The Australian Lawyers Alliance (ALA) has spotlighted "holes", including a lack of capacity for review, in the proposed National Disability Insurance Scheme (NDIS), released yesterday (10 August).
The ALA raised major concerns over how the Commissions' proposed NDIS would fit within the mental health sector (as the NDIS does not cater for psychological disabilities), and how communication gaps on service access and a lack of provision for reviewable decisions would affect individuals.
ALA president-elect Anthony Kerin warned that the failure to independently analyse and review any decision made by a bureaucracy would mean inadequate protections for the disabled.
"There is no such provision for this [review] within the NDIS model. The dangers of this have been recently evidenced within medical tribunals in WorkCover. The Administrative Appeals Tribunal (AAT) exists for that purpose," said Kerin, adding that it was vital that Australia avoided New Zealand's experience where a "poorly planned, under-funded scheme" resulted in a $4.7 billion budget blow out in 2009.
The final Productivity Commission report described the NDIS as a "universal scheme" to cover the entire cost of care and support for about 410,000 significantly and permanently disabled Australians.
The Commission also recommended the creation of a 'National Injury Insurance Scheme' (NIIS) for all Australians suffering from a catastrophic disability (like the loss of a limb, a brain or spinal cord injury) to receive no-fault insurance. The NDIS would not be means or assets-tested, and could be funded by the abolishment of inefficient government programs and a possible increase in taxes.
But Kerin warned that abolishing existing protections of tort law or statutory compensation would create "gaping holes" that the most vulnerable would fall through.
"The government must take the right steps with the inception of this new system...Far worse than failing to provide a safety net would be to scrap existing protections, and provide the illusion that a net exists to catch people," said Kerin.
While the ALA welcomed the plan to reinvigorate and fund Australia's disability sector under a unified national scheme, it said clarity was lacking in regards to the legal rights of disabled people to sue for compensation, and the intersection of the NDIS with the NIIS.
"Ultimately, individuals should have the internationally recognised right to choose the support which will best provide for their needs. And a natural extension of this is retaining the dignity of an individual's choice whether to pursue a legal claim for compensation or become part of the new scheme," said Kerin.
But according to Geoff Stein, director of autism support foundation, Giant Steps Sydney and managing partner of Brown Wright Stein lawyers, people with disabilities and their families are eager to become part of the new scheme and want the reforms delivered without delay.
"We've waited a long time for this...We sincerely hope all sides of politics will have the courage to back the NDIS in a bipartisan way. A minority Federal Government and disparate State and Territory governments, all pushing their own barrow, pose big risks for the process," said Stein.
The Commission recommended the scheme be phased in from 2014 and fully operational by 2018, requiring an additional $6.5 billion to what the Commonwealth and states currently contribute.
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