Daniel Mulino (Fraser, Australian Labor Party) Share this | Hansard source

[by video link] I begin by saying that, in speaking to this bill, the National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021, I think it's important to set some context. It's important to observe that when we talk about the NDIS we are speaking about, in my opinion, the single most important social policy reform in Australia in the last several decades. It is groundbreaking in so many ways.

If we look at some of the key elements of the NDIS, first and foremost, it is a major extension of the application of the concept of social insurance—trying to help individuals who are vulnerable to deal with risk and uncertainty in their lives. Second, importantly, it is trying to look at individuals and the lifelong struggle that they face, rather than deliver piecemeal, fractured services in a way that doesn't provide them the kind of support they need. Third, extremely importantly—and, I believe, quite revolutionary for the way that government services are provided—it is person centred. It is centred around the agency of the individual in making choices around how services are delivered and how the resources that they are allocated are prioritised. For these three reasons, I believe, the NDIS is extremely important.

The NDIS has also, of course, raised the profile of the vulnerability and the needs of people with a disability and, indeed, I think, raised the profile of the number and range of needs that people with a disability in our community have, and it has led to great strides forward. What we see with this bill is a response to a particular incident that I would argue is a step forward but that has severe limitations. It is important that, when we debate this bill, we address those limitations because it is only then that we can take as a parliament the necessary steps that must be taken at some point to improve the governance of the NDIS to protect those who are most vulnerable.

Let me start with the circumstances of Ann-Marie Smith, because it was her death, of course, that motivated the inquiry that this bill is responding to. Ann-Marie Smith was a 54-year-old Adelaide NDIS participant who died on 6 April 2020 of a range causes which included severe septic shock, multiple organ failure, severe pressure sores, malnutrition and issues connected with her cerebral palsy. Importantly, if one looks at the circumstances that surrounded her in the months and years leading up to her untimely death, we see that she was confined to one woven chair for 24 hours a day for over a year. We also see that her support that was provided in practice was significantly less than what she had been allocated. Reports indicate that she was only allocated two hours of care per day and that she had not been seen outside her house for years.

Nobody is saying that a system that deals with as many people as the NDIS and with as many varied needs and circumstances as the NDIS deals with should be perfect. But the point is that when we see incidents like that surrounding the death of Ann-Marie Smith, we must ask whether governance arrangements need to be strengthened. And it isn't just her death. Her death was something raised by the shadow minister and other members of the opposition on a number of occasions and by many disability sector advocates, but it was the fact there were a number of other instances in recent years which had similarities. There was the death of Tim Rubenach in Tasmania, who had severe epilepsy and died while waiting for a wheelchair, there was the situation of David Harris, which involved a series of circumstances—raised by a number of speakers earlier in this debate—and there was the situation of Liam Danher in Queensland. The point to raise here is that the shared circumstances of a number of these unfortunate, tragic situations lead to questions as to whether different aspects of the governance of the NDIS need to be strengthened and need to be reformed.

The Robertson review was formed in response to the death, as I indicated earlier, of Ann-Marie Smith. But, as speakers on this side have pointed out, it was an inquiry that, while useful, was limited from the start. It is important that when we debate this bill we identify that this review right from the start was limited to looking at the circumstances of Ms Smith's situation and Ms Smith's death alone. This was not appropriate as a way of dealing with these circumstances, given that, as I have indicated, there were a number of other people who had untimely deaths and who had situations where their vulnerabilities were, arguably, not dealt with in an appropriate way. There were a number of other circumstances that suggested that there were more systemic governance issues. So it was highly inappropriate that this review, in the view of many in the opposition, was limited to just the circumstances of her death. That limited right from the start the capacity of that review to deal with these important systemic issues.

It's also telling that when the government received this report, which contained a number of recommendations—as speakers on both sides of the House have in indicated—and when the minister put out a press release on receiving the report, that he referred Mr Robertson's review as having contained observations rather than recommendations. That really reflects the fact that, right from the start, the government in responding to the unfortunate circumstances of Ms Smith's death never really wanted to undertake a systemic review, but wanted to do something far more limited. We argue that while some of the measures contained in this bill are worthwhile, there are circumstances arising in relation to Ms Smith's death—and also to other deaths—which warrant a more wholesale systemic analysis of the government's arrangements of the NDIS.

Again, as others in this debate have pointed out, there's the issue of consultation. While we welcome a number of the recommendations contained in the Robertson review, we do think it's important to note—as has been pointed out by a number of members in the opposition and, even more importantly, also by a number of disability sector advocates and a number of people with a disability in the community—that the consultation the government has undertaken has been wholly inadequate in moving from the Robertson review report through to the design of this bill. The Robertson review was too limited. We support some of the recommendations which arose from it but we think that, right from the start, it was limited in terms of its capacity to look at a number of the elements of the system that currently don't protect sufficiently those who are particularly vulnerable. Moreover, there was wholly inadequate consultation with people with a disability and with the sector in the design of the bill.

Let me look at some of the recommendations arising from the Robertson review that are not dealt with within this bill. Again, it's important that we raise these issues because the deaths that I've alluded to—the unfortunate circumstances that I alluded to earlier—suggest that we should be looking at some of the more systemic governance issues as alluded to in the Robertson review. One of the recommendations, recommendation 2, relates to there being a sole carer:

The critical circumstance in the case of Ms Smith was that she became invisible to everybody but her sole carer.

The point he was making was that there's a substantial risk of harm which could be avoided if there were more than a single pair of eyes. He was at pains to say that the odds of any individual sole carer for any vulnerable person turning out to be negligent or cruel is extremely low. We know that the NDIS has people who are dedicated, who are caring and who are loving—we know that is the vast majority of people working within the NDIS. But we also know that it is absolutely critical to build in safety. Again:

The regular presence of at least one other human, another carer, would reduce the risk.

The sole carer recommendation is not addressed at all in this bill.

Another important recommendation was recommendation 3, which related to responsible persons. In particular, there was the observation that Ms Smith died because she was neglected by her carer and that no-one else was personally specifically responsible for her safety and wellbeing. Again, Judge Robertson said:

… as Ms Smith's terrible circumstances showed, there is a missing element which is, however described, a person with overall responsibility for the individual vulnerable NDIS participant's safety and wellbeing.

That led to recommendation 3, which was:

For each vulnerable NDIS participant, there should be a specific person with overall resp onsibility for that participant' s safety and wellbeing.

Importantly, that is a recommendation which could be related directly to the circumstances that surrounded the death of Mr David Harris, who died alone in his unit in Parramatta. Ms Leanne Longfellow had long requested that there be case managers introduced to the NDIS in such a way as to deal with that issue.

I think it's very important, again, to go back to the fact that while there are some worthwhile recommendations in the report which have been dealt with in this bill, the two recommendations that I've dealt with are important systemically, and the government should indicate to this chamber how it plans to deal with those recommendations. That's because they lie at the heart of how the NDIS will deal with people who are particularly vulnerable.

A related recommendation is recommendation 4, which is related to community visitors. There, the Robertson review recommended that the NDIS contain the:

… equivalent to State and Territory based Community Visitor Schemes …

This is a similar recommendation, related to the fact that the commission should conduct occasional visits to assess the safety and wellbeing of selected individual NDIS participants. So, again, it's about reducing the risk of having a single point of contact, it's about putting in place systemic changes to ensure that there are extra sets of eyes, and it's about putting in place systemic changes that minimise the likelihood that the abuse by one particular carer might lead an individual person into a precarious position.

What we see in this bill are some worthwhile measures. But what we also see when we look back at the tragic passing of Ms Smith—and also a number of other people in circumstances that, while not exactly the same, share some similarities—is that there are a range of governance issues that need to be looked at. Many people who have made observations about the Robertson inquiry and, indeed, about this bill, have pointed to deficiencies in the NDIS Quality and Safeguards Commissioner role and the extent to which that regulator has sufficient resourcing and sufficient regulatory teeth to be able to do its job. Why, if that commission is functioning as well as it ought to be, was there only a fine of $12,600 for the particular very, very serious circumstances surrounding the death of Ms Smith? Why did it take so long for there to be action? And there are a whole host of other questions.

The failure to act on some of those systemic issues lies at the heart of the concerns that many on this side are raising. Going back to some of the process issues, if there had been more consultation in the design of this bill, in response to the Robertson report, which made recommendations, not observations, one can only imagine what other elements of this bill there might have been. So the inquiry was too narrow. It came up with some recommendations, but they have not been dealt with adequately.

In response to the way in which the NDIS is being managed overall—and in response to some on the other side, some in the government, who have said the situation today is better than it was some years ago in some respects for some people, there's no doubt that's true. But governments should be putting themselves to a higher standard than that. It's entirely appropriate to be asking questions about the NDIS—not just as to whether, in some areas, services have improved but as to whether it is the best system that it could be. When you ask those kinds of questions, I believe that the answer is no and that the NDIS could be doing so much more. We just need to look at the fact that NDIS funding is not where it needs to be and that there have been budget decisions which have led to underfunding of key parts of the NDIS. There have been a number of Australians who have waited too long for key funding or waited too long for equipment, which raises questions about the effectiveness of the system. Importantly, in recent times there's been the threat of independent assessments. That has receded for the moment, but who knows when that will come back.

So there are some elements of this bill which are worthwhile, but there is so much more to do, and it's just unfortunate that it's not in this bill but in the never-never for the moment.

See this speech in context