Ross Hart (Bass, Australian Labor Party) Share this | Hansard source

I am pleased to be able to speak in support of the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, subject to the amendment moved by the shadow minister, the member for Jagajaga. Despite what has been said by those opposite since the release of the budget, there is no doubting our commitment on this side to the National Disability Insurance Scheme. Labor did the hard work in the establishment of the scheme. No amount of reinvention of history by those opposite can gloss over the fact that Labor—and, in particular, the Leader of the Opposition and the shadow minister—undertook the necessary consultation and obtained the necessary community licence for the establishment of the NDIS.

The NDIS, at its heart, represented a significant and dramatic shift, from services which were largely delivered under block-funded contractual relationships between service providers and the state and territory governments to a scheme where people with disability purchase and consume services from a market which is funded by the NDIS. The NDIS, accordingly, approaches the provision of services having regard to the level of disability and, of course, need. It is not based upon diagnosis of a particular condition or constructs such as liability. There is, accordingly, a significant difference between an insurer accepting liability for a particular injury and funding care which is related to that injury, such as in a case of compulsory third party insurance for a motor vehicle, and the NDIS. However effective and efficient no-fault liability schemes may be, they are constrained by the fact that responsibility ends with the particular condition or impairment which is related to the injury suffered in the accident or incident.

Nevertheless, there are particular potential problems where a market is created for the provision of these services, particularly where there is a single body that is a funding body such as the NDIS. There are particular potential weaknesses in the current safeguarding arrangements for disability services which are as a result of the disconnection between quality assurance and oversight regulatory functions.

This is, of course, not something unique to the provision of disability services. As has been mentioned by others who have spoken in relation to this bill, emerging markets are sometimes ripe for exploitation and abuse due to an imbalance in the power relationship between provider and consumer. This is typically due to the fact that in emerging markets there may be a lack of information about the rights of the consumer or the range of services that are available. Sometimes, however, the defects are more sinister.

There have been recent inquiries and reports which have highlighted weaknesses in the current safeguarding arrangements for disability services. These inquires include the Senate inquiry into violence, abuse and neglect against people with a disability in institutional and residential settings; Victorian government inquiries; and the Royal Commission into Institutional Responses to Child Sexual Abuse. Multiple inquiries have found failures to undercover, report and respond to abuse. There is also inadequate national screening of workers. The inquiries have called for a nationally consistent provider accreditation and the use of behaviour support strategies that do not involve restrictive practices to reduce challenging behaviours.

It is self-evident that a strong quality and safeguarding framework is required to protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services under the NDIS. Put another way, there is a disturbing similarity between the exploitation of children and the exploitation of those who suffer from disability. As a former practising lawyer I have often had to explain to clients and junior practitioners the concepts of fiduciary duties which arise from the relationship between a person subject to a disability and a person who may be in a position of power and responsibility. I often resorted to using the analogy of a person being required to look after a child. Self-evidently, those responsible for the care of children owe duties to the child in their care to protect them from harm. Similarly, in broad terms, the courts have held that where there is a special disadvantage and that disadvantage is established, particular duties are imposed upon a person who might, because of a particular transaction or relationship, assume responsibility for the disadvantaged person. This can, in the appropriate case, extend to imposing upon, for example, a bank a responsibility to ensure that a person getting a mortgage is not subject to undue influence.

There can be no doubt that it is important to get this legislation right. Labor will consider legislation carefully in consultation with people with disability, the providers, unions and other stakeholders. Indeed, these very groups have already shown concern that the legislation will provide too much discretionary power to the minister make regulations regarding the framework, which will not require consensus from the states and territories and which might undermine the consistency of the national scheme.

As part of this consultation process we want to refer this bill to a Senate inquiry to allow for full consultation and scrutiny of this legislation. We want to work with the government to ensure that this legislation achieves this object. However—and this is very important—the NDIS Quality and Safeguarding Framework of itself does not provide a sufficient answer to systemic issues of violence, neglect, abuse and other shortcomings identified in the Senate inquiry report. Our joint response ability in this place is not just to act to safeguard those who are in receipt of services paid for by the NDIS. There are countless cases, harrowing cases, of abuse, neglect and violence toward people with disability that cannot and must not be ignored.

There is more than a suggestion that people with disability experience much higher rates of violence than the general community. The disturbing fact is that it is alleged that this violence occurs in places which should be places of safety for those with disability. The statistics demonstrate that instances of sexual assault exceed 90 per cent when a woman has an intellectual disability. Multiple speakers on this side have referred to this statistic, but I have to say it again: 90 per cent of women with intellectual disability have been sexually assaulted in their lives. Sixty per cent have been sexually assaulted before the age of 18. This is shameful.

Without in any way detracting from the very important work that has been undertaken by the child sexual abuse royal commission, there should be no argument whatsoever as to the necessity for a proper inquiry into institutional abuse of those with a disability, particularly having regard to the near certainty that a cohort of people with disability have been sexually abused during their life. Notwithstanding the horrifying nature of that statistic, children with a disability are at least three times more likely to experience abuse than other children—three times. Tragically, people with disability are often treated as unreliable witnesses or are not even permitted by law to provide testimony.

People with disability and their families have been campaigning for a royal commission for years. There are many cases that have described clear cases of abuse where perpetrators have never been charged and, worse, those perpetrators have been allowed to continue working with vulnerable people. We heard previously from the member for Lindsay as to those instances and as to a person contemplating their abuser or rapist looking after them.

Just as we have reacted with horror and disbelief at many of the stories that have been uncovered by the child sexual abuse royal commission, now is the time for us to face the fact that persons with disability have been abused. This abuse needs to be exposed in the same manner as the Royal Commission into Institutional Responses to Child Sexual Abuse has uncovered decades of wilful blindness to the abuse of vulnerable children. The government claims that the NDIS quality and safeguards framework will be sufficient to address these horrifying systemic issues of violence, abuse and neglect of people with disability identified in the Senate inquiry's report. 'Sufficient' is not enough, not when we know that the framework, whilst very important, will apply to only approximately 10 per cent of people with disability participating in the NDIS.

The Senate Community Affairs References Committee inquiry into the violence, abuse and neglect of people with disability in institutional care reported in November 2015. This government took 16 months to respond and chose to rule out a royal commission. To move forward, to heal and to know that we are on the right path to providing a safe environment for the vulnerable in our community this government must, as the previous government did for children, call a royal commission into the abuse of people with disability. Nothing less will enable people with disability, their families and their carers the opportunity to tell their stories to the Australian public, to share the pain that our inaction has caused and to create the legitimate chance to seek justice. A royal commission into the abuse of people with disability is what is required. It is the only way to compel witnesses, evidence and testimony. A royal commission is the only way to give clarity for a way forward, to make recommendations to prevent future abuses of people with disability.

It gives me great heart to know that I am part of a team on this side of the House that wants to get it right and that does not want to continue to make the same mistakes that have let down people with disability. As part of a Shorten Labor government, I will be part of a team that will establish a royal commission into violence and abuse against people with disability. Australian people with disability and their families have been campaigning for a royal commission for years. I call on the government to listen, to join Labor and to establish a royal commission into the abuse of people with disability. That decision needs to be made now.

See this speech in context