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ASHLYNNE:

From Schwartz Media, I’m Ashlynne McGhee. This is 7am.

There are two things to know about the National Disability Insurance Scheme, the first is that it makes such a huge difference to so many lives. And the second is that it’s wildly expensive and getting more so each year.

So how to reconcile those two things, well the government is trying to do just that with a new piece of legislation that’s been shrouded in secrecy for months.

Today The Saturday Paper’s Rick Morton on the holes in the legislation and why it could hand the disability agency extraordinary new powers.

It’s Wednesday June 5.

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ASHLYNNE:

Rick the NDIS is one of the biggest schemes we've ever had in this country. Can I ask you first about the state of the NDIS today?

RICK:

Yeah, I mean it is an extraordinary scheme and there's nothing like it anywhere else in the world where the first jurisdiction to kind of come up with an insurance model for people with profound and severe disabilities who need support living their lives, it's not welfare. It's a scheme to actually, you know, give them support workers, help them get out of the house, purchase new wheelchairs, therapy, things like that.

And it's a little over a decade old now. It began in 2013 and it's had a few teething problems, I think it's fair to say. And certainly one of the elements that has been the kind of a lightning rod for every discussion has been that it's growing massively in cost.

Audio excerpt – News Reporter:

“The ABC can reveal forecasts will show the cost of the NDIS rivalling that of Medicare within three years. More than $30 billion annually.”

RICK:

And then, of course, when you've got a big bucket of government money, you've got dodgy contractors, dodgy providers.

Audio excerpt – News Reporter:

“Rorters are on notice. For too long they've been using the NDIS to line their own pockets, while people living with the disability and their carers are short changed.”

RICK:

That's the backdrop to where we're at now. And so by the time Bill Shorten gets into government with Albanese as prime minister, it's his second time around as a minister, he is fully of the view that there needs to be reform.

Audio excerpt – Bill Shorten:

“The National Disability Insurance Scheme is here to stay. It is not going away. But and this is important, we do need to get it back on track.”

RICK:

It's not completely beyond redemption, but it needs to get back to the original focus of what the NDIS was meant to be, which is kind of like really good, thorough support for the, you know, 500 and 600,000 people most in need out of a population of about 4 million people who have some form of disability in Australia.

Audio excerpt – Bill Shorten:

“The NDIS has changed the lives of hundreds of thousands of Australians with disabilities and their families.”

RICK:

And the NDIS review was finally released in the first week of December last year.

However, since the NDIS review, the government went a little bit quiet. They hadn't actually responded to the NDIS review and then all of sudden in March, the Minister for the NDIS, Bill Shorten, kind of surprised the disability advocates when he gets up in Parliament and introduces legislation that amends quite significantly the National Disability Insurance Scheme, with the promise of allowing disabled people co-design and consultation on the finer aspects of it down the track.

Audio excerpt – Clerk of the parliament:

“First reading a Bill for an act to amend the National Disability Insurance Scheme Act, 2013 and for related purposes.”

Audio excerpt – Speaker of the house:

“Call the honourable Minister.”

Audio excerpt – Bill Shorten:

“Thank you.”

RICK:

Nobody had seen the bill at this point. Those who had half an hour earlier were forced to sign non-disclosure agreements. But of course, Shorten gets up into the House of Representatives to talk about all of this. And he essentially says, you know, we need to make the NDIS secure for future generations. We need to make it safer for people who use NDIS support services.

Audio excerpt – Bill Shorten:

“I can respect nervousness, which might be caused by this discussion. I just want to reassure these people who've battled hard to create NDIS and to get their packages and support. We will work with you to make sure that people are getting the right support in the right way. Under this government this scheme will continue to grow.”

RICK:

And so I've been talking to people as I've been getting their heads around this, but particularly, you know, disability advocates, who are involved in the participant reference group on the National Disability Insurance Scheme, but also National Disability Legal Services. And they've got, they've got some pretty significant concerns.

ASHLYNNE:

Right. So as people are getting to spend a bit more time with the legislation and getting to a bit more of that detail, what kinds of things are they discovering there?

RICK:

I think the main issue is that A) they're worried about why we're doing the legislation right this second, because what it does is kind of sets in concrete a lot of new powers for the government and the National Disability Insurance Agency, which runs the NDIS.

A really good example of that is this new needs assessment. It's a new way for the agency to issue orders to get reports and an assessment based on a tool that we don't know what it is yet. We don't know who's going to administer that tool. So it's some kind of it's not a medical assessment, but similar to if you're doing a, like an ADHD diagnosis test or an autism test, but it's something for all disabilities which doesn't really exist.

And importantly, what this new legislation does is kind of says that we're going to come up with a budget, a NDIS support budget, based on an outcome of that needs assessment, but we don't know any of that detail.

Now, this particularly concerns people because it does have some kind of eerie similarities to a 2021 push from then Coalition government to introduce mandatory, what they called independent assessment. So essentially they said you can't use. If you're treating doctor or you're treating therapists anymore, we're gonna get government appointed independent assessors to tell us what your functional need is, and they're going to tell the NDIS how much support you need.

The concern here is that the drafting here is so bad that there are a bunch of, perhaps unintended consequences where the needs assessment doesn't look like it can be reviewed. If someone gets it wrong. And of course, the bill was almost immediately referred once it got to the Senate, to the Community Affairs Legislation Committee for inquiry.

And then when you get to the Villamanta Disability Legal service, submission and they again, they represent clients who are kind of fighting the National Disability Insurance Scheme. Their submission is one of the most damning that I've ever read in any inquiry.

They eventually go on to say that this kind of needs assessment model that has been introduced in this legislation, and the way in which it seems to tie automatically into a budget tool decision, Villamanta said that if this were to get up, this would be the NDIS equivalent of robodebt in the sense that we're talking about automated decision making based on inputs that aren't really controlled or reviewable by unknown needs assessors, and you don't really have much say in the matter.

ASHLYNNE:

Rick, we've just talked about how there was this big review into the NDIS. But just to clarify, this legislation isn't a response to that review. This is separate.

RICK:

Well, the review gave 26 recommendations. And this legislation focuses on giving the government and the NDIA more power and all of the good stuff, quote unquote. It's not here yet. It's promised, it's not delivered. And now we're been promised again that that's going to happen and that we just have to wait for it. But this bill has come first. And that's the key issue that a lot of people have with this at this current point in time, which is why are we doing this now?

And I think a really good example of that is that there is this discussion about primary and secondary disabilities. I won't go into the full background, but currently under the NDIS, they've been quite inconsistently with the current law, giving people access to the NDIS and then deciding what funding they'll get based only on a primary disability. So if you're someone with a spinal cord injury who also has a serious psychosocial mental health disability, they might say your spinal cord injury is your only disability and they just ignore the secondary ones because to them they're like, well, we gave you access on the spinal cord. So we're going to give you some support workers to help you, you know, feed yourself, get dressed, shower, all those sort of things. But we're not going to help you with any of the kind of social anxiety when you have outings or something like that.

Now, that's not what they're saying in public. Like even in the Parliament, when Bill Shorten got up to talk about it, he said your needs assessment will look at your support needs as a whole, and we won't distinguish between primary and secondary disabilities any longer. But the bill explicitly and repeatedly states that only impairment for which a person meets the criteria should be assessed, which means if you've got a lower level disability that wouldn't otherwise get you on the NDIS, in addition to a quote unquote primary disability, it's just not formally part of the assessment. Under the way, this bill is currently drafted.

So when you take all these things together, the changes that are proposed in the new legislation create what some people are saying is it's kind of like a stunning new matrix of uncertainty that disabled people or their carers or family or guardians will be expected to navigate. And it explicitly ties failure to do that to increased punishment or kind of consequences if you get it wrong.

ASHLYNNE:

After the break – A focus on debts and compliance, and what that could mean for people on the NDIS.

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ASHLYNNE:

Rick, you’re someone who spent years of your life covering robodebt, and I'm sure your ears prick up at any kind of legislation that talks about retrieving debts. What do we know about the powers in this legislation to pursue debts in the system?

RICK:

This is the stuff that kind of really gets my spidey sense tingling up these days, because I've got a long memory. And so when I was covering this in 2021, I received in the Coalition at the time, Stuart Robert and then Linda Reynolds were trying to get this new legislation up and forth through independent assessments.

Audio excerpt – News reporter:

“The minister denies there's been a lack of consultation. He says independent assessments are part of the scheme's original design.”

Audio excerpt – Stuart Robert:

“Now is the time to do the last piece of the bill. We're now on the second trial of independent assessments.”

RICK:

I received a leaked copy of the internal drafting of the new legislation at the time under the Coalition, and I had all the NDIA agency directors and branch managers commenting on what they wanted and how it was going to work.

And one of the people commenting on that was one of the architects, internally of robodebt, and they were very enthusiastic at the time about trying to get up an explicit linking. In fact, this is one of their comments that the debt that the agency was raising was against the disabled person, not against a third party provider, because that's too hard for them to get back, but against the person receiving the NDIS support money.

And then later on they kind of go further by saying, my reading of this is that it provides a clear legislative basis for stopping future payments until we have received previously requested information and documentation. That was a separate section where there was a new information gathering power, which we've seen resurrected under this new bill. So there's a new power under this legislation that Bill Shorten's put before the Parliament that allows the CEO to demand any information that they see fit, literally anything if they're making a decision about revoking someone's access.

And so taken together, you know, you've got the ability to raise debts against people. You've got the ability to demand information from people and then revoke their access to the scheme, which has never existed in that form in the NDIS before. And you've got these sections from 2021, which were essentially a wish list from the agency, which they never got at the time because the opposition led by Bill Shorten, not led by but the campaign was led by him as the opposition spokesman on NDIS matters.

Audio excerpt – Bill Shorten:

“For the past eight years, we've seen successive Liberal governments have continuously gone low when Australians are demanding the high road for people with disability. We cannot forget that this is the government who illegally forced thousands of Australians, many of whom were extremely disadvantaged, to repay back money they never owed in the robodebt scandal. There has been colossal mismanagement of the NDIS at the very top, and it's people with disabilities who are being required to pay for the mistakes of others.”

RICK:

They killed that reform and they killed independent assessments. And of course now within some elements of that reform back on the table.

ASHLYNNE:

You've been talking to a whole lot of people right across the disability sector about what this new legislation would mean for them if it passes. Can you talk me through what it would mean for someone who is on a care package payment, play me out a hypothetical?

RICK:

This is pretty easy to do, actually, because we already see some pretty dodgy behaviour from the agency now. If you're, you know, a person with a disability and you've got an NDIS funding package, and they've given you under the new legislation they've given you, some of it is stated support, whether you have to spend it on certain things. So it's like you have to spend it on an OT therapist or a speech pathologist.

But then some of it's flexible where it's like, well, you know, we've given you a, you know, let's say $10,000 that you can spend on things that, important for your disability that help you function in the world. Now, if at a later date, you've spent $5,000 of that on, respite. And because the respite brochure includes other things like horse riding, or something like that, and the agency decides, well, actually that's not appropriate, even though they haven't done the full investigation into what you spent the money on, that was not an approved NDIS support. You need to pay that money back. So they're raising a debt against you even though you have already paid for the service. And so you don't have that $5,000 anymore. And you made that decision in perfectly good faith. Suddenly this compliance measure calls money back from you. If they don't want to raise the debt against you, they can decide that actually, you're not capable of managing your own plan anymore, and they're going to make it agency manage. So they're going to restrict your choice and control.

I don't want to be alarmist, but it's almost like a cashless debit card in that sense for NDIS support plans, if they think you've done the wrong thing.

Now, Bill Shorten and the Department of Social Services have come back to me on this and said, no, no, no. We we've thought assurances it will only ever be used in extreme cases, particularly around fraud, which is what they are really worried about, and people spending money on their own things. And no one argues that you shouldn't do something about that. But the problem is. This has been put to me by legal academics and legal aid people, is that the legislation doesn't say that it gives the power whole less bowl less to the agency.

So really what we're talking about here is that if this law gets passed and in the future, the NDIS CEO says, hey, we need you to give us all of your medical history. And also every time you've ever visited, a certain type of clinic. And if you don't, we're going to turn off your support package or kick you off the scheme altogether. And, you know, let's say you've got a massive, profound cognitive impairment or you don't have family around you and you don't respond to that request or you can't get those documents within 90 days, it's quite likely or possible that you can get kicked off the scheme or lose your funding and support, and you've got nothing. People have been crushed by the bureaucracy, and we've seen it happen time and time again within the existing infrastructure.

ASHLYNNE:

Right. So what's Bill Shorten had to say about all of this?

RICK:

Well, you know, he's very, he says there's no ego involved in this. So he's he's kind of foreshadowed that there's going to be a bunch of different amendments still coming to this legislation.

Now, Bill Shorten says that, you know, never in the history of modern Australia has the government done more work with disabled people, more consultation with disabled people to come up with a way to help support them?

Shorten a lot of his legacy is tied to the NDIS. And now that he's the minister 11 years down the track, there is so much riding on this moment, this legislation, this reform, in terms of how we see the rest of that legacy play out.

ASHLYNNE:

Rick, we've been talking about how much the NDIS costs and how much it's projected to growing costs. And of course, that's why the government is promising some kind of reform. Like I think that sort of everyone agrees that has to happen. So if we're talking about a context of cost savings, what's wrong with focusing on compliance?

RICK:

Yeah, I mean, the problem with compliance and I think, Robert, it is the extreme version of this. Right. But the problem with compliance in general is that it's really actually quite expensive. But also the cost to people is extremely harmful when it's weaponised and change needs to happen. But my concern had always been that it's going to be people on the NDIS who were promised something, who were going to have that ripped away.

And the fear is what happens after Bill Shorten, what happens with the next government, what happens when compliance becomes the easy way to get money back? When you start to see fraud and rorting and compliance issues, suddenly everything looks like fraud and rorting and compliance issues when really what you're looking at is the compliance brain.

People thought everyone in robodebt were criminals. And when you get compliance brain, you see them wherever you go. And the NDIS is a place where you can't afford to get that wrong, because we're talking about people who are already fighting this kind of crazy bureaucracy and constantly being told that they're a burden on the system when they just want to live lives and contribute to society. And that's what the NDIS has allowed them to do. When it works well for people, it works so well, and when it doesn't, it's typically because people don't have the capacity in their own lives to fight for themselves.

And this is certainly what disability advocates are worried about is like, you know, talk is cheap and we've got a culture problem, and now we've got this legislation before, we've got all the other stuff that we were promised. What’s going to happen down the track?

ASHLYNNE:

Rick, thanks so much for your time.

RICK:

Thanks Ash.

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ASHLYNNE:

Also in the news today…

Defence Minister Richard Marles has announced a timeline for allowing non-Australian citizens to serve in the Australian military.

Marles said that as a part of a plan to grow the number of recruits, New Zealanders who have been residents for more than 12 months will be able to serve from July this year – followed by Americans, Canadians and UK citizens from January next year.

And…

The NSW government has said it’s ‘concerned’ by an Indigenous hip hop artist’s song being played in schools.

The song, by rapper and activist Birdz, is written from the perspective of an Indigenous warrior and refers to captain cook as “white devil” – and it was used as a School Bell at a School in Sydney’s south during reconciliation week.

The NSW education department has launched an investigation, with premier Chris Minns declaring that “Rap songs, in general, probably not the best for NSW schools.”

My name is Ashlynne McGhee. That’s all from the 7am team today, thanks for your company. We will see you again tomorrow.

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