Vital legal rights at risk under NDIS Bill - ALA

10th Feb 2013

Vitally important legal rights could be lost and some people with disabilities potentially left worse off under current draft NDIS legislation, according to peak legal body the Australian Lawyers Alliance.

“Reform for disability support is critically important,” Australian Lawyers Alliance National President, Tony Kerin, said today.

“But we must get the foundations right from the outset, otherwise the NDIS runs a significant risk of failure,” Mr Kerin said.

“From a legal rights perspective, it is especially concerning that there is a lack of protection for existing common law rights,” Mr Kerin said.

“People should not be forced to take legal action in order to receive disability support – it should be up to the individual to choose when to exercise their rights. This fundamental freedom of choice could be compromised by the Bill as it stands,” Mr Kerin said.

Equally, those hurt as a result of the fault of others - whether it be through a motor vehicle or workplace accident or by medical negligence or malpractice - must at all times retain their right to sue and for any repayments to feature as part of the scheme.

“It is essential that the principle of the duty of care is not undermined – it acts as an important incentive to minimise risk”, Mr Kerin said.

The lack of clarity on the Scheme’s funding also raised significant issues.

“Funding certainty will be central to ensuring the scheme, as initially established, will be able to help meet the genuine needs of those with disabilities into the future.”

“If there are funding gaps we run the risk that important rights and protections that exist when the Scheme starts, could later be lost or wound back to the detriment of future potential beneficiaries.”

A levy, as recommended by the Productivity Commission, might be the best way to ensure the Scheme remains viable.

Mr Kerin added that the lack of appropriate public scrutiny of the Scheme’s core guidelines (the NDIS Rules) was also deeply troubling – along with the limited opportunity for consultation.

“Limited time for consultation and detailed public scrutiny limits our ability to deliver the best possible scheme we can.”

“We raise these concerns in the spirit of strong support. The ALA wants to ensure a financially viable long term Scheme is created – one that is truly supportive for those with disabilities and, just as importantly, their carers,” Mr Kerin said.

Other areas of the Bill needing far greater public scrutiny, included:

  • Insufficient clarity about what support people may receive and what ‘reasonable and necessary support’ truly means – without the protection of clearly defined legislation such support was at risk of unilateral change.
  • The need for a right to representation, both at internal review and by an independent full merits review. Under the Bill’s current framework, no funding is being provided for advocacy organisations or legal representatives to support individuals wishing to access the Scheme.
  • Lack of detail as to how a National Injury Insurance Scheme dovetails into a NDIS, and other compensation schemes around the country. It is ALA’s view that the NIIS needs to be reconsidered and that those with catastrophic injuries be absorbed into existing schemes or into the NDIS.
  • Inadequacy of provisions for protection of an individual’s privacy rights. The New Zealand scheme, upon which the NDIS had been modelled, has had significant breaches of privacy of its claimants by the very authority running it.
  • Significant protections needed to be added to ensure any such authority is held accountable if individuals’ rights, such as privacy, are breached.
  • The ability of the authority to require an individual to undertake medical assessment and/or examination also needs to be clarified to ensure such requests are reasonable and necessary.
  • According to Productivity Commission, of the 411,000 eligible for NDIS, about 250,000 disability pensioners will actually receive it. (May 2012 records show 827,512 registered disability support pensioners).
  • The only criterion for the Minister’s consideration of a new rule is on the basis of finance not the rights of people with disabilities under the Scheme.

The Australian Lawyers Alliance is a national non-profit organisation of lawyers and academics who promote justice freedom and the rights of the individual.

Tags: Compensation Disability NDIS NIIS