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

[by video link] As we consider tonight the National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020, it is really important to, first of all, examine and be clear about the context in which we are having this broader conversation in which we are considering this piece of legislation. I would first like to foreshadow that second reading amendments will be moved on my behalf by my colleague Senator Thorpe, in the terms circulated in the chamber.

Tonight we are considering a bill, the purpose of which is to grant greater powers to the Quality and Safeguards Commission, particularly in relation to its ability to issue banning orders to providers and individuals. As we embark on this consideration, it's critical that we acknowledge both the cultural context in which this conversation is taking place and the policies that have been created in and by that context.

As disabled people in Australia, every single day of our lives we live in a community, a society that has been constructed and shaped by discriminatory thought processes—ableism is the name often put to the discrimination we face as disabled people—and they cover, drench and shape so much of our lives and the communities in which we live. Disabled people and our aspirations and our rights are considered less valuable, less meaningful with less right to be heard than non-disabled people—less than the rights of non-disabled people, than the voices of non-disabled people.

This discrimination leads us to live our lives in contexts where we are often subjected to violence, abuse, neglect and exploitation—whether that be in the classroom, where many of us are educated in segregated settings; whether that be in the workplace, where thousands of us work for cents or dollars an hour; or whether that be in housing, where we are often grouped together in institutional settings where we don't have the opportunity to build families, live independently if we so wish and do things as simple as log on to the internet where and when we want to. This discrimination also shows its face in the healthcare system. The reality in 2020 is that the life expectancy of an intellectually disabled person in this country is 24 years less than the rest of the population.

From that cultural context has been born a set of policy responses. The NDIS Quality and Safeguards Commission is one of those policy responses. It was set up in response to the creation of the NDIS as a part of that reform process. Its goal is to provide a safeguarding mechanism for NDIS participants and to enable the investigation and exploration of abuse situations, as well as the registration and accreditation of registered NDIS providers. In that role it has functioned in different jurisdictions now for two years or so with very mixed results.

We have seen in South Australia, particularly in the case of Ann-Marie Smith, the profound failure of that legislated mechanism and the failure of the commission to have a clear line of sight with what was going on with Ann-Marie Smith. Justice Robertson may well have found in particular mechanistic detail that the commission technically didn't do anything wrong, but, broadly speaking, if you have a participant who comes to harm in the deep way that Ann-Marie Smith did then you have a system that is failing, whether or not the rules capture that particular type of failure.

There are two things that we need to consider when we look at this legislation. One is what it actually functionally does, and I'll go briefly to that. The legislation before us, as set out in the explanatory memorandum, 'broadens the circumstances in which the commissioner may make a banning order against a provider or person and clarifies the commissioner's powers'. That seems on the surface to be a very reasonable contention, and the Greens do support this bill as written. Broadly though, it does not go to the deeper question of where do such regulatory frameworks fit within the overall effort that must be made to eliminate violence, abuse, neglect and exploitation of disabled people in Australia? To that question we are beginning to gather some evidence and answers through the work of the Joint Standing Committee on the NDIS, which is currently conducting an investigation into the functioning of the NDIS Quality and Safeguards Commission.

What we are learning through that process is that regulatory frameworks are only one part of an overall piece of work that needs to be done. Breaking down institutionalisation and the spaces in which it exists, eliminating discrimination, and enabling people to participate fully in society are the things that ultimately eliminate or greatly reduce the chances that someone is subjected to these kinds of abusive practices. The terminology here is 'natural safeguarding', and it is something which the commission needs to play a greater role in promoting an understanding of in the broader community.

Debate interrupted.