Changes to the NDIS Act

The Australian Government, with state and territory governments, is taking the first step to reform the NDIS following the Independent Review into the National Disability insurance Scheme (NDIS Review).

In December 2023 the Prime Minister and state and territory governments agreed to an initial response to the final report of the NDIS Review. This included introducing legislation changes in the first half of 2024.

On 27 March 2024, the Australian Government introduced changes to the NDIS Act 2013 (NDIS Act) that will enable future improvements to the NDIS and strengthen the NDIS Quality and Safeguards Commission.

The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Bill 2024 is based on the recommendations of the NDIS Review. 

The Bill represents the first tranche of several upcoming amendments to the NDIS Act, to improve the participant experience. 

The Bill provides governments, and the disability community, with a framework to start improving the scheme for NDIS participants. Reforms in the Bill include:

  • taking a whole of person approach to participant support needs
  • improving service quality and safeguards
  • reforming participant pathways onto the NDIS and working towards a unified system of support for people with disability.

Many improvements will not take effect until a suite of changes are made to NDIS Rules and the legislative instruments that outline the detailed operation of the Scheme, which are made with the states and territories.

Amendments to the Bill

Senate

The Senate Community Affairs Legislation Committee Inquiry into the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Bill 2024 delivered their report on 20 June 2024. The report can be found here. The Bill was considered by the Senate and referred the Bill back to the Senate Committee for further consideration, to report by 5 August 2024.

To address findings and recommendations made by the Committee's first report, the Government has circulated proposed amendments in the Senate that will:

  • Allow First Ministers (in addition to Disability Ministers) to agree to NDIS rules 
  • Require the Minister to provide a consultation statement as part of the explanatory statement for all legislative instruments made under the Act.
  • Clarify and introduce additional safeguards around the exercise of information gathering powers by the CEO of the National Disability Insurance Agency 
  • Amend the provisions relating to the ‘needs assessment’ to clarify that the assessment will assess a person’s disability support needs as a whole

The proposed amendments are available from the Parliament of Australia website.
The Supplementary Explanatory Memorandum is also available from the Parliament of Australia website. 

  1. Allow First Ministers (in addition to Disability Ministers) to agree to National Disability Insurance Scheme (NDIS) rules

    This proposed amendment implements recommendation 1 made by the Senate Community Affairs Legislation Committee in the report into its inquiry into the Bill.

    Currently only State and Territory Ministers with responsibility for the NDIS can communicate agreement to NDIS rules.

    This amendment will mean that both State and Territory Disability Ministers and First Ministers will be able to agree to NDIS rules. This will facilitate the discussion and potential agreement to NDIS rules by First Ministers in forums such as the National Cabinet.

  2. Consultation

    The Community Affairs Legislation Committee recommended (recommendation 2) that a ‘consultation statement’ be tabled along with all legislative instruments made under the NDIS Act that sets out consultations undertaken. The proposed amendment requires the following information about consultation to be included in explanatory statements to all legislative instruments made under the NDIS Act:

    • describe the nature of the consultation
    • describe in general terms the persons, bodies or organisations who were consulted
    • contain a summary of the views expressed by those persons, bodies or organisations.

    Note: The statement must not identify a person, body or organisation, or reveal the views of a person, body or organisation, except with the agreement of the person, body or organisation.

  3. Information gathering

    Recommendation 3 made by the Community Affairs Legislation Committee was that Government further clarify the circumstances under which some additional information gathering powers granted to the CEO of the National Disability Insurance Agency will be used.

    Although requests for information from participants and other people under the NDIS Act are generally given in writing, the amendment clarifies that fact, and ensures the CEO has the power to explicitly vary or revoke their request at any time after it has been made. For example, a request for information may be withdrawn because information has been obtained elsewhere, is no longer required or because it is reasonable for the relevant person not to provide the information.

    It is important to note that if written communication is not the most suitable method of communicating with a participant, they will also be given the request in their preferred manner of communication.

    These amendments also provide guidance to the CEO in considering whether or not it is reasonable for a person not to have complied with certain requests for information within the timeframe prescribed in that request for example, whether the failure to comply with the request was beyond the control of the participant.

  4. Needs assessment

    The Bill introduces a new planning framework, which will be based on a needs assessment conducted under proposed new section 32L. The needs assessment will result in an assessment report, with the information in this report being used to calculate a participant’s reasonable and necessary budget and factored into a method determined under proposed new section 32K.

    While the Committee did not make a specific recommendation around this issue, it acknowledged that it had received significant evidence in relation to the provisions on the support needs assessment in new section 32L. Much of this evidence focused on concerns about whether the needs assessment is a ‘whole of person’ assessment which assesses all of a participant’s disability related support needs (whether or not those will be met by the NDIS).

    The intent of section 32L has always been that a needs assessment will assess a person holistically, looking at all of their disability related support needs, consistent with recommendations of the 2023 Independent Review into the National Disability Insurance Scheme (NDIS Review). While the assessment itself is holistic, funding for supports under the NDIS can only be provided in relation to impairments that meet the disability or early intervention requirements. This approach is consistent with the original intention of the NDIS, to provide disability supports to Australians with permanent and significant disability as part of a broader system of available supports and is consistent with recommendations of the NDIS Review. It makes it clear the method for calculating a participant’s reasonable and necessary budget should recognise that a range of factors may impact a participant’s support needs.

    The proposed amendments also make changes around the ministerial determination that prescribes the method for determining a participant’s reasonable and necessary. The amendments require the Minister to be satisfied that the determination adequately takes into account the variety of factors may affect a participant’s need for NDIS supports.

These amendments clarify that a needs assessment will be undertaken on a whole person basis by assessing all of a person’s disability support needs. Other information to be included in the needs assessment report will be outlined in a legislative instrument that will be the subject of consultation and co-design. This will ensure that the needs assessment report contains all relevant and appropriate information about a participant and their disability.

House of Representatives

The Bill passed the House of Representatives on 5 June 2024 with parliamentary amendments being agreed to clarify key elements of the Bill.

These amendments can be found on the Parliament of Australia’s website and are outlined below.

  • Instead of making reference to specific articles under the Convention on the Rights for People with Disability, section 10 now generally references Australia’s obligations under the Convention.
  • New transitional NDIS rules will set out supports and classes of supports that are or are not NDIS supports based on existing intergovernmental agreements and the current NDIS (Support for Participant) Rules 2013.
  • These transitional rules will be developed in consultation with the disability community and will be replaced by new Category A rules requiring state and territory agreement.

Other amendments to the Bill which were supported in response to feedback will:

  • clarify that co-design is central to the Government’s reform agenda
  • clarify that no changes have been made to participants’ rights of review
  • ensure participants will have a copy of their needs assessment
  • ensure there are appropriate safeguards around new information gathering powers
  • embed an independent 5-year review of the operation of the Bill.

These amendments demonstrate the Government’s ongoing commitment to listen and take on feedback on the Bill as required.

Next steps

When legislation passes, the Australian Government will go through a consultation and co-design process with the disability community on updates to the NDIS Rules—continuing to put people with disability at the heart of NDIS reforms.

NDIS legislation webinars

The Department of Social Services, together with Professor Bruce Bonyhady AM, presented 3 webinars to almost 2,500 people who registered to learn about proposed changes to the NDIA Act.

You can watch a recorded session of the NDIS Legislation webinar.

You can find a copy of the transcript of the NDIS Legislation webinar.

Design of the detail in Rules and legislative instruments

Following the successful passage of legislation, Rules and legislative instruments will be developed with the disability community, continuing to put people with disability at the heart of NDIS reforms.

The changes will take time to develop and will be implemented in stages, using a phased and considered approach.

More information about the co-design approach, including specific opportunities to engage, will be publicised in the coming weeks.

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