Thursday, 14 November 2019
National Disability Insurance Scheme Amendment (Streamlined Governance) Bill 2019; In Committee
I want to, first of all, thank the Labor senators who made a contribution to the debate on the National Disability Insurance Scheme Amendment (Streamlined Governance) Bill 2019, because it outlined the extraordinary amount of frustration and stress that has been felt by participants and all their carers and families. We heard speaker after speaker talk about the issues around the NDIS, the concerns around the NDIS and the fact that the NDIS is not working as intended.
Under this government's watch, we have seen a litany of failures to deliver for people with disability—the participants of the NDIS. Yesterday, we heard stories about delays in receiving access to the NDIS. We heard stories about delays in receiving services and supports under the NDIS. What is quite stark is this government's inability to actually address these concerns. These are obviously not concerns that have just arisen; there are stories after stories of families that have been told to senators and members across this parliament. Each senator in this chamber, I'm sure, would have received representations from participants and their families. They would have received letters, emails and phone calls, all seeking help to resolve longstanding issues.
Just last week I had a family that have a 2½-year-old son who has been trying to get access to a planning meeting for a year. This is a child who is 2½. When they saw the light at the end of the tunnel—they finally got an appointment with the planner—they then got a phone call, a message left on the answering machine, to say they'd have to cancel. Three days out from the actual planning date they had to cancel that meeting. You can imagine what that family felt like. A year has passed and they're trying to seek supports and services for the child. They reached out to my office. We spoke to the NDIA and there was another meeting scheduled, but that shouldn't be happening.
These lengthy delays should not be happening. There are delays that we hear about in terms of equipment for people. Sometimes that equipment arrives too late and the person has passed away. This is not what the NDIS is about. The NDIS is a scheme that was meant to enable participants to live a normal life, to be able to participate in the community and the workforce just as everyone else would be able to. That is not what is happening. We have family after family ringing in tears because they can't get the services or, even worse, they've heard that their child is not disabled enough. These are the comments that are coming from planners to families. Of course, we all know that the Administrative Appeals Tribunal workload in terms of NDIS appeals has skyrocketed. This shouldn't be happening.
I want to demonstrate to the minister and the government exactly what is happening in my home state of Tasmania. Satisfaction with the NDIS has dramatically dropped. It has fallen by 30 per cent. I say this to Senator Patrick in particular: satisfaction with the NDIS in Tasmania has fallen 30 per cent in 12 months. These figures from the NDIS website—these are not figures I just plucked from the air—show that, in June 2018, 97 per cent of participants described their satisfaction with the agency planning process as good or very good. Twelve months later, in June 2019, that satisfaction rate collapsed by 30 per cent to 67 per cent. Extraordinary! What is occurring in Tasmania, where you have such a dramatic collapse in satisfaction?
Even government senators should be able to acknowledge that this is an extraordinary collapse in satisfaction.
At the same time that we saw this collapse of satisfaction in Tasmania, Tasmania was merged with Victoria—in July 2018. So it's no wonder satisfaction has plummeted. As I understand it, Tasmania no longer has a dedicated NDIS general manager but is managed from Victoria. Problems with the merger were even outlined by the Tasmanian Liberal government submission. What they had to say was: 'The Tasmanian government has observed differences in Tasmania's capacity to resolve issues quickly at a local operational level since the NDIA restructure merging Tasmania and Victoria in July 2018. This restructure saw the loss of the regional manager position in Tasmania.' Why was management for Tasmania merged with Victoria? Why has Tasmania been downgraded? These are the answers that we are seeking.
We have Mr Shorten, the shadow minister, who has reported and spoken about the issues that he has seen as he's travelled around Australia hearing the horror stories about this vital scheme being suffocated as a result of the neglect of this government. In Tasmania, there are widespread issues relating to disability transport funding and to the availability of NDIS approved allied health professionals. We have a collapse in support in Tasmania. We even have, as I've said, the Tasmanian government talking about the differences that they have observed since the restructure and the merging of Tasmania with Victoria in July 2018. So there are a number of questions that I would like the minister to respond to, because Tasmanians would like to know the answers to these questions. Why has this happened? Certainly, it sounds to me like the Tasmanian Liberal government are not happy about it either. Could the minister respond to those questions, because yesterday the minister's summing up was quite quick. In fact, I think I blinked and missed it. It was a shame because there were so many stories and questions that this side of the chamber put forward that were not responded to. You just cannot dismiss these stories; you cannot dismiss participants and families and carers of participants by just doing a one-minute summing up and then sitting down. You just can't treat people like that.
Let's move to some of the issues that were raised about the bill itself. Universally, the disability advocates are seeking to have this bill delayed. That's what they've asked for, and, of course, not unsurprisingly, this government ignored that call. I want to go to a couple of the submissions that were put forward to the inquiry that was held by the Senate Community Affairs Legislation Committee in September. People with Disability Australia, PWDA, for those people listening, is a leading disability rights advocacy and representative organisation of and for all people with disability. They are a national cross-disability organisation which represents the interests of people with all kinds of disability. They are a non-profit, non-government organisation and they do tremendous work, which I'm sure the minister would agree. Their recommendation in their submission to this bill was that they believe:
… the disability sector would benefit from more time to consider any the Bill and any unintended consequences.
… that the Explanatory Memorandum or the Second Reading Speech provide limited analysis of the possible impacts—
that they've referred to in their submission.
They go on to:
… recommend that the proposed changes in this Bill are deferred and considered within the upcoming Tune Review of the NDIS Act.
It is odd that this bill is coming here today and has been introduced by the government when we have the Tune review currently looking into the NDIS Act.
We also have a submission, again by an organisation, Young People in Nursing Homes National Alliance. The alliance, people will know, is a national peak organisation dedicated to resolving the issue of younger people with disability living in residential aged-care facilities and those at risk of aged-care placement. If I have time in a separate contribution, I will outline a number of the issues that they've raised in their submission. But they too have asked that the bill not proceed at this time, so why is the government refusing to listen to advocates? Why are they refusing to listen to the advocacy disability organisations and proceeding with this bill? I'd like to know that as a start from the minister, if she could respond. (Time expired)
By leave, could I please move amendments 1 and 2 on sheet TK154 together and, in doing so, could I also table a supplementary explanatory memorandum relating to the government's amendments to be moved to this bill?
The CHAIR: You're seeking leave to move them together?
(1) Schedule 1, heading, page 3 (line 1), omit "Amendments", substitute "Main amendments".
(2) Page 16 (after line 19), at the end of the Bill, add:
Schedule 2—Other amendments
National Disability Insurance Scheme Act 2013
1 At the end of section 66
(a) the CEO or an Agency officer is served with a summons or notice, or is otherwise subject to a requirement, under the Royal Commissions Act 1902; and
(b) in order to comply with the summons, notice or requirement, the CEO or Agency officer would be required to disclose information that is protected Agency information;
then, despite sections 62 and 67G of this Act, the CEO or Agency officer must, subject to the Royal Commissions Act 1902, disclose that information. The information is taken to have been disclosed for the purposes of the Royal Commissions Act 1902 and of the Royal Commission concerned.
2 At the end of section 67E
(a) the Commissioner or a Commission officer is served with a summons or notice, or is otherwise subject to a requirement, under the Royal Commissions Act 1902; and
(b) in order to comply with the summons, notice or requirement, the Commissioner or Commission officer would be required to disclose information that is protected Commission information;
then, despite sections 67B and 67G of this Act, the Commissioner or Commission officer must, subject to the Royal Commissions Act 1902, disclose that information. The information is taken to have been disclosed for the purposes of the Royal Commissions Act 1902 and of the Royal Commission concerned.
3 Section 67G
After "except for the purposes of this Act", insert "or the Royal Commissions Act 1902".
4 Application provision
The amendments of sections 66 and 67E of the National Disability Insurance Scheme Act 2013 made by this Schedule apply in relation to a summons or notice served, or a requirement made, on or after the commencement of this item (whether the protected Agency information or protected Commission information came into existence before, on or after that commencement).
The CHAIR: The question is that the amendments, as moved by the minister together, (1) and (2) on sheet TK154, as well as the explanatory memorandum, be agreed to?
Sorry, Chair. Could you repeat what the motion is, please?
The CHAIR: The minister has moved the government amendments together, so that's (1) and (2) on sheet TK154, and she's also indicated she's tabling an additional explanatory memorandum.
Yes. So what's the motion?
The CHAIR: She's moved that motion.
That the amendments be agreed to?
The CHAIR: Yes.
Is the minister going to respond to my—
I'll let Senator Steele-John speak first.
The CHAIR: I will go to Senator Steele-John, he may have a relevant question, and I'll come back to you.
I wish to clarify a point with the chair, if that's okay? Forgive me, Chair. I have a number of questions to put to the minister in relation to both the amendment and the bill in its totality. I'm seeking your guidance as to when best to make the contributions, both to this amendment but also to the bill generally, for I, like Senator Brown, would like to get a bit more detail on the government's legislation here.
The CHAIR: What the minister has done is move the government's amendments. There are still other amendments there, and the debate hasn't been closed down. No-one wanted the call, so I'm obligated to put the motion that the minister has moved. That's where we are: the minister has moved that first amendment, but it doesn't shut down debate, because we're still in committee of the whole.
Thank you, Chair. I do apologise, but when Senator Brown finished I did attempt to get the call. I might have missed your line of sight.
The CHAIR: My apologies. As you all know, the minister is not required to answer questions. It's entirely up to the minister as to what statements or questions she answers. The minister wants to make some explanatory remarks now around the amendment that she has moved, so we'll go to the minister and then to you, Senator Steele-John.
Just in clarification, Senator Steele-John, of course I stand prepared to respond to all the questions that I'm sure you're going to ask more generally. I just sought to move this along by moving these amendments and then, of course, I'll be very pleased to enter into a debate.
The amendments that I have just moved are particularly specific. They relate to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability on the basis that it is highly likely that the royal commission will request a range of data and information, including information that may well be protected. We believe that both the NDIA CEO and the NDIS commissioner need to be in a position where they are able to provide, if they're required to provide, the royal commission with access to the information it needs to fully inform itself in relation to any information that is put before it.
Currently, the confidentiality provisions that are provided in the NDIS Act allow for the sharing of information, including protected information, but it is actually subject to the agreement of the head of the agency. We believe, given the importance of the royal commission in terms of its findings and ensuring that it has the capacity to undertake its deliberations and investigations uninhibited, that it is appropriate that the NDIA CEO and the NDIS commissioner be required to provide that protected information in response to a summons or a notice issued under the Royal Commission Act rather than it being subject to a decision.
So the proposed amendment to the NDIS Act clarifies those requirements for these agency heads to produce documents and information that include protected information, despite those provisions which currently exist within the act. We believe that this approach will increase confidence in the operation of the royal commission by ensuring that it has all the information that it requires to do its job.
Before commenting on the nature of the amendment put forward by the government, I have a series of questions to put to the minister about the bill in its generality. In doing that, I think it may benefit the chamber to contextualise my line of inquiry generally.
As the minister would be aware, the NDIS is rightly described, if you like, as a significant social services reform. It is often likened to the most significant reform to our social services system since Medicare. One of the critical elements of the reform is a shift in the responsibility in relation to disability policy from what was previously described, in the 2010 Productivity Commission report, as a kind of state based postcode lottery to a policy which is intended to be marked by a broad national system which enables a continuity of services and supports, regardless of where an individual lives in Australia.
It has not been a seamless transition between state and federal responsibility in this space, and one of the particular challenges has been the sharing of data between state and federal governments. Another challenge has been cultural, which is to say that states finding themselves under the NDIS framework have taken different responses in terms of what role they subsequently play in the funding of disability supports, particularly around disability advocacy services, resulting in many instances in gaps between funding cycles but also in what has been termed legislative or procedural or administrative gaps, through which certain disabled individuals, particularly those journeying with psychosocial disability, have fallen. It's resulted in a lot of distress and often a lot of harm to individuals, and it has been characterised by both state and federal government confusion and at times—particularly in Victoria—by a multilayered confusion, culturally, in relation to local government, where some services are provided through different local government frameworks.
In some areas, progress has been made after continued and very diligent advocacy on behalf of disabled people, their families, their supporters and their funded organisations, which sometimes perform their roles in a context where they are also losing funding. We've seen some successes around the alignment of the health system in different state and territory jurisdictions with what the NDIS will provide so that, for instance, disabled people entering the health system don't end up in the middle of a bureaucratic stand-off between state, territory and federal governments, who haven't in the past been able to make up their mind as to who should most rightly and fittingly cover individual participants at different times.
I'm aware that these are issues that have been raised with the minister and with previous social services ministers, and they have no doubt made their way into the briefing pack that the minister was handed when he took up his position. What strikes me—and what has struck many other advocacy organisations that I've worked with on this issue—is that, when it comes to the question of public service function and Commonwealth, state or local government responsibility as defined by various pieces of state and territory legislation, process is important but culture is often king. To set culture there is a need for a clear view, on behalf of the Commonwealth, as to the end point we are seeking to achieve. Before you can change the culture of an organisation you've got to understand where you are and where you want to be, and I must say that it isn't a totally one-sided argument.
I think since the inception of the NDIS there's been confusion on behalf of state and territory and federal government levels as to who was now going to take leadership in a certain areas. And those questions—some of them created by unfortunate vagaries within the relevant NDIS implementing legislation—have not been helped by a desire, on behalf of those levels of government, to make sure that they don't end up footing the bill. It speaks to, I think, the unfortunate reality that, when we think about disability in Australia, when we think about the potential roles that we all collectively play in removing the barriers that disabled people face, we often bring it back to questions of dollars and cents and a desperate urge, on behalf of all levels of government, not to be left with what they see as an expensive impost on themselves.
There are examples where this has been overcome at the state level. I think in some ways states like Victoria have done a better job than others in managing that cultural shift and have recognised pretty early on that, although the Commonwealth now takes responsibility for certain aspects of disability funding for disability support services, there is still a vital role to play at their level of government in making sure that they do what they can to break those barriers down.
On the other side of that ledger, we have seen New South Wales has a lot of challenges. I have worked a lot with Senator Brown on the question of disability advocacy funding in New South Wales, which has been a disaster under the Liberal government, with different ministers wishing to push it all off onto the Commonwealth without understanding the types of advocacy that the states and territories and federal government are now obliged and, in fact, eligible to fund.
In Tasmania we've also seen a similar kind of 'get out as quick as we can' mentality. 'It's the Commonwealth's job now, folks. We can finally get these very expensive disabled people off our ledger.' Of course, that's completely the wrong way to think about it, because, when we make modifications to our society in relation to making it more accessible for disabled people, making it more inclusive to disabled people, we, of course, increase accessibility and inclusion for all of our society. And that's clear when we talk about funding disability advocacy, which often a disabled person might be eligible for at the same time as they are also a person of colour or somebody journeying with issues of poverty. And so supporting advocacy for a disabled person is also helping somebody who's financially struggling make it through their tough time that they're in.
So I would like to ask the minister to outline for me how the minister and the relevant Minister Robert view this question of responsibility. How does the government go about articulating the role that is played by local, state and federal governments in relation to the funding of disability services and supports, as covered by the NDIS, and advocacy funding and supports that are also, in other ways, funded by the NDIS?
Just to be really clear, I'm asking: what kind of cultural leadership role does the Commonwealth play in talking about the issues of co-responsibility, or does the government take a view that the Commonwealth should be solely responsible for these areas? I would be very grateful if the minister could outline the government's position on this first question.
Thank you very much, Senator Steele-John. Can I acknowledge upfront that this is a very, very major reform and, like all things that are as major and complex as this one, there are always challenges in the introduction and challenges built on the fact that it's a multijurisdictional reform. You raised the question in relation to those different jurisdictions. In relation to participants in the NDIS and those people who are eligible under the NDIS, the act itself and regulations obviously prescribe how they interface with the NDIA and all of the activities. But you do raise a very good point in relation to the many people in our community who live with disability and who do not come under the NDIS but equally require assistance in their lives to ensure that they have the capacity to live the best possible life they can through the provision of various supports.
As has always been the case, the states and territories are responsible to ensure that they provide the level of support for people with disability, and, whilst the Commonwealth doesn't have a day-to-day, hands-on approach to that, we certainly take a very keen interest. With the new NDIS activities, it increases our level of desire to have an overarching influence to ensure that nobody falls between the gaps in the rollout of this major reform. To that end, Senator Steele-John, I will be in your home state of Western Australia in a few weeks time. I'll be addressing the Disability Reform Council, which, as you would be aware, is the council of ministers who have responsibility in their various jurisdictions for disability. The No. 1 agenda item that I have for that particular council will relate to the consultation and the process involved in developing the new National Disability Strategy, which takes into account many of the issues that you raised in your contribution previously. I very much look forward to discussing those issues with the council, but, equally, I look forward to discussing the issues with the disability sector and their advocates, as I have done to date in relation to the royal commission. That group was tremendously informative to me and I took a lot of value out of our meeting. I thank you and acknowledge your support and your assistance in setting it up.
I acknowledge what you're saying and I agree entirely on the importance of making sure that everybody in Australia who lives with disability gets the appropriate supports that they are entitled to.
Following on from the contribution that the minister made, it would be helpful if she could indicate when the National Disability Strategy will be released, since we've had considerable delays around the implementation plan and reports emanating from the National Disability Strategy in the past under this government. I would ask that the minister respond to the questions that I asked in my first contribution—the questions regarding Tasmania and the collapse in satisfaction with the NDIS. I seek a response to those questions. Further, in regard to the Community Connectors program, why did Minister Robert, on ABC AM this morning, describe people from CALD communities as 'linguistically difficult'? Is that the government's position?
I'll take the first part of your question in relation to the National Disability Strategy. We're currently in consultation because, as you're aware, the current strategy is due to be completed next year. So we've started a program of consultation. Part of that consultation, obviously, is the meeting that I'm intending to have in Western Australia in a couple of weeks time.
I didn't hear the media event this morning that you referred to. I'm more than happy to listen to it and respond. However, from your comments, I suggest that the accusation or allegation that you're making is completely misfounded, misinterpreted or mischievous. We take very seriously the unique needs of people in the CALD community with disability, recognising that a language barrier heightens the level of support that these people need in our community not only dealing with disability but more generally. I'm sure that that's what the minister was referring to.
I was asking about the comments made by Minister Robert today. I find it difficult to accept the minister's statement. On the one hand, the minister says that she has not had the opportunity to read or listen to the comments, but then she attributes to me something other than seeking an answer on the government's position. It was a question to her.
In relation to the specific questions on Tasmania, I will endeavour to get answers as quickly as possible. I don't have the specific information on Tasmania to hand, but I'll endeavour to get that for you. I take on notice to provide responses to those questions.
I thank the minister for her answer to my question. I'm heartened to hear that she will be visiting WA soon to address the Disability Reform Council. Minister, can you confirm that there will be representatives from every state and territory present at the Disability Reform Council meeting that you intend to address?
I haven't seen the list, but every state and territory is invited, both ministerially and at an officials level, and in the past I have never attended a council meeting where every state and territory hasn't been represented. I will confirm that, but I would say it is almost certain that they will be.
Fantastic. It's great to hear that everybody, hopefully, will be in the same room. I want to go back to the answer given by the minister to my question. It was detailed, and I do appreciate that. I'm wanting to get clarification on what she said around making sure that we cover the gaps and have those conversations effectively.
I'm seeking to get this very clearly from you: when the government talks to states and territories about these issues, do you enter with the hope of achieving a disability system generally, and an NDIS process specifically, where there is maintenance of an acknowledgement that there's a need to co-deliver certain aspects of it and work together to make it work? Or is it the government's aspiration to eventually arrive at a position where it's broadly acknowledged that disability, in terms of the NDIS, is solely a responsibility of the federal government, and making that work and resolving problems around the NDIS isn't something that needs to be top-order priority for states and territories?
Certainly the NDIS is designed as a scheme that has a joint responsibility between the federal government and the states and territories. There are very clear and specific funding arrangements, in terms of responsibility and liability that sit within the scheme. In a more general sense, in terms of the actual delivery of the services and supports to people on the ground in the various states, when it comes to the NDIS they are quite specific. But I take your point in relation to the interface between the states and the Commonwealth in the broader disability space. It is very clearly our desire to continue to run in parallel the maintenance of the obligations of the states in terms of the delivery of the appropriate services and supports that fit around disability more generally to ensure that people who either choose not to or are not eligible for the NDIS can still get access to the kind of mainstream disability-appropriate services and supports that we all expect that people with disability should be able to have access to.
Minister, in relation to the last part of that answer, can we go through the case of Tim Rubenach, who died waiting for a specialised tilt bed and a wheelchair from the NDIS provider in Tasmania? Given that you've given a commitment to general services for people who might not be able to access the NDIS—this was the case: Mr Rubenach had been approved by the NDIS and had to wait many, many months, both for the tilt bed and for a motorised wheelchair. He died before he received those. I note that the other night at the estimates spillover Ms Campbell from the department did apologise. But could we seek some assurance, because Mr Rubenach is certainly not the only person who has had difficulty in accessing services from the NDIS. In fact I know of someone who worked in this building, was a former senator, who also had to wait under a care plan for services that were approved, and he died before he could receive the resources that were approved under the care plan. Could we go to Mr Rubenach's specific circumstances and how the NDIS is proposing to ensure that those services are provided? Given that these amendments relate to a royal commission, I would imagine, and clarifying that the NDIA is going to be subject to the Royal Commissions Act, that an amendment wouldn't be necessary, because the NDIS will be able to provide the services it itself says it is going to be able to provide and indeed approves.
I'll clarify. In Mr Rubenach's case, he was approved, under the NDIS in Tasmania, for a tilt bed, and he was also approved to have a motorised wheelchair. He died before those resources could be provided to him. There was unnecessary delay. We know it's not an isolated case, because we know there are others, and I'm sure that these will come to light at other stages in the public eye. But what I want the minister to do is to assure the chamber that Mr Rubenach's very tragic circumstances will not be repeated.
Thank you, Senator Kitching, for your question. Unquestionably, there have been distressing circumstances that we've heard about. The government—I believe in response to some of these circumstances, one of which you have just raised—commissioned a review into these and other issues, the Tune review. Part of that review will be making sure that there is a clear and thorough investigation into delays for assistive technologies that support people with disability.
You yourself made the comment about the fact there have been distressing circumstances. For anybody who wishes to come forward and request assistance, there is an entirely appropriate process through which they can do that. I am unaware of other circumstances. I'm more than happy to take that on notice, but I think it is a very sensitive area and needs to be appropriately handled.
Thank you, Chair. I thank the minister for her response to my question, and I just want to clarify one bit before I move on to my next question. When you referenced joint responsibilities in your previous comment, were you speaking directly in relation to those areas which the NDIS is responsible for delivering and the aspects around that, or were you talking more broadly about joint responsibility generally for deliverance of the issues and challenges that are considered by the Disability Reform Council?
Thanks, Senator Steele-John. I was actually referring specifically to the NDIS and the fact that it is a joint venture, I suppose, for the want of a better term, between the Commonwealth and the states and territories. When I referred to the responsibilities that sit outside of the NDIS for the provision of services, I suppose to a large extent I was referring to the kinds of things that I think are expected to be embedded in the behaviours of the states who do the delivery. For example, disability-appropriate education supports and disability-appropriate transport supports and infrastructure are the sorts of things I was referring to in the second part of my response. But certainly, in terms of the joint venture, for want of a better word, I was referring to the NDIS.
Thank you very much for your answer to that, Minister, and I really do hope that, when you're over in Perth, we can find time in the diary to have a chat.
I'll just move on now to a line of questioning I have around the board of the National Disability Insurance Scheme. The composition of the board and some of the actions of the board have been the subject of significant contributions during the various processes and procedures around the debate on this bill, and, I think, rightly so. There is a great deal of public interest in the board and the background of the particular board members. That is driven more generally by a desire to ensure that the National Disability Insurance Scheme is supported as best it can be by the appointments made by the government to deliver on the promises that are laid out in its founding and most relevant documentation. And indeed, it's not only that but that it ultimately rises to the challenge of addressing the issues that disabled people face.
There is a bit of history, culturally, to this because disabled people have of course, for many decades, lived with and confronted many significant barriers in society—cultural barriers, physical barriers and financial barriers. And when we have sought to confront those barriers we have often encountered resistance in the form of systems and processes that were created, sustained and administrated by individuals with very little experience in that relevant sector, and often without experience of the critical distinction that needs to be made when we discuss disability. That distinction is between the medical model and the social model of disability.
As disabled people, we feel it's really important that these distinctions be understood. The medical model of disability looks at a disabled person, if I may use this terminology—and I might explain this via myself, because, after all, when it comes to disability I can always refer to myself and say, 'Here's one I prepared earlier!'—and it says: 'This is a man with a brain injury, given the terminology of cerebral palsy. He therefore can't walk and do other things.' And while he might be provided with modifications of certain types by the Commonwealth, state or local government services, ultimately there is a responsibility for him to make his way in the 'normal' world, as we might term it, as best he can. As far as normal society deigns to lean backwards and offer some support—well, it's very nice of normal society—but, ultimately, you've got to make your way in the normal world as an abnormal person.
The social model of disability, conversely, understands that although I may well be a person with a brain injury termed cerebral palsy, and that it gives me the impairment of not being able to walk due to scarring in my motor neurone cortex—I believe that's the medical term—that the disability and its relevant discriminations are created by the barriers in society maintained and sustained by ableism; the cultural hatred and exclusion of disabled people, or, indeed, the fear of disabled people.
Those barriers, having collectively been created by our society, must be removed—taken down—by a collective societal effort. That collectivises the issue of disability as something that we all, particularly non-disabled people, have a responsibility to deal with. Much as we don't turn around to people of colour and say, 'Racism is your issue to deal with,' and we don't turn around to women and say, 'Sexism is something that you've got to deal with,' the social model of disability makes it clear that my good friend and colleague Senator Whish-Wilson has as much responsibility for the removal of barriers as anybody else. Those things are critically important and are something that we have been focusing on in relation to the board, because ultimately the NDIS only works if that is the starting point of the understanding. If you try to deliver the NDIS via a medical model you will end up with the postcode lottery based on a culture of gatekeeping of resources that so disastrously characterised the former state based system rather than a flagging of unmet need.
I'm really heartened to hear that the minister has articulated the NDIS as a joint venture, because that is very much the view that disabled people and our organisations have when it comes to how best to support the NDIS to succeed. So I happily think that on that point at least we find ourselves on the same page. The board is so important to making sure that the whole picture works effectively because, of course, the NDIS has become a real prime mover in the disability space. We've all spoken at length and know in great detail the funds that are invested in the NDIS. As a market based system, as Senator Hughes is so often prone to reminding us all, rightly, it has a lot of weight in shaping the way that disability services are delivered, even beyond traditional disability services, indeed, to infrastructure in the area of supported assisted accommodation, where the NDIS is projected to fund some 20,000 accessible residences in the Australian community. That will be the largest injection of funds in this space in the history of our country. So the strategic decisions made by the board, which then flow down to the agency and out across our country, and the way that it addresses and conceptualises disability are incredibly important. It is a significant player in that process and therefore influences greatly the nature of disability conversations in this country, what services look like and what infrastructure looks like. The board is ultimately the engine room of that process because the strategic decisions that are made there end up shaping what the rest of the agency does and what that ultimately looks like.
Again, it is one of these areas where cultural leadership is really important. We've spent a long time going around in circles, in some ways, because nobody has been able to make up their mind about who is responsible for what, where the cheque should go and who needs to be responsible for the ultimate decision-making on cases. So I want to hone in on the government's view of the future role of the states and territories in contributing to the strategic direction of the board and maintaining that sense of cultural buy-in at the heart of something which has been described, rightly, as a kind of joint venture. Could the minister clarify for the chamber the government's vision in relation to future state and territory involvement in the strategic decisions of the board and also in holding to account the board of an agency which has a lot of impact in their jurisdictions?
The board itself, obviously, is the board of the NDIS, and the NDIS exists, as I say, as a collaboration between the states and territories. As part of that process, the input of the states and territories is sought in relation to the rules around the appointment of board members—the selection process and ultimately the determination of who's on the board.
Hang on. I need to go into that a little bit deeper with you. I understand that input is sought, but I'm talking more about vision here. If we're talking about where we're ideally trying get this conversation to go—and we've already talked about the importance of it maintaining itself as a joint venture—do you see a continued role for the states and territories not only in seeking their feedback on appointments? Ultimately, does the Commonwealth seek to maintain a sense of shared co-responsibility—you can't have a joint venture unless there's an understanding that both sides have some kind of responsibility for decision-making—in relation to the composition of the board?
The Board of the NDIA reports to the Disability Reform Council, and the Disability Reform Council has the power to assist in setting the strategic direction of the NDIA. That is the process by which it comes back around and gives the ultimate power to the states and territories in conjunction with the Commonwealth.
I do understand that, Minister, and I thank you for clarifying that. I'm more saying that, although there is that feedback loop with the DRC, in terms of maintaining the culture of joint venture does the government hope to continue to build relationships with states and territories through which they feel a sense of buy-in to decisions around appointments and terminations of the board?
Absolutely. One of the fundamental components of this particular initiative is to seek, through the rules process, to try and always get consensus amongst the states. That is not always possible, as you can probably well imagine, when you're talking about a number of different jurisdictions, and so obviously there needs to be a process by which we can continue the operation of the NDIS without having to get consensus every time. However, it's extremely important that the continuity of decision-making is maintained. But the collaboration and buy-in of the states and territories is a fundamental component of the NDIS, and the board is one part of that.
I'm going to leave it right there!
Senator Steele-John, the fundamental and underlying point that I was making is that in the collaboration between the states and territories and the Commonwealth in the processes around all aspects of the delivery, the administration, the strategic direction of the NDIS, it is absolutely fundamental that that collaboration is absolutely at the centre of this particular initiative.
I recognise the intent of this bill, which is to improve the leadership and the governance of the NDIS and the rule-making, particularly. I also note that the NDIS has been without a CEO for at least 170 days. I'd also like to acknowledge that for people for whom the NDIS is working well it is a good thing; but for people for whom the NDIS is not working, it is really not working. I'd like to ask a couple of questions of the minister about decision-making within the NDIS. What is the usual method of evaluating functional capacity for clients of the NDIS? Is it through, for example, medical examination and doctors' reports?
Could the minister advise the Senate whether the question of whether the previous year's funding was used is one of the issues that are deployed to understand functional capacity? That is, if a client has not used all of their funding, is that a factor in determining whether that person's functional capacity has improved?
I note that the minister said she believes not. I would appreciate it if we could get some clarity and if she could take on notice to confirm that. I want to speak to the case of Rory White, a 23-year-old man with an acquired brain injury from New South Wales. In May this year the NDIS re-evaluated Rory's functional capacity and deemed it improved, based on the fact that he did not use all of his allocated funds. That was the advice given to Rory's mother. Is the minister aware of the case of Rory White?
No, I am not aware of the specific case, and I would also decline to comment on specific cases, but I'm more than happy to take any of your questions on notice and, under the appropriate process, provide that information back to you.
In a more generic sense, could you advise, would an NDIS planner look at the electronic records of a client in seeking to determine their functional capacity, or would they simply look at whether the quantum of funding had been exhausted for the previous plan?
Just to be clear, you're saying the factor of utilisation of the funds is not a criterion when determining someone's functional capacity? Is that what I'm understanding?
In a general sense, I'd like to ask about electronic records. Can the minister advise the chamber how common it is that electronic records for an NDIS client are lost? Can you give us a sense of the scope of that challenge or that problem within the NDIS?
If an electronic client record is lost, who needs to pay for those records to be replaced? That is, who would pay for the doctors' reports and the new assessments to be done? Would it be the client or would it be the NDIS?
I know the minister said she would take on notice questions relating to Mr Rory White. I advise the minister that Mr Rory White has been known to the NDIS since 2016. He has an acquired brain injury. He has been advised by the NDIS that, because he did not expend all of his funds for the previous year, he was deemed to have improved in his functional capacity. He has been advised by the NDIS that his electronic documents have been lost, and, as of last month, the NDIS planner was insisting that Mr White has cerebral palsy, not an acquired brain injury. Could the minister advise or take on notice how many LAC planners Rory White has had in the past 12 months?
Obviously, I'm more than happy to take on notice any questions that senators in this chamber want to put forward, but I draw to the attention of the chamber the substance of the bill that is before us and the information that I brought to the chamber in relation to that bill. Many of the questions that are being asked are somewhat outside the scope of the bill, and, for that reason, I will be required to take many of those questions on notice.
I note what the minister has just advised the chamber. However, this is a multibillion-dollar scheme that has been without a CEO, and some of the criticism of the governance arrangements include that there have not been enough people with a disability involved in the governance and implementation of this scheme to factor into decision-making and processes the lived experience of people with a disability. Hence the real-world examples of how this scheme is being rolled out are instructive to the community, who may not participate directly in the NDIS, to understand the challenges that people with a disability are facing in accessing services that allow them to live with a measure of independence and self-direction in the community. When a plan is reviewed, what is the usual process to advise the family or the client of the outcome? Is it usually done by letter, email, phone call or face-to-face meeting?
My understanding is that an AFO is a plastic orthotic leg, or an ankle-foot orthosis. It helps with stabilising. My understanding is that they cost $1,700. How does the NDIS calculate the cost or understand what the cost of a prosthesis such as this is? What would be the usual process for an NDIS planner if they wanted to include that in a plan? How would they seek to determine what that costs?
I understand that Mr Rory White needs an ankle-foot orthosis, that it costs $1,700 and that the NDIS is allocating $400 towards the cost. Does the minister think that this is a fair outcome for Mr White?
Senator, in relation to all of the questions that you're asking specifically about individuals and more generally around individual processes within the NDIS, I have advised I will take them on notice for you.
I would like to place on the record that Mr White's mother, Karen White, has advised Senator O'Neill's office—Senator O'Neill cannot be here this morning; I have also been in contact with Mrs White—that she is at crisis point. She has had to take time off work. The last time she spoke to an NDIS planner regarding Rory was on 9 September. She was advised it would take only three weeks. She has heard nothing since and had to chase it up herself. She advises Senator O'Neill that the NDIS is still insisting that Rory has cerebral palsy, when in fact his disability is an acquired brain injury. I understand and can appreciate that the minister may not be briefed here this morning on the particular details of one particular client, but Mr White's situation has been ongoing now for several months. It has involved several senators in this chamber seeking to get a satisfactory outcome through the NDIS, and still today this situation is yet to be resolved. This has placed significant stress on Mrs White and the White family, and on Rory White who is attempting to live independently in the community.
While I appreciate that this bill is not directly about individual clients, I think it is useful for the chamber and for the community to understand that when the NDIS is not working it is really not working for those people who have a disability and who are seeking to live independently in the community. What is disappointing is that we do not see in this legislation any progress or change in the governance arrangements that would facilitate people with a disability's direct participation in the governance and the implementation of this scheme. We are disappointed that this legislation does not do particularly much to allow for people to improve the implementation of the NDIS to assist people like Mr Rory White. So I thank the minister for her answers today, and I look forward to her answers on notice.
I want to thank the minister for her responses to my subsequent lines of questioning. I must say, as an aside, I've dealt with a couple of social services ministers in my last two years here and have always found your office to be receptive and for you, personally, to be willing to engage in the substance of the discussions at hand. If you ever want to have a chat about AFOs, I'm your man, because I used to wear them. I can tell you all about them, backwards, sideways and what kind of cartoon prints you can have put on them if you want to.
I want to return firmly to the substance of the bill, and I will inform the chamber as to why. We have, ourselves, had a number of conversations about this issue, Minister. There's a high level of distrust in many ways between disabled people and various levels of government regardless of who's in office, because we've all at one time or another experienced a bit of systemic failure, discrimination, et cetera. So, in relation to the NDIS, and it was the same issue under Labor, there's always a need to clearly communicate one's thinking around a change—a change in policy, a change in direction. Communication is key. Communication has, at times, been not as good as it could have been between the agency and the public, between the government and the public in relation to the agency. That has subsequently led to, again, at times, unnecessary, undue concern in the community, unnecessary and unneeded concern in relation to the public and its aspirations for the NDIS. I'm sure it's resulted in a lot of letters and paperwork and various damage control for all sides of politics.
What I want to seek now to try to do is to clarify some elements around the bill in such a way that will give the Australian public a really solid line of sight, if you like, to the thinking of the government behind the proposition of the bill and, indeed, the various, shall we say, ways in which the central intent that the government is pursuing here is realised in the relevant pieces of legislation and, in so doing, either get to the nub of certain issues or, in fact, to allay certain community concerns.
So I'll start with what I hope is a simple question in relation to the legislation itself, and I note that the Commonwealth has covered this in a little bit of detail in relation to the inquiry into the bill. But for want of a better word, Minister, whose legislative 'baby', if you like, is this bill within the department? Who originally recommended it to Minister Robert, with the government subsequently adopting it as something it wanted to pursue?
My understanding is that all states and territories have had input into the changes that are sought within this piece of legislation and that all jurisdictions supported the various components of the changes in the amendments.
I apologise, Minister, for any lack of clarity. That much was clear from the Commonwealth submission to the inquiry. My question to you is: before it was put to the states and territories as a legislative proposition, who initially authored the bill itself—the recommendations that led to the bill—that were then put to the states and territories for their agreement one way or another?
I will have to take that on notice in terms of the exact detail, but my understanding is that since 2016 there have been a number of issues raised in relation to administration and that many of the aspects in the original part of this bill—not the amendments going to the bill—seek to address anomalies in or the capacity to streamline or deliver this particular initiative better. My understanding is that it's been a bit of an iterative process since 2016.
It was my understanding—and I didn't think this would be a difficult question—that Mr Broadhead had a line-of-sight and shepherding role in relation to this piece of legislation. Is that correct? Does that jog anybody's memory?
I understand that you might have to confer with your officials momentarily, but, again, I do want to emphasise this point. What I'm seeking to do with this particular question is to contextualise this bill so as to allay concern in the community or, in fact, to highlight issues that we might then subsequently discuss. Could you outline for the chamber Mr Broadhead's role within the agency and the previous experience that he has which led him to be the relevant point person on the development of this piece of legislation?
The NDIS is a very worthwhile scheme for a lot of those Australians who require this assistance; I've spoken to many Australians with regard to it. My concern is about the cost to the taxpayer, how it's going to run and if we can afford it as a nation going into the future. Minister, how much is it going to cost the taxpayers of Australia to administer this scheme and to put it in place over a year?
The NDIS scheme is demand driven, so the cost of the scheme will be determined by the demand from individuals seeking support from the NDIS, and obviously that will be largely dictated by the eligibility of the people who seek to access the service.
I might be able to help you: it's around $2 billion a year in administration costs. Minister, do you know how many people are actually on the board of the NDIS? There are board members, plus the CEOs and the DCEOs—I calculate that there are 22 on it. The chief executive officer receives $587,241. Board members receive approximately $85,000, $98,000 and $102,000. Then you've got other members on the board. There is the DCEO, Participants and Planning Experience, and the DCEO Corporate Services and Chief Financial Officer. You're looking at $453,000 for one and $431,000 for the other one. The head of People and Culture receives $481,000. Minister, who determines the remuneration that is paid to these board members and others that hold these positions? Is it government or is it the board members themselves, and what category do they come under?
The CEO and many of the very senior executives within the agency are determined by the Remuneration Tribunal. However, once you get past those, the board is the determining body, but I would need to get back to you with the specifics as to exactly whose salaries are determined by the Remuneration Tribunal and whose are determined by the board, in the interests of absolute accuracy.
I would like to know that, because when I drew attention to what the CEO of Australia Post was getting paid—$5.6 million—I found the remuneration was set by the parliament under (a), (b), (c), (d) or (e), with (e) meaning unlimited; they can basically pay what they want over $400,000, which is unacceptable, in my opinion, to the Australian people. Especially with a scheme like the NDIS, it's very important for the Australian people to receive the care and attention that they need, yet we're paying these huge amounts—approximately $5.3 million a year—in remuneration to these board members. We as a nation are going to struggle to pay for the NDIS.
I seek leave to move a motion relating to the consideration of the National Disability Insurance Scheme Amendment (Streamlined Governance) Bill 2019.
Leave not granted.
Pursuant to contingent notice standing in the name of the Leader of the Government in the Senate, I move:
That so much of the standing orders be suspended as would prevent him moving a motion to provide for the consideration of a matter, namely a motion to provide for a limitation of debate on the bill.
And I move:
That the question be now put.
I'd ask the government to reconsider that. I understand the government has the numbers to gag this debate. You've just moved a motion which prevents suspension—
Government senators interjecting—
Well, generally governments have allowed a debate on the suspension motion, because it is—
Senator Abetz interjecting—
Eric, even you did, mate.
Senator Steele-John, I can't deal with that until I dispose of the two matters before the chair, the first of which is the procedural motion moved by Senator Cormann that the question now be put. The question is that the procedural motion moved by Senator Cormann be agreed to.