Senate debates

Thursday, 12 November 2020


National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020; Second Reading

10:12 am

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

As we were discussing last night, it is really important to consider both the context and the policy outcomes in which frameworks like the safeguarding commission exist. We talked last night about the discrimination, the isolation, the segregation and, ultimately, the institutionalisation of disabled people in Australia. The policy context created by the ableism, which is the reality of many of our daily experiences, means many of the policy solutions that are foisted on us, if you like, reflect these discriminatory thought processes, particularly the idea that decisions that affect disabled people can be made without talking with disabled people. And that is the background to that famous catchcry of our community, 'Nothing about us, without us.'

In Australia there are many legislative examples of this action without consultation taking place right now. The chief example at the moment is the proposal to implement mandatory independent assessments. Mandatory independent assessments is a project which the Australian Greens fully oppose. We oppose mandatory independent assessments foisted upon NDIS participants without exception or excuse. Why have we taken this very strong position? We have taken it because we have done something that seems radical to the major parties—that is, talk to disabled people. Disabled people have told us clearly: 'We do not want to see mechanisms put in place which will mean that people we don't know, have never met, will come into our lives and make judgements about our capacity and our needs, and those judgements will then shape our access to the scheme. No, no, no—absolutely not.'

It is something that is antithetical to the principles upon which the NDIS was created, and it is something which the agency is pursuing without having spoken to disabled people. Its so-called consultation was an email survey, the subject of which was a small population of only three types of disabled folks in a very specific geographic area in New South Wales. Of all the people who participated in that trial, only 28 per cent actually responded to the survey, and it is from that 28 per cent that the agency is drawing its conclusion that this is apparently a good idea to go ahead with. This is something we oppose now and will continue to oppose, and we look forward to the day when we see the Australian Labor Party join with us in that campaign to oppose mandatory independent assessments.

When we look back at the commission, we also see that there have been many decisions made about its processes and functions that seem to have been developed without proper consultation with disabled people. It's particularly evident to me that the commission does not do enough to engage effectively, particularly with First Nations disabled people, and that at the moment its processes are not working for people from culturally and linguistically diverse backgrounds and for First Nations people. The complaint mechanisms and the entire focus of the commission at the moment seem to be far more on gradual quality improvement of services provided by registered NDIS providers than on the proactive, human-rights-guided investigation of complaints, abuse and exploitation. That is the culture shift we need to see in the agency.

This bill does very little to shift the agency in that direction. It grants additional powers around the ability to make banning orders, and allows those banning orders to be placed on individuals whether or not they are still registered service providers or working in that space as support workers. That is a good thing, as well as the ability of the commission to communicate in more detail with the Aged Care Quality and Safety Commission—a good thing, again, but nowhere near enough. At the moment we are undertaking an extensive inquiry into the quality and safeguards commission. At the conclusion of that inquiry, it is so important that the recommendations the committee makes are turned into meaningful actions taken by this place to improve the safeguarding process, and that, at the same time, we as legislators recognise that regulatory safeguarding frameworks are only one element of the broader work that is needed to be done in our society to remove ableism, to remove discrimination and to support disabled people to participate in the community, to be socially connected and to be engaged in education settings and workplace settings in a way that forms those natural safeguards that are the ultimate solution when it comes to making sure that disabled people are safeguarded from violent abuse, neglect and exploitation.

The Greens will be supporting this bill this morning, and we look forward to continuing the work of improving these processes in consultation with disabled people. I thank the chamber for its time.

10:19 am

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

At the request of Senator Steele-John, I move the Greens amendment on sheet 1110:

At the end of the motion, add: ", but the Senate:

(a) notes that despite the NDIS Quality and Safeguards Commission gaining 100 more staff and $92.9 million in funding over four years to expand its compliance and investigative capacity, only six of these new staff members will be dedicated investigators; and

(b) calls on the Government and the NDIS Quality and Safeguards Commission to immediately increase the number of investigators on the ground in each state and territory, including in South Australia".

10:20 am

Photo of Catryna BilykCatryna Bilyk (Tasmania, Australian Labor Party) Share this | | Hansard source

[by video link] The National Disability Insurance Scheme is providing vital services to some of the most vulnerable people in Australia. Often, people with disability who rely on the NDIS for support have difficulty with mobility or communication and can face significant challenges advocating for themselves. This can make them particularly vulnerable to violence, neglect, abuse, exploitation and other forms of harm at the hands of those who have been charged with their care. Concerns about the abuse and neglect of people with disability has been so widespread they have led to the establishment of the royal commission.

These kinds of incidents are at the most serious end of the scale when it comes to matters investigated by the NDIS Quality and Safeguards Commission. This bill, the National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020, will expand the range of circumstances in which the NDIS Quality and Safeguards Commissioner can issue a banning order. A banning order prohibits or restricts activities by a provider or by a person employed or engaged by that provider, and a banning order is one of the most serious regulatory responses that is available to the commissioner for ensuring that providers comply with their obligations. They're used in circumstances where poor-quality services or unsafe practices have the potential to lead to harm for NDIS participants. Sadly, we've already seen the deaths of NDIS participants due to the actions of a provider.

This bill was introduced in response to the death of Ann-Marie Smith, a 54-year-old with cerebral palsy who died of severe septic shock, multi-organ failure, severe pressure sores and severe malnutrition. I know I was shocked to hear about this, as I'm sure everyone else was. Ms Smith had been confined to a cane chair, and, despite her NDIS package including six hours of support per day, reports are that she only received two hours of care per day and had not been seen outside her house in years. Another death was that of David Harris, a 55-year-old who was schizophrenic, diabetic and incontinent, who died after his funding services were cut off. His body was not discovered until two months—two months—after he died. How can that happen in our society? If that's not shocking enough, his grieving sister discovered that his support had been cut off because he missed an annual review meeting. While Ms Smith's death appears to have been the catalyst for the bill, sadly, the amendments proposed by the bill are unlikely to have prevented her death if they had been in place then. But they are sensible amendments, and Labor welcomes and supports them. But we know that more needs to be done to prevent the abuse and neglect of NDIS participants.

As I said earlier, this bill will expand the circumstances in which the commissioner can make a banning order. It will give them the power to make a banning order against someone who is not considered suitable to be providing supports or services to people with disability. This could be, for example, because of inappropriate actions in a previous caring role, such as aged care or early childhood education. It will also allow the commissioner to issue a banning order against someone even if they are no longer employed or engaged by an NDIS provider. So, if a person is trying to avoid being banned by temporarily ceasing their employment or engagement in the NDIS, a banning order will prevent them from re-engaging in the scheme. Finally, the bill will give the commissioner the power to provide details of banned persons on the NDIS provider register, subject to privacy protections.

These changes have the broad support of stakeholders, although some have said that they are only a first step in protecting NDIS participants from harm. In an article on the Disability Support Guide website, Director, Media and Communications at People with Disability Australia, El Gibbs said of the proposed changes:

"We're pleased to see the first step towards improving the safeguards for people with disability that use the NDIS. The recent death of Ann-Marie Smith, and other abuse of people with disability, have exposed the many gaps that exist in the current system."

…   …   …

"The next step needs to be ensuring that the NDIS Quality and Safeguards Commission has the powers and resources to proactively investigate and conduct random spot-checks on disability support providers.

In the same article, Aged and Disability Advocacy Australia CEO Geoff Rowe supported the changes but said their effectiveness would depend on how the new powers were used. Mr Rowe said:

"I think giving the Commission a way to ban a provider or to ban an individual is not a bad thing and the question comes back to what is the metric that will be used …

ADA Australia provides aged care and advocacy services, and we do see people who are sacked from one sector, and then they turn up in the other because they have been sacked.

"The devil is in the detail, how they determine who should be banned, what consultation will they have with people with disability and the sector about where the threshold should be."

When Ms Smith died, Labor called for an independent investigation into her death, and the government tasked Federal Court Justice Alan Robertson with reviewing 'the adequacy of the regulation of the supports and services provided to Ms Ann-Marie Smith'. With the death of David Harris, we argued that the inquiry should be broadened to include his case. Given the government refused to do so, we believe a separate inquiry into this matter is warranted. What NDIS participants really need is an inquiry to look at the question of whether the commission has been effective in fulfilling its role in multiple cases, not just Ms Smith's. As welcome as Justice Robertson's inquiry is, we need a proper inquiry that has broader terms of reference and subpoena powers, which the Robertson inquiry did not have.

Justice Robertson handed down his report at the end of the August and it contained some very important findings. Among the report's recommendations were that the commission identify earlier people with disability who are vulnerable to harm and neglect. It recommended that vulnerable people should never have more than one carer and should have a specific person identified in their plan responsible for their safety and wellbeing. The report also recommended community visitor schemes; occasional visits to vulnerable participants, including spot checks; and improved reporting of incidents and complaints.

A couple of these recommendations go to what I think was at the heart of the issues surrounding Ms Smith's death—that is, the lack of oversight of the care she was receiving. Stakeholders, such as union and disability advocates, have told Labor that the commission is reactive in many cases, focusing on incidents after they happen. Some of Justice Robertson's recommendations are about identification and more proactive monitoring of participants vulnerable to harm. While Justice Robertson's report did not identify any failings in how the commission carried out its functions, that was because the commission's scope is too narrow. When the commission was launched in 2018, Commissioner Graeme Head AO said that it had comprehensive regulatory powers and functions and real regulatory teeth. If the commission has real teeth then how is it that Ms Smith's provider, Integrity Care, only received a paltry fine of $12,600 for failing to notify the commission of her death within 24 hours? In two years of operation, this is the only infringement that the commission has issued, and that was probably only due to the publicity surrounding Ms Smith's death. From the 8,000 complaints it has received, it has issued only 23 banning orders.

As evidence given to the Joint Standing Committee on the National Disability Insurance Scheme has shown, most participants don't even know the commission exists and therefore wouldn't think about going to it if they had a complaint about their provider. Is this what the taxpayer gets for $35 million in operating costs over the past two years, including $2 million in executive pay? In the 2020-21 budget, the NDIS commission was allocated 100 more staff and $92.9 million in funding, over four years, to 'expand its compliance and investigative capacity'. Of course we welcome any boost to the commission's capacity, but it was revealed at estimates that this funding will add only six investigators nationally. Given the commission is swamped with complaints, appointing just six investigators is hardly going to put a dent in addressing the sheer volume of abuse and neglect cases in the NDIS. It's seven months since Ann-Marie Smith's death. The government needs to do everything in its power to stop tragedies like this happening again.

This bill is not a silver bullet, and nor are any of the other changes related to the commission. The buck doesn't just stop with the commission when it comes to quality and safeguards. The overall management of the NDIS is important, not just the oversight. If the government are serious about protecting people with disability from neglect and abuse, then I implore them to look beyond the scope of the commission to the management of the NDIS in general, because there is only so much the commission can do to ensure quality and safety when the system is broken.

Sadly, under this government there has been a history of mismanagement and neglect in this area from the minute it came to power. We've yet to see any serious action from the Morrison government to fix the messes they have made with the NDIS. I suppose that's hardly surprising because, after all, it was a proud Labor reform that those opposite inherited. It's a reform they reluctantly picked, although their heart was never really in it. I have no doubt that those opposite would dump the NDIS in a heartbeat if it wasn't such a popular reform and if it wouldn't be seen by the Australian public as a poor and heartless decision.

I've spoken at length in this place about the frustrations many NDIS participants and their families are experiencing. I just want to remind people of some of the points again, because they are really relevant to the debate we're having now. I heard a number of these complaints in a forum I facilitated last year which included NDIS participants and their families; Labor's shadow minister for disability, Bill Shorten; and the Tasmanian shadow minister for disability, Jo Siejka.

We heard stories of people with newborn babies who had immediate pressing needs and it taking six months to have their plans approved. We heard about parents being denied respite care, despite exhaustion from providing around-the-clock care to their children. We heard about families having claims knocked back and spending hours upon hours completing paperwork and running around seeking medical reports to justify their claim. At the same time some were having their reports second-guessed by people with no medical qualifications, others were having their work going to waste because their reports weren't even read. We heard of lengthy delays of payments to service providers.

What we heard at that forum was merely a snapshot of the chaos surrounding the NDIS. I acknowledge that the experience of the NDIS has been positive for many participants. It remains a proud Labor reform. It's a vast improvement for people with disability on the fragmented state and territory systems that preceded it. But for a number of participants it has been bogged down in bureaucracy and red tape, subjecting them to lengthy delays and inexplicable and inconsistent decisions. Delays in the scheme, particularly in getting plans approved or receiving equipment, have resulted in 1,200 Australians with disability dying while waiting for funding.

As if the shortcomings for current participants aren't bad enough, the NDIS is also failing to reach every person eligible to participate. I mentioned last year that there were over 6,500 Tasmanian participants in the NDIS, even though it was estimated that around 10,600 were eligible. I am pleased to see that there are now just over 9,000 participants in Tasmania, which is a significant improvement but still a fair way short of the estimated number of people eligible.

It should be of little surprise to those opposite that the NDIS is in such a mess when they continue to massively underspend on the scheme. Is it any surprise when the Morrison government has ripped $4.6 billion out of the scheme? The government's underfunding of the scheme led to the Victorian Labor minister for disability, Luke Donnellan, and his Liberal counterpart in New South Wales, Gareth Ward, joining forces in February to call on the Minister for the NDIS to release the money. Minister Ward was quoted by the ABC at the time as saying:

I want to make sure that money doesn't sit in a bank account offsetting the Commonwealth's budget, which is what it's doing. I want to see it improving the lives of people.

Given the government no longer has to prop up its artificial surplus, it has no excuse not to release the funds to thousands of Australians with disability who need them now.

This bill is welcome; it's necessary. But it's just the beginning of what the government needs to do to fix its NDIS mess. The Morrison government needs to fully fund the NDIS and restore the $4.6 billion it has ripped out of the scheme. It needs to fix the bureaucracy and end the delays and the inconsistent decisions. It needs to establish a wide-ranging inquiry into whether the commission is fulfilling its role as a watchdog and, if it isn't, to give the commission real teeth. Those opposite need to act urgently before another Ann-Marie Smith or another David Harris becomes the victim of this— (Time expired)

10:35 am

Photo of Stirling GriffStirling Griff (SA, Centre Alliance) Share this | | Hansard source

I rise in support of the National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020. This bill has its origins in the death of South Australia NDIS participant Ann-Marie Smith. The wilful neglect, suffering and tragic death of Ann-Marie on 6 April this year left us all deeply shocked and reeling. To be clear, it was not her disability that killed her; it was the actions of her carer that killed her. The manner of her death was entirely preventable. Ms Smith had loving parents who made provisions for her. She was diagnosed with severe cerebral palsy and needed significant assistance for toileting and hygiene. Her house had been set up to enable her to be well looked after long after her parents' deaths. However, she had to rely on a carer for all of her needs following the death of her parents.

Ann-Marie died after being deposited in a woven cane chair in her living room for 24 hours a day for over a year. That cane chair operated as both her toilet and her bed. She was neglected by those paid to care for her in ways that are totally unimaginable. It's hard to comprehend that cruelty so vile could be inflicted on someone so vulnerable. Ann-Marie's NDIS provider, Integrity Care SA, was banned in August from operating and had its NDIS registration revoked. That prevented the organisation providing services through the NDIS. The NDIS Quality and Safeguards Commission has not released the report that formed the basis of that action, except to say that it was because of 'a number of contraventions of the NDIS Act'. That would have to be a complete understatement.

This bill is only a partial response to the shortcomings in the system that led to Ann-Marie's death. And, whilst it has taken several months to be debated in the Senate, the better course would have been for the government to have waited until Alan Robertson SC had completed his review to properly legislate and fix the safeguarding gaps within the National Disability Insurance Scheme and the regulatory oversight highlighted in the review. The government has not chosen to do that. Instead, it has legislated minor changes which allow for the banning of a carer from further NDIS work, including in circumstances where the carer is no longer employed by the NDIS provider. While this change is welcome, it must be said that it would not have prevented Ann-Marie's carer from neglecting her, because the carer was at the time an employee of Integrity Care SA. This bill would allow the pre-emptive banning of a person from disability work because of their actions in an adjacent non-disability area, like aged care or child care. This would have caught out Ann-Marie's carer, because she had also been banned from Domiciliary Care SA due to allegations of theft. However, the measures in this bill do not go far enough. They do not implement the many recommendations made by Alan Robertson SC in his independent review, except for one of them, which extends banning orders to former providers by a further amendment the government moved to this bill in the other place.

The NDIS Quality and Safeguards Commission has a wide range of compliance and enforcement actions, including seeking injunctions and civil penalties, and revoking and issuing banning orders on a case-by-case basis. However, it is difficult to comprehend that, despite the NDIA receiving 8,000 complaints in the last two years, only 22 individual carers were banned, and only one fine—one fine!—was issued for $12,600, and that was to Integrity Care SA for failing to report Ann-Marie's death within the required 24-hour notification period. It's astounding that NDIS providers failed to do exactly what Integrity Care SA did on 200 separate occasions, yet none of them got a fine for the same breach. Significant issues also exist within the NDIA and the NDIS Quality and Safeguards Commission in relation to safeguarding the wellbeing of people with a disability and, particularly, vulnerable NDIS participants.

It must be said that the changes proposed in this bill alone will not prevent future abuse, neglect or worse. They just make it a little better with respect to banning orders. Alan Robertson SC was asked to identify what should have happened in relation to Ann-Marie's care and whether there were any failings on the part of the NDIS, and to make recommendations to prevent the neglect suffered by Ann-Marie happening to any other person with a disability. He highlighted many safeguarding gaps in a system meant to protect people with a disability. Sadly, the government has failed to respond to or implement the many important changes required.

I want to highlight two areas underscored in the independent review which seek to implement significant changes on how the NDIA and the NDIS commission work best for people with a disability, and which seek to safeguard against abuse and neglect. These are: 'No vulnerable NDIS participant should have a sole carer providing services in the participant's own home,' and the establishment of the commission's own community based visitor scheme similar to schemes currently operating in states and territories. The critical circumstance in Ann-Marie's case is that she became invisible and isolated from everyone except for her sole carer, the sole carer who now stands charged with manslaughter. Ann-Marie had no interaction with family, friends or neighbours for a long time and did not even have a GP visit. She was totally cut off from the world; she was completely dependent on her carer, and no-one was watching.

The South Australian Safeguarding Task Force established by the Marshall government following Ann-Marie's death said in its final report:

At least one of the extra pair of eyes seeing what is going on should come from proper supervision of support workers by the service provider agency, and ensuring that more than one support worker is involved, even if the participant only wants a single person whom they trust and respect.

If only Integrity Care SA had ensured that Ann-Marie had the extra pair of eyes looking out for her and someone else caring for her, the outcome could have been very different. I recognise the operational challenges faced by providers, even small providers, in requiring more than one carer for a vulnerable NDIS participant. However, these valid considerations must be weighted against the need to protect vulnerable participants from all forms of neglect and abuse. Ann-Marie's case brings this issue into sharp focus, and we must not lose sight of this.

The government also needs to legislate for a community based visitors scheme to be implemented by the commission as another mechanism that might guard against vulnerability. A community visitors scheme provides the kind of external input needed, with someone coming in and being able to talk to participants about how things are going in their lives. The community visitor could then refer matters of concern to the NDIS commission. A visitor for Ann-Marie was not available under the community visitors scheme in South Australia, because she was an NDIS participant and outside the scope of the scheme. Having the NDIS commission operate its own equivalent community visitor scheme is consistent with the commissioner's core function in the NDIS Act, section 181E(b):

… to develop a nationally consistent approach to managing quality and safeguards for people with disability receiving supports or services …

The advantage of the NDIS commission having such a scheme in relation to NDIS participants is to provide a national and uniform approach to safeguarding against abuse and neglect.

I want to make the point that being a person with a disability does not make you vulnerable, but we must protect against the circumstances which make all people vulnerable. To that end, I foreshadow my second reading amendment, which notes the recommendations made by the Hon. Alan Robertson, SC, in the Independent review of the adequacy of the regulation of the supports and services provided to Ms Ann-Marie Smith, an NDIS participant, who died on 6 April 2020from abuse and neglect—and calls on the government to implement the recommendations in consultation with the disability sector, including the introduction of a national community visitor scheme. With those words, I commend the bill to the chamber.

10:45 am

Photo of Sarah HendersonSarah Henderson (Victoria, Liberal Party) Share this | | Hansard source

Ensuring that, as a nation, we care for Australians with disability is one of our most important responsibilities. As a former assistant minister for disability services, this is a responsibility which is very close to my heart. The NDIS is an incredible scheme, unlike anything else in the world, but we, as a government and as a nation, have to make sure it continues to operate in the best interests of people with disability at all times. The National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020 is another critical step in protecting those with a disability in our community. We've heard in this debate some shocking stories of people with disability who have died as a result of horrific neglect, including Ann-Marie Smith.

It is incomprehensible to imagine that Ann-Marie Smith was left in her woven cane chair, dying from septic shock, multi-organ failure, severe pressure sores, malnutrition and issues connected with her cerebral palsy. She was given no nutritional food and suffered from very poor personal hygiene—and that's being kind, I have to say. The 68-year-old woman who cared for Ms Smith has been charged with her manslaughter. I note that the coronial and criminal investigation into this death is continuing, and I will be circumspect in what I say because of that. The criminal law has stepped in now and has charged the carer of Ann-Marie Smith. It is reprehensible to consider that people with disability are subjected to abuse, neglect and horrendous treatment like that which Ann-Marie Smith suffered. That is precisely why the Morrison government has initiated the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.

In relation to the further issues that have been raised by Senator Griff in particular, I want to say that our work is not done. We await what we expect will be very comprehensive recommendations from the royal commission about the further action that our government needs to take to protect people with disability. The NDIS Quality and Safeguards Commission does play a very important role in protecting people with disability by ensuring that they have the very best of care, support and respect. Of course, we know that the commissioner has the power to make a banning order to prevent a provider or a worker from providing any NDIS supports or services. But the powers of the commissioner do not currently extend to making a banning order against a former employee of an NDIS provider, including someone who may have been terminated as a result of their horrendous conduct against a person or persons with disability. Currently also, the NDIS commissioner does not have the power to impose a banning order against a provider that has left the sector. This includes providers that may have closed down their operations as a result of grievous conduct—including, of course, violence, abuse, neglect or exploitation against persons with a disability—so as to avoid a banning order being made against them. So this bill is a very important initiative in that it fixes this to ensure the NDIS commissioner has the power to make a banning order, even if the employer or provider has left the NDIS. The bill also provides that the commissioner has the power to make a pre-emptive banning order against a person or provider identified as unsuitable to work in the disability sector as a result of their actions in other sectors, such as aged care or child care.

Importantly, these amendments also compel the NDIS commissioner to publish details of every banning order on the NDIS provider register. This is a very important measure and is why the Parliamentary Joint Committee on Human Rights, which I chair, rejected the legal advice provided to the committee and found that, despite the privacy issues, this measure—the publication of banning orders—was a very, very important measure and was in the context of human rights law a permissible limitation in that it was reasonable, necessary and proportionate.

The Morrison government is implementing the most substantial package of reforms to the NDIS since its establishment, whilst continuing to deliver very significant and immediate improvements to the NDIS. We now have more than 400,000 participants in this world-leading scheme—an increase of approximately 100,000 participants over the past 12 months—and 175,000 people, a compelling figure, are receiving supports under the scheme for the very first time. The NDIS is a scheme of which we should all be mightily proud. It was initiated with bipartisan support.

As has been made very clear, the NDIS is demand driven and fully funded, so I want to take issue, obviously, with the misrepresentation made by Senator Bilyk in her contribution. As part of the 2020 budget, the government has announced a further $3.9 billion for the NDIS over the forward estimates to reflect demand for the NDIS into the future, which will see an increase of 14.5 per cent in NDIS funding between 2020-21 and 2021-22.

This bill is another important reform for the NDIS, a world-leading scheme. It reflects the very important responsibility that we as a government have to protect people with disability. I commend the bill to the Senate.

10:52 am

Photo of Carol BrownCarol Brown (Tasmania, Australian Labor Party, Shadow Assistant Minister for Infrastructure and Regional Tourism) Share this | | Hansard source

I foreshadow that I will be moving the second reading amendment standing in my name, which has been circulated, and I withdraw the Labor and Centre Alliance amendments on sheet 1054.

10:53 am

Photo of Anne RustonAnne Ruston (SA, Liberal Party, Minister for Families and Social Services) Share this | | Hansard source

In summing up on this bill, I draw to the attention of the chamber the importance of this bill, because it strengthens the existing powers of the NDIS Quality and Safeguards Commissioner—

Photo of Helen PolleyHelen Polley (Tasmania, Australian Labor Party) Share this | | Hansard source

Sorry, Minister. Senator Hanson popped in at the edge of the chamber. With the consent of the chamber, I'll call Senator Hanson.

Photo of Anne RustonAnne Ruston (SA, Liberal Party, Minister for Families and Social Services) Share this | | Hansard source

Yes, sorry! I didn't see you there.

10:54 am

Photo of Pauline HansonPauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

I'm calling for a complete review of the National Disability Insurance Scheme. There are a lot of government departments and schemes that need to be reviewed, but the NDIS is the worst. I have called for a review in years gone by, but, despite numerous reports of problems, this colossal government agency just keeps travelling along with its faults dragging Australia deeper into the muck. It is plagued by poor administration that has enabled rorting. It needs to be changed considerably to stop the wasting of precious money that Australia cannot afford to waste.

The NDIS was established to manage the funds and support measures for the disabled. The support is in recognition of the specialist needs of those who have disabilities to help them live a normalised life. On the surface, it is a wonderful concept that seeks to address a need that any well-rounded and caring society should take care of, but the NDIS that has materialised is failing. It is costly. Money is not distributed fairly to those who need it, and others are paid well in excess of what they should be. It has been besieged by criminals, including organised crime groups and also those ever-present unscrupulous vultures who always seem to loiter around, ready to exploit any loopholes in any financial support handout system. Some clients are able to self-manage their payment regime in cases requiring no proof that their expenditure is legitimate.

In the name of fairness and financial responsibility, we need to make changes. Previous reviews have suggested the scheme has been plagued by delays in decisions for applicants. The system is confusing to understand and lacks flexibility in the use of funds. The NDIS costs Australian taxpayers an extraordinary amount of money. For the year ending 30 June, funds of $24 billion had been committed to services and support. Unfortunately, where there is big money, rorting follows close behind, and the stories of abuse of the system are beyond belief. The media has reported hundreds of cases of fraud each year by participants, providers, organised crime groups and dodgy individuals targeting the system to skim sufficient funds illegally. I have personally been advised of several examples of rorting, and the dollars are huge. They add up to being very big, very quickly.

It's no wonder that the NDIS is seen as a noose around Australia's economic neck. Unless there is a review and major changes are made, it will spell more disaster for the economy. Imagine this: $190,000 per year is paid to a diabetic patient who lost their leg as a result of their mismanagement of their health, another boarding-house resident is paid $160,000 annually and another person over 30 years of age is paid $40,000 annually for having a speech impediment. I do not believe a speech impediment should qualify for disability payments under the NDIS. These are huge payments that help to eat very quickly and deeply into the money available for the needy. I was told about one NDIS client, admittedly with a serious lymphatic condition, who was living well beyond an average life, living in absolute luxury, thanks to her payments. The client has happily spruiked Gold Coast holidays in a penthouse apartment and apparently will have a house built for her in which she can live rent free until her dying day—totally unacceptable. But, wait—there's more. The client also had enough money to be able to pay for a corporate box at a major sporting event and invite a dozen of her friends to join in the revelry. The client had no problems telling everyone that the extravagance was paid for by the NDIS, which in fact comes from the taxpayer.

These are some of the stories from a program that is supposed to help our most vulnerable and needy. Why are examples like this allowed to eventuate? Where are the checks and balances and the investigations of these sorts of examples? Is this the sort of flawed support system we are happy to allow and provide with taxpayer funds? The losers under the current NDIS are those forgotten clients who have fallen through the cracks and need genuine support to deal with their disabilities and injuries, and the taxpayers who fork out the billions each year to fund this colossal government agency.

The number of people supported by the NDIS has been growing at confronting rates, from 89,000 in 2016-17 to 172,000 in 2017-18, to 286,000 in 2018-19 and to 392,000 in 2019-20. We can brace for an even bigger number of beneficiaries in the current financial year. Figures given to me by the NDIS show it is expected to be approximately 450,000 people. If we are paying more than $24 billion for 391,999 people, then we are being taking for a ride by a very incompetent department. The fear is that too many of them will be overcompensated and not enough resources will be available to double-check applicants for funds and to hunt down fraudsters. That growth in clients comes with increased opportunities for this abuse. Australia, and the world, have experienced a devastating pandemic this year. We will soon have a debt of more than $1 trillion. As such, Australia needs to be much more prudent with its spending. It does not have the money to keep throwing funds away to any government program, especially the high-cost NDIS, without genuine security that identifies wastage and then makes the hard decisions to clean it up.

All this spending comes as we are unable to provide proper support for our war veterans. If you lose your leg due to your own poor health practices, you get a handsome NDIS payout. But I am constantly fighting for those defence personnel who served our country to get compensation for their injuries. Further to that, we have age pensioners who also at times are overlooked to receive the support they need. They have worked all their lives, paid their taxes and, when it comes to mobility and health problems in their retirement years, their lifelong contributions to Australia are waved away. The hypocrisy is outrageous.

All these factors support the need for a thorough review of the costs and proceeds of the NDIS. There are now approximately over 10,000 providers, with more and more signing up because of how lucrative it is. My suggestion is that approval for new providers should be made not by an everyday quack but only by a government approved doctor.

Here are some examples of the problems from media reports. In 2017, thousands of children with no identified deficits compared to the normal range for their age and development delays received funding, while some other Australians with profound disabilities fell through the gaps. On that issue, I believe children with developmental delays should not be receiving funds from the NDIS; they can access other programs.

In early 2018, 313 tip-offs of fraudulent or dodgy dealings were made to the NDIS agency, and about 100 were classified as alleged fraud. Later that year, The Australian reported that more than 500 allegations of potentially fraudulent payments and financial anomalies were being investigated by the NDIS. Just months later, the government announced a new task force of 100 people to crackdown on fraud, including by organised crime operators, some of which had siphoned tens of thousands of dollars from client support packages. In October, one operator was charged with stealing $480,000 worth of funding from the scheme in just two months. And the list goes on.

In 2019, The Weekend Australian revealed that in a nine-month period almost 40 providers had their registrations terminated for fraud and compliance issues. In May that year, members of an organised crime syndicate were arrested after gaining at least $1.1 million from the NDIS, and they splurged that money on sports cars. The Courier Mail then reported that a dodgy day care operator pocketed $2.3 million in taxpayer funds through the NDIS—just one of 38 family day care operators across Australia who were sanctioned for claiming a total of $3.6 million from the scheme to care for disabled kids. In August, a whistleblower within the system reported how funds that were meant to support the disabled were used on lavish dinners, five-star hotels and chauffeur driven limousines. In February this year, a Sun-Herald report suggested that thousands of dollars are stolen every day from clients, with the money simply reimbursed without being investigated. It also reports that as many as one-in-10 claims in the NDIS can be fraudulent. And, in August, a Sydney doctor was investigated for large-scale fraud. He falsified reports, overcharged for services and neglected the best interests of clients in the use of allotted NDIS funding. It's no wonder the scheme is in such disarray.

On the topic of this bill, it does fix several shortfalls in the system, particularly in helping to ensure the quality of care being given to the needy is up to an acceptable standard. The bill introduces powers for the safeguards commissioner to be able to ban service providers who pose an immediate danger to the health or safety of a client. In the past, some of the workers were sacked for poor performance and were subsequently out of the system before they could be legally banned. It didn't stop them returning to the sector at some point, even if they aren't suited to the tasks.

The bill also makes sure of the banning of questionable service providers and their staff who are unsuited to providing these services. It allows those people to be banned, even though they are no longer currently working in such a role. The safeguards commissioner can also issue such bans to those who have not yet operated in the role of a provider but are deemed to be unsuitable for taking on such a role. These strengthened banning powers are welcomed to protect those who, through the purpose and nature of this sector, are vulnerable. However, it is important to address the other issues I have raised here.

The NDIS must be improved to make sure we are not wasting money and that those truly in need of help are able to receive that help. With much of the rorting, the Australian government has apparently seen fit just to look the other way. This is unacceptable. I have just come from a meeting with the minister, who assured me that my concerns are being taken seriously and that they will be looking at this. I have a lot of confidence in the minister that this will be addressed. It is time to get serious. The NDIS must be reviewed. The rorting needs to stop. The problems must be fixed.

11:05 am

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

[by video link] I briefly want to make some comments around our second reading amendment and make a couple of observations in relation to second reading amendments offered by the other folks in this place. To make it clear, what we are seeking to do with our particular second reading amendment is to call on the government and the commission to rectify one of the most concerning elements that was revealed in relation to the commission, which came out of Senate estimates a few weeks ago.

Many in the community will be aware that, in the aftermath of Ann-Marie Smith's disgraceful manslaughter, the government announced additional funding for the commission of some $92.9 million. The expectation of many of us in the disability community was that this money would go to funding additional investigative capacity for the commission so that they would be able to more effectively investigate complaints made to them and disentangle the very complex circumstances of abuse that often affect us as disabled people. Outrageously, it was revealed in estimates that no more than 10 per cent of the commission's workforce are actually folks that are dedicated investigators. Of this nearly $100 million of additional funding, only six additional investigative positions will be funded within the commission. This is just not good enough. It is unacceptable to us as disabled people, particularly as not one of those additional positions will be based in South Australia. So our second reading amendment calls on the commission and the government to increase the number of investigators on the ground in each state and territory, particularly in South Australia.

We are happy to support the Labor Party's second reading amendment, and we will also ultimately support the second reading amendment made by Centre Alliance. However, I would just offer this observation in relation to this support: we in the Australian Greens take very seriously the obligation of consulting genuinely with disabled people. As I mentioned in my opening remarks on this piece of legislation, it is so important that we as legislators genuinely consult with disabled people before we come to conclusions about what recommendations and legislative changes are needed in order to prevent violence, abuse, neglect and exploitation. The Robertson inquiry has made a number of recommendations in that area. It has been put to me, forcefully and convincingly, that there still needs to be an additional layer of consultation between the Robertson recommendations and any subsequent legislative action that is taken with disabled people, quite simply because Justice Robertson himself is not a disabled man. My understanding is that prior to his involvement in this judicial inquiry, he had not had significant time or professional background in dealing with the complex intersectional issues that affect disabled people and are involved in the exploitation and abuse that we face. So it is really important, as we seek to translate any and all recommendations, but particularly the Robertson recommendations, into legislation that we genuinely consult with disabled people before coming to conclusions.

I want to acknowledge that Centre Alliance and Senator Griff, coming from the state of South Australia as they do, have been involved and deeply affected by the manslaughter of Ms Ann-Marie Smith, and share with me a deep desire to ensure that the situation experienced in the case of Ann-Marie never happens again. We share that in common, as people and as political parties, I am sure. I'm also aware that in the state of South Australia there is a live conversation within the community about the role that a national community visitor scheme may play throughout the country in preventing cases such as Ann-Marie Smith's happening, because we know they also happen, often and elsewhere.

It is really important as we consider that particular reform that we consult with disabled people before the moment of implementation. It is not good enough to repeat a pattern of faux consultation, as we have seen with the independent assessments framework, where politicians come to a conclusion that there is a particular policy solution and then consult on its implementation. There is a need to consult on the very question of how we solve the problem, first, particularly with a community visitor scheme, because outside of South Australia and Victoria, these are not common programs. In the state of Victoria, for instance, the community visitor scheme has historically been focused on voluntary engagement with people in institutional settings rather than on broad residential visitation. There needs to be a space and a process by which we explore what it would mean to implement this nationally in all residential circumstances. We would also need to explore what we mean by 'vulnerability' and how we would go about giving disabled people the right to object to a characterisation of vulnerability. We would also need to explore interactions with complex cases, such as folks who may be neurodivergent, where it would be highly inappropriate, in some cases, to have somebody that they don't know bobbing in and out of their house at unexpected times. All of these complexities need to be considered before we arrive at the conclusion of whether or not a community visitor scheme is the best solution, or one of the solutions that are needed to prevent cases like Ann-Marie Smith's repeating themselves.

It is with those clear and conscious caveats that we, the Greens, will support the amendment today, on the advice of our stakeholders and also in line with our historical commitment to consult with disabled people before coming to particular policy positions in relation to legislation that shapes their lives. I thank the chamber for its time.

11:14 am

Photo of Anne RustonAnne Ruston (SA, Liberal Party, Minister for Families and Social Services) Share this | | Hansard source

The National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020 strengthens the existing powers of the NDIS Quality and Safeguards Commissioner to ban a worker or provider from delivering services in the NDIS market. The bill aims to protect people with disability and to prevent them from experiencing harm from service provision and the people who work closely with them. As an independent national regulator with an integrated function, the NDIS Quality and Safeguards Commissioner plays a very key role in building confidence in the NDIS through its regulatory and compliance frameworks. It is therefore important that the NDIS commission has robust investigation and regulatory powers and can take strong action where serious matters arise that affect the safety of NDIS participants. As at 31 December 2019, 18,384 NDIS providers were registered with the NDIS commission; of those registered, 46 per cent were individuals or sole traders.

The NDIS Act 2013 already empowers the NDIS commissioner to make banning orders. It has become apparent that the provisions under which these banning orders can be issued are too narrow. In short, this bill will strengthen those banning provisions in the act and allow the NDIS commissioner to ban a worker or provider they believe is unfit to deliver NDIS services, even if they are no longer delivering NDIS services. It will also allow a banning order to be issued pre-emptively to prevent a worker or provider who is not yet working in the NDIS sector from doing so in the future, based on information received from other sectors. This bill will also make it clear that the NDIS commissioner must use the existing NDIS provider register to include details of any current banning orders. This information will generally be publicly available, and people with disability and their representatives may search the NDIS provider register to ensure that providers or workers they are using are not subject to a banning order.

The strengthened banning order provisions support the aim of ensuring that unsuitable people who should not be delivering services under the NDIS cannot do so. This is an important part of developing trust in the NDIS market. Our paramount consideration is the right of people with disability to live lives free of abuse, violence, neglect and exploitation. We need to close these gaps in the banning order provisions, and the bill before us will do so.

We will not be supporting the second reading amendments that have been put forward by the opposition, because we believe the proposed amendments do not contribute to or support the coordinated way in which the government, the NDIA and the NDIS commission are working with states and territories on information-sharing arrangements and supports for at-risk and vulnerable participants. I commend the bill to the Senate.

Photo of Scott RyanScott Ryan (President) Share this | | Hansard source

The question is that the second reading amendment moved by Senator Siewert on behalf of Senator Steele-John be agreed to.

11:25 am

Photo of Stirling GriffStirling Griff (SA, Centre Alliance) Share this | | Hansard source

I move the second reading amendment on sheet 1121 standing in my name:

At the end of the motion, add: ", but the Senate:

(a) notes the recommendations made by the Hon Alan Robertson SC in the 'Independent review of the adequacy of the regulation of the supports and services provided to Ms Ann-Marie Smith, an NDIS participant, who died on 6 April 2020', from abuse and neglect; and

(b) calls on the Government to implement the recommendations in consultation with the disability sector including the introduction of a national community visitor scheme.

Photo of Scott RyanScott Ryan (President) Share this | | Hansard source

The question is that the second reading amendment moved by Senator Griff be agreed to.

11:28 am

Photo of Carol BrownCarol Brown (Tasmania, Australian Labor Party, Shadow Assistant Minister for Infrastructure and Regional Tourism) Share this | | Hansard source

I move the second reading amendment standing in my name:

At the end of the motion, add:

", but the Senate calls on the Government to immediately accept and take the necessary steps to implement recommendations 7 and 8 of the Independent review of the adequacy of the regulation of the supports and services provided to Ms Ann-Marie Smith, an NDIS participant, who died on 6 April 2020 conducted by the Hon Alan Robertson SC".

Photo of Scott RyanScott Ryan (President) Share this | | Hansard source

The question is that the second reading amendment moved by Senator Brown be agreed to.