Senate debates

Tuesday, 17 October 2023


National Disability Insurance Scheme; Order for the Production of Documents

3:55 pm

Photo of Sue LinesSue Lines (President) Share this | | Hansard source

We are moving to item 12 in today's Order of Business. I understand it's Minister Farrell.

(Quorum formed)

3:58 pm

Photo of Don FarrellDon Farrell (SA, Australian Labor Party, Minister for Trade and Tourism) Share this | | Hansard source

The government rejects the assertion in the motion. The government has previously outlined that we have claimed public interest immunity over the requested documents, as disclosure would prejudice relations between the Commonwealth and the states and territories. Disclosure would harm the Commonwealth's ongoing relations with the states and territories on this and other matters. The government has publicly released many documents on the framework. The Minister representing the Treasurer has already tabled key documents for the benefit of the Senate including the national cabinet media statement and ministerial media statements, budget papers and parts of the recently released intergenerational report that set out the impact of the framework.

The NDIS is a vital scheme, a measure of Labor's character and our values. We are ensuring that the NDIS can continue to provide life-changing outcomes for future generations of Australians with disability. The scheme was established with the purpose of making sure that the support is available for participants to live an ordinary life. The first step in achieving the eight per cent annual growth targets was the investment of over $732 million in this year's budget to uplift National Disability Insurance Agency capability, capacity and the systems to better support participants and improve the scheme. The government will work collaboratively with the disability community and states and territories to address the NDIS sustainability framework, which was agreed in April by national cabinet, and will ensure that every dollar goes to support those who need it most. This work will be shaped by the independent review of the NDIS, which is due to report shortly and has involved extensive consultation with people with disabilities and other stakeholders. The NDIS review will provide a reform pathway to make the scheme more effective and to achieve the target growth of up to eight per cent from 1 July 2026 as per the NDIS sustainability framework with further moderation as the scheme matures.

While the vision for the NDIS is right, there are a number of design and implementation issues that need to be addressed. All governments share the goal of reaching long-term sustainability for the scheme. The recent intergenerational report shows that in the absence of sustainability framework the NDIS costs would increase to 6.7 per cent of GDP by 2063-64, instead of 2.4 per cent of GDP. The eight per cent annual growth target means the NDIS remains demand-driven, so participants will be able to access the support they need for a fulfilling life. It means we are still provisioning for the growth in the NDIS to support Australians with permanent and significant disability. After a decade of neglect of the NDIS by the Liberals, our investment will moderate unnecessary further increases in the scheme's cost. We look forward to providing a further update of the NDIS Financial Sustainability Framework following a consideration of the NDIS review.

It is worth noting that there's been exponential increase in number of orders for production of documents. They have increased by a nearly third to almost two per sitting day. The data shows they are broader than ever before. Public interest immunity claims shouldn't be used as a measure of failure; they are also a tool that is available to the executive to explain why documents cannot be provided. If the executive is discouraged from making legitimate claims then transparency will reduce, because such an approach is unlikely to elicit greater production of documents. In half the cases where public interest immunity was claimed in response to orders for production of documents, the Senate ordered production of documents that would reveal cabinet deliberations or cause harm to relations between the Commonwealth and the states and territories or to our international relationships. The government acts to balance the demands of the Senate with the public interest in maintaining the confidentiality of these deliberations and our relationships with other governments and nations.

4:03 pm

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

I move:

That the Senate take note of the explanation.

Before making my contribution, I will just ask my Senate colleagues who may have been used to my rather loud contributions on debates like this to tune in anew to the contribution I'm about to make. I want to acknowledge the seriousness of the step the Senate has taken today in asking for the attendance of the minister, a procedural step which I know has caused the minister personal inconvenience, which is a rare thing for this place to do. I want to now embark on an attempt to explain to those who may wonder why it is that the Senate has taken this step precisely why the Senate has taken this step and the grounds upon which we rebut the government's claim. In making this argument, I want to provide some basic context. 'Nothing about us without us' is something the disability community often articulate in our demand that we are centred in the decisions that impact us. It is something ultimately and absolutely that we are not seeing from the government of the day, particularly in relation to the NDIS and the release of the financial sustainability framework.

Here's what we know. Here are the facts: (1) back in April, the National Cabinet agreed to the NDIS financial sustainability framework; (2) the government have based their financial decisions around the targets for the NDIS on the contents of the framework; and (3) the government has repeatedly defied requests of the Senate to release the framework for broader scrutiny, first insisting it didn't exist and then claiming and invoking a public interest immunity claim. Such actions are not in line with the principle of 'nothing about us without us'—in fact, they flip the very notion on its head. What we are seeing is 'everything about us without us'.

The executive government have placed a claim of public interest immunity, and, as a result, we do not know framework's contents. We have not been provided with the actual nature and documentation of the framework. This is a cause for serious concern. The Australian Greens do not accept this claim. We do not believe that the release of this information would prejudice the relationships between the states and territories. This is an agreement on a framework which they all entered into as part of a National Cabinet process. There is unanimity among the states and territories on the contents of the framework. To argue before the Senate that its release would prejudice those relationships simply does not make sense. The only resulting impact of the release of these documents would be to provide greater information to the Australian public as to the thinking of the states and territories and the federal government in relation to the National Disability Insurance Scheme. That's important, because what this government does with the NDIS impacts the lives of hundreds of thousands of disabled Australians and their families.

Let's be really clear. The single biggest so-called budgetary saving in the government's first budget—the $59 billion saving—was based on the outcomes of this framework, and yet the framework has not been publicly released. This is wrong. It's particularly wrong in the context where the public has been asked to place great trust in the so-called independent NDIS review. There is now a question in the minds of the public. Is the review independent? Is it truly allowed to come to whatever findings the evidence leads it to, when the government has already decided to adopt a framework with such a significant financial implication that it is continually refusing to release it? Have decisions already been made? That's what it seems like to us. The Greens will continue to fight for transparency alongside the disability community in relation to the NDIS. (Time expired)

4:09 pm

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

I'd like to, again, commend Senator Steele-John for this motion. It is not one that the coalition takes lightly. There are very, very serious issues that this government has to explain to the 610,000 Australians whose lives rely on the NDIS. This has been the subject of some considerable debate in this chamber, and the lack of transparency by those opposite is quite frightening. Measures that I put in place, when we were in government, to have monthly financial reports released publicly—and also regular quarterly reports—were incredibly important not only for participants of the NDIS but also for those in this place to have some visibility.

What the government is doing here is incredibly distressing, and not only for NDIS members; it should be a concern to every single person in this place. The government has repeatedly refused to provide the information based on a public interest immunity claim. As I said here previously and I would like to reiterate, that does not hold water. Let me remind you: if the minister concludes it is not in the public interest to provide the information, the minister must do two things. First of all, the minister must provide a statement on the grounds for that conclusion. We've heard repeatedly in this place that it would compromise state and federal relations, but, having conducted five, if not six, ministerial councils with disability ministers on this exact topic, I know that is complete rubbish. It is nonsense.

Even though they have made a statement that stretches credibility to its extreme, the second requirement is that the minister specify the harm to the public interest that could result if the information is provided. The government has in no way met that second test. They have not specified the harm to the public interest that could result if the information was provided. The only harm that would come is to Bill Shorten and to the Labor government. They went into the last election rejecting the hand of bipartisanship to have a serious look, together, at the sustainability of this scheme.

As an insurance scheme, ultimately there are only two levers available to have this as another demand driven scheme for which the federal government can control the budget, like Medicare, the PBS and others, and those are the number of participants in the scheme and the average cost per participant. That is patently obvious. It was obvious to the opposition before the last election, before they promised every single NDIS participant, past and future, that their plans would never be cut. That is the promise they went to the last election with. Bill Shorten was at the Press Club saying, 'There is no sustainability issue.'

Photo of Sue LinesSue Lines (President) Share this | | Hansard source

Senator Reynolds, I remind you to refer to a member of the other place by their correct title.

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

My apologies, President. I thought I said 'Mr Shorten'.

Photo of Sue LinesSue Lines (President) Share this | | Hansard source

No, you didn't—twice.

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

Bill Shorten? The minister, or the then opposition spokesperson, went to the election and promised no cuts. He said that there was no sustainability issue, when he knew there was a sustainability issue. Any reading of any budget document, any estimates or any of the many documents that we released and they are now not releasing demonstrated that this was a program in serious trouble, but it was far too important to let fail. Since then, as with every other program, the government has implemented a review, and by all accounts it is finding what every other review before it has found—that improvements to services by the NDIA need to occur in many areas and that the scheme is currently uncontrollable.

What don't we know yet? We know that there is some form of sustainability framework—it was referenced, as the minister said, in the ministerial council meeting—but there was no detail. What we still don't know is what modelling was undertaken to underpin the government's eight per cent NDIS growth cap. We don't know when this modelling was undertaken or which agencies were involved in the modelling. The government won't release the modelling. Why won't it release the modelling? Alarmingly, at the last estimates, the NDIA CEO herself and the chair, Kurt Fearnley, both confirmed they were not consulted and the scheme actuary confirmed they were not consulted. So this government has already banked, in the last budget, somewhere upwards of $74 billion from cutting the growth rate from 14 to eight per cent with absolutely no information. It is a complete disgrace. (Time expired)

4:14 pm

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

ROBERTS () (): Unfortunately, we are here again for yet another slap on the wrist. This government continues to defy the orders of the Senate. There is no other word for this behaviour. It is contempt. It's time that the Senate started treating contempt with real punishments. Orders for the production of documents are a vital part of our democratic process. The Senate is constitutionally superior to every law or excuse that government might try to use to justify not handing over documents.

Right now, we're stuck in an ineffective cycle. The Senate makes an order demanding that the government table documents. The government may have a different opinion, yet these orders are not optional. They're Senate orders. The government defies the Senate anyway and refuses to hand over the documents. The Senate makes even more orders, rejecting the excuses from the government and affirming that the documents must be produced. The government yet again ignores the Senate's orders. That, ladies and gentlemen, is called contempt. We must punish it as such. Instead the minister is hauled in here for 15 minutes to give more excuses, and everyone lines up to give them a slap on the wrist and call them a naughty boy or a naughty girl. At the end, the minister sits down pretty chuffed with themselves because they haven't had to hand over any documents and haven't suffered any real punishments.

I say to the coalition and to the Greens: if you are serious about orders for the production of documents, about the explanations, about transparency and accountability, about being the house of review and about serving the people, bring on a contempt motion against the minister. We don't need a referral to the Privileges Committee to tell us whether it is contempt or not. The minister is now in direct defiance of multiple orders from the Senate. Bring on a motion of contempt or censure, and you will have our support.

I foreshadow that I will be introducing, before the end of this year, a confidential process to review documents where any public interest immunity is raised, such as these documents. Public interest immunities are raised on the basis that sensitive information should not be released to the public. Whenever the government makes that claim, it needs to be assessed. Senators should assess public interest immunity claims. That assessment can be done confidentially so that the public interest is still protected. I'll say it again: that assessment by the senators can be done confidentially so that the public interest is still protected.

To this end, I will be proposing an amendment to standing orders in relation to orders for the production of documents. This would trigger a formal process whenever a minister wishes to raise a public interest immunity claim. This process would require the relevant minister to explicitly outline to the Senate the actual harm that they say would flow from releasing information to the public, who we are supposed to serve. The minister would then be required to confidentially produce the documents to a Senate committee, where the documents would be made available only to senators for confidential viewing purposes. The Senate chamber as a whole would be able to confidentially make an assessment of the public interest immunity claim and whether or not there is any merit to it. If the minister does not comply with the process, it will be very obvious that the public interest immunity claim is not genuine. The Senate can then be more confident in applying sanctions such as censure and contempt. This would be fair to everyone.

This government continues to show callous disregard for the orders of this Senate on behalf of the people we represent. It's time the Senate punishes such behaviour appropriately. No more slaps on the wrist. Instead enforce the will of the Senate, acting on behalf of our constituents, the people of Australia.

Question agreed to.