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NDIS Bill - Time for Closer Examination

24 January 2013 at 8:49 am
Staff Reporter
As more than a thousand submissions have been made to the Senate Inquiry into the National Disability Insurance Scheme legislation, the President of the Victorian Disability Services Board and systemic advocate for inclusive practices, Tricia Malowney puts her magnifying glass over the Bill.

Staff Reporter | 24 January 2013 at 8:49 am


NDIS Bill - Time for Closer Examination
24 January 2013 at 8:49 am

As more than a thousand submissions have been made to the Senate Inquiry into the National Disability Insurance Scheme legislation, the President of the Victorian Disability Services Board and systemic advocate for inclusive practices, Tricia Malowney puts her magnifying glass over the Bill.

Over the holidays among my light reading was the NDIS Bill. While I think that a superficial reading makes it look pretty good, there are a number of points which I think need to be addressed, or re-examined or added.

The Government has called for submissions in relation to the Bill and submissions close on January 25, 2013. The cynic in me says that the timing is set so that they get a small number of submissions and are able to push it along without too much commentary or controversy – introduced and first and second reading in November 2012, which is AGM month so everyone in the Not for Profit Sector is flat chat doing annual reports and getting it all organised – December is spent ensuring that clients have access to services over Christmas, and January sees many people on leave.

Well, I’ve got news for everyone, regardless of other pressures Australians with Disabilities, our families and friends and the service sector have been waiting with baited breath for the opportunity to comment on this Bill.

There is still time to put in your own submission, and if you want to piggy back on my comments, feel free to do so.

I believe that the Bill needs to have acknowledgement that the majority of Australians with disabilities are able to make decisions on their own behalf, regardless of whether their legs work or not, or they have a communication disability or they can hear or they are blind.

Having said that I welcome the acknowledgement in Section 5 that when a person makes a decisions on behalf of another, those decision made must be those which the Australian with a disability would make, were they able to do so. This is truly a step in the right direction. My only quibble would be that we need to add the words where appropriate at the end of Section 4 (12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected. Not every person with a disability wants their family involved in the decision making process. I know that I don’t want my Mum telling me what services I need.

I am very keen for the NDIS to get up. After all, once I finally found what the disability requirements were in Section 24, under the Bill, I fit the criteria
Section 24 (1) A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
(b) the impairment or impairments are, or are likely to be, permanent;

(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self?care;
(vi) self?management; and

(d) the impairment or impairments affect the person’s capacity for social and economic participation; and

(e) the person’s support needs in relation to his or her impairment or impairments are likely to continue for the person’s lifetime.

(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person’s support needs in relation to such an impairment or impairments may be likely to continue for the person’s lifetime, despite the variation

Mind you, I may still not get to participate, I turn 60 next year, and I can’t be considered for the NDIS if I apply once I turn 65. It’s not my fault if they can’t get their act together by then. And what about my cohort who has been waiting for services for years, and who are over 65 already, despite being diagnosed prior to 65. Stiff bickies according to the Bill. This is substantially different to what we were told in consultations. We were told that it was about time of diagnosis, not time of application. Can I apply now please? Or will my disability disappear once I turn 65? Oh happy days!

In Part 1, it clearly says that a person must request to be a participant in the NDIS – and that it must be in the form approved by the CEO – surely in this day and age, it needs to be in a format which suits Australians with disabilities, and our families and supporters. It is hard enough without having a CEO having the power to decide how we need to make an application. Surely it needs to be clearly stated that we have the right to be able to make the application in a format and in a way that suits us, including orally or via text or in Braille or in easy English, if that is what we need.

I am very concerned about the lack of a transparent, independent complaint mechanism which is independent and external to the agency. Talk about disempowering – I don’t like what you have decided to do for me – that’s fine, you will appoint someone within your organisation to review your decision.

Let me give you an example of what I mean:
Section 48 talks about the CEO having the power to conduct a review of a plan. So an Australian with a disability asks the CEO to review the plan, if the CEO doesn’t respond after 14 days, it is deemed to have been denied. What the… and yet the CEO can decide to conduct a review at any time. Hmm sounds like a power imbalance to me.

So I have asked for a review and I don’t like the response or the CEO has decided they won’t do a review, so what can I do. Well, according to Section 99, these are reviewable decisions so I can have them reviewed.

So under Section 100 – Review of Reviewable Decisions –
5. (a) the CEO receives a request for review of a reviewable decision; or
(b) the CEO is taken to have made a reviewable decision because of subsection 21(3) or 48(2);
the CEO must cause the reviewable decision to be reviewed by a person (the reviewer):
(c) to whom the CEO’s powers and functions under this section are delegated; and
(d) who was not involved in making the reviewable decision.

In other words I can ask the CEO for a review and the CEO must appoint a person from their own agency to review the decision that the CEO has made. Power imbalance is rife in this section. Gee thanks, that system works really well in the aged care sector.

As well, to me this looks very much like Victorians with disabilities will be worse off under the NDIS. In Victoria we have the Disability Services Commissioner, who is an independent commissioner to whom complaints can be made about the decisions made, about service deliver and who can assist in mediating and conciliation, and who also has the power to conduct investigation and impose penalties.

Without an independent complaint mechanism, which has the power to conduct investigations, whether referred by the Minister or instigated by the independent, and impose penalties where needed, we will continue to see substandard treatment of Australians with Disabilities.

The Bill is completely silent on the issue of abuse of Australians with Disabilities – we all know it occurs, and we all want it eliminated. Where in the Bill does the provider need to be of good character, where are the police checks? Where is the need for a register of service providers who have failed the test of good service provision? You know, the ones who are transferred or who lose their job at one agency only to appear at another service provider. Or are these all going to be in the rules?

And of course, the Bill is completely silent on the issue of diversity. Where is the acknowledgement of the need to provide culturally sensitive services for Indigenous Australians with Disabilities or CALD Australians with Disabilities, where is the acknowledgement of gendered service provision. Where are the guarantees that church based service providers will not be able to refuse service delivery if I am GLBTI or Atheist or a single parent? What if the provider does not approve of my lifestyle choices? We know that these are already issues for Australians with disabilities. Where are the protections for us?

Nothing about us without us has been the catch phrase which underpins the social justice agenda of Australians with disabilities and our families.

While the Bill talks of the inclusion of Australians with Disabilities on the Board, it does not provide an opportunity for Australians with Disabilities to apply to be on the Board. A little bit of a cherry picking opportunity for the Minister to get people who will support his/her agenda? We need the Board to be open and transparent. In addition, where is the requirement for the agency to employ Australians with disabilities? We all know how badly Australia does in relation to employment of people with disabilities when it is compared to other OECD countries. Well here is an opportunity to lift our game. EMPLOY US.

There are many Australians with disabilities who have the necessary skills and experience. We just don’t get a go.

We need all of you to put in a submission to the NDIS – feel free to pick up on what I have said, others will have a different take on it, but the Bill needs to be discussed.

Put in a submission, go on, do it now. There is even an easy form to fill in if you need to.

You can find it at> and you can find a copy of the Bill at

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