Response received 8/7/2024 - see below

The Hon Mark Dreyfus KC MP
Attorney-General
PO Box 6022
Parliament House
Canberra ACT 2600

Dear Attorney-General

Subject: protection for AAT s42 agreements with the NDIA

Increasingly, I see reports that the National Disability Insurance Agency (NDIA) is conducting early reviews of NDIS Plans and Statements of Participant Supports (SOPS) that were the result of a s42C agreement reached during a review before the Administrative Appeals Tribunal (AAT). Typically, these early reviews cut supports that were previously agreed in the purview of the Tribunal. The reports then go on to say that the AAT refuses to protect the agreements reached in its jurisdiction.

I write to ask for clarification.

1. Is the NDIA’s practice of early review of SOPS that were agreed under s24C of the AAT Act legal?
2. If it is not legal, what practical action can the affected NDIS participant take to protect the terms of the agreement? Is there any protection for a s42 agreement with the NDIA? 
3. If there is no effective protection, how would it be ethical for a lawyer to advise a client to accept any s42C agreement?

I look for to your timely response.

Yours sincerely

Bob Buckley
A4 Co-convenor

Addressees are subject to A4’s policy on unanswered questions: see https://a4.org.au/node/1419 

A-G's response

The Ministers letter says "Different legal advice providers operate in all states and territories". This is not useful information: since there are different states and territories, the people in those locations including legal practitioners, would be different. This is axiomatic. 

The author or the letter, written on behalf of the A-G, acknowledged A4's concerns. But the letter does not address or respond to A4's concerns. 

A4 cannot see how the information A-G's letter could be of any assistance whatever - it is unclear what "trust" is involved. 

A4's letter asked three numbered questions. The response (on behalf of the A-G) does not answer them. Consequently, A4's unanswered questions policy comes in to effect which means A4 must interpret the A-G's answer to be "extremely negative or the worst answer possible".

Hence we understand that the A-G's response simply means:

1. the A-G regards the NDIA's practice of reviewing s42C plans early is most likely legal.
2. there is no protection for vulnerable NDIS participants from such illegal acts of the NDIA, a government agency.
3. the A-G agrees, but refuses to say, that it would not be ethical for a lawyer to advise a client to accept a s42C agreement. 

This is extremely alarming news. 

8/7/2024