Senate debates

Tuesday, 19 October 2021


National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021; Second Reading

12:39 pm

Photo of Jordon Steele-JohnJordon Steele-John (WA, Australian Greens) Share this | Hansard source

[by video link] I would like to thank Senator Farrell for his contribution and for the ALP's support of the Greens' amendments to this bill. First of all, it's really important to place this overall piece of legislation in context. The context in which we consider this bill today is one in which we know that right now across our community, across our country, many, many disabled people, particularly disabled women, are subjected to violence, abuse, exploitation and neglect The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability held hearings recently, and some of the testimony and evidence given at that hearing spoke in vivid terms to the experiences of many across our community. We know that this is both a historical fact and a present reality for many, many people—some of whom are also participants within the NDIS. As we consider these facts and realities, it is really important, therefore, to ensure that the safeguarding mechanisms that exist for participants within the NDIS are strong, so that violence, abuse, neglect and exploitation of participants is avoided. When we talk about safeguards, it's important to acknowledge that institutional safeguards, systemic safeguards, legislative safeguards, are an important element of an overall spectrum of safeguarding approaches that can and should be taken to eliminate violence, abuse, neglect or exploitation. It's really important that they sit well alongside community based safeguards, what's called 'natural safeguarding'. In many ways this boils down to the importance and value, in terms of safeguarding, of facilitating people to be active in the community, to engage and to have social relationships and connections.

This bill, the National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021, is also being brought to us today in a context where the nation, and particularly South Australians, are reflecting upon the absolutely horrific murder of Ann-Marie Smith. It was and is a case which serves as a gruesome window into the lives of so many disabled people. One of the facts that always stick out to me when we look at Ann-Marie's case, in addition to horrendous abuse, the exploitation and the squalor in which she was left by people charged with her support, is that, when they investigated her death—or the 'incident', as it was termed initially—nobody had seen Ann-Marie Smith in a decade. Nobody had seen her. I think that speaks to the urgent need for those natural safeguards to be put in place and, in many ways, for the NDIS to function as it should to enable people to participate in community. When it comes to the systemic and legislative safeguards that should exist, and that are currently administered and watched over by the NDIS Quality and Safeguards Commission, it's important that they work.

The Joint Standing Committee on the NDIS has been conducting a detailed inquiry into the NDIS Quality and Safeguards Commission for a while now, and it has revealed a number of ways in which the commission can do better. The legislation before us today seeks to translate only three or four of the recommendations of the Robertson review, which was instigated by the commission after the manslaughter of Ann-Marie Smith. In putting these recommendations into law, the government made a significant initial misstep by making the assumption that, simply because a review had been conducted and that review had engaged with disabled people's organisations, the recommendations of that review would be translated into law without additional scrutiny to ascertain whether the recommendations taken in relation to one case were applicable to the entire population, or indeed that the legislation crafted and designed to implement those recommendations faithfully reflected those recommendations, and, finally, critically, to ensure that in trying to do good, in trying to strengthen safeguards, other dangers, other risks, other harms, were not created or enabled.

Initially, the government attempted to pass this legislation a few months back, in the non-contro section of the Senate agenda—believing that it should get unanimous support. Many disabled people, many disabled peoples organisations reached out to me—and this was in the context of the campaign against independent assessments at the time—and said, very clearly, that they had not been consulted, that the Department of Social Services, the NDIS, the minister's office hadn't reached out to them. They were more than ready and willing to engage, even though they were otherwise busy with the campaign against independent assessments. They would have been more than happy to engage with the crafting of this legislation, because the issue is so critical to them and their members.

The government were initially resistant to an inquiry of a necessary length, but eventually we were able to persuade them that an inquiry was needed. That inquiry took its course, and heard some critical recommendations about how this legislation could be strengthened and how we could ensure that this legislation didn't do harm as it was trying to do something good. As Senator Farrell noted, our amendments seek to turn the feedback gathered into law and into shifts within the legislation.

The amendments that we've set out will ensure that there is a full review of the NDIS Quality and Safeguarding Framework within 12 months. It will ensure that if a person is designated as an at-risk participant, and their information is therefore shared on that basis, then they are informed that information has been shared on their behalf. It will ensure that there are proper, transparent processes in relation to the handling of that information, and that those processes are reviewed by the Australian Information Commissioner. And, finally, it will insert critical elements within the legislation that will enable the definitions within the bill to be clearer. When we talk about vulnerability, when we talk about at-risk participants, it is really, really important that we acknowledge and recognise that someone's so-called vulnerability is not an inherent product of their impairment or disability. It is the creation of environmental factors, contextual factors that cause them to be at risk from abuse, exploitation, neglect or violence at the hand of somebody seeking to exploit that environmental context. So our amendments also tighten up those definitional aspects.

I also say here in the second reading debate, in the time that I have left, that I'm also aware of two political realities, as I talk to this amendment. One is that there is an important principle that we are discussing here, which is the principle of 'nothing about us without us'. This has been a catchcry of the disability community for a really long time. It's a clear articulation that if you're going to make a decision or change a policy that effects disabled people, then those disabled people should be included and should co-design that process. Initially, that wasn't the road the government wanted to go down. We have now been through a process where disabled people have given their views on this important piece of legislation, and my amendments give us the opportunity, as a chamber, to implement those recommendations and to make real our commitment to the principle that nothing should happen in relation to disabled people. Critical policy changes shouldn't happen in relation to disabled people without us being involved in the process, because that is how you get good policy outcomes that will achieve the goals that you want. Nothing in this set of amendments will impede the central function of the bill. It will only serve to make it a better bill, reflecting the feedback of disabled people.

I would also acknowledge that there is an amendment coming up from One Nation in relation to the broader question of the funding and the sustainability of the NDIS. I know this is an issue which One Nation has spoken a lot about recently. The Greens and One Nation are on different pages when it comes to the financial sustainability of the NDIS. I am of the view that we do not yet have a clear enough picture of the financial trajectory of the agency and the drivers of that trajectory to enable us to say conclusively whether there is a cost overrun and, if so, what is driving that cost overrun, which I think kind of puts the cart before the horse when we're talking about whether or not the NDIS needs to be constrained or whether that's appropriate. I don't think it is appropriate. I don't think we should be kicking people off the NDIS. I think that a lot of the conversation around our National Disability Insurance Scheme has been shaped by facts and figures presented to the public out of context, by individuals who want to achieve policy outcomes by presenting those figures in the way that they have. So I will make clear that the Greens will not be voting for that particular One Nation amendment.

Regardless of our differences of opinion on the question of the finances of the agency and what should or shouldn't be done to address that, the bill before us today does not deal with the financial sustainability of the NDIS. It deals with changes to quality and safeguarding and what is to be done to ensure that disabled people who are scheme participants are not subject to abuses. The amendments that I've offered strengthen that bill with some commonsense recommendations made by disabled people who are experts in how to get this done properly. They require transparency and accountability and ensure that a proper and fulsome review of the overall framework will be done within the next 12 months. They reflect that baseline principle of listening to disabled people when we speak and adding our input into the policy creation process.

On those grounds, I would wholeheartedly urge the crossbench—and, indeed, the government at this moment—to come on board with these amendments. Let's make this a whole-of-Senate activity, to come together and endorse some sensible improvements to a piece of legislation, having reviewed it, which is ultimately our job to do. In doing so, let us send a message to disabled people across Australia that the Australian Senate actually does believe in that core principle of 'nothing about us without us'.

It may well be that the initial creation process of this bill was rushed, for whatever reason. It was a very intense time for everybody on every side of the disability debate when these pieces of legislation were initially offered, and I wonder whether, if people had their time over again, more consultation would have been done in the exposure draft phase of the bill and whether actually the bill sitting before us today would look remarkably like the bill would look if our amendments were to pass. But let's put that aside. We all miss things in the process of putting together the sausage of legislation, and I reckon we could take this opportunity right now—I was about to say, to make that sausage a bit tastier; that's a bit weird!—to make the bill overall a better thing for people. That's something which, I think, regardless of your political inclination, we can, together, at this moment, get on board and get done.


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