Nick Xenophon (SA, Independent) Share this | Hansard source

Thank you. I am acutely aware that we have less than 20 minutes before these bills will be voted on; therefore, I intend to—with the indulgence of my colleagues—as quickly as possible set out all the amendments I will be moving, because I think it is important to have them on the public record. Therefore, I move amendments (2) to (6) on sheet 7362:

(2) Clause 100, page 84 (line 19), at the end of subclause (1), add:

  ; and (c) explaining the reasons for the reviewable decision.

(3) Page 86 (after line 17), at the end of Part 6 of Chapter 4, add:

103A Costs

(1) The Administrative Appeals Tribunal can make a costs order providing that the CEO or Agency must pay the costs of a person who makes an application for a review of a decision.

(2) The Administrative Appeals Tribunal must not make a costs order providing that a person who makes an application for review of a decision is required to pay the CEO's or Agency's costs, unless in the opinion of the Tribunal the person is acting in a manner that is vexatious or an abuse of process of the Tribunal.

(4) Page 86 (after line 17), at the end of Part 6 of Chapter 4, add:

103B Administrative Decisions (Judicial Review) Act 1977

     For the avoidance of doubt, if the CEO makes a decision under this Act, the decision is taken to be a decision of an administrative character made under an enactment.

(5) Page 86 (after line 17), at the end of Part 6 of Chapter 4, add:

103C CEO to ensure appropriate means of communication

     The CEO must ensure that the Agency institutes a process to ensure that communications with participants in the National Disability Insurance Scheme are undertaken so as to allow the participants to deal with the Agency in the most effective way possible.

Note: For example, providing written communications to a person who is vision impaired does not allow that person to effectively communicate with the Agency. In this case, the Agency may determine that it is appropriate to directly speak with the person and to send them the written communication in braille form.

(6) Clauses 104 to 105B, page 87 (line 5) to page 90 (line 26), omit the clauses, substitute:

  104 Compensation

     Where:

  (a) compensation is paid or payable to a person (the injured party), otherwise than under a scheme of compensation under a Commonwealth, State or Territory law; and

  (b) the injured party has received, or is entitled to, damages from another person (the wrongdoer) in pursuance of rights arising from the same trauma as gave rise to the rights to compensation; and

(c) the person to whom the compensation is paid or payable (the claimant) is entitled to recover the amount of the compensation; and

  (d) the person has taken no action to claim or obtain compensation,

then the following provisions apply:

  (e) the CEO is entitled to recover the amount of compensation paid or payable from the wrongdoer or the injured party, but subject to the following qualifications:

     (i) no amount may be recovered from the wrongdoer in excess of the wrongdoer's unsatisfied liability to the injured party; and

     (ii) no amount may be recovered from the injured party in excess of the amount of the damages received by the injured party; and

     (iii) in a case involving contributory negligence, the amount to be recovered from the wrongdoer by the claimant under this subsection must be adjusted to the extent that is just and equitable having regard to the extent to which the wrongdoer establishes that the contributory negligence contributed to the occurrence of the relevant injury; and

(f) the claimant shall, on giving notice to a wrongdoer of an entitlement to recover compensation under this section, have a first charge, to the extent of the entitlement, on damages payable by the wrongdoer to the injured party; and

(g) any amount recovered by the claimant against a wrongdoer under this subsection shall be deemed to be an amount paid in or towards satisfaction of the wrongdoer's liability to the injured party; and

(h) an action for the recovery of compensation may be heard in a Court of competent jurisdiction.

I want to make it clear that amendment (1) on sheet 7362, which I moved earlier today, amends the general principles of the act, to provide that people with a disability have the right to access support from independent advocates. This will ensure that people with a disability are able to access independent advice and support when dealing with NDIS processes.

Amendment (2) on sheet 7362 is parallel to amendment (1); it will insert a provision into section 100, which deals with reviewable decisions. This provision will require the CEO or delegate to provide reasons the decision is considered reviewable. This will ensure that people affected by these decisions will have adequate information to build their case effectively.

Amendment (3) introduces provisions relating to the Administrative Appeals Tribunal and the awarding of costs. Under this item the AAT may not order an individual bringing a complaint to cover the CEO's or agency's costs unless the complaint is considered vexatious or an abuse of process. However, the AAT may order the CEO or agency to cover an individual's costs.

Amendment (4) inserts provision to clarify that the decision made under this act by the CEO is taken to be of an administrative character made under an enactment for the purpose of judicial review.

Amendment (5) provides that the CEO must ensure that processes are in place to establish appropriate means of communication which take into account a person's disability—for example, in the case of a person who is vision impaired the CEO may decide to issue communications verbally as well as in an appropriate written form such as braille. This will ensure that all participants in the scheme have equal access to important information about their claims.

Amendment (6) revises the compensation claim section of the act. This new section seeks to address concerns that the provisions in these sections remove choice for the people concerned and rely too much on compulsion. This section is consistent with similar provisions in other state, territory and Commonwealth acts. It still allows a CEO to make a claim on an individual's behalf or to take over a claim, but it includes specific safeguards to ensure the individual has the initial benefit. It also removes the consequences of an individual not taking action required by the CEO, which under the bill as it stands results in payments being suspended. This is a blatantly unfair action and removes an individual's choice to an unacceptable extent.

The question I pose to the government—and I appreciate that we are so limited for time—is that they make an undertaking to at least provide me with responses in writing or to table responses in relation to the matters I have raised, the amendments I have raised.

On the issue of amendment (6), there is a fundamental flaw in what is being proposed. Why won't the government do what other states are doing? For instance, in South Australia, section 54(7) of the workers compensation legislation makes it very clear; that act has a right of subrogation which is much fairer and consistent with other states and actually gives an individual real rights.

I support the intent of the bill wholeheartedly, but there are some fundamental flaws in the structure and the architecture of this bill, particularly in the area of the rights of individuals challenging decisions.