Morrison & Co continue to turn the National Disability Insurance Scheme into a hollow husk of its former self

The Saturday Paper, 3 April 2021:

The minister formerly in charge of the National Disability Insurance Scheme, Stuart Robert.
CREDIT: AAP / MICK TSIKAS

Last Saturday, shortly after lunchtime, it all exploded. The WhatsApp group – set up between state and territory disability ministers and the then Commonwealth minister, Stuart Robert – had been seething with anger for a while. Then suddenly it was too much.

“I may actually self-combust with incendiary rage before this thing is over,” the ACT minister for Disability, Emma Davidson, messaged her colleagues.

It had been more than 24 hours since a leaked proposal for changes to the National Disability Insurance Scheme was reported in Nine newspapers. But state and territory ministers, who share half the oversight of the $25 billion scheme, had still not been given a copy of the legislation. None of them had seen even a briefing note.

At no point since has the federal government – or Stuart Robert, who was moved from the NDIS portfolio earlier this week in a cabinet reshuffle – made the document available to the states and territories.

The Saturday Paper has spoken with several members of the WhatsApp group and the Disability Reform Council, both of which include Robert.

“He thinks it is okay to have state ministers begging to see a copy of the draft legislation,” one minister for Disability says.

“Robert says he is up to draft 80 on this and no one outside of the federal government has seen it. Not state ministers and certainly not people with disability.”

“Stuart Robert is taking all of the King Henry VIII powers,” one legal source said. “You cannot get a more pure power grab. That is a God power.”

After Davidson’s message, New South Wales Liberal minister Gareth Ward offered her a thumbs-up. Within moments, he phoned to express his support.

In the Northern Territory and Western Australia, ministers called for Robert to release the official draft. Until that happens, state and territory ministers are working from a leaked document that outlines an alarming future for the NDIS, including a “God power” for the federal minister to remake the scheme at will.

Robert offered no reply to his fellow ministers at the weekend. It was only after Scott Morrison’s Monday cabinet reshuffle – which saw Robert transferred to the Employment, Workforce, Skills, Small and Family Business portfolio – that the Queensland MP popped back up in the chat.

Robert told the other ministers he was removing himself from the group and adding in the new minister for the NDIS, Linda Reynolds.

Reynolds, who remains on paid medical leave following revelations about her handling of former Liberal staffer Brittany Higgins’ rape allegation, politely said hello to the ministers with whom she soon would be working.

Sensing an opportunity, they again requested the draft NDIS legislation. Reynolds did not reply, and has not been in the chat since.

The Saturday Paper has obtained a leaked copy of the proposed changes to the NDIS Act, dated December 2020.

The documents signal plans for a broad, sweeping and potentially irrevocable consolidation of power within the scheme to a single person: the federal NDIS minister.

In its 323 pages, bureaucrats have taken the current NDIS Act and tracked changes throughout. They have added entirely new sections to the legislation and deleted key clauses that have underpinned the very nature of the scheme.

Central to the seismic shift is a new ability of the Commonwealth minister to make so-called “rules” at any time, which the chief executive of the National Disability Insurance Agency must follow when interpreting the legislation…...

The Commonwealth minister would be given unilateral power to rule on general supports that will be provided under the scheme, and to dictate the criteria for “determining the total amount of funding allocated for the purposes of a plan”.

This change will strip the states or territories of the veto power they now hold.

But this is not the only significant proposal. The draft legislation includes an expanded debt recovery power, which would allow the NDIA to claw back money from participants who breach the new rules, sparking concern about its similarity to the controversial robo-debt scheme.

In effect, the agency could raise a debt on an individual if they spent their NDIS funding on “ordinary living expenses” or on a service or support the Commonwealth minister decides should have been funded by a state or territory government. These decisions could be entirely arbitrary.

Moreover, as one sector source pointed out, the government is “building a capability to surveil” NDIS participants in order to watch what they spend and where, in close to real time. Using technology solutions such as blockchain – already trialled in the scheme – the government wants to see what people are spending and will launch a new NDIS app in coming months to consolidate these features.

A new section of the act, 46C, would hand the Commonwealth minister the extraordinary power to ban any kind of support and to force states and territories to potentially fund others.

“A participant who receives an NDIS amount, or a person who receives an NDIS amount on behalf of a participant, must not spend the money to acquire goods or services prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection as goods or services acquired as part of ordinary living expenses,” the documents read.

These banned “goods or services” – note, the scheme’s common language of “supports” is not used here – may be things the minister decides ought to be funded by “other general systems of service delivery or support services, whether or not they are currently being so funded or provided”.

The states and territories are concerned this will shift responsibility back to them – as, prior to the introduction of the NDIS, they were the major providers of disability services.

This particular clause, 46C, appears designed in response to a number of Administrative Appeals Tribunal (AAT) findings made against the NDIA…...

Legal experts who spoke with The Saturday Paper were astonished at the breadth of this section in the proposed changes.

“He [Stuart Robert] is taking all of the King Henry VIII powers,” one legal source said. “You cannot get a more pure power grab. That is a God power.”

In law, Henry VIII clauses are often described as subordinate pieces of a primary legislation – in this case NDIS rules under the NDIS Act – that subvert or amend the legislation itself, typically through executive power.

This consolidation of power continues throughout the document.

Proposed changes to section 27 of the act would give the Commonwealth minister unfettered ability to decide, for example, whether people are mentally ill to the degree required for NDIS support. It could allow the minister to deny early intervention funding if they believed the evidence about its “benefit” in the future was unclear.

Most strikingly among the draft changes, though, is the removal of the entirety of section 34, which currently declares that participants will be given “reasonable and necessary” support funding “to pursue [their] goals, objectives and aspirations”.

Contrary to other media reports, there has been no suggestion from the Commonwealth that this is a mistake in the drafting or that it will be unwound.

On March 26, Stuart Robert tweeted, “We are introducing reforms to the NDIS because we believe access to the scheme and a participant’s plan should not be determined by your postcode or how much someone can pay for a report.

“This does not extend to removing the term ‘reasonable and necessary’ from NDIS legislation.”

Robert’s wording is deliberate. The term will likely remain in the legislation but not as a descriptor for what participants should receive in terms of support. Now, the term “reasonable and necessary” will describe a participant budget. The difference is subtle, but the latter places more emphasis on the financial metrics of the NDIS and, according to legal sources, would allow rationing of support without an avenue for legal challenge.

Where the draft discusses what is currently written as “reasonable and necessary supports” for individuals with disability, the reference is struck through and replaced only with “funding for supports”.

No less alarming to disability advocates, but more discreet, is a slew of language changes throughout the new document.

Under this proposal, for example, people with disabilities will no longer be entitled to “reviews” of their own funded support package but will instead be submitted to a “reassessment”. This language is changed throughout, and the word “request” has been changed to “requirement” for assessment information. Privately, NDIA staff and Stuart Robert’s office believe they do not need legislative force to introduce controversial independent assessments (IAs) – by government contractors who will examine disabled people to determine their functional needs, breaking the often years-long relationship between people and their treating health professionals – but these are included in draft proposals.

“A requirement … may specify that the assessment or examination is to be conducted by a person included in a class of persons made known to the prospective participant,” the draft clause says.

Public Interest Advocacy Centre senior solicitor Chadwick Wong, who leads the organisation’s project to institute a fairer NDIS, says the combined effect of independent assessments and the leaked legislative changes create new “transparency, accountability and governance issues”.

“The government’s cost-cutting overhaul of the NDIS includes a number of disturbing changes that will erode the ‘choice and control’ promised by the scheme to people with disability,” Wong says.

“The removal of the word ‘co-design’, as seen in documents leaked to the media … also points to a concerning step away from meaningful engagement with the disability sector.

“We urge the government to stop the implementation of these changes immediately, and to properly consult with the community so that improvements to the NDIS may be co-designed with people with disability.”

Taking all of the proposed and planned changes together, the impact on people with a disability is significant. Here’s how independent assessments will work with the government’s desired legislative overhaul.

The eight-year-long experience of people turning up to a planning meeting, expressing their goals and ambitions to live life in the community and having each of those goals funded through a “reasonable and necessary” support to achieve them are over.

Instead, a person’s first experience of the NDIS will be a functional assessment carried out by a team of strangers for a few hours. This assessment will automatically generate a “draft budget” based on software that splits them into categories. These categories will be informed by the functional need score, their age and, according to the agency itself in a submission to a parliamentary inquiry, “the impact of their environment, such as the informal supports available to the participant and other contextual factors such as locality or circumstance”.

Rather than building a support package from scratch, participants will arrive at their first planning meeting with a generic draft budget and then have limited opportunity to argue for individual changes.

Advocates are calling it “robo-planning”. If the NDIS was the greatest policy achievement in a generation, these changes represent the greatest disfiguring of its original intention. They lay the groundwork for an NDIS that is less generous, less fair and less accessible – all under the caprice of a single minister. And he just left the chat.

Cartoon of the Week

First Dog On The Moon

Quotes of the Week

 

“When Scott Morrison says he’s listening, it’s usually to himself.” [Dennis Aitkins writing in The New Daily, 27 March 2021]

“This prime minister speaks almost exclusively to one cohort of voters: men at risk of voting Labor.” [Political editor and journalist Katharine Murphy, writing in The Guardian, 27 March 2021]

As a Byron Bay resident tested positive for COVID-19 on 30 March 2021 new restrictions are now in place for residents and visitors in the local government areas of Tweed Shire Council, Ballina Shire Council, Byron Shire Council and Lismore City Council

Northern NSW Local Health District, media release, 1 April 2021:

With Easter holidays now upon us, health authorities are encouraging people to celebrate safely as health restrictions come into force for certain local government areas in Northern NSW.

Northern NSW Local Health District Chief Executive, Wayne Jones, said the current rules around mask wearing, private gatherings and social distancing shouldn’t mean that people need to miss out on connecting with loved ones and friends over the Easter break.

“If you’re meeting up with friends, hosting a family gathering or celebrating at a religious service, please ensure you are following the current health advice,” Mr Jones said.

New restrictions are now in place for residents and visitors in the local government areas of Tweed Shire Council, Ballina Shire Council, Byron Shire Council and Lismore City Council:

• mask wearing is compulsory on public transport, in retail stores, and in all public indoor settings;

• the one person per four square metre rule will apply at all public indoor settings including hospitality venues;

• the number of household visitors will be capped at 30 including holiday rental properties.

“If you’re going out to celebrate, check-in and then check-out with the QR codes, so if needed, our contact tracers can quickly locate anyone who may have been a venue of concern,” Mr Jones said.

“If you are having people gather at your home, please also keep a list of your guests, because it’s vital that our health teams are able to track down potential close contacts of any positive COVID-19 cases.”

 

There have now been 70 cases of COVID-19 among residents in the Northern NSW Local Health District since the pandemic began, with the latest locally acquired case announced yesterday (Wednesday 31 March).

Prior to this case, the region had experienced 248 days without a locally acquired infection.

NNSWLHD cases by likely source of infection:

Source                                          Total

Overseas or interstate acquired 64

Locally acquired – contact of a

confirmed case or in a known cluster 5

Locally acquired – source not identified 1

Under investigation 0

Total 70

Of these cases, 67 are considered to have recovered.

HOSPITAL VISITOR RESTRICTIONS

Visitor restrictions in hospitals and health facilities have been strengthened to protect patients and staff.

Patients are now permitted to have one visitor for one hour, twice a day, between the hours of 1pm and 6pm. Two separate visitors could visit a patient during these hours.

Temperature checking is in place, and visitors who have been in the Greater Brisbane area over the last 14 days are not permitted to enter. Visitors also need to check in with the QR code.

Maternity services have also further restricted visitors. Women can continue to nominate two support people for her labour and birth, and these support people can also visit after the birth. No other visitors are permitted at this time.

“Wherever you are over this holiday period, it’s critical that you continue to practise COVID-safe behaviours and come forward for testing, with even the mildest of symptoms,” Mr Jones said.

To help stop the spread of COVID-19:

– If you are unwell, get tested and isolate right away – don’t delay. Remain isolated until you receive your test result.

– Wash your hands regularly. Take hand sanitiser with you when you go out.

– Keep your distance. Leave 1.5 metres between yourself and others.

– It is strongly recommended you wear a mask in situations where you can’t physically distance.

To find your nearest testing clinic visit https://www.nsw.gov.au/covid-19/how-toprotect-yourself-and-others/clinics or contact your GP.

BOM warns of more rain in the Northern Rivers region over the next 7 days

Sometimes it seems that every recent year brings a burden Northern Rivers communities must bear.

In 2019 it was the months of mega bushfires which destroyed so much – forests, native animals, farm stock, property and lives. In 2020 it was the COVID-19 pandemic which kept families apart and played havoc with tourism-reliant businesses in the region. In 2021 to date it is the almost constant presence of rain from February onwards and the flooding that brings.

By the end of March NSW rainfall was 154% above the long-term average and there had been various degrees of flooding in the Tweed, Richmond and Clarence valleys.

On 1 April 2021 the Australian Bureau of Meteorology (BOM) issued another flood warning for possible minor flooding in the Tweed and Rouse Rivers, Brunswick River and Marshalls Creek catchments, due to a low pressure trough which may potentially deepen off the northern coast early next week bringing showery conditions along much of the New South Wales coast across catchment areas already wet from previous rains.

BOM also issued this 8 day rain forecast up to 8 April 2021:

The story of a little town in the Clarence Valley and a growing problem

 

There have been people living on this coastal land since time immemorial - fishing, hunting, gathering food and raising families.

In 1799 the first people who did not belong to this little settlement at the mouth of the Clarence River in northern NSW turned up unexpectedly. They didn’t stay more than a day or two and sailed on.

However in the 1800s a lot more people came to the area to cut timber, farm and fish. Many of them stayed.

The little settlement was given a new name taken from the newly re-named river. It was called Clarence Heads.

By then life had become harder for the families who had lived there from time immemorial because the new people kept taking their land and moving them on. But they never went completely away and proudly live there still as valuable members of the community on land they now hold Native Title over.

By 1864 the settlement had been proclaimed a town called Yamba and in the 1930s the one dirt road leading in and out of the little town slowly began to be sealed.

Eventually a bridge and two causeways were built along that long main road, because fingers of the Clarence River had always meandered around and through the land on which the town was built.

In fact if one looks at a map of the Clarence River estuary it is easy to see that only a thin strip of land less two kilometres wide at is narrowest point stops Yamba from becoming an island.

Over the years the town grew and grew until by about 2016 it had spread to where the town limits encompassed 1,692 hectares with a population of almost four people per hectare.

The 2016 Australian national census shows that there were 6,342 men, women & children in Yamba on Census Night, with 6,076 being local residents living in 3,820 dwellings with an average household size of 2.09 persons.

That census also confirmed what had been known for some time, Yamba was a retirement destination and almost 37 per cent of all residents were 65 years of age and older.

The town by then not only had a long-established fishing fleet, two mixed shopping & cafe precincts and a small industrial area, it was also a popular tourist destination with a constant stream of visitors throughout the year culminating in a Christmas rush which sees the town’s population roughly double for the duration of the holiday period.

In 2019 the estimated resident town population was 6,228 men, women and children and, plans were well underway to develop land on the edge of the town limits which would grow the town's total population to 9,476 people aged from babies under 1 year of age to older people aged 85 years and older.

Not all town residents lived in family groups – est. 865 lived alone. Not all had their own transport – est.166 households had no car.

The story so far is typical of many coastal towns in northern New South Wales.

However there is a nasty worm in the middle of a still welcoming Yamba.

Remember the almost-an-island, surrounded by ocean, river, channels and lake, town with only one road leading out to the wider world?

Well that scenario holds the answer to the nature of this nasty worm. Flooding.

Approximately every three years it floods somewhere in the Clarence River catchment area and sometimes that flooding flows all the way down the Clarence River and Yamba gets its feet wet.

Historically, that’s all that usually happens because even through much of Yamba is only around 2-4 metres above sea level, within and just beyond the town limits is 620 hectares of flood storage land which soaks up most of the flood water before it enters the more heavily built-up sections of the town.

Or should I say the town did have a 620ha buffer zone, because right now developers are beginning to fill 127.4ha of that zone to house those 3,250 additional men, women and children who are expected to increase the town’s population to 9,476 souls over the next 25 years or so. 

Yamba is now spread so wide and has so many residents that any change to where flood water can safely flow is bound to have a knock-on effect. Because water has a will of its own and doesn't always follow the dictates of flood modelling.

If readers don't believe me ask NSW Transport - there's at least one cloverleaf interchange not far from here and another new bridge about halfway down the state which are  evidence of human hubris.

Yamba is already a leaky boat in flood events over the 1 in 5 year flood depth.

Its one road in and out gets cut at multiple points even near the centre of town, a number of its smaller streets often have water over the road which is sometimes to a depth that closes them to traffic.

Inundation within the town commences in earnest once floodwaters pass 2.40 metres in depth.

In floods stormwater becomes more than a nuisance when shallow open drains overflow and underground pipes backflow so that water lies over footpaths and enters peoples yards. Another trap for the unwary is that flood water covering Yamba land is often strongly tidal and can sweep a persons feet out from under them even when its less than than a metre deep.

In a 1 in 20 year flood 122 houses are at risk of having water enter part or all of their rooms, in a 1 in 100 year flood that number builds to 1,223 houses and in an extreme flood it is expected that 2,144 of the up to 4,351 houses currently in Yamba will be flooded.

So Yamba already has around 49% of its houses at some degree of risk during a time when reputable scientists, along with federal, state and local government, are telling its residents that climate change is occurring. That this change is likely to alter seasonal weather patterns and see natural disasters such as major floods increase in severity.

To make matters worse, the only really high ground in the town, Yamba Hill, in prolonged rain events combined with strong seas - conditions that are often seen in times of flooding - is destabilised over a large part of the hill and at risk of land slippage. Particularly in parts of the hill where people might congregate as flood water rises elsewhere in the town.

Of course town planners and land developers don’t always look at the bigger picture and in 2021 Yamba finds itself in an uncomfortable position. Land owners - in that 127.4ha of the flood storage area due to be drained and raised in height by approx. 1.8 million tonnes of landfill – are pushing the envelope as to the number of houses they want approved per hectare.

In other words, the future population in what is known as the “West Yamba Land Release Area” will in all likelihood grow beyond the number originally anticipated and, that one road in and out of town I keep mentioning will now be expected to perform emergency evacuation miracles in a major flood event in Yamba.

It has been obvious for some time that the correlation between our town population size, the physical impacts of natural disasters and evacuation requirements is something all levels of government have studiously avoid considering in any depth.

The Yamba Floodplain Risk Management Plan was created in 2009 and is still displayed as current on Clarence Valley Council's website. It contains a wish list of matters to be considered by local government & emergency services but no concrete evacuation plan.

Apart from a small SES leaflet indicating a short evacuation route within the town - running along Yamba Road from its T-intersection with low lying Shores Drive to the relatively low lying Yamba Bowling and Recreation Club - along with instructions to assemble at the bowling club, register and "then stay with friends or relatives" and advice to "act early before roads and evacuation routes close".

There is silence about the logistics of evacuating via at least 3,587 vehicles taking to a narrow two-lane road to get across a bridge and two causeways before Yamba Road closes. There is also silence about where this caravan is to go, given by then much of the Lower Clarence is beginning to flood.

Authorities turn the fact that realistically this town cannot be safely evacuated during natural disasters into the 'virtue' of an ad hoc policy which effectively says that, with the exception of assisted medical evacuations, early self-evacuation by residents is preferred but shelter in place is advisable if water isolates your home.

It’s been many years since local councillors would amusingly talk about “vertical evacuation” in Yamba - meaning residents could climb the stairs to their second storey or climb onto their roofs during a major flood - and about the same amount of time since SES members joked that the only thing they could do for Yamba residents in times of major flooding would be “to take the flood boat out into the middle of the river and toss life jackets to you all as you float out to sea”. 

Times change, or so do they? The year 2021 finds Yamba residents facing the same basic attitude towards their safety and wellbeing. 

Yamba is becoming a trifle nervous about its future and, some are voicing concerns not just about potential property loss but about the more confronting potential for loss of life as the town's population grows.

Sometime towards the end of this month Clarence Valley Council staff are holding a public meeting at the Treelands Drive Community Centre to clarify the progression of development plans for West Yamba.

I have no doubt that council staff too will resist looking at the big picture. Unless local residents go toe-to-toe with them on the need for a population ceiling for Yamba township as a whole and West Yamba in particular. With such a ceiling to be established as a matter of importance and adhered to by way of firm housing density and multiple occupancy residential dwelling limits.

Principal sources:

Clarence Valley Council documents

Port of Yamba Historical Society at https://www.pyhsmuseum.org.au/

Yamba Community Profile at https://profile.id.com.au/clarence-valley/about?WebID=240

2016 Census Quick State- Yamba (NSW) at 

https://quickstats.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/SSC14458#:~:text=In%20the%202016%20Census%2C%20there,up%204.5%25%20of%20the%20population.&text=The%20median%20age%20of%20people,State%20Suburbs)%20was%2056%20years

Google Earth

Historical imagery from 1985

Bluesfest 2021 postponed by public health order due to pandemic - but don't toss your tickets away just yet!

 

Office of NSW Labor MLA for Lismore Janelle Saffin, 31 March 2021:

Bluesfest 2021 postponed, but hold on to your tickets

STATE Member for Lismore Janelle Saffin supports the postponement of Bluesfest 2021 for public health reasons, but urges lovers of the iconic blues and roots festival to hold on to their tickets.

“I have been in touch with NSW Health Minister Brad Hazzard and fully understand the NSW Government’s decision under enhanced COVID-safe measures in Byron Shire, Ballina Shire, Lismore City and Tweed Shire local government areas,” Ms Saffin said.

“Bluesfest founder and director Peter Noble OAM must be extremely disappointed about the need to postpone at the last minute, but he is the ultimate professional in what he does.

“This is a very fluid situation and I know the vast majority of Northern Rivers residents will be following the Government’s new rules over the Easter break in order to keep themselves, their loved ones and the wider community COVID-safe.”