Zed Seselja (ACT, Liberal Party, Assistant Minister for Social Services and Multicultural Affairs) Share this | Hansard source

I table a supplementary explanatory memorandum relating to the government amendments to be moved in this bill and—by leave—I move government amendments (1) to (11) on sheet EU124 together:

(1) Clause 2, page 2 (table item 3), omit the table item.

(2) Schedule 1, item 7, page 5 (before line 25), before the definition of key personnel, insert:

independent advocate, in relation to a person with disability, means a person who:

(a) is independent of the Agency, the Commission and any NDIS providers providing supports or services to the person with disability; and

(b) provides independent advocacy for the person with disability, to assist the person with disability to exercise choice and control and to have their voice heard in matters that affect them; and

(c) acts at the direction of the person with disability, reflecting the person with disability' s expressed wishes, will, preferences and rights; and

(d) is free of relevant conflicts of interest.

(3) Schedule 1, item 48, page 32 (after line 7), after paragraph 73W(a), insert:

(aa) acknowledges the role of advocates (including independent advocates) and other representatives of persons with disability; and

(ab) provides for cooperation with, and facilitates arrangements for, advocates (including independent advocates) and other representatives of persons with disability who are affected by the complaints process and who wish to be independently supported in that process by an advocate or other representative; and

(4) Schedule 1, item 48, page 32 (line 25), after "NDIS providers", insert ", advocates (including independent advocates)".

(5) Schedule 1, item 48, page 32 (after line 29), after paragraph 73X(2) (c), insert:

(ca) requirements relating to procedural fairness in relation to the management and resolution of complaints;

(6) Schedule 1, item 48, page 34 (before line 5), before paragraph 73Z(3) (a), insert:

(aa) requiring a registered NDIS provider to provide people with disability with information regarding the use of an advocate (including an independent advocate) in relation to an investigation into the reportable incident; and

(7) Schedule 1, item 48, page 35 (line 15), after "carer", insert", independent advocate".

(8) Schedule 1, item 60, page 64 (after line 8), after subsection 181D(3), insert:

  (3A) In performing his or her functions, the Commissioner must acknowledge, recognise and respect the role of advocates (including independent advocates) in representing the interests of people with disability.

(9) Schedule 1, item 60, page 64 (before line 9), before subsection 181D(4), insert:

  (3B) In performing his or her functions, the Commissioner must have due regard to procedural fairness.

(10) Schedule 1, item 60, page 67 (line 20), at the end of section 181H, add:

; and (f) assisting the States and Territories to develop a regulatory framework, including nationally consistent minimum standards, in relation to restrictive practices:

  (i) in line with the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector; and

  (ii) consistent with the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006.

Note: The Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No. 12 ([2008] ATS 12) and could in 2017 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

(11) Schedule 2, page 80 (line 1) to page 89 (line 17), to be opposed.

The government is moving amendments to schedule 1 of the bill in response to concerns raised by stakeholders during Senate community affairs committee hearings: to acknowledge the important role of independent advocates in representing people with disability, to provide for rules to be made about the role of advocates in the context of complaints, to extend the whistleblower protections to independent advocates, and to confirm the obligation on the commissioner and on registered NDIS providers to afford procedural fairness to workers and others who are the subject of a complaint or allegation. This is consistent with existing common law requirements. The commissioner will issue guidelines relating to compliance with common law procedural fairness requirements and clarify the commissioner's national policy-setting role under its behaviour support function to assist states and territories to develop a regulatory framework, including nationally consistent minimum standards in relation to restrictive practices, which is in line with the intergovernmental agreement on the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector and consistent with the Convention on the Rights of Persons with Disabilities adopted in New York on 13 December 2006.

Schedule 2 of the bill implements COAG's response to the recommendations of the independent review of the NDIS Act. However, given the importance of schedule 1 to the future protection of people with disability under the NDIS, the government does not intend to delay the passage of the bill to secure the passage of these minor amendments that are intended to clarify and improve the NDIS Act. As a result the government will remove schedule 2 from the bill and will progress these amendments at a later date following further consultation with the Senate.