by Jackson Reynolds-Ryan
This year has seen the introduction of some big changes made across the disability sector by the Federal Government, with more on the way.
These changes have been driven by last year’s release of two major reports – the Final Report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, otherwise known as the Disability Royal Commission (DRC); and the Report of the Independent Review into the NDIS. These two massive areas of reform have spawned a number of other reports, working groups, and task forces to determine how implementation should proceed.
This article provides a summary of some of the changes that have taken place this year, and how we got here.
NDIS Reforms
The Federal Government introduced legislation to begin the process of reform of the NDIS – in the form of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill – in March this year. At the time we, along with many across the disability sector, expressed our disappointment that the government had not fulfilled its pledge to co-design NDIS reforms with the disability community. Consultation with the disability sector, where it occurred, was limited in time and scope.
The final version of the legislation, which included several amendments to the original Bill, was passed by both houses of Parliament in late August and received Royal Assent (sign-off from the Governor-General) on Thursday, 5th September. The legislation began to come into effect on Thursday, 3rd October 2024.
One of the major changes introduced by the Bill and recommended by the NDIS Review is to amend the Act so that participant needs will be assessed at a ‘whole-of-person’ level, rather than based on individual support items. This means NDIS budgets will be set at that whole-of-person level, rather than built line by line for each support need. Similarly, the effect of amendments in Section 34 is that ‘reasonable and necessary’ will refer to a participant’s plan as a whole rather than individual support items within a plan such as daily living care, therapy-based care, etc.
The original NDIS Act 2013 did not provide a clear definition of what a NDIS Support is. This has changed in the updated legislation, with a new section added (Section 10) aiming to provide clarity about what NDIS can and cannot be spent on. The legislation itself doesn’t actually go into detail about the specifics of what constitutes a NDIS Support, instead setting up a process by which the Federal Government will develop detailed rules in consultation with the State and Territory Governments. However, as those new rules will require unanimous sign off from all governments (which is likely to take significant time to come to agreement), the legislation also allows the Federal NDIS Minister to introduce ‘transitional’ rules, which can be put into effect without the approval of the States and Territory Governments.
The Government subsequently undertook a very short period of consultation before developing a transitional rule on what are (and are not) NDIS supports. While many of the items included in the lists of excluded supports – such as spending NDIS funds on drugs, gambling, etc. – are common sense and supported by the sector, BCA was concerned that the first draft of the transitional rule also included “standard household items (dishwasher, fridge, washing machine etc)” as well as “mobile phones, mobile phone accessories … and smart phones”. Given the very thin line between ‘mainstream’ smart devices and assistive technology that can significantly support the independence of a person who is blind or vision impaired, BCA opposed these inclusions. We have been encouraged therefore that in the final version of the transitional rule, which came into effect on Thursday, 3rd October 2024, these items have been re-categorised into a new group the government has called ‘Replacement Supports’. This will mean these items may be funded in place of an approved NDIS Support, if the participant can demonstrate it is related to their disability and provides better value for money.
The Final Report of the NDIS Review also included a recommendation for compulsory registration or enrolment of all NDIS providers and workers. This recommendation was framed as a way to improve visibility and regulation for all NDIS providers in a bid to improve safety for participants; however, many participants were concerned it would limit their ‘choice and control’ in decisions about how they received supports from, as well as concerns for market failure if providers chose to leave the Scheme.
In response, the government set up a Taskforce – chaired by disability rights lawyer and activist, Natalie Wade – to consult with participants, providers and the broader disability sector, and advise the government on the design and implementation of a new registration system.
After holding public consultations between February – June, the Taskforce found that the current registration system is not fit for purpose and that greater visibility is needed on who is provided NDIS Supports. However, the taskforce disagreed with the NDIS review that all providers should be registered, but said a new risk-proportionate model is needed and proposed the following categories of registration:
Advanced Registration for providers who offer high-risk supports such as behaviour support and services in high-risk / closed settings – such as group homes and supported employment.
General Registration for providers who offer medium-risk supports such as personal care, high intensity daily personal activities, community access and therapy where there is a lot of one-on-one contact with people. These supports are provided in the community or private settings, distinguishing them from Advanced Registration. The Taskforce anticipates this category will capture most of the current disability support services that are delivered in-home or in the community.
Self-Directed Support Registration for participants, their guardian or legal representative who contracts all their support directly. This includes direct employment, Services for One and independent contractors.
Basic Registration for providers who offer lower-risk supports – such as some sole traders or supports where social and community participation involves limited one-on-one contact with participants.
The Taskforce also proposes a fifth category where no registration is required. This is for goods bought from mainstream retailers, with visibility maintained through purchasing arrangements.
The Government has noted they are considering each of the recommendations contained in the final report from the Taskforce and will commence consultation on the development of a new model from October 2024.
Ultimately, the government has flagged that further reforms are coming to the NDIS, with a promise to work collaboratively with the sector to develop and implement the changes – a commitment BCA will continue to hold the government to account for.
Disability Royal Commission
In late July, the Federal Government released its official response to the Disability Royal Commission (DRC), 10 months after the Final Report was handed down last September. The government responded to 172 of the 222 recommendations that were their primary or shared responsibility with the states and territories.
Of those recommendations, 13 were ‘accepted in full’ (meaning the government supported the recommendation in its entirety); while 117 were ‘accepted in principle’ (the government is supportive of the overarching policy intent but might consider different approaches to implementation). A further 36 recommendations have been flagged as ‘requiring further consideration’ (while the government awaits outcomes of related inquiries or other consultation), and six were ‘noted’ (neither accepted nor rejected because the government considers the recommendation to be outside their area of responsibility).
Some of the key recommendations the government ‘accepted in full’ include a plan to review and update Australia’s Disability Strategy (Rec. 5.2), refocused priorities for inclusion in the new Disability Employment Services model (Rec. 7.16), new education and training resources for Disability Employment Services staff (Rec. 7.17), and an ‘open employment first’ approach in the NDIS Participant Employment Strategy (Rec 7.29).
One of the most important areas of reform for people who are blind or vision impaired coming out of the DRC was ‘Recommendation 6.1’ – a National Plan to promote accessible information and communications’. The DRC recommended that the Australian Government work with the State and Territory governments to develop this plan, in co-design with people with disability and their representative organisations. The DRC recommended that the plan recognise the diversity of people with disability and the many formats and languages that people may require information to be provided in and should identify and allocate appropriate funding and resources for delivery.
The DRC envisioned that this Associated Plan would cover not only accessibility of communications technologies; but also ‘accessible information and communications for people with disability more broadly’, considered across a range of contexts, settings and situations. It would include how and when to provide material by means of Easy Read, Easy English, Auslan, live and closed captioning, braille or audio description, and digital accessibility – including compliance with Web Content Accessibility Guidelines.
The Australian Government has accepted Recommendation 6.1 ‘in principle’. They noted, in a joint statement with the States and Territories, that all governments support the development of an Associated Plan under Australia’s Disability Strategy 2021–31 to improve the accessibility of information and communications for people with disability; and committed to leading the development of the Associated Plan, building on existing initiatives to deliver a unified approach. Given the centrality of this recommendation too many of the challenges faced every day by people who are blind or vision impaired, BCA will continue to advocate strongly for this reform.
By contrast, the Federal Government chose to sidestep one of the most controversial recommendations of the DRC – the phasing out of segregated or special schools. The Commissioners were split over the right approach to inclusive education, with Commissioners Bennett, Galbally, and McEwin pushing to phase out special/segregated schools entirely (Rec 7.14), while Chair Sackville and Commissioners Mason and Ryan wanted to reform and improve these settings (Rec 7.15). The Federal Government’s response argues that “State and Territory governments will continue to be responsible for making decisions about registration of schools in their jurisdictions”. They did however recognise “the ongoing role of specialist settings in service provision for students with disability and providing choice for students with disability and their families”. The federal government also ‘accepted in principle’ several other recommendations on inclusive education, including: ending exclusionary disciplinary practices, improving policies around reasonable adjustments, developing a roadmap towards inclusive education, and improving funding arrangements.
One of the most important and highly publicised areas of reform coming out of the final DRC report was the recommendation to legislate a new Disability Rights Act, which would give effect to Australia’s obligations under the United Nations Conventions on the Rights of People with Disability (UNCRPD). The report contained 22 recommendations (Recs 4.1 – 4.22) regarding the establishment of the new DRA; however the Australian Government has listed all of these as ‘subject to further consideration’ alongside the recent report by the Parliamentary Joint Committee on Human Rights which recommended a Federal Human Rights Act. It also noted the steps it has already taken in enacting a new Disability Services and Inclusion Act (2023) to improve quality and safeguarding arrangements for people with disability outside the NDIS.
The DRC also made recommendations (Recs 4.23 – 4.34) regarding reform of the existing Disability Discrimination Act 1992 (DDA). The Australian Government has accepted in principle all these recommendations and is dedicating $6.9 million to review and modernise the DDA.
This year has been a massive one for changes hitting the disability sector, and many participants are understandably feeling bewildered by the pace of reform. BCA will continue to break down reforms and recommendations in understandable ways for members, but we rely on your feedback and views to inform our feedback to the government.