Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

We are considering amendment (1) on sheet 7362, moved by Senator Xenophon.

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

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

Briefly, I will try and address all of the questions you have raised, Senator Xenophon. It is unfortunate that we have missed up to nearly two hours.

In terms of your advocacy question, I can advise that all external merits review applicants are entitled to a support person. This could be a friend or a family member. It could be an independent advocate funded through the Commonwealth National Disability Advocacy Program.

With respect to your second amendment, the government does not support that amendment essentially because it is important for the agency to explain the reasons for its decisions where this is needed. This is already provided for by the AAT Act and the Administrative Decisions Judicial Review Act which will operate to give NDIS participants the right to seek written reasons in relation to reviewable decisions. The amendment that you propose would go beyond the ADJR and AAT acts by requiring the CEO to include the notice in every reviewable decision the reasons for that decision. There is a risk that this would place an unreasonable and unnecessary administrative burden on the CEO in the agency and not greatly advance the interests of people with disability.

The CEO and their delegates will of course make thousands of decisions, many of which—in fact I suggest most of which—could reasonably be anticipated to be totally uncontentious. Putting in that provision means that every time that the CEO makes a decision, there has to be a set of reasons given.

With respect to your third amendment, in brief, I can say the AAT typically does not award costs. It is empowered to do so only in relation to specific areas so, as a general rule, the AAT does not award costs.

Your fourth amendment goes to the review of decisions, and the advice that I have received is that the provision does not have practical legal effect and is unnecessary. It would duplicate the work already done under the ADJR act which defines the categories of decisions to which judicial review applies. It is good legislative practice not to duplicate provisions in the law as I am sure you understand better than most. It clutters and confuses Commonwealth statutes.

With respect to amendment (5), I am advised this provision is already covered in clause 4 and is unnecessary. We are working with people with disability. We will ensure that communications with them are given in the right form.

Finally, your final question to get a formal response: as we discussed earlier privately, I am quite happy to provide a written response to the questions that you raise. Thank you for your engagement with this part of the bill, and I look forward to continuing our discussions.

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

I want to make some brief remarks, because I just could not let some of the parliamentary secretary's comments go unremarked in relation to the alleged loss of time in relation to this bill.

If we were following the red without having had a motion to change the order of business and to introduce a guillotine, in the ordinary course of events today we would be coming back to this legislation about now. So any allegation that the procedural motions earlier today were diminishing time for debate are quite incorrect. If the red was being followed as per usual, we would come to this legislation about now. The opportunity should not be denied to colleagues to express their displeasure at a motion that sought to guillotine this debate and other debate. I do not want to say any more than that on this matter but I just thought that had to be on the record.

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

I will just express the Greens will not be supporting these amendments. We have sympathy with the government's position on a number of these. In particular on advocacy, we have already passed amendments on that issue. I have been satisfied with the government's responses on compensation. If you could share some of that information that you are sharing with Senator Xenophon, specifically around the South Australian amendment, that would be appreciated. On the communication one, again, I agree that that issue is already covered in the clauses, so we will not be supporting them although I understand the intent.

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

Likewise, the opposition is satisfied with the amendment that the government moved in relation to the advocacy issue. We do understand the concerns that Senator Xenophon has expressed in relation to the compensation issue. The government has gone some way to addressing those, but I think most of us in this discussion recognise that the legislation that will be passed today is not an end point, that it is not set in stone, and that a number of these issues will be revisited.

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

I will be very brief because of the time constraints. Senator Fifield says that this is not set in stone. But the fact is that this is fundamentally flawed, particularly in relation to clauses 104 to 105(b). The way they have gone about the subrogation, in terms of a third party's rights to compensation, is completely at odds with what other states have done. South Australia is just one example that I am well familiar with, with section 54(7) of their act. It really does constrain an individual's rights in a way that it seems to be heavy-handed and unusually onerous. I appreciate that Senator McLucas on behalf of the government will provide a response on this, but I just want to put it on the record that we will have to revisit this, because there will be case after case after case of inequitable outcomes. I am just trying to remedy this right now rather than later.

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

I want to try and allay your fears, Senator Xenophon. We would not be putting up a piece of legislation that we were of the view had the flaws that you think are there. I will write to you to assure you that this legislation mimics other state-based legislation but also some Commonwealth legislation in the way that this element is treated. But please be assured that we are quite confident that this will not result in what you are expecting.

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

Let me be clear that I do not think that the legislation is perfect. I think it comes back to the rationale that the coalition has had for the establishment of a joint parliamentary committee, chaired by both sides of politics, to oversee the design and implementation of the scheme. It would have been good if such a committee had been set up quite some time ago. The opposition would have been very happy to work through a number of these design issues carefully. All I can say is that I think the need is still there for this committee to examine some of the sorts of issues that are being raised by colleagues, including Senator Xenophon. It would have been a good thing if that committee were already in place.

Question negatived.

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

by leave—I move Greens amendments (2) and (3) on sheet 7356 together:

(2) Clause 22, page 25 (lines 20 to 26), omit subclause (1), substitute:

(1) A person meets the age requirements if the National Disability Insurance Scheme rules for the purposes of this paragraph prescribe that on a prescribed date or a date in a prescribed period the person must be a prescribed age and the person is that age on that date.

(3) Clause 22, page 25 (line 27), omit "paragraph (1)(b)", substitute "subsection (1)".

These amendments relate to the age requirement. We heard a lot of evidence during the committee inquiry around concerns about what happens to people over the age of 65 who acquire a disability. They are not included in the NDIS and they are supposed to be supported through the aged-care system. We heard a lot of witnesses expressing very strong concern that that particular group will not get the same support as they would through an NDIS.

I did go over this issue in my speech in the second reading debate, and I know that we are short of time, but I particularly want to point out that one of the groups that a number of us have a heard a lot from is the post-polio group—a group I am very concerned about—and I know they are very concerned about this.

In case we do not have time to get to it, if this amendment goes down, I have a second amendment that does not remove the age 65 cut-off but does seek to specifically reference those people suffering from post-polio symptoms. I know that is not ideal, naming a particular disability in the legislation, but it is potentially a large group of people. On this issue I would like to ask the government to outline whether they have considered it. It is an issue that was raised in the Senate Community Affairs Committee report, and specifically the committee asked the government to monitor it. I ask why they particularly put this in place and I also ask whether they are picking up on the recommendations of the community affairs committee about monitoring the impact that this will have on those aged over 65 and, in particular, that cohort of people who may have disabilities related to post-polio syndrome that are not currently being covered—in other words, will not be grandfathered—under this particular scheme.

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

Unfortunately we are not able to agree to Senator Siewert's amendments. The first question Senator Siewert asked is whether we considered this. Absolutely. This has been a considerable issue, but Senator Siewert will also note that the Productivity Commission made a very clear recommendation that the entry to the NDIS be prior to a person reaching age 65. There are, and the committee heard this as well, definitional issues that we have to deal with that go to non-age related matters. It is not a cut-and-dried question.

It is important to note also that in the launch phase of the scheme it is necessary to have a rule making power to limit the universality of the NDIS to reflect the agreement with some states and territories to provide the launch to age cohorts in the first phase. Given the time, in terms of the particular concerns around people who have had polio and post-polio effects, that amendment runs counter to the principle of the NDIS that we hold very dear, and that is that this is based on functionality and not diagnosis. I am quite aware that we do need to work very closely with people who have had polio. Their circumstances can be quite different, as can other degenerative diseases that I think we have addressed as well.

In terms of the monitoring of this, of course the government will continue to monitor the whole of the NDIS rollout, but instead of tasking the agency with a specific task it will be the responsibility of the government to continue to monitor the effectiveness—and of course we are doing the two-year review of the NDIS in its totality.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

The question is that Australian Greens amendments (2) and (3) on sheet 7356 be agreed to.

Question negatived.

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

by leave—I move Greens amendments (1) and (2) on sheet 7357:

(1) Clause 22, page 25 (lines 20 to 26), omit subclause (1), substitute:

(1) A person meets the age requirements if:

  (a) the person was aged under 65 when the access request in relation to the person was made; and

  (b) if the National Disability Insurance Scheme rules for the purpose of this paragraph prescribe that on a prescribed date or a date in a prescribed period the person must be a prescribed age—the person is that age on that date.

  (1A) A person also meets the age requirements if the person is a polio survivor (whether aged above or below 65 years of age) when the access request in relation to the person was made.

(2) Clause 22, page 25 (line 27), omit "paragraph (1)(b)", substitute "subsections (1) and (1A)".

Question agreed to.

I move Greens amendment (4) on sheet 7356:

(4) Clause 23, page 26 (lines 2 to 11), omit subclause (1), substitute:

(1) A person meets the residence requirements if the person:

  (a) resides in Australia; and

  (b) is:

     (i) an Australian resident for the purposes of the Health Insurance Act 1973; or

     (ii) is an eligible person by reason of section 6 or 6A of that Act; and

(c) satisfies the other requirements in relation to residence that are prescribed by the National Disability Insurance Scheme rules.

This is an issue that relates to who is counted as a resident. The current amendment uses the social security definitions. During the Senate inquiry—(Time expired)

The TEMPORARY CHAIRMAN: The question is that the Australian Greens amendment (4) on sheet 7356 be agreed to.

Question negatived.

The TEMPORARY CHAIRMAN: The question now is that the remaining amendments on sheet 7356 amendment (5) circulated by the Australian Greens be agreed to:

(5) Clause 40, page 41 (line 25) to page 42 (line 2), omit "6 weeks" (wherever occurring), substitute "12 months".

Question negatived.

The TEMPORARY CHAIRMAN: The question now is that the remaining amendments on sheet 7362, amendments (2) to (6) circulated by Senator Xenophon be agreed to:

(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.

Question negatived.

The TEMPORARY CHAIRMAN: Sorry, Senator Fifield. We are moving through the amendments now. The time for debate has expired.

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

I appreciate that. Just on a point of order, I think it is important for those who may be listening to the broadcast to realise why there is no further debate because the government passed a guillotine to prevent debate.

The TEMPORARY CHAIRMAN: That is not a point of order, Senator Fifield. There is no point of order. The question now is that that the amendments on sheet 7361 circulated by the opposition be agreed to:

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

Part 7—Joint Select Committee on the National Disability Insurance Scheme

103A Parliamentary Joint Committee on the National Disability Insurance Scheme

(1) As soon as practicable after the commencement of the first session of each Parliament, a joint committee of members of the Parliament, to be known as the Parliamentary Joint Committee on the National Disability Insurance Scheme, is to be appointed according to the practice of the Parliament.

(2) The Committee is to consist of 10 members, made up of the following:

  (a) 2 members of the House of Representatives who are Government members;

  (b) 2 members of the Senate who are Government members;

  (c) 2 members of the House of Representatives who are Opposition members;

  (d) 2 members of the Senate who are Opposition members;

(e) 1 member of the House or Representatives or the Senate who is a member of the Australian Greens;

  (f) 1 member of the House of Representatives or the Senate who is an independent member.

(3) A member of the Parliament is not eligible for appointment as a member of the Committee if he or she is:

  (a) a Minister; or

  (b) the President of the Senate; or

  (c) the Speaker of the House of Representatives.

(4) A member ceases to hold office:

  (a) when the House of Representatives expires by effluxion of time or is dissolved; or

  (b) if he or she becomes the holder of an office specified in any of the paragraphs of subsection (3); or

  (c) if he or she ceases to be a member of the House of the Parliament by which he or she was appointed; or

  (d) if he or she resigns his or her office as provided by subsection (5) or (6).

(5) A member appointed by the Senate may resign his or her office by writing signed by him or her and delivered to the President of the Senate.

(6) A member appointed by the House of Representatives may resign his or her office by writing signed by him or her and delivered to the Speaker of that House.

(7) Subject to the requirements of subsection (2), either House of the Parliament may appoint one of its members to fill a vacancy amongst the members of the Committee appointed by that House.

103B Powers and proceedings of the Committee

     All matters relating to the powers and proceedings of the Committee are to be determined by resolution of both Houses of the Parliament.

103C Functions of the Committee

(1) The functions of the Committee are:

  (a) to review the implementation of the National Disability Insurance Scheme; and

  (b) to review the administration and expenditure of the National Disability Insurance Scheme; and

  (c) to review any matter in relation to the National Disability Insurance Scheme referred to the Committee by:

     (i) the responsible Minister; or

     (ii) a resolution of either House of the Parliament; and

  (e) to report the Committee's comments and recommendations to each House of the Parliament and to the responsible Minister;

  (f) such functions as agreed to by resolutions of the House of Representatives and the Senate.

103D Annual report

     As soon as practicable after each year ending on 30 June, the Committee must give to the Parliament a report on the activities of the Committee during the year.

Bill, with amendments, agreed to.

Bill reported with amendments; report adopted.

John Hogg (President) Share this | Link to this | Hansard source

The question now is that the remaining stages of this bill be agreed to and that this bill be now passed.