OSMAN:

From Schwartz Media, I’m Osman Faruqi, this is 7am.

The 14 billion dollar National Disability Insurance Scheme was established to provide people living with a disability high quality and tailored support. But leaked documents have revealed the federal government is proposing radical reforms to the scheme. The reforms will fundamentally change the scheme’s purpose and how it works, consolidating more power into the hands of a single politician.

Today, senior reporter for The Saturday Paper, Rick Morton, on the battle for the future of the NDIS.

OSMAN:

Rick, you were recently leaked some messages from a WhatsApp group chat. Can you tell me about the group and what you found out?

RICK:

So this group is all the state and territory disability ministers in Australia and the federal minister, which at the time was Stuart Robert. And they kind of convene on WhatsApp, this social messaging service, to chat about the day to day business of things that they need to decide as a group. But, you know, they've been consumed recently with discussions about what's happening to the National Disability Insurance Scheme. And the Saturday before last, just after lunchtime, it all exploded. So the group had been seething with anger for a while, but it really blew up after leaked changes to the National Disability Insurance Scheme were reported in Nine newspapers. And Emma Davidson, who's the minister for Disability, was the first to tee off, and she did it in a really big way. She wrote in the group, I may actually self combust with incendiary rage before this thing is over. And she took herself off the chat and said, I better do something more productive with my weekend than keep hammering this point. And I was speaking to other ministers in the chat and they were, across party lines, they were furious. And one of them was saying that, you know, Robert is basically happy to have state ministers begging to see a copy of the draft legislation. And according to Stuart Robert, although we can't verify this because nothing's been released, according to him, there's been 80 drafts of this legislation and no one outside the federal government has seen it. And as this one minister put it to me, not state ministers, certainly not people with disability. Nobody has been involved in this except the federal government.

OSMAN:

And what about you, Rick? You've been reporting on this area for a long, long time and have a lot of contacts in this space. Have you seen the draft legislation? Do you know what it says?

RICK:

Yes, I got a leaked version myself on the Friday afternoon after it appeared in Nine newspapers. And it is, god, it's bizarre reading because it is a full force kind of attempt to reshape the entire purpose of the NDIS. You know, it's alarming in terms of what it means for the future of the NDIS. And the document I've got actually has these tracked changes all the way through the existing NDIS act. So you can see what the government is cutting out, where they are trying to fillet the original intentions of the scheme and you know, you can see whole clauses that have been removed and entirely new ones that have been added in. And the thing that stood out to me immediately was something that I previously reported was likely to happen in December last year. Was that Stuart Robert, who now has moved out of the portfolio, but he was given the one thing he wanted, which was a God power to the federal minister, which allows him or her to reshape the NDIS as they see fit.

OSMAN:

Right, can you tell me more about this “God power”? How does it work?

RICK:

So the document I have is dated December 2020, and it does reveal this seismic shift in the way the NDIS is conceived. And central to this is a new ability of the Commonwealth minister to make so-called rules at any time, which the chief executive of the National Disability Insurance Agency must follow when interpreting the legislation. Now, this is huge because previously most of these rules had to be decided by unanimous agreement with the states and territories, which meant that any one jurisdiction could veto a rule. Most of these powers of veto for the states and territories were abolished in this draft legislation.

On top of that, the draft legislation includes an expanded debt recovery power. This is huge. This expanded debt recovery power would allow the National Disability Insurance Agency to claw back money from participants who breach these so-called new rules and which is extremely worryingly similar to robo-debt. In effect, the agency could raise a debt on an individual person if they spent NDIS funding on, quote unquote, ordinary living expenses or on a service the Commonwealth minister decides should have been funded by a state or territory government.

OSMAN:

Right. So these reforms remove quite a bit of power from state and territory governments. They only hear about this when it's leaked and then they start to fire up in this group chat. So what happened when that happened - when they started messaging Stuart Robert in the WhatsApp group?

RICK:

Well, I mean, everything and nothing. So, you know, Stuart Robert is in this chat when they blow up, you know, it's where they talk and attend to matters of logistics and semi-serious things about disability policy. But after Emma Davidson's post, a couple of the others, you know, kind of message asking Robert for the legislation and he never replied. And then he left the whole thing on read for the weekend. And it was only after Scott Morrison's Monday cabinet reshuffle. So this is three days later, Morrison upends the entire cabinet. He takes Stuart Robert from the NDIS portfolio and puts him in as minister of Employment, Workforce Skills, Small and family business. And Robert popped back into this WhatsApp group chap and he tells the other ministers he's removing himself from the group and he's adding in the new minister for the NDIS, Linda Reynolds.

Now, Reynolds, you’ll remember, was on paid medical leave following revelations about her handling of former Liberal staffer Brittany Higgins's rape allegation. And she politely said hello to the ministers with whom she would soon be working. And they, of course, sensed an opportunity to ask again for the draft legislation that fundamentally changes the way states and territories interact with the NDIS. And Reynolds did not reply.

OSMAN:

We'll be right back

[Advertisement]

OSMAN:

Rick, what's the impetus for these changes? Why is the government so keen to amend this particular part of the NDIS framework?

RICK:

Well, a lot of this comes down to a single case in which the National Disability Insurance Agency was forced by the Federal Court of Australia to pay funding for a sex worker for a woman with multiple complex disabilities and health conditions. And Stuart Robert, who's an evangelical Christian, was furious about that decision.

Archival Tape -- Stuart Robert:

“The federal court has now ruled that the provision of sexual services, prostitutes, if you like, would not be precluded from that, a case was brought forward to it. Now, we don't believe that that's in the spirit of what the Australian people are funding the NDIS through their taxes.”

RICK:

And it kind of allowed him, gave him a Trojan horse, to remake the National Disability Insurance Scheme in his image.

Archival Tape -- Stuart Robert:

“The Commonwealth has never paid for prostitutes, it's never used taxpayers money, and nor have the states and territories.”

RICK:

And you'll note the way that Stuart Robert used the word prostitutes multiple times in his radio interview trying to sell this change because that was a tabloid easy sell for him the way he saw it.

Archival Tape -- Stuart Robert:

“Because we don't believe that taxpayers funds should be used for prostitution services. And by the way, an estimate I have on the cost if this goes forward starts at half a billion per annum.”

RICK:

It was very political in his use because, you know, he was essentially saying taxpayers are going to fund sex workers for everyone in the NDIS. Which was an argument that the agency essentially made in its submissions to the federal court and they were laughed out.

OSMAN:

So basically you’re saying that because Stuart Robert didn’t agree with this one particular case, the federal government has now rewritten all of the NDIS legislation to give the federal minister more discretion?

RICK:

Precisely. And more importantly, sex work is not mentioned anywhere in this redrafted legislation. They've moved the power for the rule, which means he can make a rule for anything and any future minister can make any rule for any part of the NDIS they decide shouldn't be funded. And the only thing they need to do is get it through the parliament and the states and territories will have no veto. So this goes far beyond sex work. Legal experts call these Henry the Eighth powers. I spoke to one who said that you cannot get a more pure power grab. This is God power. In law, Henry the Eighth clauses are often subordinate pieces of primary legislation. So in this case, you've got the minister making NDIS rules that are secondary to the NDIS Act. But these rules subvert or amend the legislation itself, typically through executive power. So this consolidation of power continues throughout the document.

OSMAN:

Mm.

RICK:

Then there is the controversial addition of the Independent Assessments. You know, government contractors who will examine disabled people to determine their functional needs.

Archival Tape -- Unidentified Reporter:

“Dr George Taleporos is the acting chair of the Victorian Disability advisory council, he participated in the pilot process for the new independent panel assessments and he said it was a very confronting experience.”

Archival Tape -- Dr George Taleporos:

“So it goes for about three hours and the questions are very repetitive, they are very personal, one example is I’ve just met this person and they ask me about whether I need support to have sex.”

RICK:

The reason the agency wants to bring these in is because they don't trust the reports and evidence being given to them by treating health professionals that have seen people with disabilities for years and with whom they have a professional health-based relationship.

Archival Tape -- Dr George Taleporos:

“The problem we have is that the decision about this was made with very little consultation, and that's a problem. and I want to work with the government to get to a point where we have a process that is fair and effective.”

RICK:

The agency wants someone else to do these assessments so that they can essentially gerrymander the results and to have something far more clinical and in their view, objective, although the jury's out on whether that would actually be the case. So that's an important element in what comes next in what people, particularly advocates and Labour opposition spokesman Bill Shorten, are calling robo-planning.

So when these assessments are done, a number or a score will be given to their functional need. There'll be a computer algorithm that combines that with the person's age and some kind of very basic environmental circumstances and social factors. And that computer algorithm, that software will spit out what they call a draft plan budget. Now, that takes away the individual nature of what has been happening in the NDIS since its inception.

OSMAN:

RIght, so we have these new independent assessments as well as a raft of other significant changes to the NDIS, including the proposed new God powers. This all sounds like a pretty big overhaul of how the scheme works. You’ve said that one of the motivations here is about centralising power but the Coalition government has previously expressed concern about the costs of the scheme, so how much of this is also about cutting costs?

RICK:

Well, I mean, there's a lot that factors into it, and I've been writing about this since 2013 and all along, particularly in the Coalition, there has been what I would describe as anxiety at what they perceive to be an open ended, uncapped insurance scheme, and they were, you know, the way they view it, they were done over on the initial deals that were struck by the Gillard and Rudd government with the states. And so under the NDIS, 100 percent of any cost overrun in the planned budget is born by the Commonwealth. So this is a massive grab bag of power, of the ability to change the rules in the news and the ability to constrain funding. And that is what it's all about. I mean, I'm not just saying that that's what people in the agency have told me.

They can't have, in their own view, you know, support packages growing on average 10 to 15 percent every year, which is what has been happening so far. So this is all about cost control. So, they have been telling mistruths all the way along about what the intended effect of these changes are. And now we have the evidence of what they're trying to do. It it would in my view, it would cease to be the National Disability Insurance Scheme if they were passed

In essence, what we have now is the total ability of the minister on his own to rewrite the legislation in perpetuity through the use of rules that have more force. Courts hate these, by the way, they do exist elsewhere in government. But the changes to this legislation, if they get past the parliament, cement these rulemaking god powers with the commonwealth in perpetuity.

OSMAN:

Rick, thanks so much for talking to me today.

RICK:

Thanks. I really appreciate it.

[Advertisement]

OSMAN:

Also in the news today…

Prime Minister Scott Morrison has hit out at the European Union after more than 3 million doses of the Covid-19 vaccine due in Australia remained stuck in the EU. European officials said they had only blocked a shipment of 250,000 doses of the AstraZeneca vaccine, but Morrison said the EU had failed to grant an export license to the remaining 3.1 million doses.

Meanwhile, the NSW government is establishing a mass vaccination hub in Sydney to speed up the state’s rollout. The new immunisation centre will be capable of administering 30,000 doses of the vaccine a week.

I’m Osman Faruqi, this is 7am. See ya tomorrow.