The most contentious parts of the NDIS bill being scrutinised today

The draft legislation gives the NDIS minister unprecedented powers, with the biggest being the ability to reduce funding for categories of support "for the purposes of ensuring financial sustainability".

The minister's decision could apply to all participants or just a cohort.

The explanatory notes indicate the minister would first use this new power to reduce the amount participants can spend from their:

• social and community participation budgets by 50 per cent (that covers things such as hiring support workers to take them to the doctor or supermarket), and;
• capacity building budgets by 10 per cent (covering things such as therapies).

The minister would also be able to cap the number of hours a support can be funded for, a maximum participant-to-worker ratio while delivering a support, and the amount of funding for a certain kind of support.

The latter would apply even if it was less than the cost of the support. For example, a participant may have been approved for a certain kind of support totalling $44,000, but the $30,000 ministerial cap would then drastically limit what they could spend.

The minister would have to consider participant safety when making these decisions.

The bill would also give the minister the ability to set some of the prices providers can charge for their services and expand the use of automation. More on that later.

What the explanatory notes say: "The [NDIS] Act does not have adequate controls to effectively target and tighten the funding of supports for [existing] plans. In circumstances where the scheme is growing at a rate that was unforeseen when it was established, specific controls over funding are needed to put the scheme back on a sustainable footing."

What the concerns are: There is great anxiety across the disability sector about such a centralisation of power, especially the powers relating to the cutting of supports.

"It will allow this and any future minister effectively to have the PIN to the bank account for the NDIS. Anytime they need to shore up the federal budget, they could just go and strip more funding out," Villamanta Disability Rights Legal Service principal solicitor Naomi Anderson says.

Disability Advocacy Network Australia says that would see already-stretched state and territory health, housing and education systems "carry the consequences [of] unmet need".

A new assessment tool is set to govern entry to the NDIS and the reassessment of plans from 2028, aiming to ensure the scheme primarily services people with "severe" and "permanent" disability.

To meet the definition of permanence, the bill says participants will need to have exhausted "all appropriate treatments" that are evidence-based, regularly used in Australia and can be expected to improve the impact of a disability.

Crucially, something could be considered an "appropriate treatment" regardless of whether someone's "individual circumstances", which the bill describes as including "financial circumstances and geographical location", restricts them from accessing that treatment.

The draft legislation also proposes someone should not be able to access the NDIS if their needs could be reasonably met by another system. It specifically mentions workers' compensation or motor accident compensation schemes, and aged care.

What the explanatory notes say: "The NDIS was never intended to replace health, rehabilitation and treatment services which play a critical role in preventing lifelong disability … [It] was always intended to form part of a disability eco-system, not replace supports more appropriately provided by other service systems."

What the concerns are: The government's own NDIS advisory committee has likened these changes to a "reverse means test" that would restrict support to only those who can afford or access some treatments.

Advocates for Aboriginal and Torres Strait Islanders with disability, many of whom live in regional or remote areas where other services may not be available, have also raised concerns.

The bill proposes enabling the National Disability Insurance Agency (NDIA), which runs the NDIS, to use computer programs to carry out various hard-to-understand, barely defined "administrative actions".

To give you an idea of what we're talking about, one definition of administrative action includes "making, or refusing or failing to make, a decision, or a part of a decision, under a designated provision".

The draft legislation specifically authorises the use of computers to make "objective" decisions about the payment of a claim, such as rejecting it if it exceeds a participant's funding limit.

The minister would have the power to expand the use of automated decision-making in the future.

The bill requires the development of a standard operating procedure for automated decision-making, and states automation will not "displace the important role of a human delegate", who will be able to override incorrect automated decisions.

It also requires the NDIA to tell people if certain decisions affecting them were made by a computer.

What the explanatory notes say: "The agency supports hundreds of thousands of people with disability, including NDIS participants, their families and carers, and thousands of NDIS providers on a daily basis … automating certain administrative actions in a safe, transparent and accountable way can support more timely and efficient decision making."

What the concerns are: With the Robodebt scandal still fresh in the memory, the prospect of introducing automation with little specificity into another government program servicing vulnerable people has alarm bells ringing.

Ms Anderson says society's ubiquitous use of computers means "we have to assume automated decision-making is occurring in some form already".

"But what this bill does is opens the door to a range of automated decision-making powers that are not actually articulated in the bill," she says.

If passed, the bill would effectively increase the amount of support parents and other informal supports are expected to provide.

It states there is a "presumption that parents are responsible for providing substantial care and support for their children", and the NDIA will need to consider that when making decisions about NDIS funding.

"Substantial care and support" are defined as:

• "supervision, personal care, transport, emotional support and behavioural support", and;
• "other assistance with the activities of daily living that, regardless of the child's disability, would reasonably be expected of a parent of a child of a similar age".

The bill says the NDIA should not fund a support if its primary purpose is reducing burden on parental time "below what is expected for children of that age" or improving household efficiency.

The NDIA would need to consider whether these decisions could lead to a "material risk of harm".

What the explanatory notes say: "There is a wide breadth in the level of care and support different children may require, regardless of whether or not they have a disability ... the purpose of these amendments is to clarify the considerations of what is reasonable to expect informal supports to provide in supporting a participant."

What the concerns are: Advocates worry the changes will put families under more pressure and place emphasis on supports outside the NDIS that do not exist yet.

Skye Kakoschke-Moore, a former federal senator who is now the CEO of Children and Young People with Disability Australia, says raising kids with disability is not the same as raising kids without disability.

"Parents and caregivers will have to reduce the hours they're working or leave work entirely [to pick up the slack] … families are reaching out for help because they need it, not because it's a nice to have," she says.

NDIS rules currently stipulate a support can only be granted to a participant if their need for it arises from the impairment that gave them access to the scheme.

However, a note just underneath that subsection says other factors, such as where someone lives and the interplay that impairment has with other impairments, should also be considered.

This bill proposes repealing that note and changing "arises" to "arises directly" in the subsection above it.

It's a small change, but something experts say will give the agency licence to ignore a precedent set in the federal court earlier this year.

The court ruled that even though Lee Eastham was only accepted onto the NDIS due to his hearing and vision impairments, the added impact of his other disabilities and the lack of buses in the regional area where he lived meant he should still be funded for a mobility scooter.

What the explanatory notes say: "Paragraph 34(1)(aa) … was originally inserted into the act by [an older bill] but the interpretation and application it was given by subsequent Federal Court and tribunal decisions went significantly beyond the original intent … The effect of this amendment … will reduce ambiguity on how paragraph 34(1)(aa) is intended to operate."

What the concerns are: Ms Anderson says the change would likely see people with disabilities that stem from multiple conditions miss out on critical support.

She says the bill explicitly states previous federal court and tribunal decisions as a reason for the change.

"They are rewriting the law to not have those problems in it," she says.

The legislation would strengthen the ability of the NDIA to have eyes on the flow of money and fight fraud in the scheme, something the agency has long complained it has had to rely on the Australian Federal Police to tackle.

Among other things, the bill would:

• impose fines on providers for lower-level breaches;
• force providers and participants to keep claim records for up to seven and three years respectively;
• allow the NDIA to treat wrongly claimed amounts as debts if records aren't kept properly;
• give the NDIA entry, search and seizure powers when investigating potentially fraudulent claims;
• reduce the time someone has to make a claim from two years to 90 days; and,
• compel participants and providers to give information or appear before the NDIA on at least 14 days' notice.

It also lays the groundwork for the upcoming expansion of mandatory provider registration, an issue that splits the disability community, to those who deliver "high-risk supports".

What the explanatory notes say: "The agency's legislative framework and monitoring and investigative powers are weak when compared to other comparable program administrators across the Australian government … [it] does not have sufficient, effective and proportionate mid-range enforcement powers to deal with low to mid-level fraud and noncompliance that does not warrant criminal sanction."

What the concerns are: Submissions to the inquiry show the disability community generally supports a crackdown on fraud, though reservations remain about giving more power to an agency that some advocates feel has become more interested in fighting participants rather than helping them in recent years.

Some advocates and politicians say, given the wider talk about how much fraud has been in the scheme, the bill does not go as far as they expected.