Senate debates

Tuesday, 19 October 2021


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

12:28 pm

Photo of Don FarrellDon Farrell (SA, Australian Labor Party, Shadow Special Minister of State) Share this | | Hansard source

Mr President, as I think this is the first time I've had an opportunity to congratulate you on your recent appointment, I wish you all the very best in the role.

I rise to speak on the National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021. This bill is in response to the very tragic death of Ms Ann-Marie Smith in April last year, which all South Australians will be aware of. As all in this chamber will recall, Ann-Marie Smith was a 50-year-old Adelaide NDIS participant who died on 6 April of severe septic shock, multiple organ failure, severe pressure sores, malnutrition and issues connected with her cerebral palsy after being confined to a cane chair, 24 hours a day, for more than 12 months. Ann-Marie Smith's NDIS package included 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.

Her death shocked Australians, and rightfully so. Australians were left wondering how this could happen and where the system failed her so terribly. Following pressure from the community as well as Labor's shadow minister—and South Australian shadow minister—the Morrison government were forced to undertake a review into the circumstances of Ann-Marie's death.

While Labor had being calling for an independent inquiry into the NDIS safeguarding, the government had tasked Federal Court Justice Alan Robertson with reviewing the adequacy of the regulations of the supports and services provided to Ms Ann-Marie Smith. This review did not have statutory powers and submissions were not made public. In addition, there was no wider sector or parliamentary engagement communicated by the government into the Robertson review, evidence-gathering process and the development of the bill. The review held a number of meetings in Adelaide on 20 and 21 July 2020 with those who provided a submission or an outline of what they wished to say.

When released, the report stated that it does not identify any failings in how the NDIS Quality and Safeguards Commission carried out its functions around Ann-Marie Smith's death. The review found that there was no wrongdoing when the commission, which is set up to protect NDIS participants, issued, firstly, a fine of $12,600, for failing to notify the commission of Annie's death within 24 hours, a month and a half after she died. As far as we know, this is the only fine the commission has issued against a provider since it was set up in 2018. Secondly, there was a banning order on the provider Integrity Care four months after she died. We know now that this was the only infringement the commission had ever issued, in two years of operation. A year later there have been only a handful more.

In the course of the review, Mr Robertson did take the opportunity to consider wider issues of safeguarding of people with disability who are particularly vulnerable. The report highlights buck-passing between the NDIA and the NDIS Quality and Safeguards Commission. The problem is that the NDIS commission only regulates providers and that the NDIA is set up to administer the scheme to participants. Robertson says that the two agencies are not sharing information and people could easily fall through the cracks of patchy oversight.

The Robertson review and some of the recommendations appear to have merit, including those around greater communications between the NDIA and the NDIS Quality and Safeguards Commission. Between Robertson's recommendation and this bill, there has been no meaningful consultation with disability stakeholders as to whether, in their lived experience, these reforms will be effective, in practice, or whether more or other recommendations from the review should have been legislated.

In the absence of proper and meaningful engagement, the bill was sent to the Senate inquiry for review. The inquiry raised a number of issues with the bill. The first of these was a lack of consultation with people with disability as part of the drafting of the bill. People with disability and stakeholders, including DROs and the state and territory governments, were not included at any stage in the process to draft the legislation.

The absence of direct consultation with people with disability is concerning, because the displacement of people with disability from involvement in decisions about their lives directly contradicts the core person centred principle of the NDIS. It's part of the reason why people such as Ann-Marie Smith are frequently put in situations that place them at risk.

In addition, there were concerns raised about the information sharing positions and the unintended risk this posed to participants who would have the information shared without consent. In its current form the bill does not have a requirement for the NDIA or the commission to seek the consent of a participant or notify them that their personal information has been recorded, shared and used for the purposes of safeguarding. The threshold for recording, sharing and using participant information for the purposes of this bill has also been lowered. Stakeholders were concerned about the situation where the commission and the NDIA staff are able to make critical decisions about people's lives and their information without clear processes for ensuring that the privacy rights of the individual whose information is being shared is being protected. Both the issues around the consultation and privacy are significant.

While the report recommended passing the bill, Labor senators noted the unresolved concern of the stakeholders. These concerns are the subject of some sensible amendments put forward to this bill today and which I hope will have the support of all in this chamber. Fundamentally, Labor welcomes the Morrison government's decision to act on the recommendations of the Robertson's review, even if it's taken 12 months since former Judge Alan Robertson handed down his report and 16 months after Ann-Marie Smith passed away. However, Labor also notes the lack of consultation and continuing failure of the Morrison government to consult people with disability on changes which directly impact their lives. That being said, Labor believes everything possible should be done to protect people with disability from neglect and abuse.

While the bill does not address gaping holes in the NDIS safeguarding, such as the lack of proactive checking on service providers and an ineffective and understaffed NDIS commission, it is supported. The concerns of stakeholders and the people with disability in relation to privacy and information sharing have not gone unheard. Labor recognises the right to privacy is just as important as the need to protect. That's why Labor will join with the Greens in moving amendments in the Senate to ensure that there is a proper process for the disclosure of participant information.

In addition, Labor, along with the Greens, will be moving amendments to ensure that all of these concerns are able to be looked at in detail as part of the review of the NDIS safeguarding expected later this year, which will involve close consultation with stakeholders and people with disability. These amendments will seek to ensure that if the government fails to conduct a review the bill will cease to operate. These are important amendments, and I hope that all senators will give consideration to supporting them.

Ann-Marie Smith's terrible demise was nothing short of a tragedy; she should be alive and thriving. Instead she was neglected, abandoned and died. And devastatingly we know that this is not an isolated case. We have a duty of care to ensure that vulnerable people receive the care and support they need, and we must do all we can to prevent tragedies like this ever occurring again. As such, Labor supports the bill.

12:39 pm

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

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

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

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

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

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

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

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

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

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

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

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

Photo of Sue LinesSue Lines (WA, Deputy-President) Share this | | Hansard source

Senator Steele-John, I note you have a second reading amendment. Is Senator McKim moving that later when he speaks, or is one of the Greens in the chamber moving that now?

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

I believe that Senator McKim may move it now or may move it when we are later in the debate, Chair. I [inaudible]—

Photo of Sue LinesSue Lines (WA, Deputy-President) Share this | | Hansard source

Senator McKim is not in the chamber. I don't know if someone else from the Greens wishes to move that or leave it till Senator McKim speaks.

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

I'll get him to move it later.

Photo of Sue LinesSue Lines (WA, Deputy-President) Share this | | Hansard source

Thanks, Senator Steele-John. Minister.

12:54 pm

Photo of Linda ReynoldsLinda Reynolds (WA, Liberal Party, Minister for Government Services) Share this | | Hansard source

Could we just clarify which one that is, because I don't have a record of any second reading amendments from the Greens. Which one is it?

Photo of Sue LinesSue Lines (WA, Deputy-President) Share this | | Hansard source

I believe it's sheet 1421, Minister. Thank you, Senator Steele-John. I'll call Senator Hughes.

Photo of Hollie HughesHollie Hughes (NSW, Liberal Party) Share this | | Hansard source

The one thing I think we can all agree on is that the case of Ann-Marie Smith is heartbreaking. There is absolutely no way—with or without the NDIS, pre or post the NDIS, or anywhere in our society—that this should have been allowed to happen. It is an absolutely appalling reflection on society as a whole that this woman was allowed to endure what she did, and that ultimately led to her death. The more I think about it, the more incredulous I am that this was allowed to occur. We're talking about a woman who had a profound disability—a woman who was unable to toilet herself, shower herself or feed herself. At no point in what's alleged to have been one year was she taken out of a cane chair. I mean, how is this even possible? It's just extraordinary that a woman with a profound disability was left sitting in a chair for one year—not even taken to the toilet or showered. And God knows if she was ever fed. This is just abuse in every shape and form, and it's an absolute abomination.

But how did it occur? How can anyone who purports to be a service provider or carer allow this to happen and to persist? One woman has been charged with Ann-Marie Smith's manslaughter—because, allegedly, there was one carer allocated to Ann-Marie Smith. We know that Ann-Marie Smith was in the chair for a year. So if a carer was due to come to her three times a day—why was it only one person? Did this woman never have a day off? Did this woman never have a holiday? Did she work seven days a week for that year? I think there are a lot of questions for the provider, who I understand has been struck off as a provider of NDIS services. I think questions need to be asked as to how does that provider ever allowed a situation to occur where one woman was in charge of the care of a severely and profoundly disabled woman. No-one has accepted responsibility. How can one carer, who has been charged and has pleaded guilty to manslaughter, ultimately have been responsible for 365 days of care, seven days a week, with no other person visiting the house? We probably know that that woman didn't go out all the time, but the provider, that organisation, should have been up to the task and ensured that there was more than one provider attending to this woman. I am sure they have a roster, where staff are rostered on and off, so who else was put on in place? I think there are significant things that need to be looked at with some of these providers. We need to ensure that providers are not given an opportunity to throw all the blame on one carer employed by them—in some cases I believe they're claiming this was subcontracted to them—when we're talking about provision of care for 365 days a year, seven days a week. It is absolutely extraordinary.

I welcome that the NDIA and this bill will provide more oversight and more opportunities for us to ensure that these situations are never allowed to occur again. But it is important when we look at the context of the NDIS that part of the tier 2 supports that are supposed to be in place—the tier 2 that, unfortunately, to this stage hasn't been a high enough priority; but I do commend the minister for now taking a much more serious look at the tier 2 community supports part of the NDIS—are becoming a reality. The community supports were designed to ensure that those organisations who wanted to participate in community activities outside of the disability providers could receive training, guidance and communication on how best to deal with a person with a disability who wants to use their services and that there is more community awareness, acceptance and understanding of what people with a disability require.

Where we see shortfalls in our community—we've talked about it through COVID. Loneliness is real and it is a scourge in our community. People have really felt loneliness through the isolation of lockdowns. When we saw that people who were living alone weren't allowed to interact with others, it took some convincing of the state governments that perhaps they should allow friend bubbles or singles bubbles so people were not forced to isolate alone. We've talked about this in this place many times, and I know we don't have any direct figures, but I am sure we will learn over time what the consequences have been of some of the desperation and loneliness that people have felt through enforced isolation via COVID.

You can only imagine the isolation and loneliness that was experienced by Ann-Marie Smith. We have to understand she didn't live in a group home. She was living in a home that had been provided by her parents prior to their deaths. Some of the neighbours in her street had not seen her for a decade. The ones that had seen her more recently were saying they hadn't seen her for five years. As a society, how do we say that's acceptable? How do we say that we haven't seen the disabled woman that we know lives alone, whose parents have died, who's no longer sitting in her front yard and who's no longer sitting in her driveway with her dogs when we used to regularly see her sitting in the sun and at no point say, 'Clearly something is amiss here'?

So we as a society need to do better, and I know that we as a government and everyone in this place are looking to legislate how we can improve things, how we can provide frameworks and how we can ensure that organisational failures like this aren't allowed to occur and, when they do, punishment is significant and immediate. But we cannot enforce community standards in the way where, as I would have hoped, her neighbours would have kept more of an eye out and, when they hadn't seen her for a while, maybe thought to ring the police and say, 'Can you do a bit of a welfare check?' I know my office rang around doing a lot of various checking on some of our older constituents. We quite often sent police around to homes under very distressing circumstances to do welfare checks on people who were not coping with the isolation. But this is absolutely demonstrative of how some in our society have very little care or regard for their neighbours. It is something on which I think we can all look to do better.

I think it also points to one of the other issues. I know the independent assessment report from the joint standing committee is being tabled at around midday today. That, again to the minister's credit, has now been disbanded as an idea. But it is about how we need to look at what functionality needs to be assessed, how we look at goals and how we ensure people are achieving them, because I'm pretty sure if someone had actually gone to see Ann-Marie Smith they would have understood that one of her goals was to sit out in the sun with her dogs in the front yard, which she used to do. That functionality and those goals need to be supported so that people have an assurance that they can live the quality of life that they should.

Unfortunately, this is what we have seen as we have moved away from the group homes and as we have moved away from the old block-funding model. As I said in my maiden speech, this was always going to be something we were going to have to continue to tweak to make it fit for purpose. It is such a huge and fundamental change. It's the biggest social reform since Medicare. It was always going to take time to make sure we ironed out the kinks, got it right and made sure that we were delivering it in the best way possible. If there has ever been an example of why parents and carers of people with a disability are some of the people most focused on ensuring the sustainability and correct running of this scheme it is Ann-Marie Smith. Her parents hadn't known when they passed that this level of neglect would be allowed to occur, but it is the fear of every parent of a child with a disability. We need to know that our children are going to be supported well after we are gone. That is why there is no-one more focused on scheme sustainability than the parents and carers of a loved one with a disability. We need to know that, once we're gone, they will be safe, they will be cared for and they will have quality of life. They may not be loved in the same way as by their own family, but we need to know that they will be appreciated, they will be supported and they will enjoy the quality of life that they should.

I commend Senator Steele-John on the work that he's done with me on the Joint Standing Committee on the National Disability Insurance Scheme, along with Kevin Andrews, the member for Menzies, as well as Senator Brown. This area is one that I feel is genuinely bipartisan. It is one we can work on together because we are working for the betterment of not only the people currently on the scheme, the people that require the scheme, and their families. I think we all appreciate that this is a scheme for every Australian, because you just never know when you might need it.

So I support this bill and I commend this bill. I absolutely hope to continue working with all colleagues across the chamber from every team and with the minister to ensure that the NDIS is as fit for purpose as it can be and that people who require it are supported in a way that gives them dignity and true quality of life.

1:05 pm

Photo of Marielle SmithMarielle Smith (SA, Australian Labor Party) Share this | | Hansard source

[by video link] I also seek to make a contribution on the National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021. Before I do so, I want to acknowledge the heartfelt contributions of senators before me. I know we will have many more contributions from senators in this debate, who I acknowledge too.

This bill comes in response to the Robertson review, an independent review into issues surrounding the death of South Australian woman Ann-Marie Smith in April 2020. Ann-Marie was an NDIS participant who died in what we know were disgusting and degrading conditions. Those conditions have been detailed by the senators before me; I won't detail them again. But I will reiterate that what happened to Ann-Marie was devastating. It completely shocked my state and it sickened us all. It left so many in South Australia with many, many questions about how this could happen—how this could happen in our community and how this could happen to Ann-Marie Smith. It was an horrific death. It was a death that should never have been allowed to occur. Before her death on 6 April 2020, police believe Ann-Marie spent up to a year confined to a cane chair for 24 hours a day. It is a grotesque image of what Ann-Marie was subjected to and how she spent her final days.

Labor at both the federal and state levels, as well as others in our community, called for a review into the circumstances of Ann-Marie's death. We called for answers into how this could happen. The review, which was limited to consideration of her individual circumstances, found that she had died after a substantial period of neglect, having been living in squalid and appalling circumstances. Despite its narrow scope, the report made 10 recommendations aimed at addressing broader system failures in the NDIS.

For the most part, the recommendations this bill would address relate to the sharing of participant information between the NDIA and the NDIS Quality and Safeguards Commission. But the government's bill today fails to address some fundamental issues when it comes to NDIS safeguarding. Specifically, it doesn't address the lack of proactive outreach to monitor service providers and it fails to strengthen what Labor knows is an ineffective and understaffed NDIS commission.

The government have taken 12 months to respond to the review. It has now been over 16 months since Ann-Marie's death. I wish to note the continued failures from this government to establish any sense of trust among the disability community. Their approach has been marked by a lack of real substantive consultation on issues that directly impact the lives of the disability community. This directly contradicts the NDIS's core principles of person centred care and respecting the choices of those with disability. We saw this in the government's attempts to rush through the introduction of mandatory independent assessments for NDIS participants, no matter how loudly Australians with disability expressed their opposition.

The government should be—must be—working every day to establish positive, collaborative and respectful relationships based on mutual trust with those in our disability community to fulfil the promise of the NDIS to give every Australian the support necessary to participate fully in our society.

Labor, of course, supports efforts to ensure the NDIS and its providers are held accountable. So we will be supporting this bill, as previous senators have acknowledged. We support this bill in order to ensure no further delay in improving protection for at-risk NDIS participants. But we will move amendments to ensure the privacy of NDIS participants by ensuring a proper process for the disclosure of participant information. Labor has listened to the concerns of stakeholders, the disability community and disability rights organisations.

The government has committed to a review of the NDIS Quality and Safeguarding Framework, and it is scheduled to begin later this year. This review may make recommendations that expand on or even contradict the changes this bill seeks to make. It should be broader in scope and must involve close and meaningful consultation with people with disability and disability organisations. Labor will work to ensure this review is robust as possible, and we will work to strengthen the currently understaffed and ineffective NDIS commission.

What happened to Ann-Marie Smith in South Australia should never have been allowed to happen. It shocked, disgusted and saddened the people of my state, who had many, many questions, and some of those questions remain unanswered in terms of what we need to do to make sure the NDIS and the supports and services within it are purpose-built and fit to care for people in our community with disability. What happened to Ann-Marie Smith should never have been allowed to happen, and we must do everything in our power to make sure all Australians with disability can live lives of independence, dignity and joy.

Labor built the NDIS. It is one of our proudest achievements. We believe in its power to deliver Australians with disability a better quality of life, to deliver them better supports and to deliver them full participation in our community and our society. But, at the moment, too many parts of the system are letting Australians down, and it's on that that we must be fully focused.

1:11 pm

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

[by video link] The National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021 has its origins in the tragic and preventable death of Ann-Marie Smith, who died of neglect on 6 April last year. The wilful neglect, suffering and appalling death of this South Australian shocked all of us. Ann-Marie, a NDIS participant, 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 was a person deserving of respect, yet she was mistreated in such a callous way. She spent the last year of her life in an almost sedentary state, living in putrid conditions in a cane chair, totally wasting away. She died of severe septic shock, multiple organ failure and issues connected with her cerebral palsy. Many of her cherished personal belongings went missing. Large loans were taken out in her name, and her car racked up over $2,000 worth of traffic fines, even though she couldn't drive. There was no aspect of her life that wasn't used or abused.

The person who was meant to provide care for Ms Smith was responsible for her death and finally pleaded guilty to manslaughter. The maximum penalty for manslaughter in South Australia is life imprisonment, and nothing less than the maximum sentence would be appropriate in these circumstances. Earlier this year, Ann-Marie's NDIS provider, Integrity Care SA, was banned from operating and had its registration revoked because of a number of contraventions of the NDIS Act. That prevented the organisation from providing services through the NDIS. Recently, one of the three directors of Integrity Care SA, Ms Amy-June Collins, was banned for life from working in the disability services industry. All three directors remain under investigation by the South Australia Police major crimes detectives. All of them completely failed in their responsibility to provide oversight and proper care for Ann-Marie.

The NDIS was only made aware of Ms Smith's appalling death on 20 April, a fortnight after she died, which was a breach of the act by the provider. For that breach, Integrity Care SA was only fined a paltry $12,600. So much of the system failed Ms Smith. Following her death, the NDIS Quality and Safeguards Commission appointed former Federal Court judge Alan Robertson to conduct an independent review of the safeguard failures which contributed to Ann-Marie's death. This was after the South Australian government launched its own review into safeguarding gaps in the system, and pressure was exerted on the former minister, who had preferred an internal review. The Robertson review was completed on 31 August last year, some 14 months ago. It made 10 recommendations, of which the government now seeks to legislate just five.

It has been over 18 months since Ann-Marie passed away and it has taken too long to legislate to prevent further deaths. The recommendations in this legislation are an acknowledgement that the current oversight of at-risk NDIS participants is failing them. However, two key recommendations remain unlegislated and require urgent action by government. These are recommendation (3), which is that 'for each vulnerable NDIS participant, there should be a specific person with overall responsibility for that participant's safety and wellbeing'; and recommendation (4), which is that consideration should be given to the NDIS Quality and Safeguards Commission 'establishing its own equivalent to state- and territory-based community visitor schemes to provide for individual face-to-face contact with vulnerable NDIS participants'. Now, these are vital recommendations that need to be implemented.

In a letter tabled by Minister Reynolds in response to questions I asked in question time on these recommendations, she stated: 'These involve complex Commonwealth state policy issues, are being considered through the review of the NDIS Quality and Safeguarding Framework due to commence by the end of the year.' It is astounding that consideration of these recommendations will not occur until the end of the year—and action on them could still take years.

A critical issue in Ms Smith's case was that she was isolated except for her so-called carer and that she became invisible to everybody but one person, who wilfully neglected her. No-one else was specifically and personally responsible for her safety and wellbeing. It is vital that case managers be introduced into the NDIS who have overall responsibility for at-risk cases.

Similarly, it is crucial that a nationally consistent community visitor scheme be implemented as a matter of urgency. Alan Robertson SC said in his review:

… there is a place for a Community Visitor Scheme because it can be that extra pair of eyes of somebody coming in and being able to talk to individuals about how things are going in their lives and having some kind of external input. Then the community visitor can refer any matters of concern to the appropriate investigating authority.

He added:

The advantage of the NDIS Commission having this function in relation to NDIS participants is that the result would be national and uniform in circumstances where two of the States and Territories do not have a Community Visitor Scheme, and as between those jurisdictions which do have such a scheme there is some variation.

These measures are about reducing the risk of having a single point of contact and about creating systemic changes so that what happened to Ms Smith can never happen again. Her death was tragic, and, tragically, it is not the only death which has arisen from NDIS mismanagement and through those who prey on people with a disability. This bill proposes to address some safeguarding issues but, regrettably, not all of them. It is time for this to change.

1:18 pm

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Photo of Claire ChandlerClaire Chandler (Tasmania, Liberal Party) Share this | | Hansard source

Order, Senator Molan. It being 1:30 pm, we will move to two-minute statements. You'll be in continuation.