Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill.

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I just wanted, at the start of the committee stage, to acknowledge some people. In my second reading speech I acknowledged those beyond the parliament and the government who had been instrumental in bringing the legislation to this point, but I did want to thank Senator McLucas and her office for the courtesies extended to my office and to me during this process. I also wanted to thank Senator Macklin's office and acknowledge the work of Senator Moore, as the chair of the Senate Community Affairs Legislation Committee, in stewarding the inquiry into the NDIS legislation. I think Senator Moore really ranks with Senator Payne when it comes to the discipline she imposes upon committees that she has chaired. I would also like to thank Senator Siewert, as deputy chair, for her contribution there. It is also important to acknowledge the committee secretariat of the Senate Community Affairs Legislation Committee, Dr Ian Holland, and his staff, who worked extremely hard in a very compressed time frame.

I also thank the 1,597 people and organisations who made submissions to that inquiry. We will, in the course of this morning, see some of the fruits of the work of that committee come to bear as some of the recommendations that were made by the committee are taken up. I should also acknowledge officers of FaHCSIA, for their very hard work in bringing the legislation to this place, and Mr David Bowen.

I also want to express my pleasure that the notice of motion that was circulated last night in relation to the proposal to guillotine debate on the NDIS legislation looks as though it will not come to pass. I in no way reflect on Senator McLucas in relation to that motion because I know these things are determined by others in this place with chamber responsibilities. I am sure Senator McLucas was instrumental in seeing that motion not come to pass by her internal advocacy in the government because I know she, of all people, would not want there to be any curtailing of debate on this legislation.

I want to move to what will probably be the least significant issue raised in this committee stage, so let me get it out of the way first—that is, the issue of the proposed name change for the NDIS. Minister Macklin, in a press release on 18 March—two days ago; I am losing track of time—headed 'Extra funding for playgroups to give kids a better start', announced on the second page in paragraph 14 a name change. This is not where I naturally would look for an announcement about a change of name for the NDIS, nevertheless, it was there. In the release it said:

Ms Macklin said the Government was taking a big step this week toward peace of mind for people with disability, their families and carers with the passage of the NDIS Bill through Parliament.

In another step that this care and support is about to become real for Australians with disability and their families, we now have a name for the National Disability Insurance Scheme—

I thought we had one, but anyway it goes on—

‘DisabilityCare Australia’.

The release continues:

The name has been chosen based on consultations with people with disability, their families and carers, peak organisations and the general public.

DisabilityCare Australia reflects the principles of the NDIS—that all Australians with significant or profound disability receive the care and support they need, regardless of how they acquired that disability.

I was a little surprised that the proposed name change was buried—that is the only way to put it—at the bottom of a press release in relation to funding for playgroups.

There was some reaction from stakeholders in relation to the proposed name change, and I will just go through a few of those. Lesley Hall, who is well known to all of us presently in the chamber, the chief executive of the Australian Federation of Disability Organisations said:

It does not represent what the scheme is about …

The scheme is not just about caring, it's about supporting people to have to get on and do what they want in life.

She continued to say:

She said the word "care" had implied the scheme was linked to welfare and paternalism.

David Heckendorf, who has cerebral palsy, said:

Oh, come on guys! Really? Disability Care? Why not go all the way and call it Crip Care? …

It is not about caring. It is about empowering or enabling, equipping, etc. Can't we be a little more imaginative?

And Jackie Softly said:

I hate the name. But I worry more that the name reflects the way the powers that be see it. Now that is very scary …

Kelly Vincent, the Dignity for Disability member of parliament in the South Australian Legislative Council, who Senator Ruston made reference to before, said in response to the proposed name change:

We aren't a scheme for sick people needing care—we're people with disabilities that need to be supported, assisted and enabled …

We don't need the NDIS name change to further perpetuate patronising attitudes.

I was surprised about the manner of the announcement of the name change, and it would seem from that selection of quotes that there is some concern in the sector among some people with disability that the name might not be an accurate reflection of the nature of the scheme.

My questions to the parliamentary secretary are these. Can she supply some additional background as to the process that was gone through in relation to seeking to rebrand the NDIS and whether DisabilityCare Australia is the settled name for the NDIS? Is it intended to be a trading name that will replace National Disability Insurance Scheme? Will the National Disability Insurance Scheme Launch Transition Agency be renamed to the DisabilityCare Australia Launch Transition Agency? I am interested in the process that led to the new name. I am also interested in the manner of its announcement and what the intention of the government is as to how exactly it will be used.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

Senator, in answer to your questions, I need to provide some clarity for you. This is not a name change. National Disability Insurance Scheme was the name that Mr Bonyhady took to the 2020 summit some years ago. It is a name that was then picked up by the Productivity Commission in their work. There have been a number of senior and key players who have had conversations about whether or not the word 'insurance' should rightly sit in that name.

It was always the plan of the government to provide a name that is accessible and means something to Australians broadly, particularly Australians with disability, in the same way that Medicare comes from the Health Insurance Act in Australia. We do not have a Medicare act; we have the Health Insurance Act. In the same way Centrelink is delivered through the Commonwealth Service Delivery Agency Act—that is how we have Centrelink. So it is not unusual; it is, in fact, predictable. It is not a point that, I think, carries much weight, so can I suggest we get on with the main job. Your question was in terms of the agency. That is a matter for deliberation down the track; it is not a consideration at present.

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

As I indicated at the outset, this is the least important matter that will be raised here, but given it has only arisen in the last few days and has been the comment of a number of people with disability, I thought it was worth giving the parliamentary secretary the opportunity to provide some additional context around the proposed branding of the scheme. As I think I indicated yesterday, it is not something about which the opposition wish to make a capital case, but I think it deserved some brief ventilation.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

by leave—I move government amendments (1) to (16) on sheet CT200 together:

(1) Clause 3, page 4 (lines 5 to 7), omit paragraph (1)(a), substitute:

  (a) in conjunction with other laws, give effect to Australia's obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and

(2) Clause 3, page 4 (line 28), at the end of subclause (1), add:

  ; and (i) in conjunction with other laws, give effect to certain obligations that Australia has as a party to:

     (i) the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and

     (ii) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); and

     (iii) the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and

     (iv) the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and

     (v) the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40).

Note: In 2013, the text of a Convention or Covenant in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

(3) Clause 4, page 6 (after line 19), after subclause (12), insert:

(13) The role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by:

  (a) promoting their independence and social and economic participation; and

  (b) promoting choice and control in the pursuit of their goals and the planning and delivery of their supports; and

(c) maximising independent lifestyles of people with disability and their full inclusion in the mainstream community.

(4) Clause 4, page 6 (line 20), omit "(13)", substitute "(14)".

(5) Clause 4, page 6 (line 24), omit "(14)", substitute "(15)".

(6) Clause 4, page 6 (line 27), omit "(14A)", substitute "(16)".

(7) Clause 4, page 6 (line 29), omit "(15)", substitute "(17)".

(8) Clause 5, page 7 (line 18), after "circumstances", insert ", and the gender,".

(9) Clause 9, page 12 (lines 7 to 13), omit the definition of Convention on the Rights of Persons with Disabilities.

(10) Clause 26, page 29 (lines 13 to 16), omit subparagraph (1)(b)(ii), substitute:

     (ii) undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination.

(11) Clause 36, page 40 (lines 23 to 26), omit subparagraph (2)(b)(ii), substitute:

     (ii) undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination.

(12) Clause 50, page 49 (lines 1 to 4), omit subparagraph (2)(b)(ii), substitute:

     (ii) undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination.

(13) Clause 73, page 64 (line 4), at the end of subclause (1), add:

  ; and (d) processes to deal with conflicts of interest, or perceived conflicts of interest.

(14) Clause 73, page 64 (after line 19), after paragraph (2)(d), insert:

  (da) obligations relating to dealing with conflicts of interest, or perceived conflicts of interest; and

(15) Clause 85, page 75 (lines 9 and 10), omit "a medical, psychiatric or psychological".

(16) Clause 147, page 119 (lines 8 to 26), omit subclause (5), substitute:

Membership requirements

(5) In appointing the members of the Advisory Council, the Minister must:

  (a) have regard to the desirability of the membership of the Advisory Council reflecting the diversity of people with disability; and

  (b) ensure that all members are persons with skills, experience or knowledge that will help the Advisory Council perform its function; and

  (c) ensure that:

     (i) a majority of the members are people with disability; and

     (ii) at least 2 of the members are carers of people with disability; and

     (iii) at least one of the members is a person who has skills, experience or knowledge in relation to disability in rural or regional areas; and

     (iv) at least one of the members is a person who has skills, experience or knowledge in the supply of equipment, or the provision of services, to people with disability.

Note: A particular member may meet one or more of the conditions in subparagraphs (5)(c)(ii), (iii) and (iv).

By way of explanation of these government amendments, the government has moved amendments in the House to respond to what we have heard from people with disability and their families and carers, from service providers and from the states and territories. Many people have also provided their views to the Senate Community Affairs Legislation Committee's inquiry into the bill, and the government is proposing additional amendments to be moved in the Senate to respond to the committee's report.

The amendments in the House were designed to make it clear that a fundamental aim of the scheme is to maximise the independence of people with disability. In delivering the NDIS, they require that the agency supports the independence, participation and exercise of choice and control by people with disability. The amendments we are moving in the Senate also make clear that, in addition to the cultural and linguistic circumstances of people with disability, their gender should be taken into account by anyone acting on behalf of a person with a disability. That is amendment (8) and responds to committee recommendation 5.

Amendments (1), (2) and (9) and committee recommendation 1 give greater visibility to the object of the scheme that relates to the Convention of the Rights of Persons with Disabilities and other relevant human rights conventions. They include a specific reference to the object of maximising independence for people with disability.

The Senate committee also discussed the role of advocacy and the NDIS in great detail, and the government is proposing amendments to acknowledge the role of advocacy in representing the interests of people with disability and to recognise that advocacy supports people with disability in a range of ways. Those amendments are (3), (4), (5), (6) and (7) and respond to committee recommendation 7.

Amendments (10), (11), (12) and (15) respond to committee recommendation 18. In response to a request by the Senate committee, the amendments also clarify that where an examination is required for access, planning or reviewing in addition to medical, psychiatric and psychological examinations there can be other examinations conducted by an appropriately qualified person.

Amendments (13) and (14) respond to committee recommendation 20. To respond to the Senate committee's concerns, the amendments ensure that NDIS rules can be made to deal with the mechanisms registered providers of supports must have in place for dealing with conflicts of interests. There is a risk of conflicts of interest arising, for example, if a registered provider of supports both provides supports to people with disability and manages funding for supports under plans. The NDIS rules will be able to specify approval criteria and/or ongoing obligations that registered providers of supports must meet for managing conflicts of interest. The NDIS rules will be able to provide more detail around what kind of mechanisms a registered provider who undertakes both functions must have in place.

Amendments (15) and (16) respond to committee recommendation 29. Amendments moved in the Senate provide for greater representation of people with disability on the advisory council while ensuring that a diverse experience of disability is also reflected. As recommended by the Senate committee, the amendments mean that a majority of the people on the advisory council will be people with disability and there will be at least one member who has experience or knowledge of disability in rural and regional areas. This is in addition to the existing requirements that there be at least two people who are carers of people with disability and at least one person with experience or skills in the supply of equipment or services. I commend the amendments to the chamber.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I have a series of questions around those amendments. While I commend the government for taking on a number of the recommendations from the committee, there are some that are not necessarily being done through amendments, and there are also questions around those amendments and what is in scope or not. Should we go through issue by issue, because I am sure that Senator Fifield has questions as well? I also have a few questions around amendments that were made in the House of Representatives to the compensation provisions, which Senator Xenophon also brings up, and may clarify some of the issues Senator Xenophon is trying to address through his amendments. Perhaps we could do compensation first. I am looking around the chamber to see if that is okay with people.

Mark Furner (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

Let us start with that, Senator Siewert.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I appreciate the government has already moved to deal with the issue of subrogation, which, as the parliamentary secretary will know, came up time and again. The issue that came up time and again by a number of organisations—and the chamber has a deep interest in this at the moment—was why the CEO still needs those powers to compel participants to seek compensation. One of the key issues that came out during the Senate inquiry was the fact that the CEO could compel. That is why the argument was there for subrogation. Can the parliamentary secretary explain why those powers are still necessary given the subrogation issue has been dealt with?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

We need to ensure that insurers, both public and private, maintain effort. The last thing we want to do is shift costs to the NDIS that are in fact the appropriate costs of another insurance agency. If we were to essentially take over the responsibility of other both public and private insurers, that would put real pressure, in our view, on the fund with potential serious impacts not only in a funding sense. Insurance requires that, if something has gone wrong, the appropriate insurer should pay the costs of that event.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I understand that and that is the whole purpose of the compensation provisions. The point there is that if you are enabling the CEO to subrogate anyway—and I am not a lawyer so I may not be using 'subrogation' and 'subrogate' in the correct context—why still have those powers in there to compel? Does that make sense?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

The answer to that is that you have to start from somewhere. The first question the CEO asks a participant is: will you go to the TAC and make a claim, for example? There has to be a start to the process. Then, as you know, through subrogation that person may say they do not want to and then the CEO has another set of options in front of them to be able to take a matter on their behalf—and I think you understand the trickle-down options that are available following the amendments in the House of Representatives. But the answer to your question is that you have to start somewhere. So the first step is you ask a participant to take an action at the appropriate insurer.

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I acknowledge that the amendment that the government moved and was passed in the House did go some way towards addressing the recommendation of the Senate committee, but I want to follow up on what the parliamentary secretary was saying before. A lay person reading the amended legislation would see that the chief executive has great powers of compulsion. I appreciate that the way a mechanism of this sort operates in reality may not be as blunt as it appears in the legislation. Are you saying that, if an individual elects not to pursue action themselves or they do nothing, by so doing they have in fact elected to subrogate their responsibility to the CEO? Although it may look in black and white as though the chief executive is directing that something happen, in fact the way it will operate in practice is that the individual is in effect electing to make a choice and to subrogate some of their rights to the CEO.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

I think we need to put this in a little bit of context. The first point I would make is that a person who has just been involved in a very traumatic event probably is not going to go to the National Disability Insurance Scheme Act to ascertain what their next steps are. They will be associated with their insurance company and they will be referred to the national disability insurance agency locally provided, and this will be done extremely sensitively and compassionately. That was very much the message we received from the Senate Committee Affairs Legislation Committee.

In terms of how it will happen, there will be a discussion undoubtedly. If the case does concern legal action, there will be a discussion managed very sensitively with the individual to ascertain whether they wish to take that legal action. I imagine this will be a discussion not held on just one occasion. There will be an opportunity for there to be further discussion if the person says they are not doing that. That is when subrogation occurs and that is when there is an opportunity for the CEO to ascertain whether legal action is appropriate or whether they should take it on behalf of the person who has been involved in that event.

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

Was the significant amendment that was made in this area in the House modelled on other legislation, be it Comcare legislation or the TAC? I am looking to see what the amendment is most parallel to or draws inspiration from.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

I am advised that it draws from the TAC, the Transport Accident Commission.

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I think organisations such as the Australian Lawyers Alliance have visited a number of senators and given evidence to the Senate inquiry. I understand from what Senator Xenophon has said that his proposed amendments in the area of compensation reflect some of the concerns of organisations such as that. I would be interested in whether you have received any legal advice as to what the practical outworking of the proposition that Senator Xenophon has put forward may be, just to provide a little light, because being a layman I have read amendments such as his and it is not immediately apparent as to what the practical import may be.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

I just wonder, for the operations of the committee, whether Senator Fifield would mind if we leave Senator Xenophon's package to when we are debating his amendments. Given that he is not in the chamber, I do not want to do it once and then have to do it again.

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I am happy for that to be taken as a question on notice. I just was not sure when Senator Xenophon was joining the committee stage.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Are we then leaving the rest of the compensation issues until Senator Xenophon gets here? It seems to make sense.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

Yes.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I might leave the issue around legal privilege till then as well. Can I move on to advocacy. This is an issue that came up extensively, and the Greens also have an amendment on advocacy. Many submitters drew a clear distinction between the systemic advocacy to improve access for all people with a disability in specific areas of need, and they also looked at individual advocacy, particularly advocacy for individuals who are in dispute with the NDIA. On the weight of evidence, the Australian Greens, as I articulated in my second reading contribution, felt that it was better to leave the funding of advocacy outside the scheme, but we still felt it was very important, and we very strongly support the committee's recommendations that the concept of advocacy be included in the NDIS, which the government is doing through these amendments.

The role of advocacy is brought into sharp focus by the mechanisms by which each participant and others can seek to challenge and address decisions of the agency. We have supported the recommendation that launch sites should monitor this aspect. So the issue that came up was the immediate review and then going to what people felt was the more extreme AAT approach. They were looking for something in between. I understand the government's concern about setting a whole new process up through the launch sites, because they want to get this up and running, which is why the committee recommended that there be this process of monitoring this particular aspect to see if there are a lot of concerns coming up during the launch site process and to see whether there is a need for an intermediate step between those two levels of what is essentially appeal. There was, of course, that call for funding of advocacy.

So the problem here is that, yes, we totally get the weight of evidence that suggests that we should not be funding advocacy under the agency, but that then leaves out there the issue of advocacy and how we are going to fund it. The problem is that in the past—I am not pointing the figure at any particular governments here—we have seen funding for advocacy go up and down. We have had previous attempts to muzzle advocacy, and under this government there was the failure to index some of the grants to advocacy agencies—which was, I have to say, reversed, but it can be something that comes and goes, and that is not good for advocacy. So my question to government is: one of the recommendations in the report was funding of advocacy, so what is the government doing about funding for advocacy services, given that they will not be provided for through the scheme itself?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

Senator Siewert can be assured that the government totally understands the necessity for strong advocacy services. We are moving into a new age, and people will have different questions, and many people will need to be supported through that process. So I have just moved amendments that recognise the role of advocacy, but we are working to ensure that the merits system is accessible and as non-adversarial as possible. Mr Bowen has said—I think it was at Senate estimates—that seeking a resolution to any issue has to be the first priority and that path will be taken to internally manage any question as assiduously as possible.

As you indicated, we will be providing additional funding to advocacy organisations to ensure that advocacy support is available. We are working through the detail of that at the moment. As you know, advocacy agencies are funded in different ways around the country. We have undertaken an extensive mapping exercise with the support of our National Disability Advocacy Program funded agencies, and we have also undertaken to look at those agencies that are funded by states and territories to ensure that we have the advocacy and also the interrelationship between various agencies strengthened so that people can navigate the advocacy system as well.

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

I thank Senator Siewert for enabling me to jump in. I know she has other questions. For a variety of reasons I did not have the opportunity to speak on the second reading debate, and I hope I might have the leave of colleagues to make some general comments. In all likelihood I will be out of the building when Senator Fifield's amendment in relation to the establishment of a joint parliamentary committee is debated. With the leave of the parliamentary secretary, I will make some quick comments to that.

Senator Fifield has said for a long time that the NDIS should be beyond partisan politics. That is why he, as the responsible shadow, and the coalition in totality seek the establishment of a joint parliamentary committee to be chaired by both sides of politics. If we are going to be fair to men, women, children and families with disabilities as a nation, we must undercommit and overdeliver. If we overcommit and underdeliver then we are letting down a group of Australians who are relying on us as parliamentarians to ensure that this works. As Senator Fifield knows full well, I have the great honour of being the godparent of two young people with disabilities, and I know that their parents do not want this to be about politics. They want it to be about outcomes. That was communicated to me by one of these parents in no uncertain terms a couple of weeks ago. They want us to ensure that this is all above politics. I ask the government again to reconsider Senator Fifield's amendment, because this is, in my view, the surest way of ensuring that the politics and the heat are taken out of this.

I think it is a very, very good amendment. It is good because it is right for people with disabilities. It is good and right for those families of people with a disability. In the strongest possible terms I urge honourable senators to enable the perception and the reality amongst the community that this is above politics. As I said before, we have a unique opportunity to genuinely make generational change, and we must never lose sight of either the opportunity or the requirement to do so. Thank you.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

Before he leaves, I really would like to answer Senator Ronaldson's friend's plea. I will make this a bit personal too. I have been working around this stuff for over six years, and nothing is going to get in the way of delivering for people I have had the fortune of meeting who currently are not being provided a service that anyone in this country could be proud of. We have worked extraordinarily hard.

The proposal that the opposition has put is not a practical answer to ensuring that we do get the delivery that we are all seeking—including me. We have a number of governance arrangements in place that will ensure that we deliver a national disability insurance scheme starting on 1 July in your state in the Barwon region. To do that, we have worked very closely with states and territories, and a lot of those are Liberal Party states and territories. The politics has been left outside the door. I pay tribute to Minister Mary Wooldridge of your state because she has been extremely cooperative and helpful, as have her departmental officials. I say the same for Mr Constance from New South Wales. This is well and truly above politics. This is about getting it right for people with disability. I hope that comforts your godchildren's parents.

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

I thank the parliamentary secretary for that, but my point—and I think this is the point that Senator Fifield has been making for some time now—is that if this is a jointly chaired committee then those people with disability and their families will know that this can never be anything other than bipartisan. I really do believe that design and eligibility should be worked out cooperatively. I take on board the parliamentary secretary's comments, but I do again reinforce my very strong and passionate view that Senator Fifield's amendment is one that should be supported by the committee.

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

I welcome the statement in the advocacy amendment about issues of promoting independence, socioeconomic participation, choice and control in the pursuit of goals and acknowledging the role of advocacy. My question is: if there is a situation where a person is rejected for funding under the NDIS and ends up in, for instance, the Administrative Appeals Tribunal, where the Australian Government Solicitor or people who are skilled in advocacy will be representing the interests of the department, is there a guarantee that a person with a disability who has to fight this out in the Administrative Appeals Tribunal, if it gets to that, have funding for their advocacy services?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

Thank you for the question, Senator Xenophon. The first point I would make is: we will do everything we can to avoid the situation you have described. The intent is to try and resolve issues as close as possible to the point of difference. In answer to your question, we are working through that at the moment. Those issues are afoot and we will be able to give you a clearer answer at the point when we get to your amendments. Is that helpful?

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

Yes.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I would like to follow up on the issue of funding. I understand from what you have said, Parliamentary Secretary, that you are committed to increasing funding but you cannot tell us more at the moment. Is that correct?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

Yes.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Thank you. One of the issues that was raised that I touched on in my previous remarks was about a process for monitoring whether people are having problems in that intermediate step between the AAT and a review. The committee report suggested that happen. I would like to clarify if you are taking up that recommendation and how that would be implemented.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

The answer to the question is yes, we are. We are working through the mechanisms by which we would enact that recommendation.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Could I then be cheeky and seek a commitment that the Community Affairs Committee would be the most appropriate committee or the Parliamentary Friends of People with Disability be briefed on how that will occur?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

Certainly.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Thank you. I have finished on advocacy for the time being. I want to return to it briefly when we get to the Greens amendment.

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I will indicate the opposition's disposition towards the government amendments, taking each in turn. Amendments (1), (2) and (9) relate to more clearly referencing Australia's treaty obligations. That was recommended by the Senate committee, and the opposition have no issue with that. Government amendments (3) and (8) relate to giving a more specific reference on advocacy, which Senator Siewert has also been pursuing, and that also was a recommendation of the Senate committee. I think the form of words the government has alighted on is the appropriate form of words in this area to give appropriate recognition to the central role that advocacy plays in the lives of many people with disability to ensure that they are able to attain their full rights, but it does observe the appropriate demarcation that advocacy be separately funded.

Government amendments (10), (12) and (15) make a little clearer the sorts of professionals that the CEO can seek advice from. With the original drafting there was a concern that it might inadvertently exclude, by not listing, certain professionals. This leaves that more open, which I think is appropriate.

Government amendments (13) and (14) relate to conflicts of interests in relation to service providers. Again, the Senate committee and particularly Senator Boyce had a concern that reference to organisations having appropriate mechanisms to resolve conflicts of interest and to ensure that there are not conflicts of interest should be in the primary legislation. I acknowledge that the government has taken that on board.

Government amendment (16), which relates to the membership of the advisory board, I think is helpful in ensuring that there is appropriate representation. I am particularly pleased that there is the maintenance of having at least two positions for people who represent carers. I just wanted to indicate our disposition towards each of those government amendments.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I have a quick question about the advisory council that Senator Fifield just referred to. You would be aware that allied health professionals have had some concerns around their level of engagement. The amendments around professionals that the CEO can seek advice from have partly dealt with that issue. In seeking some clarification in relation to the advisory council I am not asking about prescribing certain further members, but the terms of reference do not necessarily preclude people with professional expertise in allied health or with allied health knowledge from being included on the advisory council if that was appropriate, do they?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

No, they certainly do not preclude involvement of people. I think the amendment we have moved today to say that at least half of that advisory council be people with disability shows the focus we have in the advice that will be received, noting also that we will require there to be two people who have direct caring experience and people from rural and remote areas who have experience in service delivery.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

There are a couple of other quick questions I have regarding some of the recommendations and comments in the committee report. I will leave some of my other questions until I move my amendments.

You will be aware that, during the Senate inquiry, issues around Aboriginal engagement with the scheme and concerns particularly about some cultural aspects of disability in Aboriginal communities were raised. There were comments made in a report about looking at the possibility of a launch site. I understand the government does not want to have a specific launch site for Aboriginal and Torres Strait Islander peoples. There were some recommendations. My question goes to how you are going to better engage Aboriginal communities in the scheme, given the very substantial issues that have been raised.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

I do not want it on the record that we do not want a launch site that covers Aboriginal and Torres Strait Islander people. As you know, launch sites were identified through nominations from various states and territories in terms of what they were proposing. We are very pleased that in South Australia there are discussions continuing around the provision of services in remote parts of the state for the first cohort and as it grows. That will be an important learning for us as well. We have had discussions around the APY Lands with South Australia, Northern Territory and Western Australia, thinking that we may be able to do something more broadly than simply in the South Australian area, as does happen with a range of other programs.

The other thing to go to is the number of practical design fund projects that have been funded that do focus on a number of issues; notably, the fact that for many Aboriginal and Torres Strait Islander Australians the word disability is not part of their lexicon. We need to make sure that we do overcome this underutilisation of even current disability services by people who are Aboriginal and Torres Strait Islanders. It is something that we are very aware of. We are working very closely with the First Peoples Disability Network and I commend Mr Damian Griffis for his engagement and representation. He has been wonderful to work with. It is an issue that I am personally very aware of, living next to Cape York Peninsula and the Torres Strait, where service delivery is very difficult. I am keen to make sure that Aboriginal and Torres Strait Islander people in rural and remote areas, but also in urban areas. Let's not forget that many Aborigines and Torres Strait Islanders live in our cities and they also underutilise disability services. Yes, we have a big piece of work to do, and we are working on it.

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

Senator Siewert raising this area prompted a question in my mind. I think the NDIS rules refer to—for the purposes of the South Australian launch site—certain Indigenous lands being deemed to be included as part of South Australia. I assume those boundaries extend beyond South Australia, hence they need to make reference to them. How are those boundaries actually defined?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

As you know, the rules are still a draft and we are working through the detail, but this is not an unusual circumstance. Minister Macklin, particularly through her work as Minister for Indigenous Affairs, has a lot of direct engagement with how we define who is there and the service. These people are living in very remote locations; very identifiable though, even though people do move from place to place from time to time. It is not an unusual circumstance we find ourselves in.

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

Is it a geographic boundary or is it related in some way to a cohort?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

It is the APY Lands.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Senator Fifield was going where I was going to go to clarify some of those boundary issues. You said you had been in negotiations with those governments. Obviously, you are talking to the South Australian government because of the launch site. Have WA and NT actually agreed? Are they contributing resources or is South Australia picking that up as part of their process?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

That is the level of detail that is currently being worked through at the moment. As you know, the South Australian cohort is an age-based cohort and that will be reflected in how it operates in those parts of the Northern Territory and Western Australia. The detail of how the funding arrangements and the service delivery will work is still being worked through.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Can I touch on the issue around people in custody and the issues that were brought up during the Senate inquiry? I know through other work that I do in this space, particularly with hearing, that there is great difficulty for people incarcerated accessing services. It was raised during the Senate inquiry. Could you provide any information on whether the scheme can be extended to people in custody? If it can, how will that process work?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

It is often difficult to extend services to people once they enter custody. We have been working on this in relation to access for Australian Hearing to provide services particularly to Aboriginal people suffering hearing loss. We know that people with disability are overrepresented in custodial places. There is nothing to preclude someone being a participant while in custody, if their usual place of residence is in the launch site. There would be some limits to what they might be able to access and the rules will outline what the NDIS can provide. For example, I could imagine that if a person needs personal care and support it would be very hard to provide that in a custodial setting. The agency is working with each jurisdiction to map interfaces with other systems to ensure that accountabilities are clear and that administrative processes are effective. But can I point you to the rules in schedule 1, on page 23, at 7.29(b), which state:

The NDIS will be responsible for:

…   …   …

(b)   where a person is in a custodial setting supports which are required as a result of the person’s functional impairment and are additional to supports required by the general population in relation to the following:

(i)   aids and appliances; and

(ii)   capacity and skills building to re-enter the community.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Minister, could you just clarify that particular bit again. The states are responsible?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

No.

The NDIS will be responsible for:

…   …   …

(b)   where a person is in a custodial setting supports which are required …

(i)   aids and appliances; and

(ii)   capacity and skills building to re-enter the community.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Thank you for your answer, Minister. I am aware through a lot of following up of this through estimates that if somebody goes into custody and is already receiving the services they can continue to receive the services. But if they are assessed once they are in custody, they cannot receive those services. Will that same process apply here?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

This is an area that we are working very closely on, particularly in our launch sites. We actually do have a prison in the Barwon region. A state that has established a prison system has a duty of care to the people who are in that prison. You have made the point—and I have heard it many times—that you do not know that that duty of care always extends appropriately, particularly in terms of services for people with disability. But we are working through those boundary issues. We can continue to update the committee as required, as we get more information about how that will technically work. Australian Hearing services have been instructive and I think the work you have done through estimates has been very helpful as well.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Thank you. It is an issue that I will continue to follow up. Can I move on to mental health. The parliamentary secretary will be aware—and I am sure the minister is also aware—that this issue came up during the committee inquiry. That is, the issue of the process of recovery, which is the focus of mental health, and around the issues of recovery rather than seeing disability as an ongoing permanent disability. It was raised a number of times. While I think some people are pretty clear about it there is still a lot of concern, because mental health takes a recovery approach, as to whether it will be included for those people who are very strongly in their pain process looking at a recovery approach.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

I pointed you to the rules around the custodial sentence issue. Similarly, there are rules around the issue of recovery that you alluded to. Current supports that recognise the recovery approach will continue to be available. This will take into account the intermittent nature of some mental health conditions. I hope that is helpful in answering your question.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I am aware of those covered in the rules and the clause. Minister, have you had advice that those provisions in the draft rules and in the bill as it stands are sufficient to actually deal with that particular issue?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

I might quote my colleague Senator Moore in identifying that this is a great start we have here, but we will learn a lot through the launch. It has in fact been designed that way. But if there are specific issues around the draft rules that you think we should attend to, we would be very open to hearing your thoughts.

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I just want to raise the issue of guide dogs. It is often and usually the case at the moment that individuals who need the assistance of guide dogs gain those at no cost to themselves as a result of the fundraising efforts of particular organisations which largely self-fund these services. Minister, I would appreciate your assistance in working through how that situation will operate under an NDIS. For example, you may have the scenario where an individual receives support, an entitlement, through the NDIS and they go to a service that previously provided, say, a guide dog at no cost to the individual receiving that service. How will that organisation be able to identify that that individual actually receives funded support as opposed to another individual who may not be eligible for NDIS supports?

Let's say they are over the age of 65, they go to a guide dogs organisation and they receive a guide dog at no expense to themselves.

I am interested in working this through as a representative example of how the NDIS might work. Will there be a requirement that the organisations providing the guide dogs have the individual, who will be in receipt of those services, sign a statutory declaration saying that they are or are not in receipt of NDIS supports? It would be appropriate that that individual put some of that NDIS support towards that organisation from which they might previously have received the service at no expense. What will be the mechanism for that organisation to receive the appropriate payments? Essentially, how will that organisation seek to identify those people who should be making a contribution to a service that may previously have been free through their NDIS supports?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

I think you and I had the same conversation yesterday with the same group of representatives who were in the building. First of all, I love guide dogs and I think they are beautiful—I do not know how relevant that is. Secondly, we have indicated that guide dogs are included in the NDIS. The test will be the same test applied to every assisted technology, every support that is provided—that is, is it reasonable and necessary.

The substantive point you are making is: how will an entity that is delivering guide dogs at quite reasonable expense know that the person is approved to be provided a guide dog? The agency is working that detail through at the moment. The point that was made by those who visited us yesterday is a good point, and we are working through it. The legislation is quite clear that the person is entitled to supports and if they purchase something outside of the supports they have agreed to then they are liable. No, you cannot go to the guide dog society and get a guide dog if you are not entitled to one. Sorry, Senator Fifield, you cannot have a guide dog.

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

Thank you for that explanation. There will be scenarios where an individual is not entitled to NDIS supports, but in the view of the guide dog organisation they have the need for a guide dog. It may be that they are over the age of 65 and they acquired vision impairment later in life, so they will not be entitled to NDIS supports. However, in the view of the guide dog organisation they would be someone the organisation would look to provide a guide dog to. There will still be a need for these organisations to have the capacity to differentiate between those individuals who are funded and those who are not.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

I am sorry for being a little flippant. There will be an ongoing role for organisations through block funding and through philanthropic processes. We have been working with a number of the organisations which receive quite considerable amounts from the community. We are very clear that we do not want those funds not to be forthcoming from the community. We are working very closely with those organisations to ensure that the partnership we currently have and we will continue to have into the future is very clear to the community, so that the support those organisations currently receive will be ongoing.

This is the most significant legislation I have ever been involved in, but we have been going on the committee for quite some time. I would like to think that we could do the amendments and then we could possibly deal with the general questions that you have—they are legitimate and I am not saying they are not that—after we have dealt with the amendments, so that we get the bill through.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

If it is of any assistance, the committee will be reporting progress in about 10 minutes. I am in the hands of the committee.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I have two more questions in this particular section on your amendments and on the committee report. They are my two. I do not know if Senator Fifield has got more.

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I am happy for other questions to be dealt with thematically after the amendments are dealt with.

The TEMPORARY CHAIRMAN: Senator Siewert, you would like the call?

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Yes, that will deal with the questions I have around the committee report and the government's amendments. It is relating to secure work. The next area, recommendation 21, dealt with the concerns raised by some of those representing workers and unions that came to present evidence to the committee. They were concerned around insecure working conditions and wanted to make sure that measures were put in place like enhanced skills training capacity of people working in the disability sector. What is the government doing with that recommendation? Have they taken it on board and are there any actions that you think need to be put in place to deal with that issue around the potential for insecure work, given the move to self-directed funds? They were not having a go at that move—and neither am I, I strongly support that—but I think they raise some legitimate issues.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

I think it is really exciting that the NDIS will bring with it great and enormous job opportunities, but, in saying that, there are also significant challenges that we are dealing with. The government appointed an expert working group to advise on the issues affecting sector capacity and workforce issues as we transition to an NDIS. Their work has been very extensive and ongoing. We are also working to continue this work as we progress, including the need for a forward looking comprehensive workforce strategy. We have had conversations with some of the unions around that question as well. This must consider the move to individualised funding and the impact of that on working arrangements, and it is also a part of the broader work we are doing on consumer directed care. That is the interface that we are talking about. It is an issue that we are very alive to, and we intend to work very closely with all relevant stakeholders as we meet and beat the challenge that is in front of us. It is a big challenge and we are growing a large workforce of people. The questions of quality are real and we will ensure that we do provide a quality workforce. That is absolutely fundamental to the delivery of a quality scheme.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

In the interests of time, I might follow that up when we subsequently go back to committee. What I hope will be easily answered: the recommendation around the easy English materials and the recommendation that the information be prepared using easy English.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

Absolutely.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

The committee is considering government amendments (1) to (16) on sheet CT200. The question is that the amendments be agreed to.

Question agreed to.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I move Greens amendment (1) on sheet 7356, which relates to clause 3:

(1) Clause 3, page 5 (line 9), at the end of subclause (3), add:

  ; and (d) the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under NDIS.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

Would you like to speak to that, Senator Siewert?

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I will do so very quickly, because I would love to get this one dealt with as well. This one relates to the function of the agency. We believe that the bill includes the principle that providing reasonable ministry support extends before financial support and capacity building to include a responsibility or function to ensure that people with a disability can live independently and participate fully in the community. This function is broadly similar to the idea of systemic advocacy that is covered extensively in the committee report. We touched on it in our additional comments and we took on board very strongly the comments made by, for example, the Disability Discrimination Commissioner, Mr Graeme Innes.

So this amendment provides that broader function for the agency. In particular, during the committee discussion it strongly came up as the intersection between the NDIS and delivery of mainstream services, and the discussion very clearly highlighted that it was not the idea that the scheme replace services that should be delivered from mainstream services and that, in fact, there is going to be a need to do some negotiating sometimes with some of those mainstream services. So we believe very strongly that this will enhance the functioning and powers of the agency. I commend the amendment to the chamber.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

I am pleased to advise that the government will be supporting the amendment from the Greens. We thought the principle was implicit in the legislation, but to make it explicit is not a problem.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I will very quickly respond. I take the minister's point that they thought it was implicit. I think that, because this is such an important issue, it should be very clearly explicit, which is why we are seeking to move this amendment.

Question agreed to.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

There are three minutes before we move on to other matters, Senator Xenophon.

Senator Siewert interjecting—

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

Senator Siewert suggested that the lights dimmed when I got up to speak. I am sure that was a factual statement, not a metaphorical one! I move the amendment standing in my name, amendment (1) on sheet 7362:

(1) Clause 4, page 5 (after line 23), after subclause (5), insert:

  (5A) People with disability have a right to access independent disability advocacy support to promote, protect and ensure their full and equal enjoyment of all human rights and to enable them to participate fully in the community.

This relates to providing assistance for people with a disability in terms of the issue of advocacy. One of the concerns that I raised in my second reading contribution was that at the moment, if there is a dispute—and it will get to that, unfortunately, in some cases—there will be situations when a person with a disability will, in the absence of this amendment, simply not have the support of an advocacy service. So there may be someone who has a profound disability and has to slug it out with representatives from the Australian government—the Australian Government Solicitor's office or a large legal firm representing the Australian government. That to me seems to be fundamentally unfair. What this amendment states is that people with disability have a right to access independent disability advocacy support to promote, protect and ensure their full and equal enjoyment of all human rights and to enable them to participate fully in the community.

There are other issues in terms of the Administrative Appeals Tribunal, which will be dealt with eventually, but I think that it is important that, for the purpose of this particular amendment, there must be some assistance for people with a disability in terms of advocacy. The parliamentary secretary said in the course of debate on the earlier amendments that the government were considering their position in relation to this, because simply having a phrase in the legislation that says everyone has the right to advocacy is all very well but, unless you actually provide that advocacy, you are not going to achieve the outcome that is desired. So this is consistent with the government's approach, but this is actually doing something about it, and that is why I think it is very important that this amendment be supported, because otherwise it will make a mockery of the framework that is meant to provide advocacy for those with a disability. Unless it is entrenched by this amendment, it just will not happen.

Progress reported.