Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697629572838.pdf (Australia)
Disability Discrimination Commissioner Dr Ben Gauntlett 11 November 2021 Committee Secretary Senate Standing Committees on Community Affairs PO Box 6100 Parliament House Canberra ACT 2600 By email: community.affairs.sen@aph.gov.au Dear Secretary, Submission on National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 I am writing to you regarding the inquiry of the Senate Community Affairs Legislation Committee into the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (the NDIS Bill) that was introduced into the House of Representatives on 28 October 2021.
The Australian Human Rights Commission (the Commission) welcomes the opportunity to respond to the introduction of this proposed legislation which aims to improve the experience of people engaging with the National Disability Insurance Scheme (NDIS).
As Disability Discrimination Commissioner (Commissioner), it is my role to ensure: organisations meet their obligations under the Disability Discrimination Act 1992 (Cth); people with disability are given the same rights to equality before the law as the rest of the community; and people with disability have the same fundamental rights as the rest of the community.
In particular, for people with disability, there is a clear need to ensure the rights recognised in the Convention on the Rights of Persons with Disabilities (CRPD) are respected.

The CRPD is referred to explicitly in the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), s 3(1)(a).
Australian Human Rights Commission ABN 47 996 232 602 GPO Box 5218 Sydney NSW 2001 www.humanrights.gov.au General enquiries National Info Service TTY 1300 369 711 1300 656 419 1800 620 241 National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021Submission 58 Australian Human Rights Commission Disability Discrimination Commissioner Dr Ben Gauntlett In my capacity as Commissioner, I am also the expert advisor to the Independent Advisory Council of the National Disability Insurance Agency (NDIA).
Previous Comment on Proposed Legislative Amendments The Department of Social Services (DSS) previously released a draft version of the Participant Service Guarantee and Other Measures Bill 2021 (draft NDIS Bill) to amend the NDIS Act on or around 9 September 2021.

A number of accompanying rules were to be included, amended or updated with the draft NDIS Bill.1 The consultation period commenced on 9 September 2021 and remained open for four weeks until 7 October 2021.
This consultation period was not sufficient to ensure the full participation of people with disability, especially when the need for consultation with people with an intellectual or cognitive disability or communication disability is considered.

The Commission provided a publicly available submission to DSS on 7 October 2021 (October Commission Submission) including 18 recommendations.
A copy of the submission is available here: https://engage.dss.gov.au/wp- content/uploads/2021/10/National-Disability-Insurance-Scheme-Amendment- Bill-2021-Final.pdf DSS responded to the Commission and other individuals’ or organisations’ submissions by amending the draft NDIS Bill in the manner set out in the Explanatory Memorandum accompanying the NDIS Bill introduced into the House of Representatives on 28 October.2 To the extent the changes in the NDIS Bill do not adopt the recommendations made in the October Commission Submission, the Commission reiterates those recommendations.
NDIS Act or NDIS Rules?

The rules made under the NDIS Act to be included, amended or updated with the NDIS Bill have not yet been published.

This is understandable as there were a considerable number of pieces of feedback provided to DSS, which needed an extended period to be resolved and additional significant consultation.

However, in the meantime, the NDIS Bill has been submitted to the Parliament for approval without any accompanying rules.
2 National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021Submission 58 Australian Human Rights Commission Disability Discrimination Commissioner Dr Ben Gauntlett In a sense, Members of Parliament are being asked to give the NDIA powers that may be confined or clarified in the future.

It would be better if revised rules were published and considered with the proposed amendments to the NDIS Act that give effect to those rules.
The proposal to make rules made under the proposed ss 14(3), 47A(6) and 48(5) Category D Rules is concerning.

Pursuant to s 209 of the NDIS Act, it would mean the rules were able to be amended by the Commonwealth Minister following consultation with host jurisdictions (rather than agreement).

Given the potential for unintended harm from the proposed ss 14, 47A and 48, any rules relating to the proposed ss 14, 47A or 48 should be Category A rules.
The NDIS provides assistance to individuals in some of the most challenging circumstances in Australia.

It is therefore important that clear protections are put in place to ensure each present and future participant is treated with dignity and respect.

Unexpected changes in a participant’s NDIS plan can be particularly unsettling and stressful.
Schedule 1 – Participant Service Guarantee This Schedule of the NDIS Bill would amend the NDIS Act to incorporate some of the recommendations of the 2019 Review of the NDIS Act conducted by Mr David Tune AO PSM (Tune Review).3 Part of these amendments includes the ability for the NDIA CEO or their delegate to vary or reassess participants’ plans under the proposed ss 47A and 48.

The NDIS Bill has been amended to consider some of the comments made by stakeholders regarding the draft NDIS Bill.
However, the NDIS Bill remains concerning in that the NDIA CEO or their delegate retains wide discretion to vary or reassess participants’ plans on their own initiative with limited engagement with the participant.
Although in considering the operation of the proposed s 47A, a Court or the Administrative Appeals Tribunal may construe what is meant by, ‘a correction of a minor or technical error’,4 in accordance with ordinary principles of statutory interpretation, it would be better if this phrase was defined or limited to prevent misuse of the CEO initiated variation power.
The need for the CEO of the NDIA or their delegate to consider certain issues outlined in the proposed s 47(3) is appropriate but difficult to assesses for an NDIS participant who might disagree with the CEO’s decision.
3 National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021Submission 58 Australian Human Rights Commission Disability Discrimination Commissioner Dr Ben Gauntlett The present suggested variation power is wider than that suggested in paragraph [8.33] of the Tune Review, and clear limitations are needed to ensure the variation power is not used in a manner inconsistent with the objectives of the NDIS Act.
Where the power is used it should be periodically reported upon to prevent misuse consistently with the recommendations made in the October Commission Submission.5 Schedule 2 – Flexibility Measures The Commission supports the inclusion of two new general principles guiding actions under the NDIS Act, namely: the need for co-design and the recognition of the importance of family and carers.6 However, it is important the term ‘co- design’ is clarified or defined to recognise people with disability as equals and identify the issues or areas that must be co-designed with people with disability.
The Commission strongly supports people with disability being appointed to the NDIA Board, however it would be helpful to clarify what is meant by ‘lived experience with disability’ in the proposed ss 127(2) and 129(4), as it is often construed to mean a person with disability.

The CRPD is drafted with a clear focus on people with disability being decision-makers and not their formal or informal support networks.

Observed experience of disability is not the same thing as lived experience of disability.
Schedule 3 – Full Scheme Amendments The Full Scheme Amendments need to be clarified to improve the workability of the Scheme and the representation of people with disability.

In particular, it would assist for the term ‘financial sustainability’ in the proposed s 4(17) to be defined so that the benefits of the NDIS could be properly assessed in the context of a social insurance scheme.
Conclusion The Commission acknowledges and appreciates the efforts of DSS to undertake consultation on the draft NDIS Bill.

The Commission is aware of a number of instances where staff from DSS have undertaken consultation in a respectful manner with people with disability and listened to their concerns in a way that has encouraged fair and open debate.
4 National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021Submission 58 Australian Human Rights Commission Disability Discrimination Commissioner Dr Ben Gauntlett Although there is considerable merit in seeking to reform the NDIS Act to ensure it is fit-for-purpose, there is a need to ensure significant safeguards exist for present and future participants.
In the Commission’s opinion, additional amendments are needed to the NDIS Bill and there is a need to review accompanying rules proposed to be made under the NDIS Act before the Bill is passed by the Parliament.
Yours sincerely Dr Ben Gauntlett Disability Discrimination Commissioner 1 For example: the National Disability Insurance Scheme (Participant Service Guarantee) Rules 2021; National Disability Insurance Scheme (Plan Administration) Rules 2021; National Disability Insurance Scheme (Plan Management) Rules 2021; National Disability Insurance Scheme (Becoming a Participant) Rules 2021; National Disability Insurance Scheme (Children) Rules 2021; National Disability Insurance Scheme (Nominees) Rules 2021; and National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020.
A list of what was to be potentially changed may be found at: https://engage.dss.gov.au/proposed-ndis-legislative-improvements- and-the-participant-service-guarantee/ 2 National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 Explanatory Memorandum, pp 9–10, available at https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fe ms%2Fr6806 ems 0b91c1c4-78c6-45c4-814e-7b50fdb6f812%22.
3 The 2019 Review of the NDIS Act considered opportunities to amend the NDIS Act to remove process impediments, increase efficiency of the scheme’s administration and implement an NDIS Participant Service Guarantee.
The Tune Review provided 29 recommendations to improve the 5 National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021Submission 58 Australian Human Rights Commission Disability Discrimination Commissioner Dr Ben Gauntlett experience of NDIS Participants including 19 suggested amendments to the NDIS Act.

Other recommendations relate to the work of DSS, the NDIA and the Disability Reform Ministers.
David Tune, Review of the National Disability Insurance Scheme Act 2013, December 2019 https://www.dss.gov.au/sites/default/files/documents/01 2020/ndis-act-review-final-accessibility- and-prepared-publishing1.pdf.

4 NDIS Bill, proposed s 47A(1)(b).


5 Australian Human Rights Commission 2021, National Disability Insurance Scheme (Participant Service Guarantee and Other Measures) Bill 2021: Submission to the Department of Social Services, Recommendations 2, 11 and 13, https://engage.dss.gov.au/wp- content/uploads/2021/10/National-Disability-Insurance-Scheme-Amendment-Bill-2021-Final.pdf.

6 NDIS Bill, proposed ss 4(9A) and (12A).


6 National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021Submission 58