Rachel Siewert (WA, Australian Greens) Share this | Hansard source

I rise today to speak on the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017. This bill has two purposes: firstly, to establish the NDIS Quality and Safeguards Commission; and, secondly, as it exists at the moment, to make amendments to the NDIS Act following an independent review of the legislation in 2015 by Ernst & Young.

The Australian Greens strongly support the concept of an independent statutory authority to ensure that people with disability are protected from violence, abuse and neglect and that those working with and supporting people with a disability follow best practices. For a number of reasons, however, we have concerns with the bill before us today. These include the limited remit of the commission and the extensive rule-making powers that are included in the bill, which will see significant items left to legislative instruments rather than being contained in the bill and the legislation itself. We have concerns regarding the independence of the commissioner, the inclusion of market oversight as one of the commissioner's core functions, the scope of the commissioner's complaints function, the limited power of the commissioner to reduce and eliminate the use of restrictive practices, and the lack of provisions in the bill relating to independent advocacy.

Unlike the recommendation of the Senate inquiry on violence, abuse and neglect against people with disability in institutional and residential settings, which specifically called for the establishment of a national system for reporting, investigating and eliminating violence, abuse and neglect of all people with a disability, the commission's remit will be limited to NDIS participants and other groups such as those over 65 receiving continuous support. We find this disappointing. We believe it should be available for all people with disability.

We also would like to strongly point out that this does not replace the royal commission that the Senate inquiry that I initiated and chaired recommended very strongly in our recommendations. The disability sector have been very clear that, while they support this—and they have made a number of comments about improvements, which I will come to—it does not replace the need for a royal commission. I am really pleased that the ALP is now supporting a royal commission. I hope they will support our second reading amendment that has been circulated by Senator Steele-John on behalf of the Australian Greens, which I now move:

At the end of the motion, add:

  ", but the Senate:

     (a) is of the opinion that this bill does not negate the need for a Royal Commission into violence, abuse, and neglect of people with a disability; and

     (b) calls on the government to establish the Royal Commission as a matter of urgency. "

Therese Sands, the director of Disabled People's Organisations Australia, said at one of the hearings of the inquiry on the bill's provisions:

… we note with disappointment that the NDIS Quality and Safeguards Commission will not provide comprehensive protection against violence, abuse and neglect for all people with disability across a broad range of service systems and situations. It will only provide protection to the 10 per cent of people with disability who directly access NDIS supports, and it will not have a mandate to address individual or systemic issues outside of the NDIS. This means that the majority of people with disability as well as NDIS participants, when interfacing or using other service systems, will have protection only through existing regulatory and policy frameworks that have to a large extent been shown to provide inadequate protection.

Having chaired that inquiry into violence, abuse, and neglect against people with disability, I can very strongly tell you that the existing state and territory provisions are not adequate. I am glad to see that the government has committed to working with all states under the National Disability Strategy to ensure that people with disability who are receiving service outside the scope of the commission are covered by appropriate quality and safeguard measures, with this issue also being considered as part of the review of the framework in 2021.

This is an issue that really should have been resolved before this bill came before the chamber. It is very important that these issues be addressed, and 2021 at this stage seems quite a long way off to me. It's especially important, as we know that a number of states are winding back their current arrangements. For example, New South Wales is one of the first to be winding those back, and a great deal of concern has been expressed by people with disability about the current winding-back of state arrangements.

While the bill provides the overarching structure for the commission, the operational detail will be provided for in legislative instruments. The bill contains 23 rule-making powers. Six of these rules are essential to the operation of the commission. While we understand that the government is currently consulting on a number of these sets of rules, the consultation is currently limited to a select number of organisations, as are the rules, and so the rules have not yet been publicly released. We find it concerning that a large amount of the operational detail has been withheld from the legislation and will only be publicly available following the passage of this bill.

When considering this bill, the Senate Standing Committee for the Scrutiny of Bills raised concerns regarding the placing of significant matters in delegated legislation rather than in the bill itself. The scrutiny committee specifically mentioned the code of conduct and the breach of it potentially being the subject of significant penalties, and was of the view that its establishment:

… should be included in primary legislation unless a sound justification for the use of delegated legislation is provided.

In a subsequent report the scrutiny committee acknowledged the minister's response regarding this and other matters regarding the bill, but reiterated its scrutiny view. Consequently I will be moving an amendment to have the draft code of conduct, which is only eight points, included in the bill.

A number of submitters and witnesses to the bill's inquiry raised the issue of the commission's independence. There are concerns that the minister's ability to direct the commissioner will impact on their independence. The relevant provision of the bill states:

The Minister may, by legislative instrument, give directions to the Commissioner about the performance of his or her functions and the exercise of his or her powers.

The commissioner must comply with these directions. While the explanatory memorandum indicates the directions must be general in nature and cannot relate to a specific individual or NDIS provider, the commissioner needs to be able to carry out their work without fear of interference from the minister and/or the government of the day. We would like to see this power qualified so the minister's directions must be consistent with the vision and principles of the National Disability Strategy. At the very least, such directions should be disallowable by the parliament, and I will be moving an amendment to this effect in the Committee of the Whole.

We are also concerned about the commission's proposed functions of providing NDIS market oversight and also investigating, managing and resolving complaints and conflicts, particularly when its market oversight role may impinge on its ability to rule on complaints under its complaints function where the market is thin, such as in regional and rural areas. As Mary Mallett, the CEO of the Disability Advocacy Network Australia, said at one of the hearings:

If you have a service—using a remote area as an example—where there are lots of complaints coming in about the service and it's clear they are not providing good service or that there are issues about their registration maybe, the commissioner has also got to manage the issue of the risk of that service provider withdrawing and there being no service provider in the area. It's an odd tension that is consciously in there. We've talked about it with the DSS quality and safeguarding people at an earlier stage. It is deliberately in there, but that's a challenge for this commission to manage. It's one where we would worry about how that's going to play out.

Accordingly, I will be moving an amendment in the Committee of the Whole to remove market oversight as one of the commission's core functions so that the commissioner's complaints function is unhindered. I find this provision very concerning.

Some submitters to the bill inquiry suggested that the commissioner should also be able to receive and investigate complaints about the National Disability Insurance Agency and local area coordinators. As it stands, the commission will be responsible for receiving, investigating, managing and resolving complaints about the provision of services or supports by NDIS providers. Complaints about the NDIA and LACs—local area coordinators—will continue to be dealt with through existing channels, such as the Administrative Appeals Tribunal or the Commonwealth Ombudsman. Expanding the scope of the commissioner's complaints function would make it easier for people with disability and for the sector to know where to make a complaint, and to actually use the system. It would also provide the commission with a more holistic picture of systemic issues and trends, and it would assist the commissioner to deliver on one of its core functions—that is, to provide advice or recommendations to the agency or the board in relation to the performance of the agency's functions.

The minister's office provided me with the following information following my letter to him outlining the concerns of the Australian Greens regarding the bill. Specifically, he said: 'Partners in the community, which include local area coordination and the Early Childhood Early Intervention, will be held to equivalent or same quality and safeguard arrangements as the NDIS providers.' I just don't see how this legislation does that and how he can guarantee that statement. Accordingly, I will be moving an amendment in the Committee of the Whole to expand the scope of the commissioner's complaints function to include local area coordinators and providers of Early Childhood Early Intervention services. That will make it clear. This amendment will also expand the scope of the commissioner's complaints function to include the NDIA.

We have further concerns about the limited power of the commissioner to reduce or eliminate the use of restrictive practices, as the bill does not provide the commissioner with regulatory powers to prohibit certain restrictive practices or impose criminal penalties. The government argues that this is because the Commonwealth does not have the power to directly regulate restrictive practices, making it necessary for the states and territories to continue to authorise such practices in behaviour-support plans of people with disability in their jurisdiction. As DPO Australia said in their submission to the bill's inquiry:

The current mechanisms at State and Territory level are varied and inconsistent, with some consisting of relatively weak policy functions within government departments and others having established regulatory bodies and mechanisms.

The commission should have the strongest possible powers with regard to restrictive practices and their elimination. Having chaired several inquiries that have dealt with issues of restrictive practices, I can only echo and support the comments made by DPO Australia: the states and territories do have varied and inconsistent mechanisms, and some are relatively weak. I would go further and say there are 'very weak' policy functions within government departments, and I think there's an absolute need to strengthen these provisions. I'm glad to see that the government has circulated an amendment that expands the commissioner's behaviour-support function. I quote from the supplementary explanatory memorandum:

The amendments made will require the Commissioner to assist the States and Territories to develop nationally consistent minimum standards in relation to restrictive practices that are in line with the intergovernmental agreement to the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector.

While the amendment itself mentions the Convention on the Rights of Persons with Disabilities, this is not mentioned in the section of the supplementary explanatory memorandum that I have just quoted from. The inclusion of the CRPD in the amendment is important, as the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector still falls short of CRPD.

We are further concerned that the role of the senior practitioner is not in the legislation. While the explanatory memorandum provides that the senior practitioner will be the officer responsible for this role, we want to see this formalised in the legislation. As such, I will be moving amendments in the Committee of the Whole requiring that there be a senior practitioner and allocating them the responsibility for the behaviour support function. This will ensure that the behaviour support function is not deprioritised at any future stage.

The Australian Greens have concerns over the lack of provisions in the bill relating to independent advocacy, given the important role independent advocacy plays in supporting people with disability. While the quality and safeguards framework itself refers to the important role of independent advocacy, this is not currently reflected in the bill. People with Disabilities Western Australia said in its submission to the inquiry:

There is a concern that the Bill will establish a dual role for the Commission when handling complaints. The Bill details that Commission will support people to be heard and provide protections for victimisation should they make a complaint, there is potential for impartiality to be compromised if the Commission is both interrogator and supporter. There is a strong case for independent advocacy to be available to ensure the rights of people are upheld in an unbiased way.

There was also concern that the bill did not cover independent advocates who may disclose information. I'm glad to see that the government has circulated a number of amendments that will see independent advocates referenced in the legislation, including an amendment that the commissioner must acknowledge, recognise and respect the roles of advocates—including independent advocates—in respecting the interests of people with disability, and will see independent advocates protected for disclosing information.

I'm pleased to see that the government took on board the concerns raised by people with disability, their advocates, ourselves and the ALP in the inquiry into this bill. We noted in our additional comments that we supported a suggested involvement of community visitors made by a number of submitters, and I'm glad to see that the government intends to make clear in the complaints rule that the commissioner will acknowledge, recognise and respect the role of community visitors and accept referrals from them.

I also want to briefly mention worker screening. The Australian Greens outlined in our additional comments that we want to see worker screening made compulsory for unregistered providers. We do acknowledge the right of people with disability to individual choice and control, and we acknowledge there are differing views on this issue. However, we want to see a reasonable balance struck. While this issue will not be resolved today, I'm glad to see that Commonwealth and state officials have agreed to explore both the policy and practical implications of extending mandatory worker screening to all disability support workers in the NDIS and consider it as part of the formal review of the scope of the NDIS worker screening before July 2019, when worker screening commences in most jurisdictions.

The Australian Greens are very pleased to see that the government will be moving an amendment to review schedule 2. I should note here that I had lodged a contingency motion to try and effect that change if the government didn't make the change. But the government is making that amendment, so there will be no need to use that contingency measure. Schedule 2 contains amendments relating to previous reviews of the act for the bill. The Australian Greens had been pushing for this schedule to be split from schedule 1 because there are a great deal of concerns raised about schedule 2. I must say there are also further amendments I'd like to see to the NDIS legislation that are not included in schedule 2. We have outlined our various concerns in relation to these amendments previously and we've had discussions with the minister around our concerns on schedule 2. I will note that people with disability and their advocates are very concerned about a number of those amendments. We will be pleased to see them when they come back, and hopefully the concerns that were raised during the Senate inquiry are dealt with through that further legislation. We will continue to advocate for those amendments to the bill.

The Australian Greens do support this very important piece of legislation. But we think it could be better. We think there should be amendments made that go beyond what the government has done. I will acknowledge that the government has listened and made some amendments, which is great, but there do need to be further amendments made to this legislation.