Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Hansard source

[by video link] The National Disability Insurance Scheme is providing vital services to some of the most vulnerable people in Australia. Often, people with disability who rely on the NDIS for support have difficulty with mobility or communication and can face significant challenges advocating for themselves. This can make them particularly vulnerable to violence, neglect, abuse, exploitation and other forms of harm at the hands of those who have been charged with their care. Concerns about the abuse and neglect of people with disability has been so widespread they have led to the establishment of the royal commission.

These kinds of incidents are at the most serious end of the scale when it comes to matters investigated by the NDIS Quality and Safeguards Commission. This bill, the National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020, will expand the range of circumstances in which the NDIS Quality and Safeguards Commissioner can issue a banning order. A banning order prohibits or restricts activities by a provider or by a person employed or engaged by that provider, and a banning order is one of the most serious regulatory responses that is available to the commissioner for ensuring that providers comply with their obligations. They're used in circumstances where poor-quality services or unsafe practices have the potential to lead to harm for NDIS participants. Sadly, we've already seen the deaths of NDIS participants due to the actions of a provider.

This bill was introduced in response to the death of Ann-Marie Smith, a 54-year-old with cerebral palsy who died of severe septic shock, multi-organ failure, severe pressure sores and severe malnutrition. I know I was shocked to hear about this, as I'm sure everyone else was. Ms Smith had been confined to a cane chair, and, despite her NDIS package including six hours of support per day, reports are that she only received two hours of care per day and had not been seen outside her house in years. Another death was that of David Harris, a 55-year-old who was schizophrenic, diabetic and incontinent, who died after his funding services were cut off. His body was not discovered until two months—two months—after he died. How can that happen in our society? If that's not shocking enough, his grieving sister discovered that his support had been cut off because he missed an annual review meeting. While Ms Smith's death appears to have been the catalyst for the bill, sadly, the amendments proposed by the bill are unlikely to have prevented her death if they had been in place then. But they are sensible amendments, and Labor welcomes and supports them. But we know that more needs to be done to prevent the abuse and neglect of NDIS participants.

As I said earlier, this bill will expand the circumstances in which the commissioner can make a banning order. It will give them the power to make a banning order against someone who is not considered suitable to be providing supports or services to people with disability. This could be, for example, because of inappropriate actions in a previous caring role, such as aged care or early childhood education. It will also allow the commissioner to issue a banning order against someone even if they are no longer employed or engaged by an NDIS provider. So, if a person is trying to avoid being banned by temporarily ceasing their employment or engagement in the NDIS, a banning order will prevent them from re-engaging in the scheme. Finally, the bill will give the commissioner the power to provide details of banned persons on the NDIS provider register, subject to privacy protections.

These changes have the broad support of stakeholders, although some have said that they are only a first step in protecting NDIS participants from harm. In an article on the Disability Support Guide website, Director, Media and Communications at People with Disability Australia, El Gibbs said of the proposed changes:

"We're pleased to see the first step towards improving the safeguards for people with disability that use the NDIS. The recent death of Ann-Marie Smith, and other abuse of people with disability, have exposed the many gaps that exist in the current system."

…   …   …

"The next step needs to be ensuring that the NDIS Quality and Safeguards Commission has the powers and resources to proactively investigate and conduct random spot-checks on disability support providers.

In the same article, Aged and Disability Advocacy Australia CEO Geoff Rowe supported the changes but said their effectiveness would depend on how the new powers were used. Mr Rowe said:

"I think giving the Commission a way to ban a provider or to ban an individual is not a bad thing and the question comes back to what is the metric that will be used …

… ADA Australia provides aged care and advocacy services, and we do see people who are sacked from one sector, and then they turn up in the other because they have been sacked.

"The devil is in the detail, how they determine who should be banned, what consultation will they have with people with disability and the sector about where the threshold should be."

When Ms Smith died, Labor called for an independent investigation into her death, and the government tasked Federal Court Justice Alan Robertson with reviewing 'the adequacy of the regulation of the supports and services provided to Ms Ann-Marie Smith'. With the death of David Harris, we argued that the inquiry should be broadened to include his case. Given the government refused to do so, we believe a separate inquiry into this matter is warranted. What NDIS participants really need is an inquiry to look at the question of whether the commission has been effective in fulfilling its role in multiple cases, not just Ms Smith's. As welcome as Justice Robertson's inquiry is, we need a proper inquiry that has broader terms of reference and subpoena powers, which the Robertson inquiry did not have.

Justice Robertson handed down his report at the end of the August and it contained some very important findings. Among the report's recommendations were that the commission identify earlier people with disability who are vulnerable to harm and neglect. It recommended that vulnerable people should never have more than one carer and should have a specific person identified in their plan responsible for their safety and wellbeing. The report also recommended community visitor schemes; occasional visits to vulnerable participants, including spot checks; and improved reporting of incidents and complaints.

A couple of these recommendations go to what I think was at the heart of the issues surrounding Ms Smith's death—that is, the lack of oversight of the care she was receiving. Stakeholders, such as union and disability advocates, have told Labor that the commission is reactive in many cases, focusing on incidents after they happen. Some of Justice Robertson's recommendations are about identification and more proactive monitoring of participants vulnerable to harm. While Justice Robertson's report did not identify any failings in how the commission carried out its functions, that was because the commission's scope is too narrow. When the commission was launched in 2018, Commissioner Graeme Head AO said that it had comprehensive regulatory powers and functions and real regulatory teeth. If the commission has real teeth then how is it that Ms Smith's provider, Integrity Care, only received a paltry fine of $12,600 for failing to notify the commission of her death within 24 hours? In two years of operation, this is the only infringement that the commission has issued, and that was probably only due to the publicity surrounding Ms Smith's death. From the 8,000 complaints it has received, it has issued only 23 banning orders.

As evidence given to the Joint Standing Committee on the National Disability Insurance Scheme has shown, most participants don't even know the commission exists and therefore wouldn't think about going to it if they had a complaint about their provider. Is this what the taxpayer gets for $35 million in operating costs over the past two years, including $2 million in executive pay? In the 2020-21 budget, the NDIS commission was allocated 100 more staff and $92.9 million in funding, over four years, to 'expand its compliance and investigative capacity'. Of course we welcome any boost to the commission's capacity, but it was revealed at estimates that this funding will add only six investigators nationally. Given the commission is swamped with complaints, appointing just six investigators is hardly going to put a dent in addressing the sheer volume of abuse and neglect cases in the NDIS. It's seven months since Ann-Marie Smith's death. The government needs to do everything in its power to stop tragedies like this happening again.

This bill is not a silver bullet, and nor are any of the other changes related to the commission. The buck doesn't just stop with the commission when it comes to quality and safeguards. The overall management of the NDIS is important, not just the oversight. If the government are serious about protecting people with disability from neglect and abuse, then I implore them to look beyond the scope of the commission to the management of the NDIS in general, because there is only so much the commission can do to ensure quality and safety when the system is broken.

Sadly, under this government there has been a history of mismanagement and neglect in this area from the minute it came to power. We've yet to see any serious action from the Morrison government to fix the messes they have made with the NDIS. I suppose that's hardly surprising because, after all, it was a proud Labor reform that those opposite inherited. It's a reform they reluctantly picked, although their heart was never really in it. I have no doubt that those opposite would dump the NDIS in a heartbeat if it wasn't such a popular reform and if it wouldn't be seen by the Australian public as a poor and heartless decision.

I've spoken at length in this place about the frustrations many NDIS participants and their families are experiencing. I just want to remind people of some of the points again, because they are really relevant to the debate we're having now. I heard a number of these complaints in a forum I facilitated last year which included NDIS participants and their families; Labor's shadow minister for disability, Bill Shorten; and the Tasmanian shadow minister for disability, Jo Siejka.

We heard stories of people with newborn babies who had immediate pressing needs and it taking six months to have their plans approved. We heard about parents being denied respite care, despite exhaustion from providing around-the-clock care to their children. We heard about families having claims knocked back and spending hours upon hours completing paperwork and running around seeking medical reports to justify their claim. At the same time some were having their reports second-guessed by people with no medical qualifications, others were having their work going to waste because their reports weren't even read. We heard of lengthy delays of payments to service providers.

What we heard at that forum was merely a snapshot of the chaos surrounding the NDIS. I acknowledge that the experience of the NDIS has been positive for many participants. It remains a proud Labor reform. It's a vast improvement for people with disability on the fragmented state and territory systems that preceded it. But for a number of participants it has been bogged down in bureaucracy and red tape, subjecting them to lengthy delays and inexplicable and inconsistent decisions. Delays in the scheme, particularly in getting plans approved or receiving equipment, have resulted in 1,200 Australians with disability dying while waiting for funding.

As if the shortcomings for current participants aren't bad enough, the NDIS is also failing to reach every person eligible to participate. I mentioned last year that there were over 6,500 Tasmanian participants in the NDIS, even though it was estimated that around 10,600 were eligible. I am pleased to see that there are now just over 9,000 participants in Tasmania, which is a significant improvement but still a fair way short of the estimated number of people eligible.

It should be of little surprise to those opposite that the NDIS is in such a mess when they continue to massively underspend on the scheme. Is it any surprise when the Morrison government has ripped $4.6 billion out of the scheme? The government's underfunding of the scheme led to the Victorian Labor minister for disability, Luke Donnellan, and his Liberal counterpart in New South Wales, Gareth Ward, joining forces in February to call on the Minister for the NDIS to release the money. Minister Ward was quoted by the ABC at the time as saying:

I want to make sure that money doesn't sit in a bank account offsetting the Commonwealth's budget, which is what it's doing. I want to see it improving the lives of people.

Given the government no longer has to prop up its artificial surplus, it has no excuse not to release the funds to thousands of Australians with disability who need them now.

This bill is welcome; it's necessary. But it's just the beginning of what the government needs to do to fix its NDIS mess. The Morrison government needs to fully fund the NDIS and restore the $4.6 billion it has ripped out of the scheme. It needs to fix the bureaucracy and end the delays and the inconsistent decisions. It needs to establish a wide-ranging inquiry into whether the commission is fulfilling its role as a watchdog and, if it isn't, to give the commission real teeth. Those opposite need to act urgently before another Ann-Marie Smith or another David Harris becomes the victim of this— (Time expired)