NDIS Justice for over 65s

Sep 20, 2022
close-up of hand senior man pushing wheelchair
image: iStock

The Australian government is about to be involved in its biggest, and most morally embarrassing, class action since the Robodebt scandal. Thousands of seriously disabled people excluded from the services provided by NDIS if they were over 65 when the scheme was introduced or who became disabled after they were 65, will be eligible to join the class action. And the damages could be huge.

Over 65s are the people most likely to have existing disabilities get worse or to incur a new serious disability. Extraordinarily this is the one group of seriously and permanently disabled people excluded from NDIS support.

The Aged Care Royal Commission called this a wrong – and called for it to be righted. It recommended those over 65 with a disability should receive NDIS level support – however provided. Neither the Morrison nor the Albanese government acted on the recommendation. The class action might give them no choice but to accept it – and pay compensation to those whose eligibility for NDIS support was denied.

We have always known this discrimination against older disabled Australians was a breach of Australia’s obligations under the Convention on the Rights of People with Disabilities (CRPD) to which Australia became a party in July 2008. Article 5 of that convention is very clear. It says State parties shall: guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds” and “all persons are … entitled without any discrimination to the …equal benefit of the law”. These obligations are not consistent with legislation discriminating against people with serious and permanent disabilities because of their age.

The Commonwealth has assumed that the NDIS legislation trumps any treaty obligations.  But careful legal work sparked by dogged campaigns by disability advocates including Spinal Life Australia and Dr Peter Freckleton, a member of Post Polio Australia, has shattered that assumption. This is why.

The Constitution sets outs the Commonwealth’s powers to legislate. They do not include a direct capacity to legislate support for the disabled through schemes like the NDIS. To get around this the Gillard government relied on the external affairs power under by the Constitution. This empowers the Commonwealth Parliament to pass legislation implementing treaties Australia has entered into. The entire NDIS legislation, including the ban on over 65s receiving benefits, is based on Australia’s ratification of the Convention on the Rights of People with Disabilities. And that is where the Commonwealth’s problem lies.

The Constitution’s external affairs power only gives the Commonwealth the power to legislate in a way that is consistent with its obligations under the treaty it relies on to access the power. In this case we know that the exclusion of those over 65 from benefits under section 22 of the NDIS Act is inconsistent with the Convention. Therefore the Commonwealth had no power to legislate this exclusion – in legal jargon it is “ultra vires”. 

The High Court has opined on this issue many times. Here are just two examples drawn from the Tasmanian Dams case, one of the most famous High Court cases on the external affairs power:

Mason J in in the Tasmanian Dams case:

(citing a treaty as the basis for use of the external affairs power) does not mean that Parliament may depart from the provisions of the treaty after it has been entered into by Australia and enact legislation which goes beyond the treaty or is inconsistent with it.”

Deane J the same case:

“if the relevant law … contains significant provisions which are inconsistent with (the) terms (of the treaty), it would be extremely unlikely that the law could properly be characterised as a law with respect to external affairs on the basis that it was capable of being reasonably considered to be appropriate and adapted to giving effect to the treaty.

There are many other examples of the High Court expressing an opinion that the Commonwealth can neither go beyond the terms of a treaty nor be inconsistent with it when relying on the external affairs power.

This is the core of the class action launched by Mitry Lawyers on behalf of those with a disability excluded from the National Disability Insurance Scheme (NDIS) because of their age. This case will be led by Mr Bret Walker SC and Richard Scheelings as Counsel and Junior Counsel, respectively. It is a heavyweight team. Bret Walker SC has been described as the High Court’s busiest barrister and Richard Scheelings has also appeared before the High Court on complex Constitutional cases.

The damages could be very large. 

​They could include:

  • Pecuniary loss of missing out on the NDIS as the average annual NDIS plan is $111,000 per year (approximately) as opposed to the Aged Care Scheme which is capped at $56,000 (approximately) and is means tested.
  • Adverse psychological and/or health effects caused by stress due to not being able to access to the NDIS.
  • Carers expenses, such as time off work, travel expenses and medical bills for spouses who need to care for their partners due to a lack of NDIS support.
  • Loss of opportunity such as employment opportunities.

A projected 140,000 people will be receiving Aged Care Level 3 or 4 packages in 2022-23. A significant proportion of these are seriously and permanently disabled and would have been eligible for NDIS support but for the age exclusion in the Act. Even just considering the gap ($55,000) between the average NDIS package and the top Aged Care package damages could approach $800 million for each year support was denied.

The government will no doubt argue that this is a blow to the budget which it can ill afford. At the same time the government plans to proceed with the Stage 3 tax cuts which will hand around $37 billion annually back to Australia’s highest earners. This is a clear moral test for the Albanese government. Does Australia really want to deny the same support to older seriously disabled people as other Australians and in the same breath ease life for our most affluent?

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