FOI LEX 51226 Documents.pdf

FOI 51226 Document 1
OFFICIAL
Draft – Opening remarks to Senate Community Affairs Legislation Committee
Inquiry
Introduc on
 The Department of Social Services welcomes the opportunity to provide
evidence before the second Inquiry of the Senate Community Affairs
Legislation Committee Inquiry into the NDIS Amendment (Getting the NDIS
Back on Track Bill No. 1) Bill 2024 together with colleagues from the
National Disability Insurance Agency.
 As you will be aware, a further (3rd) joint submission to the Senate
Committee Inquiry was made by the Department of Social Services and the
National Disability Insurance Agency which has been published on the
Committee’s website [check].
 We trust this is of assistance to the Committee and want to briefly address
some areas proposed for government amendment and early work on the
development of subordinate legislation.
Proposed amendments
 Proposed government amendments tabled in the Senate responded to
recommendations made by this Committee in its report tabled on 20 June
2024 as well as concerns about the new framework planning process.
 Given the focus of this Inquiry, I would like to take some time to outline the
policy intent of these amendments [and further work we are doing in
responding to/ considering outstanding concerns raised by stakeholders].
Engagement on priority subordinate legislation
 Without pre-empting the passage of the Amendment Bill, I would also like
to outline how we are working with states and territories and the disability
community on the development of subordinate legislation.
 If the Bill passes, the department will work the Agency to publish a wider
engagement plan on the development of rules and legislative instruments.
1

OFFICIAL
Draft – Opening remarks to Senate Community Affairs Legislation Committee
Inquiry
New framework planning process – needs assessments
  As outlined in our submission to this Inquiry, in addition to responding the
Inquiry report tabled on 20 June 2024, the proposed Senate amendments
respond to concerns the Bil  does not al ow for a ‘whole of person’ needs
assessment to inform the new planning framework and participant budget.
  While the Committee did not make a specific recommendation around this
issue, there has been extensive commentary and some confusion about
section 32L relating to needs assessments to inform budget decisions wil
operate.
  The amendments to section 32L make it clear the needs assessment
process must consider a participant’s needs holistical y, taking into
consideration a variety of factors, including environmental factors (such as
a participant’s living arrangements) that may impact on a participant’s
disability support needs.
  This has always been the intention, consistent with recommendations of
the NDIS Review – specifical y actions 3.3 to 3.5 [which were:
3.3     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
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
The National Disability Insurance Agency should allow greater
flexibility in how participants can spend their budget, with minimal
exceptions.]
  While the assessment itself is holistic, funding for supports under the NDIS
can only be provided in relation to impairments that meet the disability or
early intervention requirements.
  This is about Scheme sustainability and ensuring the NDIS does not take on
funding responsibility for service systems and other costs that are not about
meeting the disability support related needs of participants.
2

OFFICIAL
Draft – Opening remarks to Senate Community Affairs Legislation Committee
Inquiry
  Additional information to be included in the needs assessment report wil
be outlined in a legislative instrument that wil  be the subject of
consultation and co-design.
  This wil  ensure the needs assessment report contains al  relevant and
appropriate information about a participant and their disability support
needs.
  In addition to amendments to the needs assessment, proposed
amendments to section 32K specify additional matters the Minister must
have regard to when making a disal owable legislative instrument about the
new reasonable and necessary budget planning framework.
  In making the legislative amendment, the Minister must consider that a
variety of factors may affect a participant’s need for NDIS supports beyond
impairments that meet the disability or early intervention requirements
which would include environmental factors.
Outstanding concerns about the needs assessment process
  We understand from submissions made to this Inquiry and our engagement
with advocates and Disability Representative Organisations there are some
outstanding concerns about how the needs assessment process wil  work.
  Some of these concerns seem to be based on current operational practice
in that there is currently no Agency process for listing and removing
impairments.
o  Conditions/diagnoses and/or impairments are used variably
based on variable medical and other information received
as part of the access process.
  Based on submissions and our own engagement, we are considering further
amendments to provide transparent and reviewable decision-making
processes associated with adding and removing impairments subject to
government decision.
3

OFFICIAL
Draft – Opening remarks to Senate Community Affairs Legislation Committee
Inquiry
  This would be about enabling transparency about impairments which would
be the focus of a needs assessment report, having regard to broader
environmental factors which impact on a participant’s disability related
support needs for NDIS funding.
  We are currently working with stakeholders and government to explore
opportunities to make these and other modest amendments to address
outstanding concerns around the needs assessment and planning process.
Limitations and clarifications for information gathering powers
  The Bil  includes new powers for the Agency to request information, or for a
participant to attend an assessment or examination, within the context of
considering whether they continue to meet access requirements.
  This is not about people having to ‘re-prove’ their disability but wil  al ow
the Agency to understand the impacts of their impairment (which can
change over time) having regard to the best available information to ensure
they are receiving the most appropriate supports.
  Currently the Agency has no ability to request information for the purposes
of determining whether a participant continues to meet the early
intervention or disability requirements which means consideration may be
based on outdated or incorrect information.
  In its previous inquiry report, the Committee recommended that the
Government further clarify the circumstances under which the additional
information gathering powers granted to the CEO of the National Disability
Insurance Agency wil  be used.
  Proposed amendments tabled in the Senate:
o  Make it clear that requests wil  be made in writing and may be varied
or withdrawn where, for example, information has been obtained or
provided elsewhere, is not longer required or because it is reasonable
for the relevant person not to provide the information.
  While information requests made under the NDIS Act are
general y given in writing, it is important to note that if written
4

OFFICIAL
Draft – Opening remarks to Senate Community Affairs Legislation Committee
Inquiry
communication is not the most suitable method of
communicating with a participant, they wil  also be given the
request in their preferred manner of communication.
o  Further proposed amendments provide guidance for the Agency in
considering whether or not it is reasonable for a person not to have
complied with certain requests for information within the timeframe
prescribed in that request. For example, whether failure to comply
with the request is beyond the control of a participant such as where
the information is being provided by a third party such as treating
health professional.
o  New rule making powers have been proposed which would prescribe
matters the Agency must have regard to in considering whether it
was reasonable for a person not to have complied with requests for
information. These would be Category A rules requiring the
agreement of states and territories.

  The proposed amendments are in addition to amendments made in the
House of Representatives which require the Agency to have regard to other
reasonable alternatives before making any request for an assessment or
examination.
  In addition, the Agency cannot request an assessment or examination
unless the delegate is satisfied the report would provide information they
could not otherwise reasonably obtain.
  It is important to note the decision to require an assessment or examination
is discretionary and the impact on a participant wil  always be a factor to be
considered.
Consultation statements
  The issue of consultation and co-design, particularly in relation to legislative
instruments, has been the subject of widespread discussion since the Bil
was introduced.
5

OFFICIAL
Draft – Opening remarks to Senate Community Affairs Legislation Committee
Inquiry
  In its previous inquiry report, the Committee recommended that a
‘consultation statement’ be tabled along with al  legislative instruments
made under the NDIS Act that sets out consultations undertaken.
  The proposed Senate amendments insert a new section 211 which
prescribes certain information about consultation that must be included in
explanatory statement to legislative instruments made under the NDIS Act.
  The Minister is already required to provide information about consultation
undertaken on legislative instruments under paragraph 15J(2)(d) of the
Legislation Act 2003. This amendment clarifies and strengthens this
requirement in relation to legislative instruments made under the NDIS Act.
Specifical y, explanatory statements to al  legislative instruments made
under the NDIS Act wil  be required to meet the fol owing requirements:
o  describe the nature of the consultation
o  describe in general terms who was consulted
o  contain a summary of the views expressed by stakeholders.

  While the Bil  provides the scaffolding for reform, the majority of changes
wil  not take effect until changes to NDIS Rules are made fol owing a
process of co-design and engagement with the disability community.
Further engagement on the development of legislation
  In my previous submission to this Committee, I mentioned the Agency has
commenced co-design work on a number of areas for reform and how they
wil  be implemented, through its extensive existing co-design and
consultative mechanisms. These areas are published on the Agency’s
website and include participant pathway experience, safety and services.
  The Department has been working with the Agency to use the insights from
this co-design to inform the development of policy around priority rules and
other instruments and wil  be leading broader engagement on the detail
together with states and territories.

6

OFFICIAL
Draft – Opening remarks to Senate Community Affairs Legislation Committee
Inquiry
Definition of NDIS Support
  One of the priority areas for subordinate legislation in the event the Bil
passes is the definition of NDIS Support.
  I would like to outline our proposed approach to engagement on the
meaning of NDIS Support and provide some further context about a
potential transitional rule.
  One of the key changes made by the Amendment Bil  is to introduce flexible
budgets. This means participants wil  have more choice and control in
choosing what supports are right for them.
  It also means a new definition of ‘NDIS support’ needed to be inserted into
the NDIS Act to make it clear what the NDIS does and does not fund to help
participants make more informed choices.
  This is relevant to ensuring that participants do not inadvertently spend
NDIS funding on goods or services that are not NDIS supports and risk
incurring a debt which I would also like to outline.
  A transitional rule wil  need to be in place at the time the Bil  commences
until a longer-term rule can be designed with the disability community and
agreed with State and Territory Governments.
Why do we need a definition of NDIS Support?
  The NDIS Review heard consistently, particularly from participants, that it is
not always clear what they can spend their funding on.
  Currently this information is contained in lots of different documents (such
as rules and operational guidance) which can be difficult to understand al
together.
  Without a definition of NDIS Support, this has resulted in the issue of
whether a support can be funded by the NDIS being determined on a case-
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OFFICIAL
Draft – Opening remarks to Senate Community Affairs Legislation Committee
Inquiry
by-case basis (at the cost of individual participants going through complex
and often traumatic appeals processes).
o  There are many other examples of AAT decisions which
cannot reach agreement about day to day living costs…
o  I would like to draw the Committee’s attention to a recent
Federal Court decision which made a significant expansion
in the interpretation of day to day living costs by al owing
funding for extensive relocation costs for participants who
sel  a home and then purchase a new home including
conveyancing costs.1
Transitional rule
  We want the transitional rule to provide clarity for participants when
purchasing supports and services to reflect what the NDIS was intended to
fund.
  There wil  be goods and services that while general y not funded under the
NDIS, wil  need to be determined based on a participant’s individual
disability support needs.
  These wil  be represented as ‘carve outs’ from the transitional rules about
what the NDIS wil  not fund based on a person’s disability support needs.
For example, where there is an assistive technology adaptation to an item
that would ordinarily be regarded as a cost of daily living or where a
support enables social and economic participation.
  Most importantly, the transitional rule wil  need to be clear and easy to
understand what NDIS funding can and cannot be used to buy.

1 Warwick v National Disability Insurance Agency [2024] FCA 616
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OFFICIAL
Draft – Opening remarks to Senate Community Affairs Legislation Committee
Inquiry
Engagement approach to NDIS Support transitional rule
  We have commenced initial engagement with states and territories and
Disability and Carer Organisations on lists of what the NDIS would and
would not fund.
  As I mentioned, the reason why we have commenced consultation before
the Amendment Bil  has been passed is because a transitional rule wil  need
to be in place at the time the Bil  commences.
  We would like to take as much time as possible to hear from the disability
community about the transitional rule, before we make a longer-term rule
on NDIS supports.
  We are waiting for initial feedback from states and territories and disability
representative organisations before undertaking a public consultation
process for 2 reasons.
  The first is to test the lists and identify any changes that need to be made
ahead of public consultation and the second is to ensure disability
organisations are best placed to support their members in responding to
the consultation.
  We know that discussion about what supports are important to the lives of
participants can be distressing and we need to take the time to minimise
that distress and misinformation.
  It is for these reasons that we have chosen not to table a copy of the lists
for the purposes of this hearing because it wil  add unnecessary confusion
and distress.
Debt recovery powers
  Also, in the context of defining NDIS Support, some stakeholders have
raised significant concerns about how debt recovery powers wil  operate if
a participant spends NDIS funding on something that is not included in the
NDIS supports lists.
9

OFFICIAL
Draft – Opening remarks to Senate Community Affairs Legislation Committee
Inquiry
  I should note that debt recovery powers already exist in section 182 and the
changes made to section 46 are designed to ensure funds may only be used
to obtain supports that are appropriately funded by the NDIS and directed
towards meeting a participant’s disability support needs.
  The Agency is preparing an educative approach to ensure that participants
understand what NDIS funding can and cannot be spent on.
  It would only be in circumstances such as where a person has deliberately
misused NDIS funding that consideration of raising a debt under section 182
may occur under the new arrangements, which is the case now.
  Insert any information we can discuss about debt waiver provisions and how
existing Commonwealth debt waiver provisions operate.
Additional priority rules subject to co-design and consultation
Section 33 – management of intra-plan inflation
  To support the immediate operation of the Bil , the Minister intends to
make a disal owable legislative instrument under proposed new subsection
33(2E).
  This instrument enables the Agency to specify legal y enforceable total
funding amounts in participants’ plans. These enforceable funding amounts
are critical to address intra-plan inflation under the current planning
framework (that is in old framework plans).
  [Do we want to say more explaining intra-plan inflation and costs]
  The Agency has been working through co-design groups to understand key
drivers in plan overspends and support participants with resources to stay
within these new funding limits.
  As is the case currently, participants wil  be able to seek variations based on
changes in circumstances or in situations where a participant has
10

OFFICIAL
Draft – Opening remarks to Senate Community Affairs Legislation Committee
Inquiry
experienced crisis or emergency situations as outlined in amendments to
section 45(5).
  The Commonwealth wil  be undertaking public consultation and seeking
feedback and support from states and territories for the Minister for the
NDIS to make the new instrument as close as possible to the
commencement of the Bil .
Plan management
  Another area for priority rule making in the event the Bil  is passed is
subsection 44(5) which enables consideration of whether a participant or
other person managing funding under the plan is likely to comply with
section 46 when making a decision about plan management type.
  As I have already mentioned, section 46, as amended by the Bil , requires
funding provided under a participant’s plan to be spent in accordance with
the plan and only to acquire NDIS supports for the participant.
  New subsection 44(5) wil  enable the Agency not to give effect to a plan
management request if satisfied the relevant person is unlikely to comply
with section 46.
  This is an important safeguarding provision as it wil  minimise the risk of a
participant’s plan being spent on supports that are not NDIS supports for
them, and wil  ensure participants are supported to spend funding in their
plan in such a way that they wil  continue to have access to necessary
supports throughout the duration of their plan.
  It wil  also protect participants where there is reason to believe their plan
nominee or plan manager is likely to use funding under the participant’s
plan in an inappropriate way, which could lead to the participant being
without funding for much needed supports.
  The rules made under subsection 44(5) are Category A rules requiring
agreement of each state and territory to prescribe matters to which the
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OFFICIAL
Draft – Opening remarks to Senate Community Affairs Legislation Committee
Inquiry
Agency must have regard in considering whether a relevant person is likely
to comply with section 46.
  The Agency is undertaking targeted consultation with participants, their
families and carers, as wel  as representative organisations on the risk-
based decision-making framework that wil  support delegates to make a
plan management decision under this new rule.
  The Department wil  use the insights from the Agency’s work with states
and territories consult on options for a new rule.
First Minister agreement to NDIS rules
  The other amendment that has been proposed in the Senate relates to the
first recommendation of the initial inquiry into the Bil  and that is about
elevating responsibility for NDIS governance and rule-making to First
Ministers.
  Governments share the goal of reaching long term sustainability for the
Scheme and have elevated this objective to National Cabinet.
  A sustainable growth trajectory for the NDIS wil  support equity and fairness
for al  Australians living with disability, including for those not eligible for
the NDIS, and ensure that every dol ar goes to those who need it most.
  The Council for the Australian Federation includes First Ministers of al
Australian states and territories and was ‘formed to support and enhance
the Australian federal system by providing an intergovernmental forum for
state and territory leaders in Australia’.
  In its submission, the Council highlighted the elevated focus of al  First
Ministers on NDIS reform. As the Committee observed: The reforms have
natural y risen up to reflect the need for governments to be joined up in
their decision-making, reflecting the fact that the broader care economy
and provision social services is interconnected across sectors and providers,
impacting a range of portfolios and Ministers.
12

OFFICIAL
Draft – Opening remarks to Senate Community Affairs Legislation Committee
Inquiry
  Currently only State and Territory Ministers with responsibility for the NDIS
can communicate agreement to NDIS rules.
  The amendment to the section 9 definition of ‘host jurisdiction’ wil  mean
that both State and Territory Disability Ministers and First Ministers wil  be
able to agree to NDIS rules.
  This wil  facilitate the discussion and potential agreement to NDIS rules by
First Ministers in forums such as the National Cabinet.
Alignment with Foundational Supports
  As I outlined in my initial opening statement to the first Committee Inquiry,
we have also heard clearly from states and territories and the disability
community – and agree – that NDIS legislative reforms need to move
forward at the same time as new Foundational Supports are designed and
implemented.
  These rules wil  need to be implemented in consultation with the disability
community and with agreement from states and territories – which means
that key changes can be ‘switched on’ as additional Foundational Supports
are available.
  With that I’l  conclude these opening remarks and welcome your questions.

13

FOI 51226 Document 2
National Disability Insurance
Scheme Amendment (Getting the
NDIS Back on Track No. 1) Bill
2024
Senate Community Affairs Legislation Committee Inquiry
SES Briefing Pack
25 July 2024

Dissenting recommendations made by the Australian Greens ......................................... 94
Dissenting Report – Australian Greens ............................................................................ 94

6

1. Introduction
•  The Department of Social Services welcomes the opportunity to provide
evidence before the second Inquiry of the Senate Community Affairs
Legislation Committee Inquiry into the NDIS Amendment (Getting the NDIS
Back on Track Bil  No. 1) Bil  2024 together with col eagues from the
National Disability Insurance Agency.
•  As you wil  be aware, a further (3rd) joint submission to the Senate
Committee Inquiry was made by the Department of Social Services and the
National Disability Insurance Agency which has been published on the
Committee’s website [check].
•  We trust this is of assistance to the Committee and want to briefly address
some areas proposed for government amendment and early work on the
development of subordinate legislation.

7

2. Government amendments proposed before the
Senate
New framework plans – needs assessment
•  While the Committee did not make a specific recommendation around this
issue, there has been extensive commentary and a lack of understanding
around how section 32L (relating to needs assessments to inform budget
decisions) in particular applies.
•  The intent of section 32L has always been that a needs assessment wil
assess a person wholistical y, looking at al  of their disability related support
needs, consistent with recommendations of the Independent Review into
the NDIS.
•  The amendments clarify that needs resulting from impairments that meet
the disability requirements or early intervention requirements may also be
impacted by other factors, including other impairments that do not meet
the disability requirements or early intervention requirements.
•  While the assessment itself is holistic, funding for supports under the NDIS
can only be provided in relation to impairments that meet the disability or
early intervention requirements.
•  The NDIS was always intended to only fund disability support needs that are
the responsibility of the NDIS and not other service systems.
•  Additional information to be included in the needs assessment report wil
be outlined in a legislative instrument that wil  be the subject of
consultation and co-design.
•  This wil  ensure the needs assessment report contains al  relevant and
appropriate information about a participant and their disability support
needs.

8

Wil  a participant only receive funding for impairments identiﬁed at
the point of access?
•  The amendments also clarify that the assessment of whether a participant’s
impairments meet the disability or early intervention requirements is not
based on whether their impairments met those requirements at the time
that they gained access to the scheme.
•  This means that new impairments, or impairments that have deteriorated
or changed, wil  be taken into account in subsequent planning and funding
decisions.
Amendments made to the Ministerial determination about
the new reasonable and necessary budget planning
framework
•  In addition to amendments to the needs assessment, proposed
amendments to section 32K specify additional matters the Minister must
have regard to when making a disal owable legislative instrument about the
new reasonable and necessary budget planning framework.
•  In making the legislative amendment, the Minister must consider that a
variety of factors may affect a participant’s need for NDIS supports beyond
impairments that meet the disability or early intervention requirements.
These factors may include other impairments or environmental factors.
Information gathering powers
•  The Bil  includes new powers for the Agency to request information, or for a
participant to attend an assessment or examination, within the context of
considering whether they continue to meet access requirements.
•  This is not about people having to ‘re-prove’ their disability but wil  al ow
the Agency to understand the impacts of their impairment (which can
change over time) having regard to the best available information to ensure
they are receiving the most appropriate supports.
9

•  Currently the Agency has no ability to request information for the purposes
of determining whether a participant continues to meet the early
intervention or disability requirements, which means consideration may be
based on outdated or incorrect information.
•  In its previous inquiry report, the Committee recommended that the
Government further clarify the circumstances under which the additional
information gathering powers granted to the CEO of the National Disability
Insurance Agency wil  be used.
Proposed Senate amendments
•  The proposed government amendment gives effect to recommendation 3
of the initial report of the Committee.
•  The circulated amendments clarify the circumstances in which the Agency
can use information gathering powers, providing further safeguards to the
exercise of this power.
Requests to be given in writing
•  The proposed amendments make it clear that requests wil  be made in
writing and may be varied or withdrawn. For example, a request may be
withdrawn if information has been obtained or provided elsewhere, is no
longer required or where it is reasonable for the relevant person not to
provide the information.
•  Although requests for information from participants and other people
under the NDIS Act are general y given in writing, this amendment clarifies
that fact, and ensures the CEO has the power to explicitly vary or revoke
their request at any time after it has been made.
•  It is important to note that ‘in writing’ does not limit the manner in which
the communication is provided. If a participant requires a different
communication method, the request may stil  be provided and revoked or
varied in a communication method that suits them.
10

Failure to comply with requests for information
•  Feedback received throughout the Committee inquiry and beyond
identified that there was concern surrounding the revocation of a
participant’s access if they are unable to comply with a request for
information within the prescribed timeframe.
•  To respond to this, the Government has inserted guidance for the CEO
when considering if it is reasonable for a participant to have not complied
with a request for information.  For example, the CEO wil  need to consider
whether failure to comply with the request is beyond the control of a
participant such as where the information is being provided by a third party
such as treating health professional.
•  These changes create a safeguard for participants when being asked to
provide information to the Agency.
•  New rule making powers have been proposed which would prescribe
matters the Agency must have regard to in considering whether it was
reasonable for a person not to have complied with requests for
information. These would be Category A rules requiring the agreement of
states and territories.
Consultation statements
•  The issue of consultation and co-design, particularly in relation to legislative
instruments, has been the subject of widespread discussion since the Bil
was introduced.
•  In its previous inquiry report, the Committee recommended that a
‘consultation statement’ be tabled along with al  legislative instruments
made under the NDIS Act that sets out consultations undertaken.
•  The proposed Senate amendments insert a new section 211 which
prescribes certain information about consultation that must be included in
explanatory statement to legislative instruments made under the NDIS Act.
11

•  The Minister is already required to provide information about consultation
undertaken on legislative instruments under paragraph 15J(2)(d) of the
Legislation Act 2003. This amendment clarifies and strengthens this
requirement in relation to legislative instruments made under the NDIS Act.
Specifical y, explanatory statements to al  legislative instruments made
under the NDIS Act wil  be required to meet the fol owing requirements:
o  describe the nature of the consultation
o  describe in general terms who was consulted
o  contain a summary of the views expressed by stakeholders.

•  The consultation statement cannot identify or include the views of a
person, body or organization unless they have given consent. This is an
important protection on the privacy of those that are consulted.

First Ministers agreement to NDIS rules
•  Recommendation 1 made by the Committee in its initial report was that
First Ministers be recognized as Ministers for the purposes of Category A
rule-making.
•  A Senate amendment is proposed to implement this recommendation by
amending the section 9 definition of ‘host jurisdiction Minister’. This wil
mean that both State and Territory Disability Ministers and First Ministers
wil  be able to agree to NDIS rules.
•  This wil  facilitate the discussion and potential agreement to NDIS rules by
First Ministers in forums such as the National Cabinet.
•  The amendment does not change the Minister’s power to make
instruments.
12

Senator Thorpe Proposed Amendments
•  Senator Thorpe has circulated proposed amendments relating to
participants in custody, embedding consultation with Aboriginal and Torres
Strait Islander peoples and having consideration to the cultural needs of
indigenous participants, and placing an Aboriginal or Torres Strait Islander
board member on the NDIS Board.
Referring the Bill back to the Committee for further inquiry
•  This amendment was successfully passed in the Senate.
•  The Government is supporting this amendment by appearing before the
Committee and providing a further supplementary submission to assist the
Committee with its inquiry.
Wil  the government agree to these amendments?
•  The Government continues to carefully consider and respond to feedback
on the Bil , including the amendments proposed from non-government
Senators.
First Nations Board Member
•  The government is giving close consideration to this proposed amendment,
which aligns with a recommendation from the Disability Royal Commission.
•  This amendment would ensure an Aboriginal or Torres Strait Islander
person with lived experience of disability would be part of the governing
body of the NDIA.
•  The government is committed to ensuring First Nations participants have a
voice in the future of the NDIS. Careful consideration is being given to how
this can best be enshrined in the Act.
Participants in custodial settings
•  The proposed amendment inserts that supports should be provided to
participants in or transitioning out of custodial settings.
13

•  While we agree that this is an important issue to be raised, there is nothing
in the Bil  that excludes people in or exiting custodial settings from
accessing NDIS supports.
•  Supports that are most appropriately funded by the NDIS in these
circumstances are arranged between the Commonwealth and States and
Territories.
•  The NDIA has commenced work on how to better support participants upon
release from custodial settings, through identification, improved planning,
and building a greater understanding of appropriate supports. This is the
subject of ongoing work and consultation with state and territory
governments.
Inclusion of cultural participation and consultation with Aboriginal
and Torres Strait Islander participants
•  The government has proposed an amendment to ensure that a consultation
statement is included in any instrument made by the Minister under the
Bil . There is nothing preventing the Minister from deeply and meaningfully
engaging with Aboriginal and Torres Strait Islander participants and
disability representative organisations when making legislative instruments.
•  This amendment is already covered by the requirement for the Minister to
have regard to the objects and principles of the act under paragraph
209(3)(a) of the Act.
•  The objects and principles of the Act include requirements such as
supporting people with disability to participate and contribute to social and
economic life (s 3(1)(c) & s 4(2)), access to supports (s 3(1)f), co-design (s
4(9A)), respect for privacy and dignity (s 4(10)), as well giving effect to
international obligations such as the International Covenant on Economic,
Social and Cultural Rights and the International Convention on the
Elimination of Al  Forms of Racial Discrimination (s 3(1)(i)).
•  Further consideration and consultation wil  be undertaken on how to
recognize the importance of culture to First Nations people with disability
14

and other cultural y diverse participants, in a way that wil ensure al people
with disability have their culture respected without creating legal
uncertainty or unintended consequences for the operation of the Act.

15

3. What Government amendments were agreed in the
House of Representatives?
•  The amendments which passed the House of Representatives addressed
key community concerns such including:
•  the operation of section 10 and why it only refers to certain
aspects of the United Nations Convention on the Rights of Persons
with Disabilities
•  clarifying a participant wil  have access to their needs assessment
and wil  be able to seek a new assessment (or part thereof) as part
of a merits review process in relation to a planning decision
•  amendments to section 33 al owing for ‘funding periods’ to be
specified in a participant’s plan and
•  amendments to section 45 setting out circumstances in which
payments can be made above funding amounts
•  amendments to sections 30 and 30A including additional
safeguards in relation to new CEO powers to request that a
participant undergo an examination only where there is no other
reasonable alternative to accessing the information
•  embedding co-design and consultation in the development of new
legislative instruments which control needs assessment and
budget setting
•  an independent 5-year review of the operation of changes
introduced by the Bil  was supported by Government.
Access to assessment reports
•  The Senate Community Affairs Legislation Committee received a significant
amount of evidence, both through submissions and directly from witnesses,
that needs assessment reports must be provided to participants.
16

•  This was always the intention, from an operational perspective and in
accordance with the requirement in subsection 32D(2) to prepare a plan
‘with the participant’.
•  Amendments were made to specify that a needs assessment report must be
given to a participant as soon as possible after it is received by the CEO. This
was considered to be the most practical way of the Agency ensuring a
participant has access to the assessment.
•  Amendments were also made 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.
Can participants seek a replacement needs assessment?
•  Participants wil  be provided with a copy of their needs assessment before
any planning decisions are made by the CEO.
•  This wil  give them the opportunity to provide feedback and correct errors.
The CEO wil  then consider whether a replacement needs assessment
should be undertaken.
•  Amendments were made to clarify that a replacement needs assessment
must be arranged if the decision-maker is satisfied that this should occur.
•  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.
•  For example, if a participant identified errors or omissions, these may be
able to be corrected by a further assessment or part of an assessment as
required.
17

• If a participant seeks internal or external review the CEO’s decision to
approve a statement of participant supports, they can request that a
replacement needs assessment be undertaken.

18

Amendments to section 33 - total funding amounts in old
framework plans
•  The Bil  makes amendments that wil  al ow a participant’s statement of
participant supports to specify a total funding amount for reasonable and
necessary supports together with one or more funding component amounts
for each support or class of support.
•  The amendments to section 33 also al ow for ‘funding periods’ to be
specified in a participant’s plan.
•  The amendments provide certainty for participants about the amount of
funding they have available during a specified period of time, which wil  also
assist participants in budgeting their funding for supports appropriately
over the duration of their plan.
•   Amendments made to the Bil  in the House clarify the operation of the new
provisions in section 33. This includes categorising supports into ‘groups’,
with each group having a funding component amount.
•  The amendments also require al  plans to include a total funding amount.
•  These amendments wil  not commence until a Ministerial Determination is
made under new subsection 33(2E) that outlines how the amounts wil  be
calculated and other relevant matters.
What happens if NDIS participants have used their budget and
don’t have enough funds?
•  As introduced, the Bil  enabled a payment to be made above a relevant
funding amount if there were exceptional circumstances that would justify
this (with exceptional circumstances required to be prescribed in NDIS
rules).
•  Amendments were made to in the House that prescribe circumstances in
the Act in which the CEO may make a payment above a relevant funding
amount (under Section 45).
19

•  This wil  provide important clarity for participants and ensure payments can
be made in circumstances that justify it. These new circumstances include:
o  the participant has experienced fraud or financial
exploitation,
o  making the payment is necessary to prevent or lessen an
imminent threat to an individual’s life, health or safety,
o  the participant has been unable to request a variation or
reassessment of the participant’s plan because of one or
more of the participant’s impairments or a lack of decision-
making support,
o  the participant has requested certain variations of their
participant’s plan (including where a participant has sought
crisis or emergency funding as a result of a significant
change to their circumstances) and the CEO has not yet
made a decision about the variation.
Related: Plan variations
•  Amendments were made to prescribe a number of circumstances in which
the CEO may vary the amount of a participant’s reasonable and necessary
budget directly in the Act - see Section 47A(1AB). This was previously a
matter to be dealt with in NDIS rules.
•  This wil  provide important clarity for participants and ensure additional
funding can be provided in circumstances that justify it. These new
circumstances are:
o  if they are satisfied that the participant requires funding
because the participant has experienced fraud or financial
exploitation
o  necessary to prevent or lessen a threat to the participant’s
life, health or safety (whether current or future).
20

Safeguards around the use of new powers for the CEO to require a
participant to attend an assessment or examination?
•  The Bil  includes new powers for the CEO to require a participant to attend
an assessment or examination, within the context of considering whether
they continue to meet access requirements for the Scheme.
•  Requests for information can only be made if the information is required for
the purposes of making very specific decisions.
•  Amendments were made to ensure the CEO wil  only be able to require
someone to undergo an examination or an assessment if there is no other
reasonable alternative way of obtaining the information (30(3) and 30A(5)).
•  The new limitations wil  require the CEO to have regard to other reasonable
alternatives before making the request for an assessment or examination.
•  For example, whether the participant or another person can provide
additional information.
•  New amendments moved by the Government in the Senate wil  provide
further clarity around when this power can be exercised.
Explicitly reference co-design in the development of legislative
instruments
•  Commitment to co-design is a legislative requirement which currently exists
under the Act.
•  Subsection 4(9A), which is one of the general principles guiding actions
under the Act, provides that ‘people with disability are central to the
National Disability Insurance Scheme and should be included in a co-design
capacity’.
•  To solidify the commitment amendments were made in the House that
require the Minister to have regard to subsection 4(9A) when making
legislative instruments under sections 32K (reasonable and necessary
budget) and 32L (needs assessments and reports).
21

•  This ensures that the requirement to include the disability community in co-
design must be at the forefront of the Minister’s mind when making these
instruments.
Note: The Minister wil  be required to provide an explanation of the nature of
the consultation that has occurred in the making of the instruments.
•  This obligation is imposed by paragraph 15J(2)(d) of the Legislation Act
2003, which provides that an explanatory statement to a legislative
instrument must contain a description of the nature of consultation that
has been undertaken before the instrument was made.
•  This means that the Minister wil  be required to inform Parliament, and the
public, of the nature and extent of consultation that occurred in the making
of the relevant instrument.
•  Amendments have been circulated by the government requiring that a
consultation statement be included in every explanatory statement to
instruments made under the NDIS Act. This statement wil  include
information about who has been consulted, how consultation was
undertaken and the views of those consulted. This wil  enhance
transparency over the consultation process and support parliamentary
scrutiny of disal owable instruments.
Why haven’t you strengthened co-design or consultation
requirements as part of the powers to make all new rules and
legislative instruments?
•  Express requirements for consultation or co-design with the disability
community on specific instruments (beyond what already appears in the
Act and the Legislation Act) could cause significant uncertainty for the
operation of the NDIS.
•  There is no broadly accepted process for ‘co design’ in Commonwealth
legislation.
22

•  This could lead to legal uncertainty about whether an instrument is validly
made.
Note: In addition, subsection 17(1) of the Legislation Act provides that before a
legislative instrument is made, the rule-maker must be satisﬁed that there has
appropriate and reasonably practicable consultation has been undertaken.
Subsection 17(2) of the Legislation Act provides that in determining whether
any consultation that was undertaken was appropriate, the rule-maker may
have regard to the extent to which the consultation drew on the knowledge of
persons having expertise in ﬁelds relevant to the proposed instrument.
The subsection also ensures that persons likely to be aﬀected by the proposed
instrument had an adequate opportunity to comment on its proposed content.
Proposed amendments strengthen the requirement for a statement of the
nature of consultation, as already required by the Legislation Act.
There is no need for this to be inserted into the Act as an additional
requirement.
•  The requirements under the Act and the Legislation Act together impose a
requirement on the Minister to consult with the disability community when
making any legislative instruments under the Act.
•  Given that the requirement already exists, it is not necessary to impose any
further consultation obligations on the Minister.

23

Include a 5-year review of the amendments made by the Bil
•  The Government took on board proposed amendments from other
parliamentarians, including a recommendation for an independent review
of the changes made by the Bil .
•  This measure ensures the accountability of government in the process of
implementing the recommendations of the NDIS Review.
•  It is a requirement of the amendment that the public is consulted when
conducting the review. This meets additional obligations within the Bil  to
engage and consult with the community when making decisions that relate
to them.
•  The amendment sets out that a review must be conducted after 5 years of
the Act receiving the Royal Assent.
•  The Minister wil  be required to table the report of the 5-yearly review in
Parliament no later than 9 months after the end of the 5-year period.
Other minor technical and consequential amendments
•  Consequential amendments were required to take account of some of the
above-mentioned amendments. For example, the definition section (section
9) is required to be amended to take account of the new drafting of
sections 10 and 33.
•  Other minor amendments include inserting legislative notes to clarify the
operation of provisions, and providing application provisions for new
amendments where necessary.

24

4. Engagement on the Bill and development of
subordinate legislation
Consultation with people with disability?
As part of the NDIS Review:
•  The changes made by the Bil  address some of the key recommendations
from the 2023 independent review of the NDIS (recommendations 3, 6, 7
and 9).
•  As part of the NDIS Review, there was deep engagement with the disability
community.
•  The Review Panel consulted broadly across Australia. They used lived
experience from people with disability to inform their recommendations.
•  The Panel:
o  heard from over 10,000 people and organisations
o  received over 4,000 submissions
o  spent over 2,000 hours listening to the stories, ideas, and feedback
of people with disability
o  had regular meetings with Commonwealth, state, and territory
disability ministers.
•  The Panel used findings from other reviews and inquiries, like the Royal
Commission into Violence, Abuse, Neglect and Exploitation of People with
Disability.
•  The voices of people with disability wil  stay at the center of designing and
implementing the changes to the NDIS.
On the Bill
•  The Bil  is the first step in a range of important reforms. The Government
has indicated that it is committed to undertaking genuine and meaningful
consultation with the disability community, service providers, and state and
territory governments on the detail of future reforms.
25

•  This commitment is evidenced by the range of consultation processes that
the Australian Government and Commonwealth officials have conducted to
seek feedback from the disability community since the NDIS Review was
finalised and on introduction of the Bil .
•  The Minister and the Department have hosted 8 events across Australia to
discuss the Bil  fol owing its introduction – as well as three DSS information
webinars on the legislation – involving a combined total of over 4,900
community members who joined in person or online.
•  In addition, the Minister hosted 9 town hal  meetings on the Review’s
findings and recommendations which were conducted by members of the
Review Panel and Minister Shorten, involving around 5,200 participants in
person and online.
With states and territories
•  There continues to be significant engagement with states and territories
about the NDIS Review and legislation to give effect to key
recommendations.
•  Disability Reform Ministerial Council (DRMC) is meeting in person every 6–
12 weeks. DRMC has met to date this year in February and April and is due
to meet again in June, August, October, and November.
•  Disability Deputy Department Heads are meeting monthly to engage on
strategic reform priorities.
What is the urgency of the Bil  given the Government has not even
responded to the NDIS Review or Disability Royal Commission?
•  The decision to bring forward legislative changes and associated rules was
made by National Cabinet in December 2023. This was a decision of
Government to respond to key recommendations around restoring the
scheme to its original intent.
26

•  The experiences of participants were clearly heard through the NDIS
Review. While Governments are considering their responses, a key initial
step in responding to the NDIS Review is developing the new budget-based
planning framework.
•  While it is important to ensure there is careful sequencing of other key
recommendations from the NDIS Review such as foundational supports, the
Bil  establishes the framework to al ow the time that it wil  take to careful y
co-design and develop the detail in subordinate legislation.
How many new rules and instruments are created by the
Bill?
•  Of the complete list of new or amended rules and legislative instruments
outlined below there are:
o  27 Category A rules –requiring unanimous state and
territory agreement
o  2 Category C rules – requiring majority agreement of states
and territories, including the Commonwealth
o  5 Category D rules – requiring consultation with states and
territories
o  6 disal owable legislative instruments
•  Not al  of the rule making powers may be used but the department has
identified some priority areas that wil  need to be ready to commence if the
Bil  is passed.
Further engagement on the development of subordinate
legislation
•  In my previous submission to this Committee, I mentioned the Agency has
commenced co-design work on a number of areas for reform and how they
wil  be implemented, through its extensive existing co-design and
27

consultative mechanisms. These areas are published on the Agency’s
website and include participant pathway experience, safety and services.
•  The Department has been working with the Agency to use the insights from
this co-design to inform the development of policy around priority rules and
other instruments and wil  be leading broader engagement on the detail
together with states and territories.
Deﬁnition of NDIS Support
•  One of the priority areas for subordinate legislation in the event the Bil
passes is the definition of NDIS Support.
•  One of the key changes made by the Amendment Bil  is to introduce flexible
budgets. This means participants wil  have more choice and control in
choosing what supports are right for them.
•  It also means a new definition of ‘NDIS support’ needed to be inserted into
the NDIS Act to make it clear what the NDIS does and does not fund to help
participants make more informed choices.
•  This is relevant to ensuring that participants do not inadvertently spend
NDIS funding on goods or services that are not NDIS supports and risk
incurring a debt which I would also like to outline.
•  A transitional rule wil  need to be in place at the time the Bil  commences
until a longer-term rule can be designed with the disability community and
agreed with State and Territory Governments.
Why do we need a definition of NDIS Support?
•  The NDIS Review heard consistently, particularly from participants, that it is
not always clear what they can spend their funding on.
•  Currently this information is contained in lots of different documents (such
as rules and operational guidance) which can be difficult to understand al
together.
28

•  Without a definition of NDIS Support, this has resulted in the issue of
whether a support can be funded by the NDIS being determined on a case-
by-case basis (at the cost of individual participants going through complex
and often traumatic appeals processes).
o  There are many other examples of AAT decisions which
cannot reach agreement about day to day living costs…
o  I would like to draw the Committee’s attention to a recent
Federal Court decision which made a significant expansion
in the interpretation of day to day living costs by al owing
funding for extensive relocation costs for participants who
sell a home and then purchase a new home including
conveyancing costs.1
Transitional rule
•  We want the transitional rule to provide clarity for participants when
purchasing supports and services to reflect what the NDIS was intended to
fund.
•  There wil  be goods and services that while general y not funded under the
NDIS, wil  need to be determined based on a participant’s individual
disability support needs.
•  These wil  be represented as ‘carve outs’ from the transitional rules about
what the NDIS wil  not fund based on a person’s disability support needs.
For example, where there is an assistive technology adaptation to an item
that would ordinarily be regarded as a cost of daily living or where a
support enables social and economic participation.
•  Most importantly, the transitional rule wil  need to be clear and easy to
understand what NDIS funding can and cannot be used to buy.

1 Warwick v National Disability Insurance Agency [2024] FCA 616
29

Engagement approach to NDIS Support transitional rule
•  We have commenced initial engagement with states and territories and
Disability and Carer Organisations on lists of what the NDIS would and
would not fund.
•  The reason why we have commenced consultation before the Amendment
Bil  has been passed is because a transitional rule wil  need to be in place at
the time the Bil  commences.
•  We would like to take as much time as possible to hear from the disability
community about the transitional rule, before we make a longer-term rule
on NDIS supports.
•  We are waiting for initial feedback from states and territories and disability
representative organisations before undertaking a public consultation
process for 2 reasons.
•  The first is to test the lists and identify any changes that need to be made
ahead of public consultation and the second is to ensure disability
organisations are best placed to support their members in responding to
the consultation.
•  We know that discussion about what supports are important to the lives of
participants can be distressing and we need to take the time to minimise
that distress and misinformation.
Additional priority rules subject to co-design and
consultation
Section 33 – management of intra-plan inﬂation
•  To support the immediate operation of the Bil , the Minister intends to
make a disal owable legislative instrument under proposed new subsection
33(2E).
30

•  This instrument enables the Agency to specify legal y enforceable total
funding amounts in participants’ plans. These enforceable funding amounts
are critical to address intra-plan inflation under the current planning
framework (that is in old framework plans).
•  [Do we want to say more explaining intra-plan inflation and costs]
•  The Agency has been working through co-design groups to understand key
drivers in plan overspends and support participants with resources to stay
within these new funding limits.
•  As is the case currently, participants wil  be able to seek variations based on
changes in circumstances or in situations where a participant has
experienced crisis or emergency situations as outlined in amendments to
section 45(5).
•  The Commonwealth wil  be undertaking public consultation and seeking
feedback and support from states and territories for the Minister for the
NDIS to make the new instrument as close as possible to the
commencement of the Bil .
Plan management
•  Another area for priority rule making in the event the Bil  is passed is
subsection 44(5) which enables consideration of whether a participant or
other person managing funding under the plan is likely to comply with
section 46 when making a decision about plan management type.
•  As I have already mentioned, section 46, as amended by the Bil , requires
funding provided under a participant’s plan to be spent in accordance with
the plan and only to acquire NDIS supports for the participant.
•  New subsection 44(5) wil  enable the Agency not to give effect to a plan
management request if satisfied the relevant person is unlikely to comply
with section 46.
31

•  This is an important safeguarding provision as it wil  minimise the risk of a
participant’s plan being spent on supports that are not NDIS supports for
them, and wil  ensure participants are supported to spend funding in their
plan in such a way that they wil  continue to have access to necessary
supports throughout the duration of their plan.
•  It wil  also protect participants where there is reason to believe their plan
nominee or plan manager is likely to use funding under the participant’s
plan in an inappropriate way, which could lead to the participant being
without funding for much needed supports.
•  The rules made under subsection 44(5) are Category A rules requiring
agreement of each state and territory to prescribe matters to which the
Agency must have regard in considering whether a relevant person is likely
to comply with section 46.
•  The Agency is undertaking targeted consultation with participants, their
families and carers, as well as representative organisations on the risk-
based decision-making framework that wil  support delegates to make a
plan management decision under this new rule.
•  The Department wil  use the insights from the Agency’s work with states
and territories consult on options for a new rule.

32

5. Access
Clarification of access
•  The Bil  makes no changes to who can access the NDIS.
•  The Bil  makes clear that when a person meets the access criteria to
become a participant in the Scheme, the NDIA must advise them whether
they met the disability requirements (section 24) or the early intervention
requirements (section 25), or both.
•  This is the first step in creating a new early intervention pathway, which wil
be developed over time using Category A NDIS rules. Until that has
occurred, the only difference for participants wil  be the information
included in their access decision.
•  The Bil  wil  also clarify and expand the power to make NDIS 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.
•  Rules already exist under section 27 as it is currently in force. Any new Rules
wil  be developed in consultation and co-design with the disability
community and wil  provide clarity and detail about the meaning of key
concepts in the Act.
•  New rules might, for example, tell us how to understand and measure
substantial y reduced functional capacity, or when an early intervention
support is likely to benefit a participant.

33

What changes are being made for participants who enter under
early intervention requirements?
•  The only change that people wil  see on commencement is that the NDIA
wil  be required to inform new participants in writing if they met access
based upon the early intervention or disability requirements, or both.
•  The Bill provides the necessary architecture to prepare for long-term
changes to establish the new early intervention pathway recommended by
the NDIS Review.
•  The creation of a new early intervention pathway wil  be operationalised
through new Category A NDIS rules.
•  The NDIS Review recommended the NDIS should work differently for
people accessing early intervention supports than for people receiving
disability supports for a lifelong disability – based on their needs.
•  Participants who gained access to the Scheme on the basis of the early
intervention requirements may have regular check-ins with the NDIA to
assess whether the supports they are receiving are beneficial.
•  If not, whether they meet the disability requirements or whether they
should continue to be a participant in the Scheme.
Does the Bil  make changes to affect people with psychosocial
disability?
•  This Bil  does not remove access to the NDIS or make any specific changes
for participants with psychosocial disability.
•  Establishing a new pathway for people with a psychosocial disability is stil  a
matter that Government is considering.
•  However, the Bil  establishes new rulemaking powers that could enable the
NDIA to introduce an early intervention pathway for many new participants
with psychosocial disability who entered the scheme via section 25 (the
34

early intervention requirements). This change is recommended by the NDIS
Review.

6. Information gathering – what are the new CEO
powers?
•  The Bil  includes new powers for the CEO to request information, or to
require a participant to attend an assessment or examination, within the
context of considering whether they continue to meet access requirements
for the Scheme.
•  Amendments were made to ensure the CEO wil  only be able to require
someone to undergo an examination or an assessment if there is no other
reasonable alternative way of obtaining the information.
•  Currently, there is no ability for the CEO to request information for the
purposes of considering the revocation of a person’s status as a participant.
It is important for the CEO to be able to request and receive information
from participants.
•  This wil  ensure that the CEO is making decisions based on up to date and
current evidence about a participant.
•  This wil  not result in people having to ‘re-prove’ their disability but wil
al ow the CEO to determine the impacts of their impairment (which can
change over time) having regard to the best available information to ensure
they are receiving the most appropriate supports.
•  Recently circulated Senate amendments clarify that the CEO must take into
account a range of factors when requesting information from participants.
•  These amendments ensure a greater level of transparency for participants
when being requested to provide information to the Agency.

35

What protections are there to ensure the new powers of the CEO
are appropriately constrained in their use?
•  Amendments were made in the House of Representatives to require the
CEO to have regard to other reasonable alternatives before making the
request for an assessment or examination, for example, whether the
participant or another person can provide additional information.
•  There is also an express limitation in subsections 30(2) and 30A(4) that
information can only be requested where it is reasonably necessary for the
purposes of considering whether to revoke a person’s status as a
participant. This is consistent with requirements of the Privacy Act 1988
that limit access to personal information.
•  The Bil  wil  ensure that participants wil  not be removed from the Scheme
where the CEO is satisfied it was reasonable not to have complied with the
request for information within the relevant timeframe. This wil  ensure
participants with complex needs, for example those with multiple and
complex disabilities, cognitive impairments and those in regional and
remote areas, wil  not be unfairly impacted by the new provisions.
•  To ensure that information requests do not place undue burden on
participants, the Bil  provides that the CEO cannot request an assessment or
examination unless the CEO is satisfied that the report would provide
information that the CEO cannot otherwise reasonably obtain.
Can the NDIA can demand all your private medical
information without saying why?
•  The Bil  does not enable the NDIA to access any information without a
specific request being made.
•  A request can only be made for information that is reasonably necessary for
the purpose of the decision being made. This limitation is consistent with
the Privacy Act 1988, which protects personal information such as medical
information.
36

What type of assessment or reports can the NDIA request
from a participant? Will there be clear guidelines
developed to defined what the NDIA can request?
•  The Bil  includes new powers for the CEO to require a participant to attend
an assessment or examination, within the context of considering whether
they continue to meet access requirements for the Scheme. The participant
wil  then be required to provide a report from the assessment or
examination in the approved form. The person conducting the assessment
or examination wil  complete the report.
•  Amendments were made to ensure the CEO wil  only be able to require
someone to undergo an examination or an assessment if there is no other
reasonable alternative way of obtaining the information (30(3) and 30A(5)).
•  These limitations wil  require the CEO to have regard to other reasonable
alternatives before making the request for an assessment or examination,
for example, whether the participant or another person can provide
additional information.
•  The CEO can also request a participant or other person to provide
information. However information can only be requested where it is
reasonably necessary for the purposes of considering whether to revoke a
person’s status as a participant.
Are there legislative mechanisms for the CEO to withdraw
a request for information once it has been made?
•  The CEO can withdraw a request for information under the Bil  currently,
but it is not clearly stated.
•  Senate amendments wil  insert a requirement for information to be
provided in writing. This ensures, under the Acts Interpretation Act 1901,
that the power to request information wil  include the power to revoke that
request.
•  A legislative note wil  be included to draw the reader’s attention to this.
37

Wil  an assessment be required if there is a risk that a participant
may experience harm?
•  The decision to require an assessment or examination is a completely
discretionary decision.
•  The impact on a participant wil  always be a factor to be considered.
•  Currently the CEO has no ability to request information for purpose of
determining whether a participant continues to meet the early intervention
or disability requirements, meaning the CEO’s consideration may be based
on outdated or incorrect information.
•  The CEO may only request that a participant attend an assessment or
examination if there is no other reasonable way to obtain the information.
If the participant is at risk of harm by attending an assessment, the CEO wil
take this into account in deciding whether there is another reasonable way
to obtain the same information.
•  The CEO must not revoke a participant’s access to the Scheme if satisfied
that it was reasonable for the participant not to comply with a request to
attend an assessment or examination. A reasonable reason for refusing to
attend an appointment might include an demonstrable risk of harm to the
participant.
•  Including a specific ‘risk of harm’ exception would be highly problematic, as
it would leave it open for al  participants to argue they wil  suffer harm by
attending an assessment. This would be inconsistent with the intention of
the provisions.
How wil  assessments requested by the CEO for the purposes of be
paid for?
•  The National Disability Insurance Agency (NDIA) does not usual y pay for
assessments or medical examinations, however it can do so in certain
circumstances.
38

• The NDIA must not revoke access unless they are satisfied that non-
compliance with the request was reasonable. This may include
consideration of whether it is reasonable to expect the participant to meet
costs associated with the request.
• It is also important to note that these requests wil only be made of people
who are already participants in the Scheme. The types of assessments
requested may be able to be funded out of the participant’s plan.

39

7. Powers to revoke access
What differences characterise revocation at section 30 and
section 30A?
Section 30: This is a discretionary decision that already exists in the Act.
The Bil  wil  provide a legislative ability to request speciﬁc information where
considered it is reasonably necessary for the purpose of deciding about a
participant’s ongoing access to the scheme. The CEO wil  also be able to require
a participant to attend an examination or assessment, but only if there is no
other way to reasonably obtain the information.
•  Access wil  not be revoked because of failure to comply with the request for
information if it was reasonable for the participant or other person not to
have complied.
Section 30A: This section operates in a mandatory way, in the sense that a
participant’s status must be revoked if they no longer meet the access
requirements or if they fail to comply with a request for information. It also
requires the CEO to consider a participant’s status in circumstances prescribed
in NDIS rules, and includes similar information gathering powers to those
inserted by section 30
•  This section wil  not operate upon commencement of the Bil  and wil  only
become operational once Category A NDIS Rules are made specifying the
circumstances in which it wil  apply. As with section 30 the CEO cannot
revoke access for a participant where there is a reasonable explanation for
the information requested not being provided within the timeframe.
Note: Any decision to revoke a participants status as an NDIS participant continues to be a
reviewable decision pursuant to section 99 table 1 item 3.

40

Are new powers of the CEO to revoke a participant’s access
excessive?
•  A discretionary power to revoke participants access have always existed
under the NDIS Act. The Bil  does not change this existing power, but simply
ensures the CEO’s decision about ongoing access is based on current
information.
•  The intent of this change is to ensure the NDIA can request information
from participants, and that there wil  be consequences for failing to comply
with that request without a good reason. Without these provisions,
participants can refuse to engage with the NDIA resulting in decisions about
ongoing access to the Scheme being made on the basis of outdated and
incorrect information.
•  The Bil  does introduce a new provision that may lead to access being
revoked (section 30A), but that provision wil  not operate until Category A
NDIS Rules have been made. It is intended to apply to participants that
accessed the Scheme through the early intervention pathway.
•  One of the requests for information that the CEO may make under sections
30 and 30A for the participant or another person to provide information
within a specified timeframe. If the participant or other person does not
comply with this request, this may result in the participant’s access being
revoked. Information may only be requested by the CEO under these
sections if it is reasonably necessary for the purpose of the decision being
made. This is consistent with requirements of the Privacy Act 1988 that
limit access to personal information.
•  The CEO can also request that a participant attend an assessment or
examination and provide a report, but can only do so if there is no other
way to obtain the information.
•  The CEO cannot revoke a person’s status as a participant in the NDIS if they
are satisfied that it was reasonable for the participant, or another person,
not to provide the requested information or report within the relevant
timeframe.
41

•  Senate amendments wil  clarify the requirement for the CEO to seek this
information in writing (as wel  as a participant’s preferred way of
communication) and to revoke that request for information.

Wil  a participant be removed from the Scheme if they don’t provide
information requested by the CEO within 90 days due to the delay
of a third party?
•  No, subsection 30(6) and 30A(7) provides that the CEO must not revoke
access to the Scheme fol owing a failure to provide information where it
was reasonable for the person not to have provided the requested
information.
•  Additional y, the CEO may extend the timeframe for providing evidence if
required.
•  Operational y the NDIA is aware that delays occur that are outside of the
control of participant for example, due to the delay of a third party,
including obtaining relevant appointments with al ied health or medical
professionals.
•  A decision to revoke a person’s status as a participant, including because of
a failure to provide information, is a reviewable decision under the NDIS
Act. The person reviewing the decision wil  be able to consider whether
there was a reasonable basis for failing to provide the information, or may
consider the information if it has since become available.
What additional limitations exist to ensure procedural fairness?
•  Amendments were made to the Bil  ensure the CEO wil  only be able to
require someone to undergo an examination or an assessment if there is
no other reasonable alternative way of obtaining the information (30(3) and
30A(5))
•  There is also an express limitation in subsections 30(2) and 30A(4) that
information can only be requested where it is reasonably necessary for the
42

purposes of considering whether to revoke a person’s status as a
participant. This is consistent with requirements of the Privacy Act 1988 to
limit access to personal information.
•  The new limitations wil  require the CEO to have regard to other reasonable
alternatives before making the request for an assessment or examination,
for example, whether the participant or another person can provide
additional information.
•  The CEO cannot revoke a person’s status as a participant in the NDIS if they
are satisfied that it was reasonable for the participant, or another person,
not to provide the requested information or report within the relevant
timeframe.
•  The CEO is also able to extend the timeframe for providing information, for
example if the participant is unable to meet the original timeframe due to
unavailability of their medical professionals.
•  Participants wil  receive written notice of the CEO’s decision pursuant to 30
and 30A in a manner that is consistent with accessibility requirements of
the participant.

43

8. Changes to how plans are set and how funding can
be used
The Bil  makes the fol owing changes to how plans are set and how funding can
be used:
•  It creates the new reasonable and necessary budget framework for the
preparation of NDIS participants’ plans. The Bil  provides for ‘new
framework plans’, to be developed in accordance with the new budget
framework. Participants wil  receive funding based on whether they
accessed the Scheme on the basis of impairments that meet the disability
requirements or the early intervention requirements or both.
•  It provides for a needs assessment process and the method for calculating
the total amount of the participant's ﬂexible funding and funding for stated
supports for new framework plans to be speciﬁed in legislative instruments
and NDIS rules. These wil  be developed in consultation with people with
disability, the disability community, health and al ied health technical
professionals, and with al  States and territories, consistent with existing
governance arrangements.
•  It inserts a new deﬁnition of ‘NDIS supports’ which wil  provide a clear
deﬁnition for al  participants of the supports that wil  be funded by the NDIS
and those that wil  not. This wil  conﬁrm alignment with the original intent
of the NDIS to support people with permanent and signiﬁcant disability as
part of a larger landscape of supports outside of the NDIS.
•  It links reasonable and necessary supports to impairments that meet the
disability requirements or the early intervention requirements, consistent
with the original intention of the Scheme and current practice.
•  It inserts measures focused on protecting participants such as:
o  Requiring the Agency to specify in the statement of participant
supports the total funding amount under the plan for reasonable
and necessary supports together with the funding component
amount under the plan for each support or class of support up to
a speciﬁed amount.
o  Clarifying the requirement that an NDIS participant who receives
an amount or amounts for NDIS supports may only spend that
money in accordance with the participant's plan. This reﬂects the
44

reasonable expectation that participants should spend up to the
limits speciﬁed in their plan – unless their needs signiﬁcantly
change.
o Enabling the Agency to change the plan management type as wel
as imposing shorter funding periods to safeguard participants
where others may seek to exploit or coerce the participant to use
their package in a way that is not consistent with their best
interests.

45

9. Old planning framework
•  The Bil  amends ‘old framework plans’, which are plans that participants
currently have and wil  continue to have until instruments and rules are
developed and the new planning framework commences.
•  The Bil  al ows old framework plans to specify a ‘total funding amount’ for
al  supports under the plan and at least one ‘funding component amount’,
which is the total amount of funding for a group of supports.
•  These changes to old framework plans wil  al ow greater oversight and
clarity for participants of their total funding amount.
•  The changes are not designed to create confusion for participants, it is to
assist in the reduction of participants spending more than has been
determined reasonable and necessary by the Agency. The changes are also
intended to protect participants from exploitation by providers or plan
nominees spending funding from plans inappropriately and leaving a
participant without access to supports.
•  Changes to old framework plans wil  not be operationalised until the
Minister makes a determination setting out how to work out these
amounts.

46

What are the changes to current plans to keep people from
overspending their NDIS funds?
•  This Bil  provides clarity that participants must spend within the funding
amount in their plan by ensuring al  plans include a total funding amount
that a participant must adhere to. Plans wil  also include one or more
‘funding component amounts’, which wil  apply to groups or categories of
supports.
•  Participants wil  be unable to spend more than their al ocated funding for
reasonable and necessary supports, but the CEO may enable payments
above the limit in limited circumstances.
•  The measure wil  help control the current chal enge the NDIA is
experiencing with some participants exhausting their funding for
reasonable and necessary supports, and then asking the NDIA for more
funding without a good reason.
•  This wil  support the NDIA’s ability to help participants manage their
al ocated funding for reasonable and necessary supports.
•  Participants who have previously exhausted their al ocated funding for
reasonable and necessary supports without a change in their
circumstances, or who are at risk of exhausting their al ocated funding for
reasonable and necessary supports without a change in circumstances, wil
be assisted to manage within their funding limit to ensure they can
continue to access reasonable and necessary supports throughout the
duration of their plan.

47

10.  New planning framework
What is the new planning framework?
•  The Bil  creates a new planning framework that wil  build participant plans
to include a reasonable and necessary budget, rather than identifying
reasonable and necessary supports line-by-line.
•  Under new framework plans, participants’ reasonable and necessary
budgets wil  be based on the outcomes of a needs assessment and
calculated using a method set out in a legislative instrument (not in a NDIS
rule). Plans wil  include a flexible budget, which can be used to purchase a
range of supports of the participant’s choice, and/or stated supports, which
wil  be supports like home and living or high cost assistive technology and
funding must be used for that particular support.
•  New framework plans wil  include similar elements to old framework plans
including a statement of goals and aspirations and statement of participant
supports.
•  Participants wil  be able to spend their flexible budget on supports that are
NDIS supports for them. This change provides participants choice and
control to flexibly use their plan to support their needs without applying to
the NDIA for a variation or reassessment.
•  Participants wil  not move to the new framework until the needs
assessment and the method for calculating the budget have been
developed.

48

Wil  this impact a participant’s ability to exercise choice and
control?
•  The concept of ‘choice and control’ remains central to the NDIS and wil  be
significantly strengthened under the new planning framework.
•  Under the Bil , new framework plans wil  draw on the new support needs
assessment in setting a ‘reasonable and necessary’ budget. This budget wil
include a flexible budget, which can be used to purchase a range of
supports of the participant’s choice, and/or stated supports, which wil  be
supports like home and living or high cost assistive technology and funding
must be used for that particular support.
•  This wil  be a move away from the current line-by-line determination of
individual ‘reasonable and necessary supports’ which the NDIS Review
found can produce contested and inconsistent outcomes.
•  The new planning framework provides participants with significantly more
choice and control over how they utilise funding provided under their plan,
which wil  al ow for greater flexibility and innovation in support provision.
How wil  impairment(s) be funded under the new planning
framework?
•  Under the new planning framework, as with the existing planning
framework, funding wil  be provided to participants in relation to
impairments that meet the disability criteria (section 24) or the early
intervention criteria (section 25) at the time the planning decision is made.
This is consistent with the original intent of the Scheme and the National
Disability Insurance Agency’s current practice.
•  The focus on support needs represents a more person-centered and
strength-based approach than over reliance on functional assessments and
deficit-based approaches currently preferred.
49

•  These changes support the Review’s focus on budgets built primarily on
support needs and intensity, rather than functional impairments. A focus on
whole of person, circumstances and support needs wil  also end unhelpful
and ongoing focus on primary and secondary disability. Budgets wil  be built
on support needs and not diagnosis.
•  Government amendments have been circulated that amend these
provisions to make the existing policy intention clearer. The amendments
make it clear that a needs assessment will assess all of a person’s disability
support needs, without limiting this to impairments that meet section 24 or
section 25. The participant’s plan wil  then include funding for supports
needs arising from impairments that meet section 24 or section 25 as
mentioned above.

50

Wil  everyone with a current NDIS plan have their eligibility
reassessed? How wil  this work?
•  No. NDIS participants already in the scheme wil  continue to receive funding
under the current planning framework, while the new budget framework is
being developed.
•  Currently, a participant’s access to the Scheme can be revoked if they no
longer meet the access criteria. The Bil  makes no changes to this.
•  The Bil  does introduce a new provision which require the NDIA to consider
whether a person continue to be eligible for the Scheme in certain
circumstances. This requirement cannot operate until category A NDIS rules
have been made prescribing those circumstances. This is intended to give
effect to the early intervention pathway when it has been ful y established.
It wil  ensure regular check-ins with participants who accessed the Scheme
because they required early intervention supports. For example, if a child
has entered the Scheme to access early intervention supports, the NDIA can
consider they continue to need early intervention support or as they age,
may need access to the Scheme under the disability criteria. It wil  also
al ow the CEO to consider whether the supports they are receiving are
working for them or whether they may benefit from a different approach.
How wil  participants be transitioned to the new planning
approaches in legislation?
•  Participants wil  be transitioned to the new approach over time. This
phased approach wil  provide the NDIA appropriate time to design and test
operational changes, and provide governments time to develop the system
of foundational supports outside of the NDIS.
•  The intention is to slowly move participants over to the new arrangements
in groups. These groups may be based on characteristics such as where the
participant lives or their age, or may be based on the types of supports they
require.
51

•  Over time, al  participants wil  be covered by the new budget-setting
approach included in this Bil .
•  Participants wil  not move to the new framework until the needs
assessment and the method for calculating the budget have been
developed.

What is a reasonable and necessary budget?
•  Reasonable and necessary budgets form part of the statement of
participant supports in new framework plans.
•  The budget wil  set out flexible funding and/or stated supports for the plan.
Flexible funding can be used to purchase any support that is an NDIS
support for the participant, while funding for stated supports must be used
for that particular support. Stated supports wil  include items like high cost
assistive technology, or home and living supports.
•  Having a flexible budget al ows for greater choice and control in obtaining
supports to meet participant’s individual needs as they require them.

What is flexible funding?
•  Flexible funding wil  be available to a participant where the needs
assessment indicates the participant requires at least some NDIS supports
that are not stated supports.
•  This is an amount of funding, informed by the needs assessment and
calculated in accordance with the prescribed method, that a participant
may use to acquire a range of supports they need because of their
impairment(s), provided those supports are NDIS supports for them.
52

•  A transitional instrument wil  define what supports are ‘NDIS supports’ for
participants. This wil  be replaced by a future category A Rule, to be
developed and designed in consultation with the disability community.
•  This change implements action 3.5 of the NDIS Review, to al ow greater
flexibility in how participants can spend funding received under the NDIS.
•  This change is based on the principle that people with disability know their
own support needs and are best placed to determine how to meet these
needs. The inclusion of flexible funding in a plan is the default position for
most participants.
How wil  flexible funding amounts be worked out?
•  The process for calculating flexible funding amounts wil  be in a legislative
instrument made by the Minister.
•  The method wil  use the information from the needs assessment to
determine a participant’s budget.
Are there any restrictions on funding?
•  In certain circumstances, the CEO may place restrictions on the spending of
some or al  of the flexible funding provided for in a reasonable and
necessary budget.
•  This wil  only occur where the CEO is satisfied that any of the fol owing
circumstances exist:
o  Participant is likely to suﬀer physical, mental or ﬁnancial harms if the
ﬂexible funding was not subject to restriction.
o  The participant, their plan nominee or registered plan management
provider has not complied with the spending requirements (set out
in section 46).
o  A circumstance provided by NDIS rules (category A).
53

•  These restrictions wil  only be used where a participant has a history of
over-spending, non-compliance with the relevant NDIS rules, or the Agency
has identified risk of harm to a participant.
•  These restrictions wil  only be used in the most extreme of circumstance,
adopting recommendation 3.6 of the Final Report.
•  A participant wil  be able to seek internal and external review of the
decision to impose funding restrictions, as this wil  form part of the decision
to approve their statement of participant supports which is a reviewable
decision.
What are stated supports?
•  A stated support is a support, or class of supports, specifical y identified in a
plan. The needs assessment wil  identify whether a participant requires
stated supports.
•  Funding for stated supports can only be spent on that support (or class of
supports) and cannot be spent for any other purpose, including acquiring
other NDIS supports.
•  Category A NDIS rules wil  prescribe supports that are stated support for al
participants or certain groups of participants. For example, high-cost
assistive technology, home modifications and supported independent living
may al  be stated supports. These rules wil  be co-designed with the
disability community.
•  Including stated supports in participant plans is an important mechanism to
ensure alternative commissioning agreements operate effectively.
•  Stated supports are also an important safeguarding mechanism for the
provision of higher risk supports that need to be provided by particular
providers, or in a particular manner, to protect the participant from harm.
What are funding periods (or intervals) and how wil  they be worked
out?
54

•  New framework plans are intended to be in effect for several years for most
participants. To ensure participants have access to funding throughout their
entire plan, plans wil  include ‘funding periods’ which wil  be a period of
time during which a proportion of the total plan budget wil  be available.
For example, a plan may include 5 funding periods and 1/5th of the total
plan budget wil  be available during each period. This applies equal y for
flexible funding and stated supports.
•  Each period wil  be no more than 12 months, with each period to run
consecutively. The length of a funding period wil  depend on the
participant’s circumstances, for example a shorter funding period might be
a necessary safeguard for the participant.
•  This is to ensure that when participants have longer plans of up to 5 years,
they are provided with an easy mechanism to manage their funding
throughout the duration of the plan.
•  If funding is not spent within one funding period, it wil  be rol ed over into
the next to ensure participants have access to their ful  budget amount over
the duration of their plan. However funding wil  not rol over between plans.
•  A participant wil  be able to seek internal and external review of the length
of their funding periods, as this wil  form part of the decision to approve
their statement of participant supports which is a reviewable decision.

55

What happens if I spend my budget before my plan ends?
•  Participants wil  be supported to manage their budget throughout the
duration of their plan.
•  This support may include regular check-ins by the NDIA with participants, as
well as other educational activities related to spending funding under their
plan.
•  The NDIA wil  co-design with the disability what this support should look
like and when different types of support to manage a budget should be
used.
•  The ability of participants to request a plan variation or reassessment is not
changed by the Bil . Participants wil  remain able to seek a plan variation or
reassessment if their circumstances change.
•  If a participant spends al  their al ocated funding during a funding period,
this does not automatical y enable a ‘top-up’ in funds. Rather, if their
circumstances have changed, they can fol ow the existing avenues for
reassessments. If the participant’s circumstances have not changed and
they have spent the al ocated amount before the end of the relevant
funding period, they may be required to wait until the next funding period.
Can a participant only receive funding for impairments that met the
disability or early intervention requirements at access?
•  No, a needs assessment wil  not be limited to assessing only the
impairments for which access was original y met.
•  The needs assessment wil  take account of the participant’s needs as a
whole, but funding may only be provided in relation to impairments that
meet the disability requirements or the early intervention requirements at
the time the planning decision is made. This is consistent with the original
intent of the Scheme and the NDIA’s current practice.
56

•  If a participant acquires a new impairment that meets the disability or early
intervention requirements, they wil  receive funding in relation to that
impairment even if it was not considered at the time they met access. The
time for assessing whether impairments meet the criteria is at the time the
planning decision is being made.
•  A person wil  not be required to ‘re-prove’ their disability. Any information
previously provided about their impairments or circumstances can be relied
on in undertaking a needs assessment. Participants wil , of course, be
required to provide information about changes they experience, including
about the impact of their impairments or new or additional impairments
that may arise.
How will a participant’s budget be calculated?
•  As recommended by the NDIS review, the new needs assessment model wil
be based on a holistic assessment of support needs and not based solely on
primary disability.
•  The development and design of the needs assessment process wil  occur in
consultation and co-design with people with disability, appropriate
technical experts and disability stakeholders.
•  A report wil  be prepared of the needs assessment, and the information
from this report wil  then be applied to a method to arrive at a participant’s
budget amount. The needs assessment and the method wil  both be
prescribed in legislative instruments and developed in consultation with the
disability community and relevant experts.

57

11.  Needs assessment
What is the difference between the proposed needs
assessment and independent assessments?
•  One of the major changes proposed by the NDIS Review was to create a
new budget-based planning framework, based on an assessment of need at
a ‘whole-of-person’ level rather than for individual support items. The
Review also recommended a ‘trust-based approach’, where participants are
provided with a flexible budget and there is a focus on providing guidance
and support to participants to spend their budget appropriately.
•  The new needs assessment is consistent with recommendations of the NDIS
Review about how a participant’s support needs should be assessed. It wil
result in a budget being al ocated to a participant on the basis of their
assessed needs, with participants having the flexibility to purchase a range
of supports rather than a prescriptive line-by-line plan.
•  The needs assessment wil  be conducted in accordance with an assessment
tool (or tools) that wil  be co-designed with people with disability and a
range of relevant experts. The tool(s) wil  be the subject of extensive
consultation and discussion to ensure it can assess a participant’s needs,
taking into account their multifaceted and diverse experience of disability.
Once this process has occurred, the assessment wil  be made transparent
through a legislative instrument. These steps ensure it is an entirely
different process to the previously proposed independent assessments.

58

Rights of review and access to a needs assessment
•  Amendments were made in the House to clarify that a participant wil  be
provided with a copy of their needs assessment.
•  The needs assessment is a procedural step that provides information
required for the decision to approve the statement of participant supports
(budget/funding).
•  A needs assessment can be chal enged if a participant seeks internal or
external merits review of a decision to approve a statement of participant
supports.
•  Amendments were made 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.
•  The participant wil  be able to explain to the reviewer why they disagree
with the assessment report and want a replacement report to be obtained.
•  The reviewer wil  be required to consider whether a replacement needs
assessment report should be arranged and arrange one if they are satisfied
this should occur.

59

Does the introduction of the needs assessment lessen
review rights around planning outcomes?
•  The Bil  makes no changes to internal and external review rights in relation
to participant’s plans.
•  Under the new planning framework, like the existing framework, the
reviewable decision wil  be the decision to approve a participant’s
statement of participant supports. As with the existing planning framework,
this decision wil  contain multiple components that can al  be chal enged as
part of the same review application. This approach ensures simplicity for
participants exercising their review rights.
•  A participant wil  be able to chal enge al  aspects of their statement of
participant supports in the same way they currently can. This means that a
participant can, for example, request a different type of plan management
at the same time they are seeking a change to their reasonable and
necessary budget (which may require a replacement needs assessment to
be arranged).
NOTE: further detail is included on the next page about how merits review works in the
context of the needs assessment.
How does merits review work with the needs assessment?
•  Under the new planning framework, like the existing framework, the
reviewable decision wil  be the decision to approve a participant’s
statement of participant supports.
•  When a decision-maker is deciding whether to approve a statement of
participant supports under the new planning framework, they must arrange
a replacement needs assessment if they are satisfied this should occur.
They might be satisfied of this for their own reasons, or because the
participant has disagreed with aspects of the needs assessment report and
the decision-maker agrees with their concerns.
•  The critical point is that a decision-maker is unable to approve a
participant’s statement of participant supports without considering
60

whether a replacement needs assessment is required, and arranging one if
they are satisfied this should occur.
•  This requirement applies equal y to al  decision-makers, including original
decision-makers (NDIA planners), internal review decision-makers, and
external review decision-makers (the Tribunal).
•  In practical terms, this means a participant wil  have three opportunities to
chal enge their needs assessment:
o  At the initial planning meeting, because they wil  have received their
report in advance of that meeting
o  As part of an internal review
o  As part of review by the Tribunal
•  On each occasion, if the relevant decision-maker agrees with the participant
that a replacement assessment is required then they must arrange for that
to occur. If the decision-maker does not agree with the participant, they wil
approve the statement of participant supports on the basis of the existing
assessment and the participant wil  then be able to raise their concerns
with the assessment at the next stage of review.
•  A participant wil  also be able to request a new needs assessment at any
time if their circumstances have changed.

61

Why isn’t the outcome of the Needs Assessment explicitly
a reviewable decision under the Act?

NOTE: further detail is included on the previous page about how merits review works in the
context of the needs assessment.
•  There has been a lot of confusion about this issue.
•  The needs assessment is not a decision under the Act, and so is not
separately reviewable. The needs assessment is a procedural step which is
then required to be considered in a particular way by the decision-maker
who is preparing the participant’s plan.
•  Under the new budget-based planning framework there is one planning
decision that is reviewable. That is the decision to approve a statement of
participant supports, which is similarly the single planning decision that is
reviewable under the existing planning framework.
•  Al  aspects of the statement of participants supports, including the
reasonable and necessary budget is reviewable. This wil  include a
replacement needs assessment being arranged if the person conducting the
review is satisfied that should occur.
•  To make the needs assessment report a separate reviewable decision would
be inconsistent with the operation of the overal  planning framework.
•  If it were a separate reviewable decision, there would be circumstances in
which participants do not have an approved plan while awaiting the
outcome of the review of their needs assessment. This would leave
participants without access to support through the NDIS while they go
through the merits review process.
•  There would also be a disadvantage to participants if each aspect of the
statement of participant supports was a separately reviewable decision.
Participants may be unable to obtain the outcome they are seeking if they
inadvertently do not seek review of the right decision and would be tied up
with legal technicalities attempting to achieve their desired outcome.
62

Can a participant request a new needs assessment?
•  Participants wil  be provided with a copy of their needs assessment report
before any planning decisions are made by the CEO.
•  Participants wil  be given the opportunity to review their needs assessment
and provide feedback (including any identified errors) at the planning
meeting.
•  The Bil  operates so that a decision-maker is unable to approve a
participant’s plan without considering whether a replacement needs
assessment is required, and arranging one if they are satisfied this should
occur.
•  This requirement applies equal y to al  decision-makers, including original
decision-makers (NDIA planners), internal review decision-makers, and
external review decision-makers (the Tribunal).
•  In practical terms, this means a participant wil  have three opportunities to
chal enge their needs assessment:
o  At the initial planning meeting, because they wil  have received their
report in advance of that meeting
o  As part of an internal review
o  As part of review by the Tribunal
•  On each occasion, if the relevant decision-maker agrees with the participant
that a replacement assessment is required then they must arrange for that
to occur. If the decision-maker does not agree with the participant, they wil
approve the participant’s plan on the basis of the existing assessment and
the participant wil  then be able to raise their concerns with the assessment
at the next stage of review.
•  Arranging a replacement assessment does not mean that the entire
assessment needs to always be reconducted (although a participant could
request an entirely new assessment). It could be as simple a change of
certain aspects of the needs assessment report that had an impact on the
participant’s reasonable and necessary budget.
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•  A participant wil  also be able to request a new needs assessment at any
time if their circumstances have changed.
Why is there no detail yet about how the needs
assessment will be developed?
•  The needs assessment tool (or tools) wil  be developed through a
consultation and codesign process, involving deep engagement with the
disability community and relevant experts.
•  This is an opportunity to undertake an iterative process of design and
testing with people with disability, as wel  as health and al ied health
professionals, and people with technical expertise in the development of
needs assessments.
Will participants be required to pay for needs
assessments?
•  Further work wil  need to be undertaken around the design of the needs
assessment process and a decision wil  need to be made in the Budget
context around payment.
What expertise will the Needs Assessor have?
•  The Bil  provides new planning framework to give effect to key NDIS Review
recommendations. This includes a needs assessment process that wil  be
used to calculate a participant’s budget.
•  The qualification and prerequisites used to determine an appropriate Needs
Assessor is not specified in the Act. This is because the needs assessment
itself must first be developed, which wil  be done through co-design with
the disability community and consultation with relevant experts.
•  Once this has occurred, selection of appropriate needs assessors will also be
undertaken in consultation with the disability community and relevant
experts.
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•  It is important that the development and design of these interconnected
elements occurs with people with disability to ensure that potential
limitations are addressed prior to implementation of the new needs
assessment process.
•  There are various interconnected actions and considerations proposed by
the NDIS Review that Government wil  address in finalising the role and
expertise of the Needs Assessor.
What is meant by support for ‘whole of person’?
•  The term ‘whole-of-person’ is not used in the Bil  as it lacks legal clarity.
•  Under the new planning framework, as with the existing planning
framework, funding wil  be provided to participants in relation to
impairments that meet the disability criteria (section 24) or the early
intervention criteria (section 25) at the time the planning decision is made.
This is consistent with the original intent of the Scheme and the National
Disability Insurance Agency’s current practice.
•  It also suggests that the NDIS wil  meet al  of a participant’s needs, even
those that are not related to their disability, which is not consistent with the
intended operation of the NDIS or the recommendations of the NDIS
Review.
•  The NDIS was always intended to operate as part of a broader ecosystem of
supports, and this is reflected heavily in the NDIS Review recommendations.
•  The Bil  is structured in a way that a person’s disability support needs as a
whole. The focus on disability support needs represents a more person-
centered and strength-based approach than over reliance on functional
assessments and deficit-based approaches currently preferred.
•  Creating a new budget-based planning approach, calculated on a ‘whole-of-
person’ level rather than for individual support items, ensures planning
considers a person's holistic living situation including stage of life, their
environment, and their needs.
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•  There wil  no longer be a distinction between primary and secondary
disability and the needs assessment wil  be developed in such a way that it
wil  identify and take account of al  of a participant’s impairments.
How does the needs assessment shape participant
budgets?
•  A needs assessment wil  not be limited to assessing only the impairments
for which access was original y met. The needs assessment wil  take account
of the participant’s disability needs as a whole, but funding wil  only be
provided in relation to impairments that meet the disability requirements
or the early intervention requirements at the time the planning decision is
made.
•  If a participant acquires a new impairment that meets the disability or early
intervention requirements, the assessment wil  take that into account to
inform funding in relation to that impairment even if it was not considered
at the time they met access.
•  A person wil  not be required to ‘re-prove’ their disability. Any information
previously provided about their impairments or circumstances can be relied
on in undertaking a needs assessment including additional information
about broader disability support needs.
•  In relation to disability support needs that do not meet the threshold
requirements outlined in early intervention or disability criteria for access,
participants wil  be supported to link with mainstream and other supports
and services.
•  The amendments ensure that the assessments align with recommendations
3.3, 3.4 and 3.5 of the NDIS Review.

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12.  New definition of NDIS Supports – section 10
Why do we need a definition of NDIS support?
•  The definition of NDIS support serves two primary purposes:
o  It makes clear the constitutional basis for the new budget
setting framework recommended by the NDIS Review and
helps to clarify and identify the constitutional basis of the
NDIS as a whole.
o  To assist participants and the disability community to
understand what is (and always has been) capable of being
funded by the NDIS having regard to intergovernmental
agreements and constitutional considerations.

Benefits of defining ‘NDIS Supports’ in section 10:
•  The Bil  inserts a new definition of ‘NDIS support’ into the Act. This concept
appears in numerous places throughout the Bil  and wil  be central to the
operation the future planning and budget-setting model.
•  This moves away from the current planning approach, which determines an
individual’s ‘reasonable and necessary supports’, those that are
appropriately funded or provided by the NDIS.
•  The definition of ‘NDIS Supports’ wil  provide greater clarity around the
supports that can be funded by the NDIS and those that cannot.
•  For the sake of consistency and simplicity across the NDIS Act, the definition
has been adopted in key areas, particularly where references to supports
being appropriately provided by the NDIS (as opposed to other service
systems) currently exist.
Why the change to re-define ‘NDIS Supports’ was required:
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•  Concerns were raised by the community about a lack of clarity in the
drafting of new section 10. Notably as it required participants to undertake
a complex analysis of whether a support could be considered an NDIS
support for them.
•  Concerns were explicitly raised that the proposed definition only referenced
specific articles of the Convention on the Rights of Persons with Disability
which may limit the supports a person can purchase.
•  To address this, the Government moved parliamentary amendments to
replace new section 10 with a revised definition of ‘NDIS support’.
•  These amendments change the structure of section 10 so that the Minister
must assess whether supports fall within any of Australia’s obligations
under of the CRPD (or the sickness benefits power) when prescribing
supports that are NDIS supports). This takes the onus off the participant to
identify relevant obligations under the CRPD, and as a result the specific
articles of the CRPD no longer need to be specifical y referenced.
The new definition of NDIS supports will reference the
Convention generally rather than specific articles. Why
wasn’t this done from the beginning?
•  In response to concerns raised, including about why the definition did not
reference the whole Convention on the Rights of People with Disability,
Government amendments in the House of Representatives replaced the
previous definition of ‘NDIS Support’ to clarify it and make it more
accessible.
•  Instead of referencing specific articles, the definition now requires the
Minister to be satisfied that a support wil  implement any of Australia’s
obligations under the Convention on the Rights for People with Disability
before prescribing it in as an NDIS support in rules.
•  The specific articles were referenced initial y because of the way the section
was structured, which required a participant to assess whether a particular
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support was an NDIS support for them by applying various criteria.
References to specific articles was provided to assist participant
understanding of the proposed process.
•  The new structure of the section puts the onus on the Minister to assess
whether supports fal  within the relevant articles of the Convention on the
Rights for People with Disability, rather than the participant. The Minister
wil  be required to consider al  the relevant obligations under the
Convention on the Rights for People with Disability when making the
instrument.
Why were transitional arrangements changed?
•  The Government heard concerns about the use of the Applied Principles
and Tables of Support (APTOS) as an interim approach to defining ‘NDIS
Supports’
•  To address this, parliamentary amendments were agreed that amend the
Bil  to remove the reliance on APTOS. Instead the Bil  provides for a
transitional rule that wil  be in place only until new Category A rules under
section 10 can be agreed. These rules wil  set out the kinds of supports that
are NDIS supports and specify kinds of supports that are not NDIS supports.
Note: It is necessary to have a transitional provision as section 10 cannot
operate without rules being in place and it wil  be critical to the operation of
the Act once the Bil  is enacted.  The transitional rule wil  only operate until
substantive rules have been agreed and made.
Does the definition of NDIS support limit the kinds of supports the
NDIS wil  fund?
•  The original intention of the NDIS was to provide particular kinds of
supports to people with disability. These are currently described as
‘reasonable and necessary supports’, which requires a delegate of the CEO
to consider a list of criteria in respect of each support, for each participant.
This can lead to a lack of flexibility for participants, inconsistent planning
decisions, and delays in plans being approved.
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•  These concerns are a key reason why the NDIS Review recommended a
move towards a more flexible, budget-based approach. The Bil  implements
this approach. However the new budget-based approach wil  no longer
have a decision about individual reasonable and necessary supports,
making it necessary to have an overarching definition of NDIS support.
•  By inserting a definition of ‘NDIS support’, the Bil  does not tighten the kinds
of supports the NDIS wil  fund. Instead, the Bil  clarifies the supports that
have always been available under the NDIS. It stil  allows for innovation and
choice and control while clarifying the parameters of the Scheme.
•  NDIS Supports are goods and services required to support a participant’s
disability needs, which are appropriately funded by the NDIS.
•  The key test is not where items are purchased from, but rather whether the
item is needed because of a participant’s impairment(s). For example,
groceries are an ordinary living cost all Australians are required to purchase
and wil  not be an NDIS support. However a participant who requires
continence supplies as a result of their disability may choose to purchase
these from a supermarket if that is more convenient or cheaper for them.
This is a key advantage of the flexible budget model in that participants wil
have more flexibility around how they address their own needs and where
they obtain their NDIS supports.

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13.  Changes focussed on safeguarding participants
•  The Bil  inserts measures focused on protecting participants such as:
o  Requiring the Agency to specify in the statement of participant
supports the total funding amount under the plan for reasonable
and necessary supports together with the funding component
amount under the plan for each support or class of support up to
a speciﬁed amount.
o  Clarifying the requirement that an NDIS participant who receives
an amount or amounts for NDIS supports may only spend that
money in accordance with the participant's plan. This reﬂects the
reasonable expectation that participants should spend up to the
limits speciﬁed in their plan – unless their needs signiﬁcantly
change.
o  Enabling the Agency to change the plan management type as wel
as imposing shorter funding periods to safeguard participants
where others may seek to exploit or coerce the participant to use
their package in a way that is not consistent with their best
interests.

Plan management – the NDIA can take over control of your
supports if they disagree with how you are using your
funding
•  The Bil  does not substantial y change the existing provisions around plan
management.
•  The only change made by the Bil  is that a participant wil  not be able to
self-manage their plan, or use a particular plan management provider, if the
CEO is satisfied that this would make it unlikely for section 46 to be
complied with. Section 46 requires funding under the plan to be spent in
accordance with the plan and/or on NDIS supports.
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•  This is intended to safeguard participants including to prevent a debt being
raised against a participant and does not necessarily mean the plan wil
become Agency-managed.
How are NDIS participants supported to make decisions
about their needs and how to spend their funding on
appropriate supports?
•  The Bil  enables a range of mechanisms to support and encourage
participants to spend in accordance with their plans. The amendments
remain consistent with current practices and operational guidelines of
supported decision-making and self-management.
•  The deﬁnition of NDIS Support wil  empower participants in how they may
spend their ﬂexible budgets under the new planning framework by
providing clearly set out supports that may or may not be purchased by the
participant.
•  If it is identiﬁed that a participant is at risk of not complying with section 46
(which relates to how funding provided under a plan can be spent), the
NDIA wil  contact and discuss this with the participant to support them with
the eﬀective implementation of a plan. The Bil  includes this as a relevant
circumstance for the purpose of determining plan-management type, which
wil  protect participants from incurring a debt and ensure their funding is
available to be used for the supports they require.

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14.  Quality and safeguards amendments
Approved quality auditors
What are approved quality auditors?
•  Section 73U of the Act al ows the NDIS Commissioner to approve a person
or body to be an approved quality auditor.
•  Although these auditors are not directly involved in providing supports to
people with disability, they are responsible for auditing registered providers
and applicants for registration. The outcome of these audits can directly
impact on people with disability.

What changes does the Bil  make, and why?
•  Currently, the NDIS Commissioner has limited ability to regulate approved
quality auditors. This can lead to people that have been banned from
providing supports to people with disability stil  having an indirect role by
conducting audits. This is unacceptable as it can put participants at risk of
harm.
•  The Bil  includes new rule-making powers that wil  al ow the Commissioner
to place stricter conditions around approved quality auditors. This can
include conditions about employing people subject to banning orders.
•  The Bil  also requires the Commissioner to notify an approved quality
auditor if a member of their staﬀ or key personnel becomes subject to a
banning order. This wil  ensure these persons are unable to continue
working a role that has the potential to put people with disability at risk of
harm.

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Delegation of Regulatory Powers - what is the change made
by the Bil ?
•  One of the key functions of the NDIS Commission is to secure compliance
with the NDIS Act through eﬀective regulatory action, including under the
Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers
Act)
•  The NDIS Act currently al ows the Commissioner to delegate powers and
functions under the Regulatory Powers Act to SES-level employees only.
•  The Bil  amends this delegation provision to al ow the NDIS Commissioner to
delegate powers and functions relating to infringement notices to Executive
Level 2 staﬀ, and powers and functions relating to compliance notices to
Executive Level 1 and 2 staﬀ.

Why is this appropriate?
•  The current delegation means there are only a limited number of staﬀ who
are able to exercise these powers and functions.
•  Many of the powers are straight forward and low risk such as issuing
compliance notices and infringement notices.
•  By enabling these more straightforward powers to be delegated below SES
level, the Bil  wil  improve eﬃciency and al ow for a greater degree of
compliance and enforcement activities by the NDIS Commission.

Are there any safeguards?
•  In delegating these powers and functions relating to compliance and
infringement notices, the Commissioner must consider whether the
position is suﬃciently senior, or otherwise the employee must have
appropriate qualiﬁcations or expertise.
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• Al the remaining compliance and enforcement powers of the NDIS
Commission under the Regulatory Powers Act continue to be exercisable by
SES level employees only, in recognition of the seriousness.

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15.  Delegated legislation and co-design
Why has the legislation been developed without knowing what the
rules wil  be?
•  The Bil  provides the architecture for a new planning framework and
enables the development of delegated legislation to fully implement this
new framework. The Government is committed to undertaking genuine and
meaningful consultation with the disability community, service providers,
and state and territory governments on the detail of reforms.
•  The Department is working on a public roadmap to provide opportunities
for consultation and engagement in the development of policy and rules
outlining details of reforms.
•  To take speciﬁc reform elements forward, the NDIA, Disability
Representative and Carer Organisations and the NDIS Independent Advisory
Council have agreed to prioritise co-design consultation and engagement
activities.
•  Engagement, genuine co-design and consultation is critical to the success of
these reforms. It is intended that an exposure draft wil  be available for the
second tranche of reforms, which include many of the proposed rule
changes.
•  The Government is committed to public consultation on legislative
instruments and amended or new NDIS Rules required to give eﬀect to
changes made by the Bil .
How can the Government ensure there wil  be sufficient scrutiny of
NDIS Rules?
•  The Government proposes to introduce amendments in the Senate to
embed additional consultation requirements in the NDIS Act.
•  Rules wil  continue to be subject to Parliamentary scrutiny through
disal owance processes and wil  be considered by both the Senate Standing
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Committee for the Scrutiny of Delegated Legislation and the Parliamentary
Joint Committee on Human Right.
•  The majority of the new NDIS rules created by the Bil  are category A rules,
which means they wil  require the agreement of al  states and territories.

How is co-design embedded in the development of rules and new
legislative instruments?
•  Subsection 4(9A), which is one of the general principles guiding actions
under the Act, provides that:
o  People with disability are central to the National Disability Insurance
Scheme and should be included in a co-design capacity.
•  Subsection 209(3) of the Act requires that the Minister must have regard to
the Objects and Principles of the Act when making NDIS rules. Amendments
to the Bil  were made and agreed in the House of Representatives that
require the Minister to have regard to the principle of co-design when
making instruments under the new framework that are not NDIS rules.
•  In addition, subsection 17(1) of the Legislation Act provides that before a
legislative instrument is made, the rule-maker must be satisﬁed that
appropriate and reasonably practicable consultation has been undertaken.
•  Subsection 17(2) of the Legislation Act provides that in determining
whether any consultation that was undertaken was appropriate, the rule-
maker may have regard to the extent to which the consultation drew on the
knowledge of persons having expertise in ﬁelds relevant to the proposed
instrument and ensured that persons likely to be aﬀected by the proposed
instrument had an adequate opportunity to comment on its proposed
content.
•  The Minister must comply with the above requirements under the Act and
the Legislation Act when making any legislative instruments under the Act.
•  In addition, paragraph 15J(2)(d) of the Legislation Act provides that an
explanatory statement to a legislative instrument must contain a description
77

of the nature of consultation that has been undertaken before the
instrument was made.
•  Including an express requirement for consultation or co-design with the
disability community on speciﬁc instruments (beyond what already appears
in the Act and the Legislation Act) could cause signiﬁcant uncertainty for the
operation of the NDIS. This is because there is no broadly accepted process
for ‘codesign’ which could lead to legal uncertainty about whether an
instrument is validly made.
Consultation statements
•  The proposed Senate amendments insert a new section 211 which
prescribes certain information about consultation that must be included in
explanatory statement to legislative instruments made under the NDIS Act.
•  The Minister is already required to provide information about consultation
undertaken on legislative instruments under paragraph 15J(2)(d) of the
Legislation Act 2003. This amendment clarifies and strengthens this
requirement in relation to legislative instruments made under the NDIS Act.
Specifical y, explanatory statements to al  legislative instruments made
under the NDIS Act wil  be required to meet the fol owing requirements:
o  describe the nature of the consultation
o  describe in general terms who was consulted
o  contain a summary of the views expressed by stakeholders.

Future co-design and engagement activity
•  To take speciﬁc reform elements forward, the NDIA, Disability
Representative and Carer Organisations and the NDIS Independent Advisory
Council have agreed to prioritise co-design consultation and engagement
activities on the fol owing topics:
o  Participant pathway experience
o  Assessments and budgeting
o  Navigator Functions
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o  Participant Services
o  Psychosocial Disability
o  Home and Living
o  Integrity and Fraud Prevention
o  NDIA Workforce Capability and Culture
o  Participant Safety, and
o  Supporting Children and Young People in the NDIS.
•   A range of activities wil  be undertaken to include participants, families,
carers, supporters, providers and the public in co-design, consultation and
engagement. These activities include:
o  involving people from the disability community in projects to help
deﬁne problems, ﬁnd solutions, reﬁne and implement them
o  co-design workshops on speciﬁc issues, processes or products
o  focus groups, interviews and engagement with participants, families
and carers
o  engagement events with members of the public and stakeholders
including webinars, information sessions and community updates
o  surveys, discussion papers and submissions
o  research and partnerships with disability organisations and experts,
and
o  targeted approaches to hear from under-represented participants
and groups.
•  The Department wil  work with the NDIA and Commission to use the
insights from this co-design to inform the further development of policy
around NDIS rules and other legislative instruments, and to lead broader
engagement on the detail of subordinate legislation together with states
and territories.
•  The Bil  provides the architecture for a new planning framework to enable
the time to carefully co-design rules to commence alongside Foundational
Supports. These rules wil  need to be implemented with agreement from
states and territories – which means that key changes can be ‘switched on’
as additional Foundational Supports are available.

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How does the Government intend to ensure that co-design is
achieved?
•  The Government acknowledges concerns raised through the Committee’s
inquiry support a high level of public interest in the consultation and co-
design processes around legislative instruments that wil  be made under
new provisions in the Bil .
•  The Government has made commitments to embed the voices of people
with disability in the design and implementation of delegated legislation
under the Bil .
•  Additional Senate amendments wil  further solidify this commitment and
address concerns of the disability community and Committee through
inserting of a requirement for a consultation statement to accompany the
explanatory statement.
•  An engagement plan is being developed with the disability community  to
support meaningful engagement and co-design.

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17.Debt recovery
What changes have been made to debt recovery powers?
•  The Bil  makes no changes to the debt recovery provisions.
•  It is correct that a debt could be recovered from a participant if they do not
spend funding in accordance with the requirements of the Act, which is the
case now.
•  The Agency is preparing an educative approach to ensure that participants
understand what NDIS funding can and cannot be spent on.
•  NOTE FOR CONTEXT/BACKGROUND:
•  The Bil  makes changes to section 46 (which provides requirements about
how a participant can spend funding provided under their plan). Under the
Act currently, money that is not spent in compliance with section 46
becomes a debt to the Agency. By expanding the operation of section 46,
the Bil  expands the circumstances that may lead to a debt arising but the
Bil  does not speciﬁcal y change the provisions relating to debts.

81

18. Interaction with Foundational Supports
What are Foundational Supports?
•  The NDIS Review recommended Governments invest in foundational
supports to bring fairness, balance and sustainability to the ecosystem
supporting people with disability.
•  The Review deﬁned foundational disability supports as disability-speciﬁc
supports that are available to al  people with disability and, where
appropriate, their families and carers.
•  In 2023, National Cabinet agreed to the design of Foundational Supports
that wil  be engaged by the Commonwealth and states and territories, to
create more pathways outside of the NDIS for young children and people
accessing the Scheme.
•  Foundational Supports wil  work toward a model of care that incorporates
mainstream services. Foundational Supports wil  be evidence-based
supports and services to better connect people with disability that are not
necessarily best-placed by the NDIS to provide.
•  It is the intention of Foundational Supports to create an inclusive and
accessible disability ecosystem.
What is the Government doing to engage with States and
Territories on Foundational Supports?
•  Recent questions have centered on the engagement of states and territories
to develop foundational supports. The Government is committed to the
design of Foundational Supports alongside the disability community, and
state and territory governments.
•  This col aboration wil  take the time needed to progress and implement the
required reforms.
•  Further detailed planning wil  be developed to support engagement on the
legislative reform program and made available on the department’s
engagement web page.
Why are Foundational Supports not part of this Bil ?
•  The NDIS Review was not intended to implement al  recommendations
within a short timeframe.
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• The engagement with the disability community, states and territories is
critical to ensuring the success of Foundational Supports. Until that work
has occurred, it wil not be possible to include foundational supports in the
Act.

83

19. Budget implications
What is the detail of the $14.4 bil ion moderation of growth outlined
in the Budget linked with the Bil ?
•  The 2024-25 Budget papers outline that the legislative reforms associated
with the NDIS Amendment Bil  wil  moderate the growth in participant costs
by $14.4 bil ion over four years from 2024-25, once the 8 per cent annual
growth target under the NDIS Financial Sustainability Framework is
accounted for.
•  This includes immediate changes to encourage participants to spend within
existing plan amounts, and longer-term changes to enable fair and
consistent assessments of a person’s support needs.
•  The Bil  wil  help get the NDIS back on track by determining NDIS participant
plans more consistently based on participant need and supporting
participants to spend in accordance with their plans.
•  This wil  assist the NDIA around dealing with plan inﬂation where
participants are spending their funding faster than what was considered
reasonable and necessary as part of their plan and asking for top-ups in
funding, particularly where there is no change of circumstances in relation
to their needs.
•  The fol owing table provides annual rates of plan inﬂation at the March
2024, December 2023 and September 2023 quarters. It provides the total
ﬁgure, and the contribution of changes at plan reassessment (interplan
inﬂation) and changes occurring within a plan between reassessments
(intraplan inﬂation).
Quarter
Total Inflation      Interplan Inflation
Intraplan Inflation
%
%
%
March 2024
7.5
1.8
5.7
December 2023
11.2
4.2
6.9
September 2023*
12.7
5.5
7.2
•  Source: relevant Quarterly Reports to Disability Ministers. * September
ﬁgures exclude indexation.

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Can you provide the breakdown of the moderation of growth
associated with the Bil ?
The impact of spending provisions have been estimated to reduce Scheme
expenditure by between 4% and 5% over the forward estimates. This estimate
is supported by two independent pieces of evidence:
•  Top down analysis showing that 63% of intra-plan inﬂation (i.e.
approximately 5% p.a.) relates to 4% of NDIS participants, who are the
participants with high plans ($200K or more). This insight al ows a speciﬁc
focus on high cost plans as a mechanism for reducing intra-plan inﬂation
•  Bottom up analysis showing that approximately two thirds of intra-plan
inﬂation (i.e. also approximately 5% p.a.) does not have evidence indicating
any change of circumstances
The moderation in NDIS expenditure growth is comprised of the fol owing
components:
•  Addressing intra-plan inﬂation. This component is responsible for around
half of the moderation in growth. The legislative reforms wil  support
participants to spend in accordance with their plans, rather than exhausting
their funding for reasonable and necessary supports and then needing to be
‘topped up’ with additional funding for supports.
o  This wil  be achieved through amendments to sections 33 and 46 of
the NDIS Act which wil  provide the NDIA with the power to set a
total plan funding amount, and then require a participant or
nominee to spend within that funding amount.
o  A legislative instrument wil  set out the method by which the total
funding amount is calculated.
•  Budget model. This component is responsible for around 45 per cent of the
moderation in growth. The reforms wil  help determine participant plans
more consistently based on participant need.
o  A ‘needs assessment’ process wil  be developed by the NDIA
through co-design, with a legislative instrument setting out the
methodology by which a person’s support needs are determined.
•  Improved information gathering powers This component is responsible for
around two per cent of the moderation in growth.
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o  Amendments to section 30 of the NDIS Act to require information
for the purpose of considering whether to revoke a participant’s
status wil  ensure participants can no longer access the Scheme if
they do not meet the access criteria.
•  Addressing fraud and non-compliance. This component is responsible for
around two per cent of the moderation in growth.
o  Legislative amendments wil  improve fraud compliance, such as by
clarifying the supports a participant can purchase with funding
received under their plan, and other supporting provisions.
Does this mean the Scheme is effectively capped?
•  No, the scheme remains demand driven and needs based, and the Financial
Sustainability Framework provides a target for scheme costs, not a cap.
•  Participant costs are stil  expected to grow substantial y by over 9 per cent in
the next two years from 2024-25.

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20.  Other matters
Once the Bill is passed what will be the functional impact
of the transition on participant experience?
•  Many changes in this Bil  rely on further legislative instruments being made.
These wil  be developed over time with the disability community and states
and territories.
•  Some changes wil  come into eﬀect immediately (28 days from the Royal
Assent). There changes are about restoring the Scheme to its original intent.
•  Changes that come into eﬀect 28 days from the Royal Assent include:
o  that the NDIA wil  have to tel  participants if they have met access to
the Scheme based on the disability or early intervention
requirements, or both. This is important for when the early
intervention pathway is developed;
o  the new deﬁnition of NDIS supports, which wil  provide guidance
around the supports that can be purchased using NDIS funding;
o  that participants wil  need to provide information to the NDIA, if
asked, if the NDIA is considering whether they continue to meet the
access criteria;
o  reasonable and necessary supports in a plan wil  need to relate to
impairment(s) that meet the disability or early intervention
requirements;
o  that plan management types can be changed where the participant,
or the plan nominee, child representative or plan manager is unlikely
to comply with section 46 in relation to the plan;
o  there is an obligation for participants to remain within a set funding
limit. This change wil  only come into eﬀect when a ministerial
determination is made.
•  The quality and safety improvements wil  also commence immediately (28
days from Royal Assent). This wil  make it easier for the Commission to use
its compliance and enforcement powers under the Act.

87

Why is the term “class” used in the Bill?
•  The term “class” is a legal concept.
•  It is used to ensure the measures in the Bil  appropriately encompass the
diverse needs of participants and their supports.
•  In most cases when referring to participants or supports, there is also
reference to classes of participants or supports – it can be one person or
many people. A class of supports could be supports provided by
Occupational Therapists.
•  Each participant is diﬀerent and may fal  into many ‘classes’, for example
due to their age or location as wel  as the kinds of supports and services
that they may receive.
•  This may relate to categories of assistive technology where a class of
support would be required to be prescribed by an al ied health professional.
•  It is likely that this wil  also be required in relation to the transition and how
participants would transition to new framework plans.

88

Why doesn’t the Bill address serious quality and
safeguards issues that were raised through the Disability
Royal Commission and in the context of the NDIS Review?
•  Quality and safeguarding is being strengthened in this Bil . Some examples
of amendments made by the Bil  include:
o  changing plan management type to prevent misuse of funds under a
plan.
o  enabling eﬀective management of funding within a participant’s
plan.
o  a more transparent and equitable needs assessment and planning
process.
o  new audit and banning powers of the NDIS Quality and Safeguards
Commission.
•  Future tranches of legislative reform wil  give eﬀect to other important
recommendations.
How does the Bill protect and support the enabling of
alternative commissioning?
•  Alternative commissioning approaches are not a return to the model of
‘block funding’ rather, wil  assist in providing remote and very remote
regions with better continuity of services while retaining choice and control
over which service delivery model best suits the needs of local community.
•  The Bil  does not directly deal with alternative commissioning, but under
the new planning framework the CEO may place restrictions on a
participant’s plan in certain circumstances. These restrictions include:
o  Requirement that supports be provided or provided by a speciﬁed
persons or persons in a speciﬁed class
o  Requirement that a speciﬁed process be undertaken before supports
are acquired or provided and
o  Requirement that speciﬁed conditions be satisﬁed in relation to the
participant before the supports are acquired or provided.
o  Requirements that are prescribed in Category A rules.
•  This may enable alternative commissioning arrangements where
appropriate, for example for First Nations participants in remote
communities.
89

What provisions are there within the NDIS for the
recognition of statutory guardians and administrators?
•  The Bil  makes no changes to existing arrangements regarding guardians or
administrators.
Are there any plans to introduce case management for
participants who require it?
•  There are no current plans to introduce case management for participants
and the Bil  does not enable this.
•  The NDIA, Disability Representative and Carer Organisations and the NDIS
Independent Advisory Council have agreed to prioritise co-design
consultation and engagement activities on the design of a new navigation
function to support people with disability inside and outside of the NDIS.
What provisions are provided under the Bill ensure a
strong and safe pathway for whistleblowers?
•  The Bil  makes no changes to existing integrity and protection of information
provisions under the Act.
Why doesn’t the Bill do anything to address lack of
adequate whistleblower protections, what has been done
by the Government in this space?
•  The Government acknowledges there is a desire for a whole of government
approach to restore integrity in government and to ensure the eﬀective
protection of public interest whistleblowers.
•  The Government is committed to the development of a best-practice public
sector whistleblowing framework to inform future reviews of, and reforms
to, other whistleblowing frameworks, including those relevant to the NDIS.
This work is ongoing across government.

90

Parliamentary committee summaries
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights reported on the Bil  in
their 4th report of 2024.
The Report was tabled on 15 May 2024.
If asked - What issues were raised by the Committee in relation to the
Bill?
•  The Committee raised issues surrounding the consideration of compatibility
with the right to privacy, ensuring more clearly set out considerations for
compatibility with human rights as set out in the statement of compatibility
with human rights. The report highlights the Constitutional objective for the
provisions to pursue a legitimate purpose and be proportionate to the
Constitutional y-prescribed system of government.

If asked - What response was provided in relation to the Committee
report?
•  The Department provided a response to the Committee on 30 May 2024 in
relation to the concerns raised
•  A response has not been received from the Committee.

What recommendations were made by the Senate Standing
Committee on Community Affairs Final Report on the Bil ?

Recommendations made by the Community Affairs Legislation
Committee

Recommendation 1
2.150 The committee recommends the bil  include amendments so that First
Ministers are also recognised as Ministers for the purposes of Category A
rule-making.

91

Recommendation 2
2.158 The committee recommends that a consultation statement be tabled
accompanying the legislative instrument that sets out consultations
undertaken.

Recommendation 3
2.175 The committee recommends that the Australian Government further
clarify the circumstances under which the additional powers granted to the
National Disability Insurance Agency Chief Executive Oﬃcer wil  be used.

Recommendation 4
2.178 Subject to the above recommendations, the committee recommends
that the bil  be passed.


92

Additional Comments made by the Coalition
Additional Comments – Coalition Senators
1.1 The Coalition is unable to provide fully informed commentary on the
National Disability Insurance Scheme Amendment (Getting the NDIS Back on
Track No. 1) Bil  2024 [Provisions] legislation, due to the government’s
unwil ingness to grant an extension to the committee for further scrutiny on
sensible and necessary measures for the sustainability of the NDIS

1.2 We note insuﬃcient time has been provided for proper consultation with
the sector and the community on the bil  who have expressed widespread
misgivings about the current legislation.

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

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

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

1.6 The two-and-a-half days of hearings conducted by the committee pointed
to signiﬁcant concerns from the disability community about the lack of detail
and potential unintended consequences of the current legislation without
signiﬁcant amendment.

1.7 Given the broad consensus of the need for greater consideration, and the
Coalition’s wil ingness to work constructively with the government, it is
disappointing the government has opted to reject a reasonable request for
an extension to the reporting date and for a meaningful hearing day with the
NDIA, especial y.


93

Dissenting recommendations made by the Australian Greens
Dissenting Report – Australian Greens

Recommendation 1
1.74 That the Bil not be supported.

Recommendation 2
1.75 That the Government ensure foundational supports be comprehensively
deﬁned and implemented in states and territories.

Recommendation 3
1.76 That the Government deliver a formal response to the Disability Royal
Commission and the NDIS Review.

94

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42
Abbreviations and acronyms used in this submission
•  Agency means the National Disability Insurance Agency
•  APTOS means the Applied Principles and Tables of Supports agreed by First Ministers in 2015
•  Bill means the National Disability Insurance Scheme Amendment (Getting the NDIS Back on
Track No. 1) Bil  2024
•  CEO means the Chief Executive Officer of the National Disability Insurance Agency
•  CRPD means the Convention on the Rights of People with Disability
•  Department means the Department of Social Services
•  Legislation Act means the Legislation Act 2003
•  LEOMR means the Legislation (Exemptions and Other Measures) Regulation 2015
•  NDIS Act means the National Disability Insurance Scheme Act 2013
•  NDIS Commission means the National Disability Insurance Scheme Quality and Safeguards
Commission
•  NDIS Commissioner means the National Disability Insurance Scheme Quality and Safeguards
Commissioner
•  NDIA means the National Disability Insurance Agency
•  NDIS means the National Disability Insurance Scheme
•  NDIS Review means the 2023 Independent Review into the NDIS
•  NDIS rules means rules made under section 209 of the National Disability Insurance Scheme
Act 2013
•  Scheme means the National Disability Insurance Scheme
•  SES means the Senior Executive Service established under section 35 of the Public Service Act
1999

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42
Introduction
This submission is jointly made by the Department, the NDIA and the NDIS Commission. It is intended
to give a background and summary of the Bil  as wel  as expand on some of the more critical and
complex aspects to assist the Committee in its consideration. This submission is made on the basis of
the Bil  as introduced into the House of Representatives.
The voices of people with lived experience of disability wil  be at the centre of the way reforms wil  be
designed and implemented. The new NDIS rules and legislatives instruments wil  be the subject of deep
engagement and consultation with the disability community and States and Territories. Some rules wil
also require agreement from States and Territories before they can be made.
There are some matters dealt with in this submission that are the subject of ongoing discussion as a
result of feedback that has been received fol owing the introduction of the Bil . Some of these may be
addressed by parliamentary amendments, including technical amendments to clarify the operation of
certain provisions. The Department undertakes to advise the Committee if any parliamentary
amendments are made prior to the release of its report and provide supplementary and/or revised
explanatory memoranda.
Background
On Tuesday 18 October 2022, the Minister for the NDIS  the Hon Bil  Shorten MP  announced  there
would be an independent review into the NDIS to improve the wel being of Australians with disability
and the Scheme’s sustainability. The Terms of Reference for the NDIS Review provided 3 overarching
objectives:
•  put people with disability and their families back at the centre of the NDIS to create a more
personal experience
•  restore trust and confidence
•  ensure the long-term sustainability of the NDIS.
The NDIS Review, which was co-chaired by Professor Bruce Bonyhady AM and Ms Lisa Paul AO PSM,
delivered its final report ‘Working together to deliver the NDIS’  in December 2023. It included 26
recommendations with 139 integrated actions which were intended to provide a blueprint to renew the
promise of the NDIS and deliver a more accessible and inclusive Australia.
The Bil  addresses priority recommendations from the Review and represents the first tranche of
amendments to the National Disability Insurance Scheme Act 2013 to improve participant experience.1
It fol ows agreement by National Cabinet that the Commonwealth would work with state and territory
governments to implement legislative and other changes to return the NDIS to its original intent of
supporting people with permanent and significant disability, within a broader ecosystem of supports.
These changes are critical to improving the experience of people with disability participating in the
Scheme while ensuring the long-term sustainability of the NDIS, so that it is available to support
Australians with disability for many years to come.

1 The Hon Bill Shorten MP, Media Release, 27 March 2024

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42
The amendments made by the Bil  enable progress of key NDIS Review recommendations to clarify the
NDIS access requirements and the supports that the NDIS wil  provide a participant, to create a new
budget-based planning framework, and provide more flexibility on how the NDIS Commissioner can
take regulatory actions to protect NDIS participants from abuse, harm and neglect. Many of the changes
in the Bil  wil  require new legislative instruments to be able to operate. Development of instruments
wil   involve  deep engagement and consultation with the disability community as wel  as state and
territory governments.
The changes made by the Bil  are an important first step in implementing the recommendations of the
NDIS Review but  are not intended to be the only step. The Government has stated that the NDIS
Review recommendations wil  take years to implement.
Outline of the Bill
NDIS supports
The Bil  inserts a new concept of ‘NDIS supports’ into the Act, which wil  be central to the Scheme’s
operation moving forward.  This measure clarifies the existing legislative boundaries of the Scheme by
making provision for the specific types of supports a participant can obtain to be defined.
Access
The Bil  makes no changes to the disability requirements or the early intervention requirements as set
out in the Act. But the amendments wil  require the NDIA to provide participants with a clear statement
of the basis on which they entered the Scheme either by meeting the disability requirements, the early
intervention requirements, or both.
This change also facilitates a new ‘early intervention pathway’, which wil  include a focus on evidence-
based early intervention supports with regular check-ins. The details of the pathway  are to be
established by new NDIS rules, which wil  require agreement from state and territory governments and
wil  be the subject of deep engagement and consultation with the disability community and a range of
expert advisors.
Planning
New planning framework (the ‘new framework’)
The Bil  creates a new, budget-based framework for the preparation of NDIS participants’ plans. The
creation of a new  planning  framework  is one of the most extensive changes made by the Bil  and
represents the biggest change for participants once it becomes operational. A participant wil  receive a
‘reasonable and necessary budget’, which wil  be based on a needs assessment, rather than a plan
specifying individual ‘reasonable and necessary supports’ as the Act currently requires.
This change is significant because it paves the way for greater consistency in approach to planning
decisions and gives participants greater flexibility in how they choose to spend their reasonable and
necessary budget once it is determined.
The new planning framework relies on a range of legislative instruments, including but not limited to a
specialised and fit-for-purpose needs assessment. The new planning framework does not commence
until the required instruments are designed and in force.

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42
These instruments wil  be the subject of detailed consultation and co-design. For example, the states
and territories wil  be consulted in the same way as the consultation process required for ‘Category D’
NDIS rules.
Existing planning framework (the ‘old framework’)
The Bil  also makes some changes to the existing planning framework, which are important steps in
returning the Scheme to its original intent of supporting people with permanent and significant disability
as part of a larger ecosystem of supports outside of the NDIS. All these changes are in line with the
NDIA’s existing operational guidance and have been included in the Act to provide a sense of certainty
for participants and decision-makers (including NDIA delegates and the AAT).

Protecting participants
There are additional measures focused on protecting participants, such as clarifying requirements about
how funding received from the NDIS can be spent and expanding the circumstances where a participant
may be at an ‘unreasonable risk’ if a certain plan management type is to continue.
NDIS Commission
Amendments relating to the functions and powers of the NDIS Commission are also included to enable
the imposition of conditions on approved quality auditors to not employ or engage a person against
whom a banning order has been made, and to enable greater delegation of the NDIS Commissioner's
compliance and enforcement powers to specified positions.
Commencement
If passed, the whole of the Act wil  commence on the 28th day after the Bil  receives the Royal Assent.
Many aspects of the Bil  are operationalised by legislative instruments and do not practical y commence
until these instruments are made. Most critically, the new planning framework is unable to operate
until a suite of supporting NDIS rules have been developed and made. Similarly, the new approach to
setting total funding amounts in old framework plans depends on a Ministerial determination.
NDIS rules wil  also need to be made to determine when early intervention participants may have their
participant status reconsidered to see whether early intervention is stil  required before the process
can commence.
The Department, the NDIA and the NDIS Commission are committed to working with the disability
community and continuing to put people with disability at the heart of NDIS reforms. The most
significant  changes  made by this Bil   wil  take time to develop, using a phased and considered
consultation and co-design approach.
NDIS Supports
The Bil  inserts a new concept of ‘NDIS supports’ into the Act by inserting a definition in proposed new
section 10. The new definition clarifies which supports are provided through the NDIS in a manner that
is consistent with the original intention of the Scheme and the recommendations of the NDIS review.
This also reinforces the constitutional basis for the supports that are funded and provided under the
Scheme, particularly as it transitions to the new budget-based planning framework.

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42
It is acknowledged that the disability community and other stakeholders have concerns about the intent
and operation of proposed section 10 and consideration is being given to whether parliamentary
amendments may be made to clarify the purpose and operation of the section. The Department
undertakes to advise the Committee if and when parliamentary amendments dealing with section 10
are proposed and to provide the Committee with a copy of the proposed amendments together with
explanatory material.
To assist the Committee in its consideration of the Bil  in the meantime, an explanation of the operation
of section 10 as it is currently drafted is provided below.
People are the experts in their own disability,  and with the assistance of NDIS rules and Agency
guidance, participants wil  be able to use their reasonable and necessary budget to fund supports that
they require as a result of their disability.
‘Category A’  NDIS rules wil  set out what supports may be NDIS supports for participants. These
supports must be appropriately provided by the NDIS and have a constitutional basis for their provision.
The new rules setting out NDIS supports wil  be developed with extensive consultation with states and
territories and other Commonwealth bodies to ensure clear boundaries are drawn as to supports that
are the responsibility of the NDIS, and those that are the responsibility of another service system.
Appropriately funded by the NDIS
NDIS supports must be appropriately funded by the NDIS. This is consistent with existing requirements
under the NDIS Act. For example, current paragraph 34(1)(f) provides that reasonable and necessary
supports must be most appropriately funded or provided through the NDIS.
The requirement that supports are appropriately funded by the NDIS is also relevant to access, in the
requirement in paragraph 24(12)(e) that a person is likely to require support under the NDIS for their
lifetime, and subsection 25(3) dealing with whether early intervention supports are most appropriately
funded or provided by the NDIS.
Inserting this requirement into the definition of NDIS supports simplifies the legislation so that the
requirement is set out in one place, rather than intermittently throughout the NDIS Act. The principle
is already relevant to access and the existing planning process. It wil  also be relevant to the new
planning framework once it commences.
Ensuring that that NDIS supports only includes supports that are appropriately funded or provided by
the NDIS is a critical part of implementing the recommendations of the NDIS Review around returning
the NDIS to its original intent. This reflects the principle that the NDIS is only one part in an ecosystem
of supports for Australians with disability so that they have the same opportunities as others in the
Australian community.
Constitutional considerations
The current drafting of section 10 identifies the constitutional basis for the provision of NDIS
supports. The federal Parliament can make laws only on certain matters that are set out in the
Australian Constitution. This means that the Commonwealth can only provide funding and support to
people where there is a constitutional basis to do so.

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42
For the most part, constitutional support for the NDIS comes from the external affairs power in
section 51(xxix) of the Constitution as a mechanism to implement the CRPD. Public commentary on
the Bil  has queried why new section 10 does not specifically reference al  the articles from the CRPD
in its definition of NDIS support.
In relying on the treaty implementation aspect of the external affairs power, there are 2 tests. First,
the external affairs power can only be used to implement aspects of a treaty that are ‘sufficiently
specific’ to give rise to a positive obligation. Second, the Commonwealth can only make laws that are
‘reasonably capable of being considered appropriate and adapted’ to implementing those positive
obligations.
Section 10 of the Bil  replicates articles 19(b), 20(a) and (b), 25(b) and 26(1) of the CRPD. Those
articles impose sufficiently specific obligations. They are also broadly expressed and provide the
constitutional basis for a wide range of supports provided under the Scheme.
In addition to the implementation of the CRPD, section 51(xxi iA) of the Constitution, which is general y
known as the ‘social welfare power’, provides the Commonwealth with power to make laws with respect
to:
The provision of maternity allowances, widows’ pensions, child endowment, unemployment,
pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to
authorize any form of civil conscription), benefits to students and family allowances.
The reference to ‘sickness benefits’ is included in the definition of NDIS supports to ensure this
definition captures the broadest range of supports the Constitution al ows the NDIS to fund for people
with disability in Australia, including those that may fall outside of the scope of the CRPD.
Access
Currently, section 21 of the NDIS Act requires the CEO to decide whether a person meets the access
criteria, including by meeting either the disability requirements in section 24 or the early intervention
requirements in section 25. However, there is no requirement for the CEO to specify whether the
prospective participant meets the disability requirements or early intervention requirements when
making an access decision.
The NDIS should work differently for people accessing early intervention  supports than for people
receiving disability supports for a lifelong disability. Right now, it does not – for example, participants
with a lifelong disability often feel they are required to prove their disability over and over at each plan
reassessment.
The Bil  amends  the NDIS Act to require the CEO to make a specific decision about whether a
prospective participant meets the disability requirements, the early intervention requirements, or both
when a person enters the scheme. Participants wil  be notified about what criteria they have met as
part of their access decision.
Requiring the CEO to make a specific decision on whether a prospective participant meets the disability
and/or early intervention requirements wil  allow for the establishment of an early intervention pathway,

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42
ensuring that participants receive the supports and services that are most appropriate to them. It also
provides clarity for participants entering the Scheme.
On enactment, the only changes that people wil  experience is that it wil  be clear for new participants
to  understand on what basis they have met access,  specifical y by meeting the early intervention
requirements, disability requirements or both. The creation of an early intervention pathway may be
operationalised later once ‘Category A’  NDIS rules are in place. This change is being made now to
prepare for the long-term changes recommended by the NDIS Review.
The NDIS Review recommends that the NDIS should work differently for different groups of people,
based on their needs – people for whom early investment can change their life outcomes, and people
who have a permanent, lifelong disability.
The Bil  also clarifies, and expands, the NDIS rule-making powers relating to the access criteria. NDIS
rules and legislative instruments are discussed further below.
New planning framework
The creation of a new planning framework is the most significant change made by the Bil  and gives
effect to one of the key recommendations of the NDIS Review.
Under the new planning framework, participants receive a ‘reasonable and necessary budget’ which
consists of either or both of the following:
•  a flexible budget, to be used for any of the participant’s NDIS supports,
•  stated supports, which must be used for the purpose stated in the plan.
For participants that accessed the Scheme by meeting the disability requirements, new framework
plans are intended to be in effect for a longer period before a ful  reassessment of the plan is required
(general y 5 years depending on the participant’s circumstances). Funding wil  be released throughout
the plan in set intervals. These wil  generally be 12 months but may be reduced in circumstances where
a  participant  is  at  heightened  risk of exploitation or other harm  and would benefit from added
protections around their flexible budget. The interval lengths may also be adjusted where there are
concerns about the rate at which funding is being used, so that a participant is not at risk of insufficient
budget to meet their support needs.
Participants who have accessed the Scheme by meeting the early intervention requirements are more
likely to have shorter plans, so that the benefit they receive from the early intervention supports can
be monitored on a regular basis, and there is a clear and expected point at which the person’s needs
wil  be re-assessed, and any future support needs determined.
Al  participants wil  retain the ability to request a reassessment or variation of their plan at any time.
Transition
With more than 650,000 participants expected to be in the NDIS by the time the new framework begins
to be implemented, it is important that there is a clear and measured approach to transitioning all
existing participants into the new arrangements. The timeframe and overarching process for transition

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42
of the Scheme to the new framework wil  be agreed by the Minister in consultation with state and
territory counterparts.
The Bil  al ows the Minister to make a legislative instrument prescribing classes of participants that are
to transition to new framework plans as phased transition is required due to the number of participants
in the scheme. That instrument must also prescribe the timeframe in which each class of participants
is to be transitioned to the new framework. If it appears that the timeframe set out in the instrument
for a class of participants cannot be met (for example, due to operational constraints), it is open to the
Minister to amend that instrument to extend the period of time.
The instrument wil  be the subject of consultation with the states and territories and other stakeholders.
For example, the states and territories wil  be consulted in the same way as the consultation process
required for ‘Category D’ NDIS rules.
The term ‘class of participants’ has a broad meaning and al ows the Minister to prescribe groups based
on any identifiable characteristic of a participant. Examples include, but are not limited to, age, location,
length of time that they have been a participant and kinds of supports that the participant receives
under the old framework.  The term ‘class’ has an established legal meaning and has been used
intentionally to allow for maximum flexibility.
Once a participant has been identified as falling within a prescribed class of participants, the CEO must
give them a notice advising them that they are to have a new framework plan. Participants wil  also be
advised when that is expected to occur and how the arrangements to put the new framework plan in
place wil  be managed, and how they wil  be supported to engage in that process. Once this notice has
been given, the participant wil  not be able to be reassessed under the old framework and after a
participant has received a new framework plan, they cannot subsequently receive an old framework
plan.
The decision to issue a notice wil  not be subject to review as it is an administrative decision.
Once a notice has been issued, there wil  be a period of time before the new framework plan is in
place, to allow for assessments and planning discussions to be undertaken with the person. Because
the process to establish the new framework plan wil  take time, the CEO wil  stil  be able to vary an old
framework plan, for example, in case of an emergency or to change a reassessment date to allow for
more time to undertake relevant assessments and prepare a new framework plan.
Any participant who has not received a notice within 5 years of the relevant provisions of the Bil
commencing wil  automatical y have their next plan prepared under the new framework. The Bil  al ows
for the legislative instrument to be extended.
Overview of new framework planning process
New framework plans wil  be structured in a similar way to old framework plans, in that they wil  include
a participant’s statement of goals and aspirations and a statement of participant supports. The
statement of participant supports specifies  the participant’s reasonable and necessary budget
(discussed further below), general supports that to be provided, the end date for the plan and the date
the NDIA must prepare a new plan, circumstances in which the NDIA must reassess a plan (if relevant),
the management of funding for supports under the plan, and the management of other aspects of the

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42
plan. A participant’s plan may also include additional matters, including additional matters prescribed
by the NDIS rules.
Unlike old framework plans, new framework plans wil  be in effect for a set period, which may be a
number of years, at the end of which a participant wil  be provided with a new plan. Having a set period
of time provides participants with more certainty and wil  make it easier for participants to plan how
they intend to use their funding for supports over the life of the plan.
A participant can stil  request a reassessment or variation of their plan prior to its end date if their
circumstances change.
Content of reasonable and necessary budget
A participant’s reasonable and necessary budget wil  be made up of flexible funding and stated
supports.
Flexible funding wil  be provided to, or in relation to, a participant up to a certain amount. People with
disability know their own support needs best, so flexible funding may be used for any NDIS supports
for the participant. This means that a participant may use flexible funds for a range of supports that
they need as a result of their impairment/s, provided those supports are appropriately funded by the
NDIS. This gives participants a much higher level of choice and control around identifying and acquiring
the supports that best meet their individual needs. Participants wil  no longer be constrained by line-
by-line plans that specify particular supports and support intensity.
New framework plans may also include funding that must be used for specified NDIS supports. These
supports are ‘stated supports’.
New  NDIS rules may  prescribe what supports must be stated supports.  If a class of supports is
prescribed in NDIS rules as a stated support, it must be a stated support in a participant’s plan. Funding
for stated supports cannot be used flexibly and must be used for the purpose specified in the
participant’s plan.
Stated supports may be things such as high-cost assistive technology, home modifications and home
and living supports (such as supported independent living or specialist disability accommodation).
These kinds of supports are likely to be stated supports because the support is critical for the participant
and the need for the support wil  be consistent and unlikely to change, the support is particularly high
risk, they are high-cost and/or their funding amounts may be determined through a quote process.
Funding periods
Funding wil  be provided under a plan for specified periods (known as funding periods). This is critical
under the new planning framework where participants may  have plans of up to 5 years’  duration.
Providing access to 5 years’ worth of funding from the outset of a plan is not appropriate as it makes
it more difficult to participants to consistently manage their plans, keep track of expenditure, and adjust
their support arrangements periodical y. It could also leave participants who may be at risk of harm,
more vulnerable to financial exploitation.
The NDIA may need to support some participants to manage their funding and ensure that the flexible
funding is used on supports that enable a person to meet their goals, and to also avoid the flexible
funding being spent too quickly. This is necessary in some circumstances to enable a participant to

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enjoy the benefits of flexible budgets, while ensuring that they have funding to purchase their NDIS
supports over the whole plan period, and support to identify the supports they wil  most benefit from.
A funding period wil  be a period of 12 months, unless the CEO is satisfied that it is appropriate to
specify a shorter period, for example  as part of an approach to safeguarding  or to help build a
participant’s capacity and confidence to manage their own funding.
Only a specified portion of the total amount of flexible funding wil  be provided under the plan in each
funding period. For example, in a 5-year plan with flexible funding, the plan may specify that 20 per
cent of the flexible funding is available every 12 months.
Depending on the nature of a stated support, funding for stated supports may also be provided in
intervals. For example, a participant may get 100 per cent of their funding for a stated support in the
first year of their plan if that funding is for high-cost assistive technology, but for other supports that
are provided on an ongoing and regular basis, like supported independent living, funding may be
provided on a monthly basis.
The first funding period must commence on the day the plan comes into effect. Subsequent funding
periods start immediately after the former one ends. Any funding not used during a funding period wil
‘roll-over’ and can be used during the next funding period. Funding does not ‘roll-over’ between plans
as the funding is calculated with reference to a set time period (being the length of the plan).
New NDIS rules, developed with the disability community, wil  set out how the CEO decides the length
of funding periods.
Conditions on funding
When enacted, in limited circumstances the CEO has the ability to place restrictions or conditions on
portions of flexible funding. In particular, the CEO may require that funding be used for a specific
purpose. This does not make that portion a ‘stated support’ as it wil  be specific to the participant.
Restrictions or conditions on funding can only be applied in the fol owing circumstances:
•  the participant is likely to suffer physical, mental or financial harm if the funding were not
subject to certain restrictions
•  there has been non-compliance with section 46 (dealing with acquittal of NDIS amounts) in
relation to parts, or al , of the participant’s plan or a previous plan
•  other circumstances prescribed by NDIS rules.
The circumstances prescribed in NDIS rules wil  be subject to co-design with the disability community.
It is expected that the CEO would only put in place such restrictions in the most extreme circumstances.
For example, where there are very specific identified supports that a person must access to avoid risk
of harm or a detrimental impact on their health and wel being, or to avoid a significant escalation in
their support needs over time.
Conditions may also be placed on funding more generally. For example, some stated supports (such as
assistive technology or home modifications) wil  require a quote  before funding can be al ocated
released.
Working out amounts

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The total amount of flexible funding and total amount of funding for stated supports wil  be worked
out using a method built with the disability community and prescribed in a legislative instrument made
by the Minister. The states and territories wil  be consulted on the instrument in the same way as the
consultation process required for ‘Category D’ NDIS rules.
In determining the method, the Minister is required to have regard to certain principles in the NDIS Act
as wel  as the need to ensure the financial sustainability of the NDIS.
Specifical y, the relevant principles are:
•  that people with disability should be supported to receive reasonable and necessary supports,
including early intervention supports and
•  reasonable and necessary supports for people with disability should:
•  support people with disability to pursue their goals and maximise their independence
•  support people with disability to live independently and be included in the community as
ful y participating citizens
•  develop and support the capacity of people with disability to undertake activities that
enable them to participate in the community and in employment.
Amounts wil  be worked out based on the information contained in the needs assessment report (see
below).
The method may consider information, such as the participant’s personal situation including geographic
location and living arrangements.
The outcome of the method wil  be a dol ar amount for flexible funding and/or funding for stated
supports.
Needs assessment
Consistent with recommendations of the NDIS Review, a participant’s reasonable and necessary budget
wil  be based on a wholistic assessment of their support needs.
The support needs assessment may also identify a need for supports that are not appropriately funded
or provided by the NDIS.
The assessment of a participant’s support needs wil  be undertaken in accordance with a specialised
assessment tool that wil  be set out in a  legislative instrument made by the Minister  under new
section 32L. The states and territories wil  be consulted on the instrument in the same way as the
consultation process required for ‘Category D’ NDIS rules.
There may be different assessment tools set out in the instrument for certain classes of participants
(for example assessment tools may be different for children as opposed to adults).
The assessment tool(s) wil  be developed in collaboration with the disability community and individuals
or organisations with relevant expertise in disability needs assessment tools and disability supports, as
wel  as international learning and best practice. These are all important to ensure the tool(s) provide a
comprehensive and accurate assessment of an individual’s need for support.

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It is anticipated that aspects of the assessment tool(s) may be complex and technical in nature to
ensure it accurately captures the varied personal and environmental circumstances of people with
disability, as wel  as the impact of a person’s impairments.
The needs assessment wil  be carried out by individuals who have specific training in applying the tools.
The CEO also has the ability to request information for the purpose of completing a needs assessment
under section 36 of the Act (as amended by the Bil ).
In general, a needs assessment wil  be undertaken in person as this wil  usually be the best way for a
participant (and any accompanying support persons such as family members or carers) to ful y express
their needs. However,  it is not a legislative requirement,  and in some circumstances,  an in-person
assessment wil  not be possible or appropriate for an individual, so alternative arrangements may be
made.
After the needs assessment has been completed, the needs assessor wil  prepare an assessment report
and provide it to the CEO as soon as practicable (see subsection 32L(5)). It may also be provided to
the participant, al owing them to clarify any points which they think have been misunderstood by the
assessor, particularly where they do not accurately reflect their needs and circumstances. This is a
procedural step (specified in the Agency’s operational guidance)  consistent with the legislative
requirement that participant plans be prepared with the participant.
Once the report is received, the CEO must consider whether it is an appropriate reflection of the needs
assessment. If it is not, then the CEO must arrange for a replacement needs assessment to be
undertaken. NDIS rules may set out considerations for the CEO in  determining whether the report
accurately reflects a participant’s needs.
Linking impairments to funding
Under the new planning framework, a participant’s reasonable and necessary budget wil  be calculated
based on the needs assessment  having regard  only  to impairments that meet the disability
requirements and/or the early intervention requirements. This is a separate consideration to the
impairments assessed at the time the person became a participant in the Scheme, to ensure that newly
acquired or developed impairments can be considered for the purpose of a participant’s plan regardless
of when they first arise. Each time a participant’s plan is being prepared under the new framework,
consideration wil  be given to the impairments previously assessed as meeting section 24 or section 25
and the participant wil  be given an opportunity to provide evidence about any newly developed
impairments that may also meet the requirements. The participant is  not required to re-establish
impairments previously assessed as meeting section 24 or section 25, unless there is new evidence
that suggests the relevant criteria may no longer be met for that impairment.
It is crucial for a participant’s funding amount to be linked to their impairments that meet the disability
and/or early intervention requirements for a number of reasons. Firstly, it ensures that participants
receive adequate funding for their disability support needs by considering all impairments that meet
the criteria at the time of the plan being prepared rather than limiting funding to impairments that
were assessed at the time of access.
Secondly, it helps return the NDIS to its original intent of providing supports to people with significant
and permanent disability as part of a broader ecosystem of supports available to all people with

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disability. If a participant has chronic health conditions in addition to their disability, or another
impairment that is not permanent, these wil  be identified in the planning process and the participant
may  be  referred to  the relevant foundational  or mainstream systems for support,  while receiving
funding for disability-related supports through the NDIS.
This does not mean that the assessment tool only assesses impairments that were considered as part
of the participant’s access request. Rather, the assessment tool wil  consider and provide funding for
all impairments that meet section 24 and/or section 25 at the time the assessment is being conducted
regardless of when they first arose.
It is important to note that this explicit link is relevant to the needs assessment process only. It does
not restrict the supports that a participant can purchase, so long as funding is only used to obtain
supports or services that are NDIS supports for that individual.
Old framework plans
The Bil  amends amend current section 33 of the NDIS Act which deals with matters to be included in
a participant’s old framework plan. It allows the CEO to specify ‘total funding amounts’ and ‘funding
component amounts’ in old framework plans and make several related amendments.
The decision to specify a total funding amount or a total component amount wil  be discretionary and
add to the tools available to the CEO to support participants to stay within  any  allocated funding
amounts in old framework  plans. The amendments to section 33 wil  work together with the
amendments made to plan management provisions and to sections 45 and 46 of the Act that aim to
support participants to spend in accordance with their plans.
The proposed  amendments to section 33  also provide participants with greater certainty about the
amount of NDIS funding available to them which supports them to make informed decisions about the
supports they acquire including planning for the frequency and intensity of their supports.
Finally, the amendments provide an effective safeguard to the risk of the participant being subjected
to financial exploitation, violence and abuse by providers who may draw down on a participant’s plan
too quickly.
The Bil  also makes other minor amendments to old framework planning provisions, including a new
requirement that the CEO, in approving a statement of participant supports, is to have regard to
whether a participant has complied with section 46 of the NDIS Act (dealing with the acquittal of NDIS
amounts) in relation to any existing or previous plans.
Funding amounts
Total funding amounts wil  set out the total amount of funding that a participant may access for the
entirety of a participant’s plan for a specified period of time (a funding period). Funding component
amounts wil  set out the total amount of funding that a participant may access for a specific support
or class of supports for a funding period.
Every funding amount set out in a participant’s plan wil  have an associated funding period. This ensures
that a participant knows how much funding has been allocated for a set period of time. Funding periods

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can be no longer than 12 months and may be of varying lengths depending on the circumstances of a
participant.
Ministerial determination
To  operationalise the amendments to section 33 of the NDIS Act, the Minister may  make a
determination setting out any of the fol owing matters:
•  how to work out the total funding amount for reasonable and necessary supports
•  how to work out the funding component amount for a support, or class of supports
•  kinds of supports, or classes of supports, that must have funding component amounts
•  circumstances in which a statement of participant supports must specify a total funding amount
or funding component amount that wil  be provided under a plan
•  how to work out the start date of the first funding period under an old framework plan
The determination may also prescribe requirements with which the CEO must comply, methods or
criteria that the CEO is to apply and matters that the CEO may, must, or must not take into account in
working out a total funding amount or a funding component amount, or deciding relevant matters.
Plan management
Under the NDIS Act, if a participant makes a plan management request, the statement of participant
supports in the plan must give effect to the request unless certain circumstances exist. Currently, there
is a lack of clarity about what those circumstances are. While the CEO can decide not to give effect to
a plan management request if doing so would pose an ‘unreasonable risk’ to the participant, this has
been applied inconsistently.
The Bil  amends the NDIS Act so that the statement of participant supports does not need to give effect
to a plan management request if the CEO has concerns about the risk to a participant and is satisfied
that the participant is unlikely to comply with section 46 (which relates to how NDIS amounts are
spent) in relation to the plan.
This applies equally to a plan nominee (that is if the CEO is satisfied that a plan nominee is unlikely to
comply with section 46) and to a person with parental responsibility for a child who is a participant.
This al ows the CEO to take proportionate steps to support a participant to manage their plan within
the al ocated budget, starting with education and navigation support. Where this fails and a plan is
being consistently overspent,  the  CEO  may decide that it is appropriate for a plan to be whol y or
partial y managed by the Agency.
New NDIS rules wil  be able to prescribe criteria that the CEO is to apply, and matters to which the
CEO must have regard, in considering whether a person is unlikely to comply with section 46 in relation
to a plan.
Currently, NDIS rules can prescribe criteria that the CEO is to apply and matters to which the CEO must
have regard in considering whether giving effect to a plan management request would pose
unreasonable risk to a participant.

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The Bil  provides  for new NDIS rules that may prescribe circumstances  in which a participant, a
registered plan management provider, a plan nominee, or a child representative managing the funding
for supports under a plan to any extent, is taken to present an unreasonable risk to the participant (for
example, because the participant is at risk of exploitation). This is a stronger test and does not involve
CEO discretion, only a factual consideration of whether certain circumstances exist.
New framework plans
The Bil  al ows  a participant to make a request that they manage portions  of their flexible funding
and/or portions of funding for stated supports. This is consistent with the approach in old framework
plans where participants can make a request to manage only certain aspects of their plans.
In addition, and consistent with the approach to the management of funding under old framework
plans, the Bil  provides that the CEO can decide that portions of flexible funding and/or portions of
funding for stated supports must be managed by the NDIA. This wil  only be done in the fol owing
circumstances:
•  the CEO is satisfied that the participant would be likely to suffer physical, mental or financial
harm
•  there has been non-compliance with section 46 in relation to parts, or all, of the participant’s
plan or a previous plan
•  other circumstances prescribed by NDIS rules
This is a purposeful y high bar, which is appropriate noting the general intent that participants should
manage their plan funding to the extent that they would like to.
Funding for supports under the NDIS
The Bil  makes amendments to existing sections 45 and 46, which respectively relate to how funding
for supports under a plan is to be paid and can be spent.
Payment of amounts under the NDIS
Existing section 45 sets out how funding payable under a participant’s plan (known as ‘NDIS amounts’)
is to be paid by the CEO (including who the payment is to be made to, and how it should be made).
The Bil  inserts new subsections 45(4) to 45(6) that set out circumstances in which funding cannot be
paid under a participant’s plan.
If the participant has a new framework plan, the Agency must not pay an NDIS amount to any person
if the payment would result in:
•  the total amount of flexible funding being exceeded (either for a funding period or for the plan
as a whole), or
•  the total amount of funding for a stated support being exceeded (either for a funding period or
for the plan as a whole).
If  the participant has  a total funding amount or funding component amount specified in  an old
framework plan, the Agency must not pay an NDIS amount to a person if the payment would result in:

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•  the total amount of funding for reasonable and necessary supports under the plan being
exceeded, or
•  the total amount of funding for a support or class of supports exceeding a funding component
for the support or class of supports (either for a funding period or for the plan as a whole).
These changes enable the CEO to apply and enforce spending  limits  and  are designed to ensure
participants spend within the funding allocated under their plan.
These are critical amendments to support the long-term sustainability of the Scheme and combat intra-
plan inflation.
The CEO wil  be able to make further payments notwithstanding that a funding limit would be exceeded
if they are satisfied exceptional circumstances exist. For example, where a participant has been
exploited and left without funding in their plan or where the participant has experienced an emergency
or an urgent and unexpected change in circumstances. This ensures participants are not left without
critical support while their needs and/or use of their plan is being assessed.
The relevant exceptional circumstances wil  be set out in new NDIS rules to provide certainty and clarity
for participants.
Spending on supports
Currently, section 46 of the NDIS Act deals with acquittal of NDIS amounts, including a requirement
that such amounts be spent ‘in accordance with the participant’s plan’. The requirement to spend NDIS
amounts in accordance with a participant’s plan on its own can be confusing and difficult to enforce.
This is particularly the case as plans currently have a varying level of detail about the reasonable and
necessary supports that are intended to be funded.
New subsection 46(1) extends previous subsection 46(1) by including a requirement that NDIS amounts
may only be spent on NDIS supports for the participant, in addition to the requirement that these
amounts are spent in accordance with the participant’s plan. This ensures that NDIS amounts can only
be spent on supports that are needed by the participant and appropriately funded by the NDIS.
As noted above, in practical terms participants have always been required to spend money provided
under their plan on the types of supports that are now defined as NDIS supports. As such, this
amendment is intended to specify the existing restrictions more clearly on use of NDIS funding rather
than introduce any new restrictions.
These changes support the NDIS Review’s recommendations to provide more guidance to participants
about how to spend their NDIS funding.
Where old framework plans have prescribed funding amounts and funding periods, the requirement to
spend NDIS amounts in accordance with a plan wil  extend to a requirement to spend within the limits
for the relevant time periods. Similarly, in new framework plans, participants wil  be required to stay
within the funding amounts and funding periods prescribed in their plan.
Another point of existing confusion around current section 46 relates to the fact that the requirement
to spend NDIS amounts in accordance with a participant’s plan only applies to a person who ‘receives’
an NDIS amount, but a participant wil  not always actually receive the funding under their plan before

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it is then spent on supports. For example, NDIS amounts may be paid straight to a provider. This makes
it unclear whether restrictions on spending only apply to funds that are actually received (at some
point) by a participant, or whether it applies to all expenditure of NDIS amounts.
The Bil  clarifies that a person does not need to actually ‘receive’ an NDIS amount to be responsible for
its expenditure.
The Bil  extends the requirements under subsection 46(1) to all NDIS amounts paid from a participant’s
plan for the acquisition of supports by or on behalf of the participant, regardless of whether that money
was received by the participant or other person before it was spent).
Variations
Currently, a participant’s plan can be varied in particular circumstances. A plan variation is different to
a reassessment, which results in an entirely new plan being approved. A variation, on the other hand,
results in a change to part of the plan while the remainder of the plan continues as previously approved.
This is a simpler process than a ful  plan reassessment and is generally limited to circumstances where
there is a minor change to the plan.
Under the new planning framework, a participant wil  stil  be able to request a variation of their plan.
The aspects of the plan that can be varied are listed in new subsections 47A(1AA) and (1AB) and
include al  the relevant parts of the statement of participant supports under the new framework.
This is consistent with the existing circumstances in which funding for supports can be varied (see
existing paragraph 47A(1A)(d)). The Bil  also includes new variation provisions that are consequent on
the  changes to section 33, ensuring that total funding amounts, funding component amounts  and
funding periods under old framework plans can be varied.
Participants wil  continue to have the ability to request a reassessment of their plan, and this wil  be
equally available under the new planning framework.
Information gathering
The Bil  amends existing information gathering powers and inserts new information gathering powers
for the CEO to obtain information from, or in relation to, participants in the NDIS. Broadly speaking,
these information gathering powers enable the Agency to request and col ect information about
participants to inform decision-making about whether a participant continues to meet the access
criteria, and funding for supports that wil  be provided in a participant’s plan.
In each of the circumstances discussed below, the CEO can make one or more of the fol owing requests:
•  that the participant, or another person  (such as a medical professional or nominated family
member), provide information that is reasonably necessary for making the relevant decision
•  that the participant does either or both of the following:
o  undergo an assessment and provide the CEO with the report of the assessment, in the
approved form

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o  undergo, whether or not at a particular place, a medical, psychiatric, psychological or
other examination, conducted by an appropriately qualified person, and provide the CEO
with the report of the assessment, in the approved form.
Consideration of participant status
Section 30 of the NDIS Act currently enables the CEO to revoke a person’s status as a participant at
any time if satisfied they no longer meet the residence requirements, or at least one of the disability
requirements, or early intervention requirements. This is a discretion which wil  only be exercised when
the CEO has clear and conclusive evidence that the participant has ceased to meet at least one of the
mandatory requirements for access to the Scheme.
At present, if a participant or their nominee does not respond to a request from the CEO to provide
information for the purposes of eligibility reassessment, the NDIA must consider  ongoing  eligibility
based on existing information, which is often out of date and no longer valid.
This is inconsistent with the powers provided to the CEO in relation to initial requests to access the
Scheme (see section 26) and approving a participant’s plan (see section 36, discussed further below).
If participants fail to engage with the Agency  when their ongoing access to the Scheme is being
considered, the CEO is required to make a decision about their ongoing access on the basis of previously
provided evidence which can be scant and is often outdated. This can lead to people remaining
participants in the Scheme who would not be eligible if current information was available but could also
result in participants who should remain eligible having their status revoked due to a lack of current
evidence.
For this reason, item 30 of the Bil  inserts a new process for gathering information to assist the CEO in
considering whether someone continues to meet the access criteria, for the purpose of making a
decision under section 30.
The Bil  inserts a new section 30A into the Act, which requires the CEO to consider whether someone
continues to meet the early intervention requirements if a circumstance prescribed by rules applies.
This section has no impact until relevant NDIS rules have been made. This is intended to operate in
relation to the early intervention pathway discussed above, ensuring that participants who accessed
the Scheme by meeting the early intervention requirements wil  have their progress monitored at
regular intervals.
Section 30A is structured in such a way that the CEO must first consider whether a person continues
to meet the early intervention requirements, and if they do then no further action is required. If the
person no longer meets the early intervention requirements, the CEO must then consider whether they
meet the disability requirements and if they do, then the person wil  be transferred out of the early
intervention pathway. If the person no longer meets the early intervention requirements, for example,
because the early intervention supports have had the desired effect of reducing the person’s need for
ongoing support, or the disability requirements, the CEO must revoke their status as a participant.
New section 30A enables the CEO to request the information and reports for the purpose of making
this decision.
If the CEO makes a request under section 30 or section 30A and the participant (or the other person
who was requested to provide information) does not comply with the request by providing the

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requested information, there may be consequences for the participant. If the request was made under
section 30, then the CEO may revoke the participant’s status as a participant if the relevant person has
not provided the requested information within 90 days of the request being made. This is consistent
with the discretionary nature of section 30.
If the request was made under section 30A and the relevant person does not provide the requested
information within 90 days of the request, the CEO must  revoke the participant’s status. This is
consistent with the mandatory nature of section 30A.
A decision to revoke the participant's status as a result of requested information not being provided is
a reviewable decision – see item 100 which inserts these decisions into the list of reviewable decisions
in the table to subsection 99(1).
Importantly, under both sections, the CEO must not revoke the participant's status if satisfied it was
reasonable for the relevant person not to have complied with the CEO’s request during the required
timeframe. This ensures flexibility where a participant is unable to provide information due to their
personal circumstances, for example because they are in hospital or because their disability has
impacted on their ability to obtain the evidence requested within the appropriate timeframe, and also
ensures the participant wil  not be penalised if another person, such as their treating medical
professional, does not provide the requested information within the relevant timeframe.
Planning
Under existing section 36, the CEO can request information for the purpose of preparing a statement
of participant supports or deciding whether to approve a statement of participant supports.
Once the new planning framework commences, the CEO may also need to request information for the
purpose of the needs assessment process discussed above. As such, item 52 of the Bil  amends existing
section 36 to al ow the CEO to request information for any of the fol owing purposes:
•  undertaking a needs assessment for the participant under section 32L
•  preparing a statement of participant supports for a participant
•  deciding whether to approve a statement of participant supports for a participant.
If the CEO has requested information  or reports  as part of a support  needs assessment for the
participant and that information or report is not provided within 28 days (or such longer period as the
CEO allows), the CEO must suspend preparation of the participant’s plan. The CEO has discretion to
allow a longer period than 28 days if it was reasonable for the participant or other person not to have
provided the information or report within 28 days. Similar to the operation of sections 30 and 30A, this
al ows for flexibility and avoid the participant being penalised where there is a good reason why they
could not provide the information, or it was out of their control.
Suspension of the preparation of a participant’s plan has no impact on the participant if a plan is stil
in effect. If there is an extended delay without a valid reason, it could mean that a participant wil  not
receive a new plan until the information is provided, and therefore wil  not have a plan in place for a
period of time. As soon as the information is provided, the preparation of the participant’s plan can
recommence.
Review rights

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General
Consistent with general principles of administrative law, the NDIS Act provides a ‘3 tiered’ model of
decision-making. This means if a person is dissatisfied with a decision that affects their rights (the first
tier in the decision-making model, known as the internal ‘reviewable decision’), they can request the
CEO  to  conduct a review of that decision (the second tier in the decision-making model, known
general y as an ‘internal review decision’ –  see section 100). If the person is dissatisfied with the
internal review decision, they may seek external review by the AAT (the third, and final, tier in the
decision-making model – see section 103).
The Bil  makes no changes to this model. The only changes to a person’s review rights are made by
items 100 to 102 of the Bil , which ensure newly created decisions are capable of being reviewed by
inserting them into the table to section 99. Specifical y:
•  item 100 omits the reference to existing section 30 and replaces it with the different types of
decisions that can now be made under section 30 and new section 30A to ensure all decisions
to revoke a participant’s status wil  be reviewable,
•  item 101 inserts a reference to a decision to approve a statement of participant supports under
subsection 32D(2), consistent with the existing right for a participant to seek review of a decision
made under subsection 33(2) to approve a statement of participant supports,
•  item 102 inserts a new reference to a decision under subsection 36(3) to suspend preparation
of a participant’s new framework plan if they have not provided information requested by the
CEO.
Item 103 also makes a minor change to section 101, which provides that if a decision is varied while a
person is seeking review, the review is taken to be a review of the varied decision. This amendment
includes a reference to a decision to approve a statement of participant supports under the new
framework, which ensures that participants review rights under the new framework are identical to
those under the existing framework by allowing them to continue with a review despite a new or varied
plan coming into effect.
Other decisions impacted by the Bil , such as decision not to grant a person access to the Scheme or a
decision not to vary or reassess a participant’s plan, continue to be reviewable.
Needs assessment
As outlined above, under the new framework, a participant’s statement of participant supports wil
include a reasonable and necessary budget calculated on the basis of a needs assessment.
The calculation of the budget is not a separate  reviewable decision, and neither is the needs
assessment. However, this does not mean a participant cannot seek review of their reasonable and
necessary budget.
If a participant considers that the reasonable and necessary budget included in their statement of
participant supports has not been determined correctly or is not adequate to meet their needs, they
can seek a review of the CEO’s decision to approve the statement of participant supports.
As part of the review,  the reviewer wil   consider the accuracy of the needs assessment that was
conducted previously and may result in a new needs assessment being conducted as part of the review.

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This does not mean that the entire process wil  need to be conducted again, although it may be
appropriate to do so. In some circumstances it may be as simple as correcting simple factual errors,
while in other circumstances a participant may provide additional information as part of their request
for a review.
The impact of this is that a review is no longer only about the dol ar amount stated in a budget. Instead,
the review is focused on ensuring that a participant’s needs have been accurately assessed so that the
budget meets those needs. This is a more person and needs centred approach and ensures greater
consistency of budgets for participants with similar support needs.
If a replacement needs assessment report contains different information to the earlier report, this wil
likely result in a different reasonable and necessary budget for the participant.
A participant can seek review of al  aspects of their statement of participant supports at the same time,
including the needs assessment and other matters such as plan management or the length of funding
periods. The Bil  ensures that participants’ review rights remain available in a manner that is as simple
and accessible as possible, while ensuring participants can seek review of a decision if they believe
their needs have not been appropriately assessed in the preparation of their plan.
NDIS rules and legislative instruments
The Bil  inserts 30 new NDIS rule making powers and 6 new legislative instrument making powers. A
summary of these is at Attachment A to this submission. Al  new NDIS rules and instruments wil  be
the subject of considered and detailed consultation and input from stakeholders, and the states and
territories.
Section 27
As noted above, section 27 of the NDIS Act wil  be repealed and replaced by the Bil . Under new
section 27, NDIS rules can prescribe things that may or may not be considered when making decisions
about the disability and early intervention criteria and rules are enabled about whether the person is
likely to require NDIS supports for their lifetime.
These provisions also enable rules to better define the phrases “likely to benefit” and “substantial y
reduced functional capacity”. The rules wil  also enable particular types of supports to be identified as
likely to benefit particular groups of participants with shared experiences of disability. For example, the
rules might prescribe certain supports as being likely to benefit children under the age of 9, but different
supports as likely to benefit people living with particular progressive conditions.
Sunsetting
The Bil  directly amends the LEOMR to provide that al  legislative instruments made under the NDIS
Act are exempt from sunsetting.
The  LEOMR  prescribes instruments that are exempt from sunsetting  and is a central source of
sunsetting exemptions, facilitating whole-of-government management and ensuring that accurate
sunsetting information can be readily provided to Australian Government agencies, the Parliament and
the general public.

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42
It is appropriate for all legislative instruments made under the NDIS Act to be exempt from sunsetting
as they form part of an intergovernmental scheme, as provided in the Attorney-General’s Department’s
Guide to managing sunsetting of legislative instruments.
The legislative instruments made under the Act operationalise the NDIS, which is an intergovernmental
scheme involving the Commonwealth and all states and territories. As a result, the instruments form
an integral part of an intergovernmental scheme.
All legislative instruments made under the Act are subject to formal state or territory consultation or
agreement requirements in accordance with the NDIS Act and/or as required under section 17 of the
Legislation Act 2003.
This means instruments cannot be made, amended or repealed without direct involvement of states
and territories except in the case of sunsetting where the instruments wil  be automatically repealed
by operation of a Commonwealth law. This is inconsistent with the consultation and agreement
requirements for NDIS rules specifically, and with the operation of the NDIS and the NDIS Act more
broadly. The sunsetting exemption ensures the same consultation and agreement requirements apply
to an instrument being repealed as those that apply to the instrument being made, consistent with the
intergovernmental nature of the NDIS.
NDIS Commission
The Bil  makes several important changes to Part 3A of Chapter 4 of the Act, which deals with the
regulation of NDIS providers. The Bil  also makes minor changes to Part 6A of the Act, which sets out
the ongoing functions and powers of the NDIS Commission/Commissioner.
The NDIS Commission is responsible for oversight of NDIS providers and has an important role in
safeguarding and protecting participants. However, as identified by the NDIS Review, there are gaps
in the NDIS Commission's ability to effectively regulate providers (and therefore protect participants).
The changes made by the Bil  fil  some of the identified gaps in the NDIS Commission’s ability to protect
participants. This supports a stronger focus on enforcement and compliance action by the NDIS
Commissioner and staff of the NDIS Commission.
Approved quality auditors
Section 73U of the Act al ows the NDIS Commissioner to approve a person or body to be an approved
quality auditor. Although these auditors are not directly involved in providing supports to people with
disability, they are responsible for auditing registered providers and applicants for registration against
the NDIS Commission Practice Standards. Approved quality auditors also conduct cyclical quality audits
during a registered NDIS providers registration period, dependent on a range of risk-informed factors.
The outcome of any audit wil  impact on the provider’s registration which in turn wil  directly impact
people with disability. As such, it is crucial for the NDIS Commission to be able to regulate approved
quality auditors.
Currently, the power to approve an approved quality auditor is broad and there are no clear limitations
on circumstances in which a person should not be approved as an approved quality auditor. To assist
in guiding the initial and ongoing approval of approved quality auditors, the Bil  inserts a new rule-

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42
making power (subsection 73U(9A)) that allows NDIS rules to be made prescribing requirements which
must be complied with, criteria that must be applied, or matters to which the NDIS Commissioner may,
must or must not have regard to in deciding the fol owing:
•  whether to give, or refuse to give, an approval as an approved quality auditor,
•  whether or not to make an approval as an approved quality auditor subject to conditions,
•  whether or not to vary or revoke an approval as an approved quality auditor.
The Bil  inserts another new rule-making power, new subsection 73U(4A), which allows for NDIS rules
to be made specifying conditions that apply to the approval of al  approved quality auditors. This is
similar to existing subsection 73U(5), which al ows the NDIS Commissioner to make an auditor’s
approval subject to certain conditions, but provides a more transparent and consistent mechanism for
regulating approved quality auditors by ensuring al  approved quality auditors are subject to the same
conditions.
One particular area of concern that has been identified is that the current legislative framework does
not prevent an approved quality auditor from hiring a person who is subject to a banning order made
by the NDIS Commission. This is a clear gap, as it would allow individuals that have been assessed as
unsuitable to be involved in the provision of support to people with disability, to nonetheless be involved
indirectly through an approved quality auditor. This is not an acceptable scenario. On this basis,
proposed new subsection 73U(5) makes it clear that conditions may be placed on an approved quality
auditor that require them not to employ or engage a person against whom a banning order has been
made, or to have such a person as part of their key personnel.
In a related change, to protect participants by ensuring people who are subject to a banning order
cannot indirectly participate in the NDIS, section 73ZN (which deals with making of banning orders) is
amended to require the NDIS Commissioner to notify approved quality auditors as soon as possible if
a member of their staff or key personnel has a banning order made against them. This wil  ensure
approved quality auditors can comply with any conditions relating to employing or engaging a person
who is subject to a banning order.
Delegation of Regulatory Powers
One of the key functions of the NDIS Commission is to secure compliance with the NDIS Act through
effective regulatory action, including under the Regulatory Powers (Standard Provisions) Act 2014 (the
Regulatory Powers Act) Section 202B of the Act currently allows the NDIS Commissioner to delegate
the NDIS Commission’s powers and functions under the Regulatory Powers Act to SES-level employees;
however, this means there are only a limited number of staff who are able to exercise these powers
and functions many of which are straight forward and low risk such as issuing compliance notices and
infringement notices. To remove the inefficiency of having SES-level employees exercise these more
straight-forward and low risk powers and functions, the Bil  amends section 202B to al ow the NDIS
Commissioner to delegate powers and functions relating to infringement notices to Executive Level 2
staff, and powers and functions relating to compliance notices to Executive Level 1 and 2 staff.
Delegating these certain powers  and functions to these levels also al ows  for the upscaling of
compliance and enforcement activities by the NDIS Commission, allowing the NDIS Commission to take
timely compliance and enforcement action against NDIS providers who fail to comply with the
requirements of the Act.

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42
In delegating these powers and functions relating to compliance and infringement notices, the
Commissioner must consider whether the position is sufficiently senior, or otherwise the employee must
have appropriate qualifications or expertise.
All the remaining compliance and enforcement powers of the NDIS Commission under the Regulatory
Powers Act continue to be exercisable by SES level employees only, in recognition of the seriousness
of the consequences these actions have.

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42
and the
Commonwealth)
Plan and budget  New power to make a ministerial
New subsection 32B(1)
Disallowable
setting – new
determination to determine classes of

Legislative
framework
participants that are to receive a new

instrument
plans
framework plan and for each class, to

determine the period within which the CEO

must give notice to participants in that

class.

New rule-making power to specify details
New subsection 32B(3)
D
that must be included in a notice that a
participant is to have a new framework
plan.
Plan and budget  New power to make a ministerial
New subsection 32C(2)
Disallowable
setting – new
determination to set a longer or shorter
Legislative
framework
transition period than 5 years.
instrument
plans
Plan and budget  New rule-making powers relating to:

setting – new

framework
•  the timeframes in which the CEO
New paragraph
C
plans
must make a decision about
32D(4)(a)

approving a participant’s statement

of supports in a new framework

plan

•  additional matters CEO must be
New subparagraph
A
satisfied of in deciding to approve
32D(6)(b)(ii)

general supports in a statement of

participant supports

•  matters the CEO must be satisfied
New paragraph 32D(6)(f)  A
of in approving a statement of

participant supports.

•  additional matters that may be
New subsection 32D(8)
A
included in a participant’s plan
Plan and budget  New rule-making power to prescribe what
New subsection 32E(4)
A
setting – new
must be a stated support for participants
framework
generally or specified classes of
plans
participants
Plan and budget  New rule-making power to prescribe
New paragraph 32F(7)(c)  A
setting – new
circumstances in which the CEO may
framework
quarantine a portion of a flexible budget
plans
for a particular purpose

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42
Plan and budget  New rule-making power to prescribe stated  New subsection 32G(4)
A
setting – new
supports that are not subject to a funding
framework
period (such as home modifications)
plans
Plan and budget  New rule-making power to prescribe
New paragraph
A
setting – new
requirements relating to the provision or
32H(2)(d)
framework
acquisition of supports (such as obtaining
plans
a quote)
Plan and budget  New rule-making power to prescribe
New section 32J
A
setting – new
requirements, methods, criteria or matters
framework
to be considered by the CEO in making
plans
decisions relating to certain parts of a
participant’s plan and/or reasonable and
necessary budget
Plan and budget  New ministerial determination-making
New subsection 32K(2)
Disallowable
setting – new
power to determine methods for working
Legislative
framework
out total funding amounts for flexible
instrument
plans
funding and stated supports

Plan and budget  New rule-making power to prescribe
New paragraph 32L(7)(b)  A
setting – new
matters that the CEO must be satisfied of
framework
in deciding whether a replacement needs
plans
assessment should be undertaken.

Plan and budget  New ministerial determination-making
New subsection 32L(8)
Disallowable
setting – new
power to determine assessment tools to be
Legislative
framework
used in undertaking a needs assessment,
instrument
plans
requirements for undertaking an
assessment, information that must be
included in a needs assessment report and
requirements that a needs assessment
report must meet.

These assessment tools will be the basis
for determining the participant’s needs and
therefore their reasonable and necessary
budget.
Plan and budget  New ministerial determination-making
New subsection 33(2E)
Disallowable
setting – old
power to prescribe how total funding
Legislative
framework
amounts and total component amounts wil
instrument
plans
be worked out and how funding periods

wil  be set. The determination may also
prescribe requirements, methods or criteria
and matters to be considered by the CEO
in making a decision on funding amounts
and/or funding periods.

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42
Plan and budget  New rule-making power to specify
New subsection 41(3)
A
setting -
circumstances in which supports are taken
general
to be, nor not taken to be provided or
acquired during a period of suspension of a
statement of participant supports.
Plan
New rule-making power to prescribe
Paragraph 43(2C)(c)
A
management
circumstances in which a new framework

plan must be managed by the Agency or

other relevant person or entity.

New rule-making power to prescribe
Subsection 43(2D)
A
requirements, methods or criteria and

matters that are relevant to the CEO
making a plan management decision for
new framework plans
Plan
New rule-making power to prescribe
New subsection 44(4)
A
management
circumstances in which a person or entity

managing funding for supports under a

plan would present an unreasonable risk to

the participant.

New rule-making power prescribing criteria  New subsection 44(5)
A
to apply and matters to consider in

considering the risk of non-compliance
with section 46 (acquittal of NDIS
amounts)
Payment of
New rule-making power to prescribe what
New subsection 45(6)
D
NDIS amounts
constitutes exceptional circumstances for
the purposes of making a payment that
would be in excess of a total amount of
funding al ocated under a participant’s old
or new framework plan
Plan variations
New rule-making power prescribing
New subparagraph
A
circumstances in which the CEO may vary
47A(1AB)(j)(ii )

a participant’s reasonable and necessary
budget
Plan variations
New rule-making power to prescribe
New paragraph 47A(2)(f)  A
matters that the CEO must be satisfied of
when varying the statement of participant
supports in a new framework plan
Plan
New rule-making power to prescribe
New paragraph 74(3C)(c)  A
management –  circumstances in which a person or entity

children
managing funding for supports under a

child’s plan would present an unreasonable

risk to the child.

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42
Existing rule-making power to prescribe
Replacement
A
matters that must not be managed by a
subparagraph

person (existing power replicated in
74(4)(b)(i )

replaced 74(4)(b))

Replacement of existing rule-making power
A
with expanded scope and flexibility to
Replacement subsection
make rules for the purposes of making
74(6)
decisions about the management of a
child’s plan
Quality and
New rule-making power to prescribe
New subsection 73U(4A)  D
Safeguards
conditions relating to the appointment of

approved quality auditors.

New rule-making power to prescribe
New subsection 73U(9A)  D
requirements with which the Commissioner
must comply, criteria or matters the
Commissioner must or must not regard in
deciding to appoint quality auditor
Transitional
New ministerial transitional rule-making to  Item 138(1)
Disallowable
rules
permit Minister to make rules prescribing
Legislative
matters of a transitional nature (including
Instrument
prescribing any saving or application
(standard for
provisions)
transitional
rules)

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42 - Supplementary Submission

National Disability Insurance
Scheme Amendment (Getting
the NDIS Back on Track No. 1)
Bill 2024
Supplementary joint submission to the Senate Community
Affairs Legislation Committee Inquiry

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42 - Supplementary Submission
Abbreviations and acronyms used in this submission
•  APTOS means the Applied Principles and Tables of Supports agreed by First Ministers in 2015
•  Bill means the National Disability Insurance Scheme Amendment (Getting the NDIS Back on
Track No. 1) Bill 2024
•  CEO means the Chief Executive Officer of the National Disability Insurance Agency
•  Committee means Senate Community Affairs Legislation Committee
•  CRPD means the Convention on the Rights of People with Disability
•  Department means the Department of Social Services
•  Legislation Act means the Legislation Act 2003
•  MYEFO Mid-Year Economic and Fiscal Outlook
•  Act means the National Disability Insurance Scheme Act 2013
•  NDIS Commission means the National Disability Insurance Scheme Quality and Safeguards
Commission
•  NDIS Commissioner means the National Disability Insurance Scheme Quality and Safeguards
Commissioner
•  NDIA means the National Disability Insurance Agency
•  NDIS means the National Disability Insurance Scheme
•  NDIS Review means the 2023 Independent Review into the National Disability Insurance
Scheme
•  NDIS rules means rules made under section 209 of the National Disability Insurance Scheme
Act 2013
•  Scheme means the National Disability Insurance Scheme

2

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42 - Supplementary Submission
Introduction
On 17 May 2024 a joint submission was provided to the Committee by the Department, the NDIA and
the NDIS Commission. In the covering letter to the Committee, the Department offered to provide a
supplementary submission to provide further information to assist the Committee’s Inquiry, if required.
This offer was accepted by the Committee when the Department, the NDIA and the NDIS Commission
appeared before the Committee on 22 May 2024.
On  5  June  2024  the  Government  moved  a  number  of  parliamentary  amendments  to  the  Bil   in  the
House of Representatives which were al  agreed. Details of some of these amendments are set out in
relevant sections below. A brief explanation of the other amendments not dealt with elsewhere in this
submission  is  included  at  the  end.  Many  of  these  amendments  respond  to  concerns  raised  through
submissions  and  evidence  provided  to  the  Committee.  To  assist  the  Committee,  copies  of  the
supplementary explanatory memoranda wil  also be provided.
In addition the Government supported a parliamentary amendment proposed by Dr Monique Ryan MP,
requiring an independent review of the amendments made by the Bil  to be conducted 5 years after
the Bill receives the Royal Assent.
Co-Design and Consultation
Comments and concerns raised in submissions and Committee hearings indicate a high level of interest
in consultation and co-design processes, seeking assurances that delegated legislation is developed in
genuine consultation with the community. Further consultation wil  be undertaken with the disability
community on transitional rules and arrangements.
The Bill enables a broad framework for reform. The Government has indicated that it is committed to
undertaking genuine and meaningful consultation with the disability community, service providers, and
state and territory governments on the detail of reforms.
This commitment is evidenced by the range of consultation processes that the Australian Government
and Commonwealth officials have conducted to seek feedback from the disability community since the
NDIS Review was finalised and on introduction of the Bil .
This has included through 9 town hal  meetings on the Review’s findings and recommendations which
were  conducted  by  members  of  the  Review  Panel  and  Minister  Shorten,  involving  around  5,200
participants in person and online.
It has also included  8 events hosted by the Minister across Australia to discuss the Bil  fol owing its
introduction – as wel  as three DSS information webinars on the legislation – involving a combined total
of over 4,900 community members who joined in person or online.
To take specific reform elements forward, the NDIA, Disability Representative and Carer Organisations
and  the  NDIS  Independent  Advisory  Council  have  agreed  to  prioritise  co-design  consultation  and
engagement activities on the following topics:
•  Participant pathway experience
•  Assessments and budgeting
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National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42 - Supplementary Submission
•  Navigator Functions
•  Participant Services
•  Psychosocial Disability
•  Home and Living
•  Integrity and Fraud Prevention
•  NDIA Workforce Capability and Culture
•  Participant Safety, and
•  Supporting Children and Young People in the NDIS.
A range of activities will be undertaken to include participants, families, carers, supporters, providers
and the public in co-design, consultation and engagement. These activities include:
•  involving  people  from  the  disability  community  in  projects  to  help  define  problems,  find
solutions, refine and implement them
•  co-design workshops on specific issues, processes or products
•  focus groups, interviews and engagement with participants, families and carers
•  engagement  events  with  members  of  the  public  and  stakeholders  including  webinars,
information sessions and community updates
•  surveys, discussion papers and submissions
•  research and partnerships with disability organisations and experts, and
•  targeted approaches to hear from under-represented participants and groups.
The Department wil  work with the  NDIA and Commission to use the insights from this co-design to
inform the further development of policy around NDIS rules and other legislative instruments, and to
lead broader engagement on the detail of subordinate legislation together with states and territories.
The Bil  provides the architecture to enable the time to careful y co-design rules to commence alongside
Foundational  Supports.  These  rules  wil   need  to  be  implemented  with  agreement  from  states  and
territories – which means that key changes can be ‘switched on’ as additional Foundational Supports
are available.
Embedding co-design in legislation
Co-design is  a legislative requirement under the Act.  Subsection  4(9A), which is one of the  general
principles guiding al  actions under the Act, provides that:
People  with  disability  are  central  to  the  National  Disability  Insurance  Scheme  and
should be included in a co-design capacity.
Subsection 209(3) of the Act requires that the Minister must have regard to the Objects and Principles
of the Act when making NDIS rules.
To  make  the  requirement  to  undertake  co-design  more  explicit  in  relation  to  the  new  legislative
instruments that may be made under sections 32K and 32L (which are inserted by item 36 of the Bill),
an amendment was moved by the Government that wil  specifical y require the Minister to have regard
4

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42 - Supplementary Submission
to subsection 4(9A) of the Act when making these instruments. This amendment was considered and
passed by the House of Representatives on 5 June 2024.
In  addition,  subsection  17(1)  of  the  Legislation  Act  provides  that  before  a  legislative  instrument  is
made,  the  rule-maker  must  be  satisfied  that  there  has  appropriate  and  reasonably  practicable
consultation has been undertaken.
Subsection 17(2) of the Legislation Act provides that in determining whether any consultation that was
undertaken was appropriate, the rule-maker may have regard to the extent to which the consultation
drew on the knowledge of persons having expertise in fields relevant to the proposed instrument and
ensured that persons likely to be affected by the proposed instrument had an adequate opportunity to
comment on its proposed content.
The combination of the above requirements under the Act and the Legislation Act together impose an
additional  requirement  on  the  Minister  to  consult  with  the  disability  community  when  making  any
legislative instruments under the Act.
In addition, paragraph  15J(2)(d) of the Legislation Act provides that an explanatory statement to a
legislative instrument must contain a description of the nature of consultation that has been undertaken
before the instrument was made.
A statement of the nature of consultation undertaken is required under the Legislation Act, and so does
not need to be inserted into the Act as an additional requirement.
Including an additional requirement to consult with specified groups or entities on certain instruments
could cause significant uncertainty for the operation of the NDIS as it would give rise to a risk that the
instrument could be found invalid if chal enged.
Definition of NDIS Support
One of the key changes made by the Bil  is to insert a new definition of ‘NDIS support’ into the Act.
This concept appears in numerous places throughout the Bil  and wil  be central to the operation of the
future of the NDIS in a number of ways.
With the move away from the current planning approach, which includes an assessment of  individual
‘reasonable and necessary supports’ (that must by their nature be supports of a particular kind that
are appropriately funded or provided by the NDIS), it is necessary to include a legislative definition of
the supports capable of being funded by the NDIS. The definition of NDIS support will guide participants
on how they may spend their flexible budget.
The  definition  will  provide  greater  clarity  around  the  supports  that  can  be  funded  by  the  NDIS  and
those  that  cannot.  This  approach  is  consistent  with  the  original  intention  of  the  Scheme  to  provide
supports  to  people  with  significant  and  permanent  disability  and  people  who  are  in  need  of  early
intervention supports. It is also  consistent with the recommendations  of the NDIS Review in  that it
focuses on the needs of a participant, rather than a diagnosis.
For the sake of consistency and simplicity across the entirety of the Act, the definition has been adopted
in key areas, particularly where references to supports being appropriately funded by the NDIS already
exist.
5

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42 - Supplementary Submission
Since introduction, however, the Government has listened to concerns raised about  new section 10.
Particular  concerns  were  raised  about  a  lack  of  clarity  in  the  drafting  of  new  section  10,  requiring
participants to undertake a complex analysis of whether a support may be considered an NDIS support
for them. Concerns were also raised that the proposed section only listed certain articles of the CRPD.
To address this, the Government moved parliamentary amendments to replace new section 10 with a
revised definition of ‘NDIS support’. These amendments were agreed by the House of Representatives
on 5 June 2024.
These amendments change the structure of section 10 so that the Minister must assess whether certain
supports may rely on any of Australia’s obligations under of the CRPD (or the sickness benefits power)
when making rules under proposed subsection 10(1). The revised provision also takes the onus off the
participant to identify relevant obligations under the CRPD, and as a result the specific articles of the
CRPD no longer need to be specifically referenced.
What kinds of supports wil  be NDIS supports
Evidence  was  provided  to  the  Committee  that  demonstrates  a  significant  level  of  uncertainty  and
concern  about  what  kinds  of  supports  wil   be  NDIS  supports  and  what  wil   not.  NDIS  Supports  are
goods and services required to support a participant’s disability needs, which are appropriately funded
by the NDIS.
Witnesses also expressed concerns that the definition of NDIS support would restrict where they could
obtain certain supports from. The key test is not where items are purchased from, but rather whether
the item is needed as a result of a participant’s disability. This is a key advantage of the flexible budget
model  in  that  participants  wil   have  more  flexibility  around  how  they  address  their  own  needs  and
where they obtain their NDIS supports.
Intergovernmental agreements outline the supports that are appropriately provided by the NDIS and
those that are more appropriately funded by other programs and service systems. For example, the
NDIS  is  not  responsible  for  supports  that  may  be  provided  through  the  Medicare  or  other
Commonwealth programs, nor is it responsible for supports that may be provided through State and
Territory health care systems. This requirement already exists in the Act and is relevant to both access
and the existing planning framework. For example, current paragraph 34(1)(f) of the Act provides that
reasonable and necessary supports must be most appropriately funded or provided through the NDIS.
Transitional approach
The  Government  has  also  heard  concerns  about  the  use  of  the  APTOS  as  an  interim  approach  to
defining NDIS support. In particular,  concerns have been expressed  about APTOS being out of date
and  not  sufficiently  clear  to  provide  a  comprehensive  definition.  To  address  this,  parliamentary
amendments  have  been  agreed  that  amend  item  124  of  Schedule  1  to  the  Bil   to  provide  for  a
transitional rule that wil  be in place only until new Category A rules under section 10 can be agreed.
These rules will set out the kinds of supports that may be NDIS supports and specify kinds of supports
that are not NDIS supports.
Item 124 is a transitional provision to be in effect only until  the new NDIS rules can be made under
proposed  section  10.  It  is  necessary  to  have  a  transitional  provision  as  section  10  cannot  operate
without rules being in place and it wil  be critical to the operation of the Act once the Bil  is enacted.
6

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42 - Supplementary Submission
Needs assessment
Central to the new budget-setting planning framework is a needs assessment. Action 3.4 of the NDIS
Review was that:
The  NDIS  should  introduce  a  new  needs  assessment  process  to  more  consistently
determine the level of need for each participant and set budgets on this basis.
The  benefit  of  using  a  legislative  instrument  to  determine  needs  assessments  is  that  it  will  provide
transparency, clarity and certainty to participants and the disability community. Every participant will
know how they will be assessed and the process used for that assessment.
The needs assessment  process wil  be  transparent,  trauma informed,  cultural y appropriate and wil
involve different assessment tools for different participants cohorts and areas of support need.
Development of needs assessment tool
The needs assessment tool (or tools) wil  be developed through an extensive consultation and co-design
process, involving deep engagement with the disability community and relevant experts.
The  NDIA  wil   use  an  iterative  process  of  design  and  testing  with  people  with  disability,  as  wel   as
health and al ied health professionals, and people with technical expertise in the development of needs
assessments.  The process wil  be transparent and involve extensive testing of existing support needs
assessments with the groups and disability types for whom they were validated  to inform the design
of any new needs assessment.
The    training  and  qualifications  for  individuals  carrying  out  needs  assessments  wil   be  determined
through  the  needs  assessment  development  process.  The  individuals  undertaking  the  needs
assessment wil  be trained in the use of the instrument, with some assessment tools requiring specific
qualifications for use. Training wil   also  ensure  that individuals are  able to  o  work  with people with
disability in a cultural y informed way that is respectful of their dignity and individual autonomy.
Access to assessment reports
The Committee received a significant amount of evidence, both through submissions and directly from
witnesses,  that  needs  assessment  reports  must  be  provided  to  participants.  Al   participants  wil   be
provided with a copy of their needs assessment report as part of the planning process. They wil  have
the opportunity to review it and provide feedback or correct any errors that may be present.
Subsection  32D(2)  of  the  Bil   requires  a  participant’s  plan  to  be  prepared  with  the  participant  and
approved by the CEO. A participant must be provided with a copy of the needs assessment report in
order to be involved in the preparation of their plan.
Further, the needs assessment report is personal information about a participant for the purposes of
the Privacy Act 1988. This means that the NDIA would be required to provide the participant with a
copy of their needs assessment report (see Australian Privacy Principle 12.1).
However, the Government has heard the concerns expressed to the Committee, and to put this issue
beyond doubt, moved parliamentary amendments specifying that a needs assessment report must be
given to a participant. These amendments were agreed by the House of Representatives on 5 June
2024.
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Parliamentary  amendments  were  also  moved  by  the  Government  and  agreed  by  the  House  of
Representatives on 5 June 2024 that clarify that category A NDIS rules can determine circumstances
in which another needs assessment must be undertaken and matters that the CEO must consider when
deciding whether another needs assessment should occur.
Merits Review
A number of witnesses and submissions have raised concerns that the needs assessment is not subject
to merits review and there have been several recommendations that it be an administrative decision
that is separately subject to merits review.
The  needs  assessment  itself  is  not  a  decision  under  the  Act,  but  rather  a  necessary  input  and
preliminary step before a plan can be approved. The reviewable decision in the planning context will
continue to be the decision to approve a statement of participant supports.
When  seeking  a  review  of  statement  of  participant  supports,  the  participant  can  seek  review  of  al
aspects  of  the  statement  of  participant  supports,  which  includes  a  participant’s  reasonable  and
necessary  budget.  As  the  needs  assessment  is  a  necessary  input  for  the  reasonable  and  necessary
budget, a participant can ask for a replacement needs assessment as part of their review request. The
CEO can also require a replacement needs assessment.
This does not mean that the entire assessment needs to be reconducted (although a participant could
request an entirely new assessment). It could be as simple a change to certain aspects of the needs
assessment report that had an impact on the participant’s reasonable and necessary budget.
There  would  be  several  significant  chal enges  with  making  the  needs  assessment  a  separately
reviewable decision.
Firstly, this would be inconsistent with the operation of the remainder of the Act. If the support needs
assessment were a separate reviewable decision, there would be circumstances in which participants
do  not  have  an  approved  plan  while  they  are  awaiting  the  outcome  of  the  review  of  their  needs
assessment. This would mean participants do not have access to support through the NDIS for long
periods while they go through the merits review process.
Additionally,  the  decision  to  approve  the  statement  of  participant  supports  contains  a  number  of
determinations within it (for example for new framework plans, the reasonable and necessary budget,
the management of funding for supports, and the circumstances in which the plan will be reassessed).
The benefit of retaining the one reviewable decision is that participants are able to have al  of those
matters  considered  through  one  review  that  encompasses  al   components  of  their  statement  of
participant supports. If each component of the statement of participant supports as wel  as the needs
assessment  was  reviewable,  this  could  lead  to  multiple  separate  reviewable  decisions  to  prepare  a
participant’s plan. This would place a burden on participants to identify what decisions they are seeking
to  have  reviewed  and  would  lead  to  unacceptable  delays  to  implement  participant  plans,  ultimately
frustrating the planning process.
The Administrative Appeals Tribunal will also be able to require that a replacement needs assessment
is undertaken. This does not need to be stated specifical y in the Act as it is already al owed under
section 43(1) of the Administrative Appeals Tribunal Act 1975, which provides that the Tribunal may
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National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42 - Supplementary Submission
exercise  al   of  the  powers  and  discretions  that  are  conferred  on  the  person  who  made  the  original
decision. This means that anything that the original decision maker can do, the Tribunal can also do.
To address concerns raised in submissions and evidence to the Committee, the Government moved
amendments in the House of Representatives to insert a legislative note making it clear that  decision
makers  on  internal  and  external  review  can  arrange  for  a  replacement  needs  assessment.  This
amendment was agreed by the House of Representatives on 5 June 2024.
Plan management
A number of witnesses and submissions have addressed the changes to the Act in relation to the choice
for  the  participant  in  relation  to  plan  management  and  circumstances  in  which  persons  must  not
manage  funding.  The  Act  provides  that  if  a  participant  makes  a  plan  management  request,  the
statement of participant supports must give effect to that request unless certain circumstances exist.
The primary change implemented by the Bil  is that the CEO may decide not to give effect to a plan
management request if the CEO is satisfied that Section 46 (which requires funding under the NDIS to
be  spend  in  accordance  with  a  plan  and  certain  aspects  of  the  Act)  has  not  been  complied  with  in
relation to a previous or current plan. The CEO may also change a plan management type if the CEO
is satisfied that section 46 would be unlikely to be complied with if the plan management request were
given effect.
Category  A  NDIS  rules  wil   guide  the  CEO’s  decision-making  when  considering  plan  management
requests.  For  example,  a  plan  management  type  would  only  be  changed  if  there  is  intentional  or
recurring  non-compliance with section 46.  The approach taken wil  be  a proportionate  and consider
whether a risk of harm to a participant can be mitigated by capacity building supports or safeguards.
Where a participant is not complying with section 46 of the Act, the  NDIA wil  discuss this with the
participant before making any decisions. It may be that a participant simply requires support with plan
implementation.  Alternatively,  the  development  of  a  new  risk  basis  model  will  mean the  CEO  could
consider  whether  additional  safeguards  can  be  placed  into  the  participant’s  plan  to  assist  them  to
manage their budget, such as only self-managing a smaller portion of the funding while building the
participant’s capacity to manage more of their plan.
In circumstances where a participant is at risk due to not spending in accordance with their plan, the
CEO wil  consider whether it is appropriate to change the plan management arrangement having regard
to the individual circumstances of the participant. This wil  involve consideration of the participant’s
past spending habits, any previous plan overspends and vulnerability to financial exploitation.
The  approach  taken  wil   be  consistent  with  current  operational  guidance  focusing  on  participant
safeguarding,  self-management  and  supported  decision  making.  The  NDIA  has  a  number  of  public
policies  and  procedures  that  set  out  its  existing  approach,  which  can  be  found  on  its  website  at
https://www.ndis.gov.au.
The amendments will support participants to spend in accordance with their plans. This ensures that
participants  receive  the  supports  they  need  and  funding  under  the  NDIS  is  used  for  its  intended
purpose, which will in turn strengthen the integrity of the NDIS.
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Foundational Supports
The NDIS Review set out a 5-year implementation plan for changes to the NDIS and improvements to
the broader ecosystem. In December 2023, National Cabinet agreed to design additional Foundational
Supports.  These  wil   be  jointly  designed,  funded  and  commissioned  by  the  Commonwealth  and  the
states.
The Review found there are many people with disability who require disability-specific supports, but do
not  require  the  level  of  specialist,  individualised  support  provided  as  part  of  the  NDIS.  The  Panel
recommended  the  development  and  implementation  of  Foundational  Supports  in  particular  areas  to
help address gaps in the current  disability support  system, while also reinforcing that this does not
remove the need for mainstream settings to be inclusive and accessible.
It  wil   be  important  to  ensure  there  is  careful  sequencing  of  reforms  to  the  Scheme  to  align  with
development of Foundational Supports. The Government, Department and the NDIA are working with
states and territories and the disability community to  ensure that the commencement of new access
and planning arrangements wil  align with the development and rol  out of Foundational Supports.
Earlier  this  year,  the  Government  announced  $11.6  million  to  support  the  development  of  a
Foundational  Supports  Strategy.  There  wil   be  a  phased  approach  to  designing  and  delivering
foundational supports. Services are expected to be commissioned from mid-2025, and progressively
scaled to ful  rol  out from mid-2027. Any related NDIS rules wil  not be implemented until appropriate
supports are in place.
State and Territory Engagement
On 6 December 2023, the National Cabinet agreed  to introduce legislation and other changes to the
NDIS in the first half of 2024 to improve the experience of participants and restore the original intent
of the Scheme to support people with permanent and significant disability.
As outlined above, National Cabinet also committed to do this within a broader ecosystem of supports,
with  agreement  to  jointly  design  and  commission  additional  Foundational  Supports  for  people  with
disability.
The  Minister  for  the  NDIS,  the  Minister  for  Social  Services,  the  Department,  NDIA  and  Commission
continue  to  meet  with  our  state  and  territory  counterparts  regularly  on  strategic  reform  priorities,
including  NDIS  legislative  reform  arising  out  of  the  NDIS  Review.  Since  late  last  year,  States  and
territories have been engaged on the legislation through the Disability Reform  Ministerial Council, as
wel  as extensive and regular work by senior officials, which has significantly increased in tempo since
the release of the Review’s report, and prior to the introduction of the Bil .
Key features of the  Bil , particularly the new budget-based planning  framework,  wil  not take  effect
until    new  and  amended  subordinate  legislation  (including  NDIS  rules  requiring  the  unanimous
agreement of al  jurisdictions)  are made fol owing a process of  co-design and engagement with the
disability  community.   This  wil   happen  while  other  key  reforms,  like  the  development  and
implementation of Foundational Supports, progress.

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National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42 - Supplementary Submission
Information gathering
Section 30 – discretionary revocation
Section 30 of the Act currently enables the CEO to revoke a person’s status as a participant in the NDIS
if  satisfied  they  no  longer  meet  one  of  the  access  criteria.  This  is  a  discretionary  decision  and  will
general y  be  considered  if  the  CEO  becomes  aware  of  evidence  suggesting  a  participant  no  longer
meets one of the requirements. For example, a participant may provide evidence as part of their plan
reassessment  which  suggests  their  impairment  no  longer  results  in  substantially  reduced  functional
capacity, which would mean they no longer meet the disability criteria.
Currently, there are no information gathering powers in the Act to assist the CEO in obtaining evidence
relevant to their consideration of whether a participant continues to meet the access criteria for the
purpose of section 30 of the Act.  It is important that the CEO has access to up to date information
and assessments in relation to a participant when undertaking this consideration, to ensure the correct
decision is made about whether a person remains a participant in the NDIS.
At present, if the CEO is considering whether to revoke a participant’s status under section 30, the
participant will be provided with an opportunity to submit further information and evidence as a matter
of procedural fairness. However, there is no obligation to provide such information and the CEO does
not have any basis to compel information as part of this process.
In practice, many participants do not respond to requests and there is no obligation on them to do
so. When this occurs, the NDIA wil  proceed to make a decision based on the information on file
which may be out of date or of low quality. This can result in a participant’s status being revoked due
to a lack of evidence that they meet the relevant criteria.
If a person is no longer a participant in the Scheme they wil  no longer have access to supports
funded by the NDIS, so it is critical y important for both participants and delegates that this decision
is robust and well informed.
The Bil  amends section 30 to provide the CEO with a legislative ability to request specific information
or an assessment of a participant where they consider this is reasonably necessary for the purpose of
making a decision about the participant’s ongoing access to the Scheme. A request may be made for
the participant to provide information, or another person such as a treating medical practitioner. If a
request is made under this new provision, the information must be provided in an approved form
within 90 days (or longer as required by the participant/other person, for example where there is a
longer wait time to access a health professional to obtain required information). If the participant or
other person does not provide the information within the relevant timeframe, the CEO may proceed
to revoke the participant’s status as a participant.
Whether to revoke the participant’s status remains a discretion of the CEO, consistent with the
overal  discretionary nature of section 30.  However, if the participant or relevant person has not
complied with a request for information, the CEO must not revoke the participant’s status as a result
of this failure if it was reasonable for the participant or other person not to have complied with the
request for information.  This ensures that a participant wil  not have their status as a participant
revoked if there was a good reason why the information was unable to be provided within the
required timeframe.
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National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42 - Supplementary Submission
If the evidence establishes that the participant no longer meets one of the access criteria or
requested information is not provided within the required timeframe without a reasonable basis,
leading to the participant’s status as a participant being revoked, consistent with current practice the
NDIA wil  clearly explain this decision and the reasons why it was made in the preferred
communication method of the participant (with phone and letter contact as the minimum). This wil
remain a reviewable decision, as it currently is.
The amendments to section 30 do not change the overal  ability for the CEO to revoke a participant’s
status and in practical terms participants wil  continue to have the ability to voluntarily submit any
information they would like the CEO to consider as part of this process. The amendments simply
ensure the CEO has a legislative ability to request further information if there is not sufficient
evidence to make a decision, which is ultimately in the best interests of the participant as it wil
ensure that decisions are made on the basis of current and adequate evidence.
Section 30A – mandatory revocation
The Bil  inserts new section 30A, which wil  require to the CEO to consider a participant’s status in
certain circumstances and revoke their access to the Scheme if they no longer meet the disability or
early intervention requirements. This provision operates in a mandatory way, which is different to the
discretionary nature of section 30.
New section 30A includes similar information gathering powers to those inserted in section 30, but
the CEO will be required to revoke a participant’s status if information is not provided within the
required timeframe and there is no reasonable explanation for why this did not occur. This
mandatory revocation as a result of failure to provide information operates differently to the process
under section 30, consistent with the overal  mandatory nature of section 30A compared to the
discretionary nature of section 30.
Section 30A wil  not operate immediately upon the Bill’s commencement and wil  only become
operational once Category A NDIS rules are made specifying the circumstances in which it wil  apply.
It is intended that this mandatory revocation provision wil  operate in limited circumstances, and only
participants who refuse to engage with the NDIA as part of the decision-making process wil  have
their status as a participant revoked due to a failure to provide information. As with section 30, there
wil  be no consequences for the participant if there was a reasonable explanation for the information
not being provided within the required timeframe.
New limitations on the CEO’s exercise of power
One of the requests for information that the CEO may make under sections 30 and 30A is that the
participant undergo an assessment or a medical, psychiatric, psychological or other examination and
provide a report to the CEO. There is already a limitation in proposed subsections 30(2) and 30A(4)
that assessments and reports can only be requested for the purposes of considering whether to
revoke a person’s status as a participant in the NDIS under the relevant section
The Government has considered submissions and evidence given to the Committee during the course
of its inquiry. To address concerns about the requirement for individuals to undergo assessments or
examinations, parliamentary amendments were moved and agreed in the House of Representative on
5 June 2024. The amendments  impose a further limitation in that the CEO can only make such
requests if there is no other reasonable alternative way of obtaining the information. This limitation
12

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 [Provisions]
Submission 42 - Supplementary Submission
wil  require the CEO to have regard to other reasonable alternatives before making the request for an
assessment or examination, for example, whether the participant or another person can provide
further information.
These limitations together provide a safeguard to ensure that participants wil  only be asked to
undertake assessments and examinations where it is absolutely necessary for the CEO to make a
decision about their ongoing access to the NDIS.
Further, subsections 30(6) and 30A(7) provide that the CEO must not revoke a person’s status as a
participant in the NDIS if they are satisfied that it was reasonable for the participant, or another
person, not to provide the requested information within the relevant timeframe. If appropriate, it is
also open to the CEO to notify a participant that they no longer require the information that has been
requested.
Financial sustainability
Based on data up to December 2023, it is projected that without further action, NDIS payments would
increase by $14.4 bil ion over four years from 1 July 2024, compared with 2023-24 MYEFO. The NDIS
reforms being undertaken by the Government are expected to moderate this additional growth, and
ensure the NDIS remains on track to achieve the NDIS Sustainability Framework growth target agreed
by National Cabinet from 1 July 2026. The introduction of the  Bil  provides the scaffolding for these
reforms, including the NDIS Review recommendations and clarifying legislation and rules to return the
Scheme to its original intent.
Use of term ‘classes’
Concerns have been expressed about the use of the term ‘class’ in the Bil . The use of this term is a
legislative drafting technique. It is used in the Bil  to ensure the measures appropriately encompass
the diverse needs of participants and their supports.
In most cases when referring to participants or supports in the Bil , there is also reference to classes
of  participants  or  supports.  A  class  can  be  one  person  or  many  people  who  share  one  or  more
characteristics. Each participant is different and may fal  into many ‘classes’, for example, due to their
age or location as wel  as the kinds of supports and services that they may receive. Not each participant
in a ‘class’ wil  need the same things.
For example, a class of participants could be all participants of a certain age who would benefit from
early intervention supports or participants who live in a certain regional area who require additional
assistance  to  access  supports.  A  class  of  supports  could  be  any  supports  provided  by  Occupational
Therapists. A class of supports could also be ‘assistive technology’ or ‘core supports’. It can mean any
range of things and is an important mechanism to ensure that the legislation addresses the needs of
al  of the many different kinds of participants in the NDIS.
13

Abbreviations and acronyms used in this submission
•  Act means the National Disability Insurance Scheme Act 2013
•  Bill means the National Disability Insurance Scheme Amendment (Getting the NDIS Back on
Track No. 1) Bil  2024
•  CEO means the Chief Executive Officer of the National Disability Insurance Agency
•  Committee means the Senate Community Affairs Legislation Committee
•  Department means the Department of Social Services
•  First Ministers includes the Prime Minister, Premiers of each State and Chief Ministers of each
Territory
•  NDIA means the National Disability Insurance Agency
•  NDIS means the National Disability Insurance Scheme
•  NDIS Commission means the National Disability Insurance Scheme Quality and Safeguards
Commission
•  NDIS Review means the 2023 Independent Review into the National Disability Insurance
Scheme
•  NDIS rules means rules made under section 209 of the National Disability Insurance Scheme
Act 2013
•  Scheme means National Disability Insurance Scheme
•  Senate amendments mean proposed parliamentary amendments to be moved by the
Government in the senate, circulated on 27 June 2024

2 - Senate Community Affairs Legislation Committee - Further Supplementary Submission

Introduction
On 17 May 2024 a joint submission was provided to the Committee by the Department, the NDIA and
the NDIS Commission. That submission explained the operation of the Bil  general y, with a focus on
the more complex measures that are given effect to through these reforms.
On 5 June 2024, a supplementary joint submission was provided to the Committee by the Department
and the NDIA. That submission  provided further information to respond to concerns raised in
submissions to the Committee and in evidence provided to the Committee. It also explained the
operation of parliamentary amendments that were agreed by the House of Representatives on
5 June 2024.
On 27 June 2024, the Bil  was referred back to the Committee for further inquiry, including examining
any circulated amendments to the Bil  and the positions of state and territory governments. This
submission provides further information about those matters.
New framework planning process
The proposed Senate amendments respond to concerns that the Bil  does not allow for a ‘whole-of-
person’ needs assessment. The amendments clarify that the needs assessment process should consider
a participant’s needs holistical y, taking into consideration a variety of factors that may impact a
participant’s need for support under the NDIS.
The proposed Senate amendments do not change the intended operation of the Bil . Instead, they
provide clarification to ensure that the measures wil  be interpreted and applied in accordance with its
intent.
The intent of section 32L has always been that a needs assessment wil  assess a participant’s needs
holistically, consistent with recommendations of the NDIS Review (actions 3.3, 3.4 and 3.5). Proposed
amendments to section 32L further reinforce this.
Funding for supports under the NDIS wil  general y be provided to address needs arising from the
impairments for which a participant meets the disability requirements or the early intervention
requirements of the Act. However, these needs may be impacted by a range of other factors, including
environmental factors such as a participant’s geographic location, the availability of informal supports
and the impact of impairments which do not meet the disability requirements or early intervention
requirements.
Subsection 32K(2) allows the Minister to make a legislative instrument which determines the method
for calculating a participant’s reasonable and necessary budget. Proposed amendments to section 32K
wil  impose an additional requirement on the Minister when making that instrument, specifical y, that
the Minister must be satisfied that the determination adequately takes account of the variety of factors
that may affect a participant’s need for NDIS supports.
The proposed Senate amendments insert a number of legislative notes to clarify what these ‘factors’
may be for the purposes of both sections 32K and 32L. These notes make it clear that, while funding
under the NDIS may only be provided for needs arising out of impairments that meet the disability
3 - Senate Community Affairs Legislation Committee - Further Supplementary Submission

requirements or the early intervention requirements, these needs may be affected by a range of other
factors, including the interaction with other impairments and environmental factors.
While these legislative notes do not change the operation of the provisions, they do clarify how these
provisions should be interpreted. This provides clarity and certainty for participants and wil  assist in
the operationalisation of the new planning framework, as wel  as guidance for courts and tribunals in
interpreting those provisions.  These legislative notes wil  therefore ensure that the legislation is
interpreted and applied consistently with the policy intent behind them.
Case studies
Peter
Peter meets the disability requirements for a physical impairment that impacts his functional capacity
in the mobility and self-care domains. Peter has recently acquired a sensory impairment relating to
vision loss. The impairment does not meet the disability requirements or early intervention
requirements, but it does affect his functioning in the mobility and self-care domains.
Peter transitions to the new planning framework and has a needs assessment. The assessment tool
takes account of Peter’s holistic disability support needs. The outcome of the needs assessment reflects
that the intensity of Peter’s  needs in the mobility and self-care domains  arising from his physical
impairment is higher due to the impact of his sensory impairment.
The assessment report details the intensity of Peter’s needs across all domains. The NDIS wil  fund
needs arising from Peter’s  physical impairment,  taking into account the impacts of the sensory
impairment on Peter’s support needs. Peter may also be provided information and referrals to other
services to support his sensory impairment.
Kylie
Kylie meets the disability requirements in relation to an intel ectual impairment that affects her capacity
for self-care and self-management.  Kylie  also  lives in a remote area and does not have access to
informal supports. Both of these factors impact Kylie’s support needs that arise from her intel ectual
impairment.
Kylie transitions to the new planning framework and has a needs assessment. The assessment tool
takes account of Kylie’s holistic disability support needs. The outcome of the needs assessment reflects
that Kylie has a higher support need intensity due to the effects of her environmental factors (being
her remote location and lack of informal supports).
The assessment report details the intensity of Kylie’s needs across al  domains. The NDIS wil  fund
needs arising from her intel ectual impairment,  taking into account  the impact of Kylie’s  unique
environmental factors on her needs.
Information gathering powers
The proposed Senate amendments implement recommendation 2 made by the Committee in the report
into its inquiry into the Bil . The Committee recommended  that  the Government further clarify the
circumstances under which the additional information gathering powers granted to the CEO wil  be
4 - Senate Community Affairs Legislation Committee - Further Supplementary Submission

used. Specifically, the recommendation relates to new information gathering powers for the purpose
of the CEO considering whether a participant continues to meet the access criteria (sections 30 and
30A) and for the purpose of making certain decisions about the participant’s plan (section 36).
Requests to be given in writing
In practice, all requests for information from participants and other people under the NDIS Act are
given in writing (as wel  as that person’s preferred mode of communication if different and known).
These amendments now explicitly require all requests for information under sections 30, 30A and 36
to be given in writing. This ensures accountability and transparency.
By requiring the requests to be in writing, the amendments also clarify that the CEO has the ability to
vary or revoke that request at any time after it has been made. The power to vary or revoke is given
by operation of subsection 33(3) of the Acts Interpretation Act 1901 which relevantly provides that
where an Act confers a power to make an instrument of administration character (such as a written
request for information), that power may also be exercised to revoke or vary that instrument.
Failure to comply with certain requests for information
To ensure the CEO is making decisions on current and accurate information, sections 30, 30A and 36
allow the CEO to request certain information from participants and other people within timeframes set
out in those sections or in a longer timeframe prescribed in the request.
If a person does not provide the requested information within the relevant timeframe, the CEO may
revoke a person’s status as a participant (sections 30 and 30A) or suspend the preparation of a
participant’s new framework plan (section 36).
The CEO is not permitted to take these actions if the CEO is satisfied that it was reasonable for the
participant or another person not to provide the requested information within the relevant period. In
these circumstances, the CEO may make a further request for information or provide an additional time
period.
The proposed Senate amendments wil  provide guidance for the CEO in considering whether it was
reasonable for a person not to have complied with a request for information made under sections 30,
30A or 36 within the timeframe prescribed in the request. The amendments wil  require the CEO to
have regard to the fol owing matters in considering whether it was reasonable not to comply with a
request for information within a prescribed timeframe:
•  the length of time the person has had to provide the information (for example, a delay of 6
months may be appropriate in certain circumstances whereas a delay of 12 to 18  months may
not be)
•  any previous failures by the participant to comply with a request for information made under the
Act
•  any previous failures by the other person to comply with a request for information made under
the Act in relation to the participant
•  the length of time since the CEO was last provided with information relevant to the decision
whether or not to revoke the participant’s status as a participant (in relation to sections 30 and
30A only)
5 - Senate Community Affairs Legislation Committee - Further Supplementary Submission

•  whether the failure to comply with the request was beyond the control of the participant or other
person because of a delay in the provision of information to the participant or other person
•  any matters prescribed by Category A NDIS rules
•  any other matters the CEO considers relevant.
These amendments provide additional clarity about how and when the CEO wil  exercise certain
information gathering powers.
State and Territory engagement
This submission deals with two aspects of state and territory engagement. The Senate amendments
wil  make changes to the arrangements for state and territory Ministers to agree to NDIS rules on
behalf of host jurisdictions. The submission also responds to concerns raised by states and territories
through the submission made by the Council on the Australian Federation  about the Australian
Government’s plan to consult on the list of authorised and unauthorised NDIS supports.
Agreement to NDIS rules
Section 209 of the Act sets out requirements for seeking the agreement of host jurisdictions to NDIS
rules. Relevantly, agreement to NDIS rules must be through the relevant ‘host jurisdiction minister’.
Currently, a host jurisdiction minister means a Minister of a host jurisdiction who is a member of the
Ministerial Council. The Ministerial Council is a body that consists of Ministers of the Commonwealth,
States and Territories and has responsibility for the NDIS. This general y does not include the Premiers
and Chief Ministers.
The proposed Senate amendments would amend the definition of ‘host jurisdiction Minister’ so that it
means a Minister of the host jurisdiction who is:
•  A member of the Ministerial Council
•  If the host jurisdiction is a State – the Premier of the State
•  If the host jurisdiction is a Territory – the Chief Minister of the Territory.
This wil  al ow communication about agreement to NDIS rules to occur directly with the Premier or
Chief Minister and wil  allow for Premiers and Chief Ministers to provide agreement to NDIS rules
themselves.
These amendments provide greater flexibility in how host jurisdictions manage engagement on, and
agreement to, NDIS rules. They wil  also al ow First Ministers to directly agree to NDIS rules in joint
forums such as National Cabinet. While the Minister must make the NDIS rules, the Prime Minister can
agree to them on behalf of the Commonwealth in such forums.
This amendment implements recommendation 1 made by the Committee in the report into its inquiry
into the Bil  that First Ministers are also recognised as Ministers for the purposes of Category A rule-
making.
State and territory views
In  its  submission to the Committee, the Council of Australian Federation  (CAF)  has  cal ed for  the
Commonwealth Government to  undertake genuine and meaningful consultation with the disability
6 - Senate Community Affairs Legislation Committee - Further Supplementary Submission

community, service providers, and state and territory governments on the reforms outlined in the Bil .
States and territories raised concerns about potential limitations on their role in the governance of the
NDIS, primarily due to new legislative instrument making powers for the Minister that wil  play a role
in determining the future direction and operation of the NDIS.
In particular, the CAF submission raised concerns about certain legislative instruments not being
Category A NDIS rules, including the transitional rule that wil  provide a definition of NDIS support and
the legislative instruments that wil  facilitation transition to new framework plans.
Once agreed, new Category A NDIS rules to define an NDIS support wil  provide an outline of supports
that can be purchased using NDIS funds as wel  as supports that cannot be purchased using NDIS
funds. This wil  provide clarification about supports that are, and are not, the responsibility of the NDIS.
This wil  be based on intergovernmental agreements about the responsibilities of different service
systems. These new rules wil  take time to develop with the disability community and must be agreed
by al  states and territories. Until these NDIS rules are made, a transitional rule wil  be made to provide
for the definition of NDIS support on an interim basis.
A draft consultation list of what is and is not an NDIS support has been prepared for consultation with
state and territory Disability Ministers and the disability community.
The transition to new framework plans is an operational matter and wil  need to take into account the
evolving nature of the transition and operational constraints and requirements. The overall plan for
transition  wil   necessarily  involve consultation with the disability community and state and territory
governments, but the instruments facilitating the transition are operational in nature and are therefore
appropriately made by Ministerial determination.
The needs assessment tool wil  be the subject of extensive co-design and consultation with the disability
community, state and territory governments and relevant experts. Once the substantive work has been
completed to develop the assessment tool it wil  be of an operational nature. The method by which a
resulting reasonable and necessary budget is calculated wil  also be the subject of consultation and co-
design and wil  be an operational instrument.
It is important to note that the consultation requirements in the Legislation Act 2003 wil  apply to these
instruments, and this wil  include the Minister consulting state and territory governments where
appropriate.
The CAF submission recommends that the commencement of the Bil  be deferred until new Category A
NDIS rules are agreed for the purpose of section 10, and to align commencement with new foundational
supports.
The Bil  establishes an enabling framework for rules and future reforms as the majority of the changes
outlined in the Bil  do not take effect until activated by future changes to NDIS rules and instruments.
The Bil  introduces 34 new rule-making powers and 6 new legislative instruments. Of these, 27 are
Category A rules relating to changes with significant impact, requiring unanimous agreement from
states and territories to come into effect. The timing of these changes coming into effect is expected
to align with the introduction of Foundational Supports as agreed at National Cabinet to commence
from 1 July 2025. DRMC agreed to publicly release a roadmap in July that outlines the timing and
sequences of the changes.
7 - Senate Community Affairs Legislation Committee - Further Supplementary Submission

States and territories have  also recommended the Bil  should be amended to strengthen quality,
safeguarding, fraud and compliance measures.  The Bil  contains measures around safeguarding
including enabling effective management of funding, changing plan management type based on fraud
and financial decisions and audit banning powers for the Commission.
Addressing the recommendations from the Review around proportionate regulation is currently subject
to consultation through the NDIS Provider and Worker Registration Taskforce to be considered in future
tranches of legislative reform.
Consultation statements
The issue of consultation and co-design, particularly in relation to legislative instruments, has been the
subject of widespread discussion since the Bil  was introduced. This discussion included extensive
submissions and evidence received by the Committee and resulted in amendments being agreed in the
House of Representatives to explicitly require the Minister to have regard to the principle of co-design
when making certain new legislative instruments.
The Committee considered that these amendments are a measured and appropriate response to
concerns raised regarding co-design, but noted proposals from inquiry participants to ensure
appropriate consultation occurs on disal owable legislative instruments as wel  as transparency over
the consultation process.
The Committee therefore recommended that a ‘consultation statement’ be tabled accompanying all
legislative instruments made under the Act that sets out consultations undertaken.
Paragraph  15J(2)(d) of the Legislation Act 2003  requires the maker of a legislative instrument to
provide information about consultation undertaken in the preparation of that instrument. While this
general requirement already extends to the Minister when making legislative instruments under the
Act, the proposed Senate amendments would clarify and strengthen these requirements specifically in
relation to legislative instruments made under the Act.
The proposed Senate amendments specify that explanatory statements to legislative instruments made
under the Act wil  be required to meet the fol owing requirements:
•  describe the nature of the consultation
•  describe in general terms the persons, bodies or organisations who were consulted
•  contain a summary of the views expressed by those persons, bodies or organisations.
The requirement to describe the nature of the consultation undertaken wil  require the Minister to
explain how consultation occurred. For example, was there a public consultation process; what did it
consist of (e.g. smal  consultative forums, public forums and town halls, and/or an online engagement
process; and was there an opportunity extended to provide written submissions?
The requirement to describe the persons, bodies or organisations consulted wil  require the Minister to
explain who was engaged in the consultation, for example, advocacy bodies, individuals in the disability
community, other organisations or government bodies.
8 - Senate Community Affairs Legislation Committee - Further Supplementary Submission

The above descriptions must not identify a person, body or organisation, or reveal the views of a
person, body or organisation, except with the agreement of the person, body or organisation. This is
an important qualification to protect the privacy of individuals but also to provide entities the
opportunity to provide confidential input into consultation processes.
Parliamentary amendments circulated by non-
government Senators
Senator Thorpe has circulated a number of proposed amendments to be moved in the Senate in the
Committee of the Whole stage. The government wil give careful consideration to these amendments
in the lead up to the Committee of the Whole stage in the Senate.
The Opposition indicated on numerous occasions during the second reading debate in the Senate that
it would be moving parliamentary amendments ‘at the appropriate time’. As these amendments have
not been circulated at the time of preparing this submission, the department and NDIA are not in a
position to provide comment.

9 - Senate Community Affairs Legislation Committee - Further Supplementary Submission

FOI 51226 Document 4
Senate Committee Affairs Legislation Committee - Senate Inquiry Submissions Summary – Tranche 2
The below table outlines the common and significant themes identified through the second round of submissions to the Senate Committee Affairs Legislation
Committee.
Theme
Outline of common concerns
Access
 Impairments that are considered in access decisions and whether a participant enters through early
intervention should be reviewable by the participant before moving to the needs assessment.
Choice and control
 The introduction of Section 10 ‘in’ and ‘out’ lists will limit participant choice and control.
 Any requirement for participants to only engage registered NDIS providers will limit choice and control.
 Concern that overly stringent fraud measures may place additional and costly burden on participants.
Co-design
 Inclusion of co-design principles in the legislation has been welcomed, however note that co-design when
updating/modifying Rules is not a mandated requirement for Government.
Debt recovery
 There is significant concern that the NDIA will be able to retrospectively raise debts based on the new
Section 10 lists.
 There is also concern that debts raised by the NDIA against participants who are Agency or Plan
Managed will cause significant financial harm, with one organisation recommending that legislation reflect
that in such cases the Agency or Plan Manager be liable.
Foundational Supports
 Concerns that Foundational Supports will not be in place when new Rules are implemented.
 Particular concerns around whether services available through Foundational Supports will be included in
Section 10 list which the NDIA cannot fund.
Information gathering
 Submissions still reflect concern around the information gathering powers of the NDIA CEO.
 Criteria for allowing participants more time (beyond 60 and 90 day timeframes) to gather information is
not clear.
 Concern access (access/reassessment/review) will be revoked automatically if information is not provided
within legislated timeframes.
 Participant status should not be revoked, and their plans should not be suspended, for failure to provide
information.
 Participants should not be forced to provide information or undertake an examination if that would cause
harm or distress.
NDIS Review
 Commentary around the Bill being introduced before any response to the NDIS Review has been
announced by Government.
 The Bill should reflect both the recommendations made by the NDIS Review and the Disability Royal
Commission
Needs assessment
 A significant proportion of submissions have expressed concern the needs assessments will be generic
and limited to individual impairments rather than the individual needs and circumstances of the
participant.

  Significant concern that participants wil  not be able to review and influence the needs assessment prior
to being used to create the plan budget, in particular the impairments which count towards their budget.
  Recommendation that the capability for a need assessment to be reassessed prior to creating the plan
  There is a view that the needs assessment is another attempt at introducing ‘independent assessments’,
an assessment mechanism previously rejected.
  Concern that there is no detail about how the needs assessment wil  be used to create the final plan
budget.
  Ongoing concern that the needs assessment wil  not take a whole of person approach as recommended
in the NDIS Review, limiting supports and services for those with complex needs and comorbidity.
  Questions regarding the skil s and qualifications of NDIA staff to undertake a needs assessment, as wel
as concern around the needs assessment being undertaken by someone the participant is not
comfortable with.
  View that the 8% cost saving target wil  be viewed as a cap and the needs assessment wil  be used to cut
supports.
  Concerns there wil  be an emphasis on expediency of needs assessments rather than accuracy.
  Concern that there wil  not be a specific mechanism for supporting participants who have variable
disabilities whereby their needs may be complex change over time.
Plan management
  The circumstances where a person is moved from self-managed to Agency or Plan Managed are not
clear, and should be legislated.
  Concern that more people wil  be Agency or Plan-Managed without being consulted in an effort to limit
supports and save money.
Reasonable and necessary
  Significant concern that the shift to reasonable and necessary ‘budget’ is an effort to reduce available
services to save money, limiting choice and control.
Section 10
  Concern that the ‘in’ and ‘out’ lists have/wil  not be developed with the disability community.
  Categorisation of supports and disabilities may lead to certain supports only being available for certain
disabilities, potential y reducing required supports and limiting choice and control.
  The definition of NDIS Supports should also be consulted on, in conjunction with s10 lists, as the
definition and lists are intrinsical y linked.
  Concern that s10 precludes the use of mainstream products when considering assistive technology –
many products (such as iPhones and automatic vacuums) provide significant support to people with
disability, often better than dedicated assistive technology.

FOI 51226 Document 5
Senate Committee Affairs Legislation Committee - Summary of Media Reporting from
14 June 2024 (date of last hearing with DSS).
The below table outlines concerns picked up by the media about the Bill since the department last appeared before the Senate Committee
Affairs Legislation Committee. These themes do not necessarily reflect the overall thrust of the media narrative on the scheme and the changes
in the Bill. This has been provided separately – see overall media narrative and media headlines.
Theme
Concerns reported by media
Lack of consultation
 Concern there was no exposure draft, and the degree of consultation that occurred between the
release of the review and the introduction of the Bill.
 Concern that even though the bill was amended to reflect there would be consultation, that
consultation on the rules won’t occur or will be somehow limited.
 Frequent and late changes to the Bill, with limited time to see if they address the concerns of the
disability community - Senator Steele-John
 Liberal senator Jane Hume said the Coalition would support the “sensible recommendations” in the
legislation, but added that the government had “dumped a whole series of amendments” on the
committee at the last minute and then expected the Senate to pass the legislation amended without
any further scrutiny. “Stakeholders are coming to us and telling us that they’re concerned about how
these changes are going to affect [them],” she said. “It’s much better to do the work now, get the job
done and then pass the legislation rather than find out that there’s unintended consequences when
it’s too late and the legislation’s been passed.”
Criticisms of process
 The original definition of NDIS support did not fully reflect Australia’s obligations under the United
Nations Convention on the Rights of Persons with Disabilities. That definition was removed from the
bill after the Disability Discrimination Commissioner warned it risked the NDIS not being “holistically
responsive” to individuals’ needs.
 Early drafts of the Bill used APTOS to set the interface between Commonwealth and State and
Territory responsibilities; but it was not fit for purpose.
 The Bill has deficit-focused language, with assessments only funding needs resulting from
‘impairments’. The Bill has been amended, but only to a point, and does not do anything to stop
these flaws re-emerging as the rule making process moves forward.
Cuts to services
 General concern about what supports or services will be included, or excluded.

  General concern that the approach taken by the bil  to create ‘in and out’ lists undermines choice
and control and might limit what services people can access.
Cuts to sexual services
  Organizations representing PWD have argued that sexual supports are critical to the wel being of
people with disability, and have asked Minister Shorten to retract his comments that sex services
would be excluded from the NDIS.
  In its submission to the NDIS Review, made before the funding ban was announced, sex work and
disability charity Touching Base argued funding sex work was appropriate because there was an
established legal precedent in the 2020 federal court chal enge, and had positive outcomes for
people's physical and mental health.
  Concern is it wil  remove choice for participants and access to supports that enable ful  participation
in al  aspects of life.
  A ban on sex workers would mean the government would decide who could have sex
  It’s a double standard – the government provides public funds for sex-based supports such as
Viagra on prescription, but does not want to provide sex-based supports through the NDIS –
Senator Jordon Steele-John.
  The government is seeking “to make such private and intimate details of disabled people’s supports
the subject of public debate”.
  The change is inconsistent with the NDIS Review, which recommends putting trust in people with
disability.
  Concerns that the ban on sex workers wil  put participant safety at risk – for example, by forcing
women with disability to use dating apps, or by harming sex workers with disability.
  The belief that sex workers should not be funded by the NDIS is ignorant of the reality for people
with disability “for many people with a disability this is the only form of contact they get. There are
also a lot of people with disabilities who see sex workers to simply lie down and cuddle, to have
somebody hold them.”
Removal of reasonable and
  "The bil  proposes a shift from reasonable and necessary supports to a restrictive list of permitted
necessary (and replacement
supports, claimable from budgets based on yet-to-be-developed needs assessments," the deputy
with lists)
chair of disability advocacy group Every Australian Counts, Nicole Avery, told the Senate inquiry last
month.
  "This approach risks denying necessary supports to people with complex needs and lacks the
individuality and the flexibility that the NDIS promises." – Nicole Avery
Reduction in choice and
  While specific references to what NDIS payments could not be used on were removed from the
control and/or flexibility
original bil , the committee stil  believed the legislation wasn’t flexible enough to cater to individual
circumstances.

Expanded government powers
  General concern about expanded powers for the NDIA.
Appeal rights
  "It also removes real y important legal protections, which we currently have to chal enge agency
decisions when they get something wrong – Senator Jordon Steele-John
Lack of a coordinated
  One common criticism is that the bil  has been introduced before the government has even made a
response to the NDIS Review
formal response to the NDIS review, or to the Disability Royal Commission
and DRC
Participant safety
  General concerns that the changes present risks for participant safety.
  Specific concerns that the ban on sex workers wil  put womens safety at risk by forcing them onto
dating apps.
  Concerns that workforce issues, i.e. providers leaving the market, wil  negatively impact quality of
services.

Human rights
  “The objective of ensuring the financial sustainability of the NDIS, while important from a policy
perspective, may not in itself be sufficient to constitute a legitimate objective for the purposes of
international human rights law,” the committee report said.
  “There appears to be a risk that the measures could result in the total funding amounts for
participants being reduced and consequently fewer supports being provided and, in such cases,
would constitute a retrogressive measure.”
Women’s Safety (in relation to
  Concern that the change wil  mean women who access sex workers wil  be forced to use online
removal of sex worker funding)
dating apps to find sexual partners; and that this wil  expose them to harm and violence.
  Concern removing funding for sex work would create safety issues for clients and sex workers with
disability "if safer choices are eliminated".
Privacy risks
  The concerns also centre on the bil ’s provision for personal and medical information to be
requested, and for the NDIS’s overal  financial sustainability to be considered when determining
individual al owances.
NDIS ‘robodebt’
  Greens senator Jordon Steele-John appeared to link the concerns to Robodebt, whereby welfare
recipients were made to feel like criminals. “Just like the previous government proactively dropped
stories on so-cal ed ‘dole bludgers’ to undermine the cal s for a royal commission into Robodebt, it is
the view of the Australian Greens that this government is undermining the NDIS in the same way,”
Senator Steele-John said.
Need for family and community
  But policy changes [in the Bil , and to expand foundational supports] alone wil  not be enough to
capacity building
realign the system…. prioritising supports that can be brought into community settings, like
childcare, the community library or the local sports club is vital. This focus might be different to what
families and those providing a diagnosis have become used to expecting.

Uncertainty
  The method for how budgets are calculated is yet to be determined.
  "People say, 'We don't know everything about the future and you won't tel  us everything about the
future right now, so we won't go forward.' But on the other hand, if we told everyone that we had
everything worked out, we'd be accused of not co-designing." – Minister Shorten.
Need for more DRO funding to
  Disability groups say federal budget funding cuts wil  leave them less able to support vulnerable
support consultations on
Australians as the government rol s out widespread changes to services and supports. AFDO says
foundational supports and
some of the groups it represents are on ‘life support’.
DRC changes
  AFDO says the $10.6 mil ion over two years for DROS to co-design the changes to the NDIS aren’t
enough, as the work of their organisation goes beyond the scheme and their ability to contribute to
the review and service changes that wil  occur over the next decade.
State and territory matters
  "They're being asked by the federal government to begin delivering services and support which they
have not delivered for 10 years," he said.
  "They have made a submission to the inquiry saying the bil  is not what they agreed to."

Overall media narrative and media headlines
The main and enduring focus of media attention on the NDIS continues to be on the costs of the scheme, and perceptions of fraud and rorts.
Media attention on the specifics of the Bil  was initial y focused on the impact on states and territories health funding, along with concerns from
disability representatives around the lack of consultation and concerns about what services would be cut, and that the legislation would al ow
debts to be raised against PWD. This focus then shifted, firstly onto the Ministers concerns about the referral back to Committee by the
opposition which delayed the Bil , and then on the Ministers statements around specific measures to prevent people with disability from
accessing a range of supports such as sex workers and sex toys.
Over the period, non-bil  or cost related NDIS headlines have included a focus on NDIA procurement and contract management practices;
accepting gifts, as wel  as the NDIS pricing review, with reporting focusing on the risk that support coordinators wil  exit the market.
Time period
Headlines
Day of last hearing, to the end
Focus costs and fraud/rorts
of the fol owing week (14 June
  NDIS beyond Shorten’s skil s, so what about Ukraine
to 23 June)
  Dirty money laws to stem NDIS fraud

  block the wild west of the NDIS
  The NDIS is going to ‘cripple’ the economy

Focus state impacts including health system
  Shorten cal s on worried states to back wide-ranging NDIS reforms
  States slam sick delay
  United cal  for feds to act now on ‘national crisis’ in health
  Patients sicker as health system buckles in 'national crisis'
  Health ministers across Australia pen furious demands in open letter to Anthony Albanese
  States and territories receive hospital funding negotiation pause to 'catch up' on NDIS reform
  Funding plea as health system faces 'national crisis'
  Patients are flooding NSW hospitals in record numbers. The solution might be a bitter pil
Late June to early July (24
Focus cost of delaying the Bill
June to 8 July)
  NDIS delay to cost $1.1b as senators fly off to Brazil: Shorten

  NDIS vote delay to cost taxpayers $1bn: Shorten
Focus on cost of delaying the
  Delay ‘to cost the NDIS $1m per hour'
legislation
  Shorten furious over NDIS reform delay
  'Disingenuous' NDIS delay to cost $1 bil ion

  Bil  Shorten ‘horrified’ after Coalition and Greens team up and propose delay to NDIS bil
  NDIS to cost more than age pension
  Meter ticking on NDIS cost delay
  NDIS reform delays to 'burn $1 bil ion' taxpayer funds
  '$1bn delay': Shorten angry at NDIS reform bil  hold-up over human rights concerns
  ‘Ripping the guts out of it’: Pauline Hanson set to target NDIS abusers
  NDIS top-ups costing $5.5m more a day
  Coalition can stop the NDIS rorts. Why wait?

Focus, impact of the Bill on PWD
  Disability groups urge government to tread careful y with NDIS changes as minister gets in a tangle
with the senators over Brazil trip
  Bil  Shorten looks to reassure disabled Australians over NDIS overhaul
  Labor-led committee raises human rights concerns over NDIS bil  as Shorten blasts delays
  NDIS ‘unsustainable, out of control': Swan

Focus, NDIA matters not related to the Bill
  NDIA's procurement practices unacceptable, parliamentary committee finds
  NDIS cost pressure eases, as do checks
  Disability organisations 'on life support' say budget cuts wil  force them to wind back services
Early July onwards (from 9
Focus, funding of sex workers
July)
  Shorten wants payments for sex work, steam rooms, crypto banned on NDIS

  NDIS Minister Bil  Shorten said government-funded sex work wil  be scrapped under reform
  Sex work access under NDIS to be banned, removing supports for 'ordinary life', say disability
advocates
  ‘Sex toys’ in Hansard, Hanson in his suite as Shorten turns up heat
  No more charging sex work on NDIS
  Sex service ‘fails NDIS test’: Shorten says rules too loose, open to rorting
  Bil  to shorten NDIS subsidy list by axing sex worker al owance
  NDIS reform vital
  Shorten teaming up with Hanson on the NDIS tacitly endorses her views of disability
  Disability groups decry exclusion of sex work from NDIS. Bil  Shorten is wrong. NDIS clients need
sex workers like us
  Why are sexual services being banned from the NDIS?

  ‘Nobody swipes right for people in wheelchairs’: NDIS sex worker speaks on proposed reform
  Scrapping sex support won't save NDIS
  Try a little tenderness regarding NDIS sex work
  Why people with disability believe sex work should be part of the NDIS
  Wil iam uses NDIS funding to see sex workers. He says before that, isolation left him in 'absolute
despair'
  Report does not go far enough to save this scheme from breaking the taxpayer bank
Ban part of broader move to rein in spending
The ban is being sought as part of wider reforms to what funding can be used for, and a
crackdown over rorting in the scheme, as the government seeks to save bil ions in projected future
spending that threatens the sustainability of the NDIS.
In order to ban funding from being used for sex work, the federal government wil  need to pass its
reforms through parliament and then seek the agreement of state and territory governments.
Wil iam says if sex work is banned, it would reduce his opportunities for touch and intimacy — but
he worries more for others who might lose that completely.
"It needs to be looked at in the deeper sense of the mental health and the physical health of
people who need to engage with sexual services through the NDIS because they have no other
way of social y or intimately engaging with other people," he said.
"Again, it just seems like it's a matter of, 'Oh, you don't deserve that interaction with people, you
don't deserve to have a normal life'.