NDIS Bill inadequate in protecting rights of those with disabilities

19th Feb 2013

The Australian Lawyers Alliance today told an Adelaide public hearing on the National Disability Insurance Scheme (NDIS) that the Bill, in its present form, would not adequately protect the rights of those with disabilities.

ALA National President, Tony Kerin, and SA President, Pat Boylen, drew attention to the NDIS Rules – which will sit separate to the legislation and form the missing core of the Scheme. Who is eligible remains unclear.

“Individuals have no protection from their entitlements being altered under the Scheme on a purely financial basis. Once tabled, the NDIS Rules will be very difficult to change and will not have appropriate parliamentary scrutiny if substantive rights and clear eligibility criteria are not included in the bill,” said Mr Kerin.

After the hearing Mr Kerin said ALA’s concerns regarding the rules has increased after being advised at the hearing that there will be no opportunity to comment on them provided to interested parties.

Mr Kerin focused on 5 key points in his opening statement to the Senate Inquiry Committee:

The protection of existing rights is important.

“The current Bill does not protect and enshrine existing rights as it should. No group in the community or individual should be asked to enter a scheme with the condition or assumption that legal rights will have to be surrendered. People who have suffered a serious injury have already lost everything. This bill should enshrine a no-disadvantage principle."

The right to choose should be paramount.

“The right to choose should be paramount in every aspect of this Bill for those who live with a disability. Choice has largely been removed through the power of the NDIS rules and a number of clauses.”

Review rights must be adequate.

“Review rights must be adequate. We question how effective appeals will be. The obstacles in access to justice for people with disability, particularly intellectual disability or those from non-English backgrounds will be far greater and definitely require advocate support – whether from the disability sector or from a legal representative. A right that you cannot exercise is no right at all. There is a risk that the disability advocacy sector may become the unpaid subsidiser of the NDIS in assisting individuals to have access to their legal rights. There is also a risk that individuals will receive advice from the Agency itself, which raises conflict of interest issues.”

The process has been too hurried.

“There may be a number of reasons for this. Many have said it may be the political imperative to have it done by 14 September 2013. This Inquiry’s consultation period between December and 25 January is not appropriate or adequate. The consultation process on the development of the NDIS Rules is not transparent or accountable.”

There must be long term sustainability.

“There must be long term sustainability of the Scheme. Reasonable supports and services can only be provided if there is a funding base to do so. In every Scheme around the country where general revenue or a funded agency has been responsible, there have been reductions in benefits for claimants as a result of funding difficulties.”

Mr Kerin suggested a Medicare style levy or even modifying or adapting GST mechanisms could be used to achieve this long term sustainability.

Tags: Human rights Disability NDIS Access to justice