading, to suggest that the government should have answers to all of these propositions absent that collaborative process that the bill outlines. That would be a contradiction in terms. You can't have co-design with absolute certainty about the outcome. The principles and the rationale for the act are set out there. The government will be accountable on these questions in the normal way. We will engage in the normal budget processes once these questions have been determined.

There will be amendments circulated and proposed by the government. There are a series of amendments circulated and proposed by the opposition. Debate will be scheduled over the course of this week, and next week if necessary, to facilitate the passage of this bill and the Senate's consideration of it. There is nothing unusual about that. There is nothing unusual about an amendment process. This is going to be continuous reform in this area. This package of legislation is part of a reform process that enables further legislative reform. Our task here is far from done, and this is the first legislative step in that work.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Having listened to the minister over the last few hours in this committee stage, I think that even the scriptwriters of Utopia would not believe that this amount of incompetence over the last 2½ years could be remotely plausible. My heart genuinely breaks for the thousands, if not more, of participants and their family members who will be watching this this evening. I think a little bit of truth-telling about this is actually required. Let's go back in history a little bit. Four to five years ago, when we were still in government, the scheme had been implemented far too fast. The scheme started in 2013 and it took about five years, as it developed, to realise that there were some serious structural flaws in the legislation and also in the intergovernmental agreements that needed addressing. As everybody in this chamber knows, when making serious and meaningful reforms to a creature of the federation, states and territories need to agree. This is not just for amendments to the intergovernmental agreements but also for the categories of reforms in the federal legislation.

It is a fact that just under five years ago, the coalition, and the then minister, Minister Robert, came to the opposition and came into the parliament and said, 'We need to make reforms.' In the legislation, it said there needed to be a needs assessment, and we didn't yet have one. In good faith, the minister developed one that was to be paid for by the government. He went through a process of consultation, and then, when I became minister, I inherited it. I put out the hand of bipartisanship to the then shadow minister, Bill Shorten, and instead of saying, 'Yes, we will work together on it', he saw it as an opportunity to play politics. Nobody else can quite do it like he does.

He went out and scared the living bejesus out the sector and said we, the government, were lying. He said, 'There are no problems with the scheme.' He called us every name under the sun—the only invective Bill Shorten still uses. He said: 'Don't worry, they're lying. There are no problems with the scheme. Trust us. We will make no cuts to the scheme if you trust us and vote for us.' Anybody in this country can google it. You will find probably hundreds of examples of that. Despite that, and despite what the minister has just erroneously told this chamber, when I was minister, I got two pieces of significant legislation through this place. I had the full support of states and territories. I had the support of the sector because we actually consulted with them. We had exposure drafts. We went around the country. We didn't have non-disclosure forms for the selected few. We didn't keep it secret. We had exposure drafts. We changed the drafts before they hit this place and we got two pieces of legislation passed, and yes, Bill Shorten did support that legislation.

Two and that half years later, when Bill Shorten came into government, he probably thought: 'Oops, I've just told everybody there are no problems. I knew there were problems. The budget showed there were problems. Thirty reviews into the scheme showed there were serious problems. But now I've got a big problem. I just said I'm not going to make any changes.' He didn't do the right thing as a minister of the Crown and say, 2½ years ago: 'Oops, I got it wrong. There actually is a problem with this scheme and I want to work with everybody in this place and with the sector to fix this before it gets worse.' The problem with the scheme is the scheme and the Commonwealth government cannot control either of the two drivers of cost: the number of participants and the packages they receive. No other insurance scheme in this nation, probably in this world, has a scheme where you can't control the drivers of cost so that it has to live within its budget.

Instead, what did Minister Shorten do? He called another review which took nearly two years. Guess what? The review found exactly the same things the previous 30-odd reviews had found: the scheme needed urgent reform. So what did Minister Shorten do then? Nothing. Going back, I'll tell you what he did when he came into government. I'd actually started the process. After cancelling the independent assessment process, I commissioned the IAC, the Independent Advisory Council, to start preparing a new system, co-designed, for needs assessments. Guess what Minister Shorten did? He stopped everything. He stopped all of the co-design reviews that were underway and said: 'Don't worry. Trust us. We'll have this review. We'll find out what's wrong. We'll talk to lots of people. We won't listen to them. We'll have this review'—that you've been sitting on for seven months and that apparently now this bill is implementing. But the minister just then couldn't even tell us how it was implementing the review. He said he was reading from the review itself.

Roll forward 2½ years—a review, doing nothing. Now they're trying to ram through this piece of legislation because they've got a problem, because they haven't taken measures, in 2½ years, to work with the states and territories to start to find solutions to functional assessments, to all of the things about which the minister is now saying: 'We'll put them in regulations and we'll work it out later. We're sure the states aren't going to mind paying all this extra money. I'm sure we'll get them on board.' Well, I don't know what rock you've been hiding under, because every single state and territory have said that you have bungled the process, and they ain't on board.

So why is the government really doing this? I think it comes down to Shortenomics. Shortenomics goes something like this: 'We've got a problem. We'll shunt this legislation through the Senate. We won't give the sector or the Senate time to review it. And, by the way, we're going to throw in another 50-odd amendments as you're trying to review the bill, because we realise how bad it is in the first place. We'll get a few people we like to sign NDAs. We won't let the rest of the sector look at it. There'll be no exposure draft. And we'll just try and ram it through this place.' Well, I tell you what: it is a disgrace, and I feel so sorry for every single NDIS participant, who will now feel incredibly unsure about the future. You've had 2½ years. You knew the problem when you came into government. You've got speechwriters. You've got RedBridge to manage the messaging. If only you'd spend half that time talking to the states, talking to the sector and actually getting solutions.

Minister, I'd like to come to questions now on Shortenomics. You said earlier that this bill doesn't make cuts to the scheme. Well, Minister, in your last budget I counted 18 times—there may be more but there are at least 18 times—where in the budget papers it said that this legislation was required to realise $60 billion worth of savings, cuts to this scheme, over the next 10 years. That is stripping out $60 billion from the budget, and, when the fourth-quarter report comes out, I think it will be at least $70 billion, if not more. Could you explain to this place, please, how, when it says 18 times in the budget that $60 billion worth of savings are going to be realised through this bill, nobody in the inquiry could explain to any of us where those savings were coming from? The poor actuary, who is a very good man and a very honest man, was clearly told not to answer the questions. So we still haven't got any data on how this piece of legislation is going to realise $60-plus billion worth of savings. When you're answering that question, please also explain this to us. My recollection was that it was going to be about 14 per cent, but it's still going up at 20 per cent. So how on earth is this government getting it down to eight per cent?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I might respond to that series of propositions. I note the minister's defence of her own period as a minister, and I'd just say that there are issues of public policy importance to the current cohort of participants in the scheme—around 660,000, I think we've said—and future participants in this scheme. I know that the former minister feels unfairly characterised, but this is not an opportunity to make the dealing with this legislation about herself or her own sense of grievance about the way that she was criticised. That is not an appropriate response.

I undertook to come back to the Senate about the relationship between the provisions of the bill, the changes to the act and the NDIS review terms. I intend to do that now and then come to Senator Reynolds's question in relation to the government's strategy to moderate the growth of the scheme.

First—if I can take them thematically—in relation to access settings, what the act does is expand the rule-making powers relating to early intervention to create a new pathway and, secondly, introduce a process to consider continued scheme access for people accessing the NDIS through the early intervention pathway. Those are set out in amendments to sections 19 to 28. They engage recommendation or reference 3.7 of the review, which says:

The National Disability Insurance Agency should reform … the pathway to provide supports to individuals where there is good evidence the intervention is safe, cost effective and significantly improves outcomes—

and recommendation 3.9—

The Australian Government should update and clarify legislation to support a more effective approach to determining access—

and recommendation 6.2, which says:

The National Disability Insurance Agency should reform the pathway for all children under the age of 9 to enter the NDIS under early intervention requirements—

and 7.2—

The National Disability Insurance Agency should establish an early intervention pathway for the majority of new participants with psychosocial disability under section 25 of the National Disability Insurance Scheme Act 2013.

That's firstly in relation to access settings.

In relation to the second theme, if I can describe it that way, funding settings for reasonable and necessary supports, there are new rule-making powers for assessment tools—functional capacity assessments and needs assessments—which we've spent some time on over the course of today. They are in relation to sections 32L and 32K, and they relate to the NDIS review recommendations 3.1:

The National Disability Insurance Agency should introduce a more consistent and robust approach to determining eligibility for access to the NDIS based on transparent methods for assessing functional capacity—

and 3.4—

The National Disability Insurance Agency should introduce new needs assessment processes to more consistently determine the level of need for each participant and set budgets on this basis.

The third thematic area is funding settings for reasonable and necessary supports. The bill provides for new provisions, creating the concept of a flexible budget other than certain stated supports; new rule-making powers to state supports and plans; new rule-making powers to specify when and why supports can be stated in plans; new rule-making powers to specify things that the flexible budget can and cannot be spent on; new rule-making powers to determine the process and cohorts for transition to the new budget-setting framework; new rule-making powers to prescribe timeframes for decisions in new framework plans—and plans will roll over if not reassessed or varied before the end date; the inclusion of matters to which the CEO must have regard in a new framework plan and, in approving a plan management type, whether the participant has previously overspent their funds; transition parameters for participants to move from an old framework plan to a new framework plan, to be set out in a legislative instrument, not rules, with a five-year timeframe which can be extended by instrument if required; clarification that NDIS amounts cannot be spent on supports that the rules prescribe as supports that will not be funded by the NDIS.

Those relate to sections 32(b) to 32(l), and they engage the NDIS review recommendation 3.3, that the National Disability Insurance Agency should change the basis for setting a budget to a whole-of-person level rather than for individual support items; 3.4, that the National Disability Insurance Agency should introduce new needs assessment processes to more consistently determine the level of need for each participant and set budgets on this basis; 3.5, that the National Disability Insurance Agency should allow greater flexibility in how participants can spend their budget with minimal exceptions; 3.6, that the National Disability Insurance Agency should adopt a trust based approach to oversight of how participants spend their budget, with a focus on providing guidance and support; recommendation 5.4, that the Department of Social Services, the new National Disability Supports Quality and Safeguards Commission and the National Disability Insurance Agency should ensure decision supporters have access to information, training and resources to assist them in providing best practice support for decision-making; and 6.4, that the National Disability Insurance Agency should change the basis for setting a budget to a whole-of-person level and introduce a new needs assessment process to more consistently determine the level of need for each child and set budgets on this basis.

The fourth thematic area in terms of quality and safeguards: the bill enables delegation of the commissioner's compliance and enforcement powers to specified non-SES provisions and positions, and expands the categories of person to whom a banning order may be made to include persons that are not related to the provision of supports, such as consultants, enablers and auditors. Those changes are contained in schedule 2 of the bill. They engage, as I alluded to earlier, recommendation 17.6 of the review panel that says that the new National Disability Supports Quality and Safeguards Commission should be resourced to strengthen compliance activities and communications to respond to emerging and longstanding quality and safeguards issues and market developments and innovation.

The final area in fraud and compliance includes a prohibition on approved quality auditors employing or engaging a person who is subject to a banning order made by the NDIS Quality and Safeguards Commission. That too is contained in schedule 2 and that also engages the NDIS review recommendation 17.6. As I indicated, the new National Disability Supports Quality and Safeguards Commission should be resourced to strengthen compliance activities and communications to respond to emerging and longstanding quality and safeguards issues and market developments and innovation.

Finally, Senator Reynolds's question—where she wants, for political purposes, to frighten people by characterising the government's approach to budgeting and further moderation of the growth of the scheme as 'cuts'—is not an honest portrayal of the government's objectives. Senator Reynolds knows that. There is a growth target. The scheme will continue to grow in terms of its cost and in terms of its size. Everybody in this place knows that that's the case.

Louise Pratt (WA, Australian Labor Party) Share this | Link to this | Hansard source

Sorry, Senator Reynolds. You are the one that stood, but Senator Tyrrell did come and tell me she was seeking the call. Senator Tyrrell.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Can I have one minute?

Tammy Tyrrell (Tasmania, Independent) Share this | Link to this | Hansard source

Okay, you can have one minute.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Thank you very much. I thank the minister for those. Can I confirm the information that you've given me? The review had 26 major recommendations and 139 subrecommendations. This legislation deals with, as we've said, 3, 5, 6, 7 and 17 in part, which you've just gone through—correct?—and, by my count, 11 of the subsections in those five. So 11 of the 139 recommendations have been actioned in this legislation. If it helps, I've got 3.7, 3.9, 7.2, 3.4 and 3.3—actually, one less because I said 3.4 twice. So it's actually 11, I think. Would that be correct?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Senator Reynolds, I won't go through it theme by theme, but the review references are 3.7, 3.9, 6.2, 7.2, 3.1 and 3.4. There'll be some repetition here, because there is some cross-referencing—

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Maybe not 12.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

So it's 3.3, 3.4, 3.5, 3.6, 5.4, 6.4 and 17.6. Of course, as has been made plain by the minister at all stages, this bill is not designed to respond to all of the recommendations of the review. Some—

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

So that's 12. Can I confirm if it's 12 of 139?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I might just conclude my response. I'm not sure what the maths is. Some of the recommendations of the review require a legislative response, but not all of the recommendations of the review require a legislative response. Some of them are in relation to foundational supports. Some of them will require decisions of the relevant Commonwealth-state interactions that we've dealt with. It is not an exhaustive list. It is designed to deal with what it is designed to deal with.

Tammy Tyrrell (Tasmania, Independent) Share this | Link to this | Hansard source

The NDIS should be designed to give participants what they need and to support them to live. The bill, as it stands, will not do that. It has gone through two committee inquiries, yet we're still unsure about how the new assessment process will work. What will the assessment tool look like? Who will use it? How will costs be measured against the participant's budget?

Participants have been told they will get a new framework plan, but it's not clear what a new framework plan actually is and how it's different to what they have had previously. What happens to participants who have an old framework plan? That's also unclear. Another point we don't know is how costs will be measured and allocated as part of the government's plans to get the scheme back on track. The idea of flexible funding is great, but what happens when the support a participant wants doesn't align with NDIS rules for that pot of money? Can the money be moved to another pot so the participant can still access the support they need?

We're supposed to just trust that it will all be worked out, but that's only going to happen after the legislation passes. This is not how we should be making decisions about NDIS participants. Wading through what is and is not approved by the NDIS is already hard enough, but the idea that the participants and their carers will have to refer to an approved list is causing concern in the disability community. What happens if a participant has been relying on a support for years and it is not on the new list? Does that mean it can't be claimed as part of their NDIS package anymore? These questions are valid. None of us have seen this list yet. Participants are expected to be across all aspects of this scheme, but how can anybody be across anything? Instead of this helping the disability community, participants are falling through the cracks.

Progress reported.