Senate debates

Tuesday, 19 October 2021


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

1:18 pm

Photo of Jim MolanJim Molan (NSW, Liberal Party) Share this | Hansard source

I start by acknowledging the feeling and the passion behind the contributions that have been made so far by all senators in this debate. There's a lot of similarity between this debate and the stillbirth issue that we dealt with so well many, many years ago. There is so much agreement on all of this because there needs to be agreement on so much of this.

We've heard Senator Farrell speak, and he said that fundamentally Labor agrees with this bill, the National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021. They have some differences, but generally they agree with it. We have heard Senator Steele-John speak remotely, and the people that he represents—the people who know the NDIS because they are participants in the NDIS—are telling him certain things, and the intention is to make this situation much, much better. Again, Senator Hughes knows this issue from top to bottom and, as we all say to her, she could talk for days on this particular issue. Of course, Senator Griff took us through some of the appalling, sad, terrible details and agreed with Senator Hughes that the situation that applied to Ms Ann-Marie Smith was an incredible situation, and not just that; it was sad and unforgivable. As Senator Smith said, it was sickening. It's something which we cannot allow in this nation of ours or in the legislation that we put in place, which the parliament uses to express its humanity in respect of this situation.

Let me try and put some context to this bill. The objective of the bill really revolves around the fact that it will strengthen the support and protections for people with disability by ensuring a clear and effective legislative basis for the NDIS Quality and Safeguards Commissioner's powers, for his or her compliance and enforcement arrangements, for the provider registration provisions and for efficient information sharing across government and government agencies. So that's the objective of the bill.

I think what is particularly important at the moment is that we don't lose sight of the big picture, and this is a big picture. It is an enormous picture. If we're talking generally about a failure—and what a failure it was in one particular area, in the appalling tragedy of one particular person—we must always remember that the NDIS is one of the largest social reforms in Australia's history and probably in the world's history. It's a globally unique scheme and it's now eight years old. There is much to be proud of and much to celebrate, despite the fact that, as we acknowledge, we have had an appalling failure. The scheme is now available in all corners of Australia, and it illustrates the humanity of this place and of the Australian people.

As at 30 June 2021, the NDIS was supporting more than 466,000 participants, with more than 52 per cent of these receiving supports for the very first time. It's always important to point out that you can only do this if you are a rich country. We are a rich country, and those riches depend on primary industry, including mining, and on the hard work of Australians. At the end of September, the 466,000 from June of this year had increased to 484,700 Australians. This compares to just 30,000 people in June of 2016. The participant satisfaction level is 77 per cent across the access, preplanning and plan review process. It's always the squeaky wheel that gets the oil, as they say, but 77 per cent have expressed satisfaction in what the NDIS is doing. The number of young people in residential care, something which has always been on everyone's mind, has dropped by 33 per cent since September 2017.

After eight years of operation, now is the time to listen, to take the lessons and to learn from the lived experience. We need to listen to the comments of the senators who have spoken, passionately and with a good sense of equity, on this issue today, and we need to turn those lessons into an even better NDIS. We need to improve the participant experience, but not just the participant experience; we need to improve the affordability and fairness of the scheme. It's comforting to know that Labor supports this bill. Everything should be done to protect the participants. We have had those views put to us by a number of people today, and they're the right views.

Let's have a very quick look at the principles behind the bill. The bill responds to a number of recommendations of the independent review which was caused by the tragic death of Ms Ann-Marie Smith in April 2020. That was conducted by the Hon. Alan Robertson SC, at the request of the commissioner, and it makes technical amendments to better support the operation of the NDIS commission, based on early implementation experience. All amendments seek to improve or clarify NDIS quality and safeguard arrangements to better protect participants from harm.

The necessity and support for this bill are for the following reasons. The Robertson review made a number of recommendations to improve the NDIS quality and safeguards arrangements for at-risk participants. The bill addresses important recommendations around information sharing and reportable incidents, and a number of our senators have addressed this particular point. It provides for improved information sharing between the NDIS commission and the National Disability Insurance Agency to better protect people with disability. The present clauses in the NDIS Act establish a relatively high threshold for sharing information. They establish that the disclosure must be necessary to prevent or lessen a serious threat to an individual's life, health or safety. So that's a fairly high threshold. This bill enacts a less restrictive threshold in recognition of the Robertson review recommendation.

The bill removes qualifiers like 'serious' or 'necessary' to ensure that any threat to life, health or safety is sufficient grounds for the recording, use or disclosure of protected NDIS commission information. It also amends provisions for disclosing information in a number of other specific situations, including the NDIS commission is able to disclose information to worker screening units and other agencies as required. The NDIS commission can publish and maintain information about historical compliance and enforcement action. The bill also provides for greater clarity around reportable incidents, including broadening the scope, and their reporting to the NDIS commission in the commission rules.

There are a number of other technical amendments in this bill, and they're important. Currently, quality assurance of registered NDIS providers is undertaken by approved quality auditors who are engaged by providers directly. The market for quality auditors includes a wide range of experience levels and sector knowledge. As such, this bill will allow the commissioner to place conditions on the approval of quality auditors and makes explicit the commissioner's power to vary or revoke approval of quality auditors. These decisions of course will be reviewable.

This bill makes a number of amendments to ensure consistency and procedural fairness in the application of the NDIS commission's regulatory response, including compliance notices and that compliance notices can be varied or revoked, and decisions in relation to these requests are reviewable decisions. Also, banning orders can now have conditions attached.

The NDIS market is diverse, including non-profit organisations, large private companies and individuals running their own businesses. The NDIS Act recognises this by placing obligations on providers, workers and anyone who is engaged otherwise by the provider. However, there is some concern that this definition is not broad enough to cover the range of potential governance arrangements, and, for the avoidance of doubt, this bill ensures that obligations and regulatory responses also fall on the key personnel of a provider, which can include the CEO, the board of directors and any other relevant personnel. I hope that certainly satisfies the points that Senator Griff brought up.

While the NDIS Act gives the commissioner the power to ban an NDIS provider or worker on the grounds that they are not suitable to deliver NDIS services and supports, it does not presently set out how suitability is determined for banning orders. The bill provides the power for the commissioner to make rules in relation to suitability for that purpose, aligning with existing provisions in relation to provider registration.

The bill also clarifies elements of the process that providers must follow when registering to deliver NDIS services and support. This includes that applicants are able to withdraw applications and applications for renewal of registration are deemed to have been withdrawn if the registered provider in question becomes the subject of a revocation or a banning order during the renewal process. These amendments and other minor technical amendments will strengthen the support and protection for NDIS participants and ensure their wellbeing.


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