LLS Staff Seminar #8: Access to Justice under the National Disability Insurance Scheme

In the eighth staff seminar, Dr Darren O’Donovan will present a paper titled ‘Access to Justice under the National Disability Insurance Scheme’.

Abstract

The legal framework of the National Disability Insurance Scheme is remarkably complex: purporting to harmonise core principles of human rights law with a statutory scheme of regulatory governance and economic models of risk. Law and legal institutions will be a central mechanism for harmonising these contrasting aims, and ensuring an Act which cites human rights principles actually secures human rights compatible practice on the ground.

This paper will therefore give a legal perspective on key faultlines emerging in NDIS decision-making including:

    • How are key terms such as “reasonable and necessary supports” defined and what assumptions about disability need to be avoided in applying the definition?
    • What are the emerging precedents concerning the definition of disability and supports?
    • Can a process dominated by detailed rules remain person centred? Or will principles such as inclusion, participation and autonomy be crowded out by prescriptive risk management or financial sustainability calculus?
    • Have the Act and its related rules adequately addressed “supply side” or interface issues – such as the interaction of the scheme with discrimination legislation, workforce issues in the disability sector and the prevention of abuse by service providers?

While legal research represents only one part in delivering on the promise of the NDIS, law and legal institutions remain crucial, functioning as a backstop on the entire system. This paper will provide insight into the emerging difficulties in applying the Act’s key legal tests, and into the dispute resolution pathways created by the NDIS Act.

Biography

Dr Darren O’Donovan holds a BCL (Hons), and a PhD from University College Cork, Ireland, where he also lectured from 2009-2012.

As an Assistant Professor at Bond University, Queensland for the past four years, Darren’s main teaching specialisation was in Administrative Law. He has written extensively on rights, oversight and public administration, including the book Law and Public Administration in Ireland (co-authored with Dr Fiona Donson). This work examines the reform of Irish public law and governance in the aftermath of Ireland’s financial crash, stressing the centrality of non-judicial review bodies and first instance decision-makers to delivering administrative justice. These ideas also featured in his examination of the Office of the Ombudsman (co-authored with Dr Fiona Donson), which was published in the leading international law journal, Public Law in 2014.

Darren’s PhD thesis, which was funded by the Irish Research Council for the Humanities and Social Sciences, concerning housing rights, equality and Ireland’s Travelling Community. In examining the underlying policy and legislative dynamics behind Traveller/Roma exclusion in Europe, the thesis critically analysed the difficulties of accessing culturally appropriate housing for the Irish Travelling Community. Many of its themes are reflected in an article published this year in the International Journal on Discrimination and the Law.

In joining la Trobe, Darren will be seeking to contribute to the faculty’s ongoing research into the National Disability Insurance Scheme. He was a co-author (with Professor Patrick Keyzer) of Discover: the National Disability Insurance Scheme Help Guide (2nd edition) which recently published by the Endeavour Foundation. Darren has also contributed to the faculty’s legal advocacy by co-authoring legislative submissions concerning the treatment of cognitive impairment in the criminal justice system. These were recently discussed in a piece for the Indigenous Law Bulletin.

Seminar

Date: Thursday 1 September 2016

Time: 12.45pm to 2pm. A light lunch will be provided.

Venue: La Trobe Law School Moot Court, Social Sciences Building (Room 232), Melbourne Campus, La Trobe University

Cost: Free

RVSP: Please register via Eventbrite.

La Trobe