An update on the NDIS Bill

There’s been a flurry of activity in recent weeks around the new NDIS Bill before Parliament. Todd explores the outcomes of the Senate Committee’s report and the Senate debate on the Bill.

By Todd Winther

Updated 2 Jul 20243 Jul 20245 min read
Photo of Parliament House

There’s been a flurry of activity around the new NDIS legislation in the past couple of weeks. After passing the House of Representatives in early June, the Senate rejected the Bill in its current form. To become law, the Bill now needs to be amended or changed to ensure it can pass through Parliament. Here’s what you need to know.

The Senate will decide the fate of the NDIS Bill

Unlike the House of Representatives, the government does not hold a majority of seats in the Senate. There are 76 senators:

  • 26 of which represent the ALP government,
  • 31 represent the LNP Opposition, and
  • 19 others, including 11 Greens Senators, two one nation senators and six with no party affiliation.

These 19 others hold what is known as the ‘balance of power’. Unless the major parties combine to pass the Bill, the Government needs at least 13 of these 19 other Senate members to support it. This process can result in horse-trading and compromise through applying additional amendments to the legislation. 

The Senate Community Affairs Legislative Committee

The Senate Committee’s job was to investigate the Bill before a debate in the Senate took place. They received testimony from some stakeholders and were to recommend to the Senate on whether the Bill should be passed. When we covered the testimony portion of the Committee, we noted some pretty healthy debate, particularly on how much people with disabilities and providers were consulted on the contents of the Bill, some definitions of how the Scheme can be accessed, and what constitutes ‘disability support’.

Recently, the Committee finished its report based on the testimony and came back with some recommendations:

1.    A consultation statement should be tabled every time the Minister for the NDIS decides what constitutes ‘disability support.’ After the Bill has passed, the federal government and states and territories will have to negotiate and ultimately agree on Rules (legislative instruments) on what can and can’t be funded by the NDIS. In the meantime, the NDIS Minister can create transitional Rules. The Committee wants the Minister to provide evidence these have been subject to consultation with people in the disability sector.

2.    The Government clarifies the powers the Bill gives the Minister and the National Cabinet. This recommendation recognises the increased importance of National Cabinet in addition to the Minister in making decisions around eligibility rules. The Committee raised concerns that the National Cabinet could make decisions without proper justification.

3.    The Government clarifies the powers that the Bill gives the CEO of the NDIA. The Committee recommended the government provide more details on how the CEO can use temporary powers to decide what constitutes NDIS support until new legislative rules are created. Further, the Committee wanted more information on how the CEO’s discretionary powers can be used for reviewable decisions and determinations around access. To avoid confusion, the Committee suggests that the Government further consult with the disability community.

4.    In addition to those changes above, the Committee recommends that the Bill passes the Senate and becomes law.

Unsurprisingly, the recommendation around consultation received the most feedback from the sectors stakeholders. Disability advocacy bodies have strongly criticised the Committee Report for failing to include more substantial changes in the legislation related to co-design, calling them ‘disappointing and disrespectful.’ They also argued that the legislation does not align with the intent of the NDIS Review.

While these concerns are valid, it’s not over yet. This Committee report is only a procedural step to give Senators important context before they debate the Bill. The outcome of the Bill is more dependent upon the opinions of the Senators who vote on it.

The Senate Debate and its Outcome

The Senate debate was detail-oriented and significant. After several hours of discussion, the Government proposed that the Bill remain unchanged, while the Greens wished to scrap it entirely. The Greens believed it needs more consultation with people with disability, echoing much of the testimony from the Senate Committee.

The LNP Opposition questioned the Bill on different grounds. They agree with much of it in principle, but remain concerned about the economic impact of these changes. They argue that the Government hasn’t said how much the Bill will cost; therefore, the Opposition remains unclear on the long-term effect of the Bill.

Parliamentary Joint Committee on Human Rights Report

As Senators were considering the Bill, the Parliamentary Joint Committee on Human Rights also tabled a report, which included an assessment of the legislation. This Committee was established in 2013 and is designed to ensure that all new legislation complies with the Government’s obligations concerning international law. The Committee comprises members of each political party and a non-affiliated academic specialising in international law.

The Committee’s Report concluded that the proposed NDIS legislation complies with the United Nations Convention on the Rights of People with Disabilities (UNCRPD) and other human rights obligations. This is primarily due to the amendments added after the legislation was introduced to the House of Representatives on the second day of the Senate Committee into Community Services hearings.

But the Report also expressed concern with the proposed definition of what constitutes an ‘NDIS Support’ because it could potentially impact a participant’s quality of life. The Report gave Minister Bill Shorten a chance to respond to this claim. He stated that the legislation defines NDIS support by using the UNCRPD as a touchstone document. Shorten argued that the definition of an ‘NDIS Support’ was designed to ensure that all supports met the ‘reasonable and necessary’ criteria of the legislation, which in itself is compliant with the UNCRPD.

New amendments

Once the debate took place, further amendments were tabled in the Senate. Senators had raised concerns that the NDIA’s powers to request more information when making planning decisions, and decisions to revoke (or remove) a person’s status as a participant on the NDIS, were too broad. The amendments allow for exceptions where a participant can choose not to comply. Factors that can lead to exemptions include the time required to respond to the request, whether all the information is readily available, and matters which are beyond the participant’s control.

An additional amendment enacted by the Senate Legislative Committee recommended that the Minister provide evidence of sufficient written consultation with disability organisations before deciding what constitutes a disability support.

What’s Next?

After the Senate debate, the political temperature increased when it was clear that the Government would not pass the legislation in the June Parliamentary term. The Greens and the LNP asked for additional time for the new amendments to be considered by the same Senate Legislative Committee, with an accompanying report due on August 5.

An election campaign around the corner doesn’t leave much time to implement these significant changes. Meanwhile, the disability sector will watch the next round of debates with increasing interest and wait once more.

Submissions for the Senate Inquiry into the amendments of the NDIS Bill are open until July 12th. There will be public hearings on July 24th & 25th.

Authors

Todd Winther

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