Yet Another Amendment Analysis

There are a series of games government likes to play when you disagree with them. This one is called 'drop another amendment to the legislation and say that it fixes everything.'

News flash. It doesn't. 

The newest Amendment, dropped yesterday, does not go far enough to address any of the problems that people with disability and our families have with the NDIS Amendment Bill. 

My analysis is below. 

I will add this. To drop this many amendments to a piece of legislation within a few days is extraordinary behaviour. Today they will try to coerce Disabled Persons Organisations to support this Bill with these amendments. 

They must not. Experts have spoken loud and clear, and more importantly, so have people with disability and our families. 

We must defeat this Bill at all costs. It is not safe for people with disability. 

Strength and power to the arm of those fighting against these cuts - for that is what they are. And please watch carefully to see who is truly on the side of disability rights. 

If you are able to, please sign the petition here or share with others. https://saveourndis.good.do/saveourndis/Email_NDISBill/ 

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 – Amendment Analysis

Section 10 - Definition of "NDIS supports": 

The proposed definition of "NDIS supports" in Section 10 risks narrowing the range of funded supports and may exclude necessary services. This could potentially breach Article 19 of the UNCRPD, which recognises the equal right of persons with disabilities to live independently and be included in the community. 

The new amendments do not adequately address this concern, as they still allow for a restrictive interpretation of "NDIS supports" that could undermine the ability of people with disability to access the supports they need to live independently.

Section 30 - NDIA powers to request information and revoke access: 

The expanded powers granted to the NDIA under Sections 30 and 30A to request information from participants and revoke their access to the NDIS within a 90-day timeframe raise serious concerns. This could lead to vulnerable participants losing access to critical supports if they are unable to provide the requested information within the prescribed period. 

The new amendments fail to introduce sufficient safeguards or flexibility in the compliance timeframe, potentially breaching Article 28 of the UNCRPD, which recognises the right of persons with disabilities to an adequate standard of living and social protection.

Sections 32H and 32L - NDIA powers and assessment process: 

The broad powers given to the NDIA under Section 32H to impose requirements on participants regarding their supports lack clear restraints and could infringe upon their autonomy and control, potentially breaching Articles 3 and 12 of the UNCRPD. Additionally, the changes to planning and assessments in Sections 32K-32L do not ensure a whole-of-person approach, risking underfunding and inadequate support. 

Although the assessment can now consider impairments that may not meet the Access criteria, the legislation still restricts the NDIA from funding supports related to impairments that do not meet these criteria. 

Also, the unchanged section 34(1)(aa) continues to affect plans until the new framework is implemented, contradicting the AAT guidance on funding the whole of a person and the recommendations of the NDIS Review.

This may not align with Article 26 of the UNCRPD, which requires States Parties to enable persons with disabilities to attain and maintain maximum independence and full inclusion. The new amendments do not sufficiently address these concerns or provide robust safeguards to protect participant rights.

Section 46 - Debt recovery and plan management: 

The punitive approach to debt recovery and compliance action for inadvertent misuse of funds under the proposed changes to Section 46 may undermine participants' right to NDIS supports as a form of social protection, potentially breaching Article 28 of the UNCRPD. 

The complex new definitions of "NDIS supports" combined with the strict compliance approach expose participants to the risk of financial hardship and loss of supports for unintentional mistakes. The new amendments do not adequately mitigate the harshness of the debt recovery process or provide sufficient protections for participants.

Lack of co-design and consultation: 

Several key details, such as the "funding assessment method," are left to the NDIS Rules, which have not yet been drafted. This limits scrutiny and fails to guarantee co-design with people with disability, potentially breaching Article 4(3) of the UNCRPD, which requires close consultation with and active involvement of persons with disabilities in decision-making processes. 

The new amendments do not include provisions in the Bill's text mandating a co-design process for the Rules, leaving the disability community's input uncertain.

Inadequate oversight and accountability measures: 

The Bill lacks strong, independent oversight and monitoring measures for NDIA decisions, particularly around funding, failing to fully implement Article 33 of the UNCRPD. 

Without appropriate mechanisms to scrutinise decisions for transparency, accountability, and potential discriminatory or inequitable impacts, the rights of people with disability cannot be adequately protected. The new amendments do not introduce sufficient oversight measures to ensure transparency and accountability in NDIA decision-making.

Risk of incentivising segregated settings: 

The Bill's changes risk incentivising more segregated or congregate settings for NDIS participants as a cost-saving measure, directly undermining Australia's obligations under Article 19 of the UNCRPD, which requires States Parties to facilitate the full inclusion and participation of persons with disabilities in the community. 

The new amendments do not include stronger safeguards to ensure that the NDIS promotes choice, control, and inclusion, rather than reverting to segregation as a default approach.

The new amendments introduced in the exposure draft do not fundamentally address the numerous concerns raised about the Bill's potential to breach the rights of people with disability under the UNCRPD. The shift away from "reasonable and necessary supports" to "reasonable and necessary budgets," the lack of co-design and consultation, and the absence of robust safeguards and oversight measures persist. 

Breaches of Rights:

1. The restrictive definition of "NDIS supports" in Section 10, which may exclude necessary services and breach Article 19 of the UNCRPD. The explanatory memo details restrictions in flexibility, choice and control. 

2. The expanded powers granted to the NDIA under Sections 30 and 30A to request information and revoke access to the NDIS within a 90-day timeframe, potentially breaching Article 28 of the UNCRPD.

3. The broad powers given to the NDIA under Section 32H to impose requirements on participants regarding their supports, which may infringe upon their autonomy and control, potentially breaching Articles 3 and 12 of the UNCRPD.

4. The punitive approach to debt recovery and compliance action under Section 46, which may undermine participants' right to social protection and expose them to financial hardship, potentially breaching Article 28 of the UNCRPD.

5. The lack of co-design and consultation in the development of key details, such as the "funding assessment method," potentially breaching Article 4(3) of the UNCRPD.

6. The absence of strong, independent oversight and monitoring measures for NDIA decisions, failing to fully implement Article 33 of the UNCRPD.

7. The risk of incentivising segregated or congregate settings for NDIS participants, undermining Australia's obligations under Article 19 of the UNCRPD.