Zed Seselja (ACT, Liberal Party, Assistant Minister for Social Services and Multicultural Affairs) Share this | Link to this | Hansard source

I table a supplementary explanatory memorandum relating to the government amendments to be moved in this bill and—by leave—I move government amendments (1) to (11) on sheet EU124 together:

(1) Clause 2, page 2 (table item 3), omit the table item.

(2) Schedule 1, item 7, page 5 (before line 25), before the definition of key personnel, insert:

independent advocate, in relation to a person with disability, means a person who:

(a) is independent of the Agency, the Commission and any NDIS providers providing supports or services to the person with disability; and

(b) provides independent advocacy for the person with disability, to assist the person with disability to exercise choice and control and to have their voice heard in matters that affect them; and

(c) acts at the direction of the person with disability, reflecting the person with disability' s expressed wishes, will, preferences and rights; and

(d) is free of relevant conflicts of interest.

(3) Schedule 1, item 48, page 32 (after line 7), after paragraph 73W(a), insert:

(aa) acknowledges the role of advocates (including independent advocates) and other representatives of persons with disability; and

(ab) provides for cooperation with, and facilitates arrangements for, advocates (including independent advocates) and other representatives of persons with disability who are affected by the complaints process and who wish to be independently supported in that process by an advocate or other representative; and

(4) Schedule 1, item 48, page 32 (line 25), after "NDIS providers", insert ", advocates (including independent advocates)".

(5) Schedule 1, item 48, page 32 (after line 29), after paragraph 73X(2) (c), insert:

(ca) requirements relating to procedural fairness in relation to the management and resolution of complaints;

(6) Schedule 1, item 48, page 34 (before line 5), before paragraph 73Z(3) (a), insert:

(aa) requiring a registered NDIS provider to provide people with disability with information regarding the use of an advocate (including an independent advocate) in relation to an investigation into the reportable incident; and

(7) Schedule 1, item 48, page 35 (line 15), after "carer", insert", independent advocate".

(8) Schedule 1, item 60, page 64 (after line 8), after subsection 181D(3), insert:

  (3A) In performing his or her functions, the Commissioner must acknowledge, recognise and respect the role of advocates (including independent advocates) in representing the interests of people with disability.

(9) Schedule 1, item 60, page 64 (before line 9), before subsection 181D(4), insert:

  (3B) In performing his or her functions, the Commissioner must have due regard to procedural fairness.

(10) Schedule 1, item 60, page 67 (line 20), at the end of section 181H, add:

; and (f) assisting the States and Territories to develop a regulatory framework, including nationally consistent minimum standards, in relation to restrictive practices:

  (i) in line with the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector; and

  (ii) consistent with the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006.

Note: The Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No. 12 ([2008] ATS 12) and could in 2017 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

(11) Schedule 2, page 80 (line 1) to page 89 (line 17), to be opposed.

The government is moving amendments to schedule 1 of the bill in response to concerns raised by stakeholders during Senate community affairs committee hearings: to acknowledge the important role of independent advocates in representing people with disability, to provide for rules to be made about the role of advocates in the context of complaints, to extend the whistleblower protections to independent advocates, and to confirm the obligation on the commissioner and on registered NDIS providers to afford procedural fairness to workers and others who are the subject of a complaint or allegation. This is consistent with existing common law requirements. The commissioner will issue guidelines relating to compliance with common law procedural fairness requirements and clarify the commissioner's national policy-setting role under its behaviour support function to assist states and territories to develop a regulatory framework, including nationally consistent minimum standards in relation to restrictive practices, which is in line with the intergovernmental agreement on the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector and consistent with the Convention on the Rights of Persons with Disabilities adopted in New York on 13 December 2006.

Schedule 2 of the bill implements COAG's response to the recommendations of the independent review of the NDIS Act. However, given the importance of schedule 1 to the future protection of people with disability under the NDIS, the government does not intend to delay the passage of the bill to secure the passage of these minor amendments that are intended to clarify and improve the NDIS Act. As a result the government will remove schedule 2 from the bill and will progress these amendments at a later date following further consultation with the Senate.

Carol Brown (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary for Families and Payments) Share this | Link to this | Hansard source

Labor has worked with stakeholders to develop these amendments and secure the government's support for them. We welcome the minister's willingness to collaborate with Labor and the Senate crossbench on amendments to improve this bill. This amendment makes changes to three important areas which Labor has negotiated with the government to address stakeholder concerns. First, it will make several changes to ensure that the bill explicitly states that the NDIS participants have the right to access independent advocacy and that provisions be made to define and protect this role.

Second, it will make changes to ensure that the bill provides for procedural fairness for workers in the NDIS. The changes will ensure that the commissioner must have due regard for procedural fairness in performing his or her functions and allow NDIS rules relating to the management and resolution of complaints to deal with requirements of procedural fairness.

Third, the amendment will strengthen the commissioner's role in relation to the regulation of restrictive practices. The amendment will expand the commissioner's behavioural support function to include assisting the states to develop regulatory frameworks, including nationally consistent minimum standards in relation to restrictive practices. That is in line with the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector and consistent with the Convention on the Rights of Persons with Disabilities.

The amendment also splits from the bill schedule 2, which makes a number of amendments to the act to improve the operation of the act following a review. Labor supports this, as it will allow for further consideration of this schedule, which does not directly relate to quality and safeguards.

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

I express Greens support for these amendments. We are pleased that the government has seen the sense of separating schedule 1 and schedule 2. We have felt very strongly that schedule 2 distracted from the importance of establishing this commission. As I articulated in my second reading contribution, there were a large number of concerns about a number of the amendments around, for example, how chronic illness is being treated under the NDIS, and many more.

The other concern that was expressed is that, because they related to a review that was carried out basically before the NDIS started, some of those amendments, even though they were recommended then, were perhaps not appropriate to be included in this bill. We are also very aware that there are a number of amendments that need to be made pretty urgently, including addressing issues around mental health and how psychosocial disabilities are being handled by the NDIS. The Joint Standing Committee on the NDIS tabled a couple of months ago a report on psychosocial disability in the NDIS and made a number of recommendations. We would like to see any bill that's amending the NDIS deal with that very important issue.

We support these amendments. They are ones that we were also advocating very strongly for, around advocacy, restrictive practices et cetera, as I articulated in my second reading speech. We are pleased that sense has prevailed to separate the two schedules.

Question agreed to.

The TEMPORARY CHAIR: The question is that schedule 2 stand as printed.

Question negatived.

by leave—I move Australian Greens amendments (1) and (2) on sheet 8313 together:

(1) Schedule 1, item 7, page 5 (lines 26 and 27), omit the definition of NDIS Code of Conduct in section 9, substitute:

NDIS Code of Conduct means the requirements referred to in subsection 73V(2).

(2) Schedule 1, item 48, page 31 (lines 17 to 23), omit subsections 73V(l) and (2), substitute:

(1) The NDIS Code of Conduct applies to the following persons or entities:

(a) NDIS providers;

(b) persons or entities employed or engaged by NDIS providers, or otherwise employed or engaged to provide supports

and services to, or in relation to, people with disability.

(2) The NDIS Code of Conduct consists of the following requirements:

(a) a person or entity must act with respect for individual rights to freedom of expression, self-determination and decision-making in accordance with relevant laws and conventions;

(b) a person or entity must respect the privacy of people with disability;

(c) a person or entity must provide supports and services in a safe and competent manner, with care and skill;

(d) a person or entity must act with integrity, honesty and transparency;

(e) a person or entity must promptly take steps to raise and act on concerns about matters that may impact the quality and safety of supports and services provided to people with disability;

(f) a person or entity must take all reasonable steps to prevent and respond to all forms of violence, exploitation, neglect and abuse;

(g) a person or entity must take all reasonable steps to prevent and respond to sexual misconduct or other inappropriate relationships against, with or between persons with disability;

(h) if guidelines have been made for the purposes of paragraph (2A) (b)-an NDIS provider must act in accordance with those guidelines; and

(i) if guidelines have been made for the purposes of paragraph (2A) (c)-a person or entity mentioned in paragraph (l) (b) must act in accordance with those guidelines.

(2A) The National Disability Insurance Scheme rules may make provision for and in relation to the following:

(a) rules specifying conduct that may contravene a requirement under the NDIS Code of Conduct;

(b) guidelines for providers;

(c) guidelines for workers.

This set of amendments deals with the issues I raised in my second reading contribution around the code of conduct. The code of conduct is a really important part of the commission's work and, in fact, is an important part of how the NDIS will be implemented. As it currently stands, the code of conduct is one of those six key pieces of delegated instruments that I was talking about not that long ago in my speech on the second reading, which are in a rule rather than as part of the legislation. We had a lot of evidence to the committee that expressed concern that these very important matters were being left to a rule rather than being incorporated into the legislation. So that is what these amendments seek to do. They seek to incorporate the code of conduct, which is, in fact, only eight points, into the legislation rather than leaving such an important issue to a rule.

Zed Seselja (ACT, Liberal Party, Assistant Minister for Social Services and Multicultural Affairs) Share this | Link to this | Hansard source

I acknowledge Senator Siewert's general support through her proposed inclusion of the code into the act. The government doesn't support the amendment for the following reasons. Incorporating the code of conduct into the act will limit the flexibility of the commissioner to shape the code. The NDIS market is, and will continue to be, rapidly evolving as new models of disability support emerge. The regulator will need to be responsive to these changes in the market and community and stakeholder views. The proposed amendment to the code of conduct also seeks to expand the coverage of the code outside of the NDIS to all of those engaged in providing support and services to people with disability. This goes well beyond the scope of the NDIS quality and safeguarding framework agreed by COAG and could extend the application of the code to persons in mainstream services, so we won't be supporting the amendment.

Carol Brown (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary for Families and Payments) Share this | Link to this | Hansard source

This amendment proposes to put the code of conduct into the bill rather than in the rules, which are delegated legislation. We do not support this, as consultation on the code of conduct is ongoing. I stress again the importance of the government conducting genuine consultation on this and the other rules.

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

I will make a couple of quick points. One point is about consultation, which I referred to in my second reading contribution. It has been very difficult to get people's opinions on the rules because only some of the rules have been released and they have only been released to certain organisations. They haven't been released for public comment. To be fair, the government did at least release them so that some people could look at them, but they haven't been out for wide public consultation, which makes it very difficult for us to ask stakeholders what they think about them. Some people who are part of that process feel compelled not to engage with us about it, because there is a certain level of confidentiality around them. But at least they have gone out. Some of the rules haven't gone out, and that is a concern.

As to how we envisage this as working, this would essentially be the framework for how rules could be made around this particular code of conduct. There are things in this code, such as that 'A person or an entity must respect the privacy of people with a disability'—I don't think that is going the change—and 'A person or entity must provide supports and services in a safe and competent manner with care and skill.' Those sorts of issues are not going to change. We understand that things will change into the future, but have the framework in the legislation—the very bones of it—and then you put the meat on the bones in the rules. We think these sorts of things are so important that they belong in the legislation. I hear that it doesn't have support here yet, but I strongly encourage the government to make sure they carry out much wider consultation on these rules.

John Williams (NSW, National Party) Share this | Link to this | Hansard source

The question is that Australian Greens' amendments (1) and (2) on sheet 8313 be agreed to.

Question negatived.

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

Senator Seselja asked me earlier whether I was going to move all of the amendments on sheet 8307 together. With some guidance from the chamber, I am happy to move them together and speak to them all at once. That will then involve the chair putting different questions differently, because some are 'stand as printed' et cetera. I am happy to try to facilitate the debate in that way, if that is acceptable to you, Chair.

The TEMPORARY CHAIR: To clarify, amendment (3), amendments (5) and (6), and amendments (8) and (9) on sheet 8307 will be moved at once?

Yes, if that is the will of the chamber.

The TEMPORARY CHAIR: Are you seeking leave to do that?

Yes, I am seeking leave to do that?

Leave granted.

The TEMPORARY CHAIR: Those three lots of amendments will be moved at once. Would you like the three lots voted on separately, Senator Siewert?

Zed Seselja (ACT, Liberal Party, Assistant Minister for Social Services and Multicultural Affairs) Share this | Link to this | Hansard source

If I could assist, Chair. Looking at the running sheet, my understanding is that that won't change the votes. If Senator Siewert wants to split the votes for some reason, we would be happy to do that, but, in terms of 'stand as printed' and things, there is a separate amendment that I think has that, which would still be considered separately. That is my read of it.

The TEMPORARY CHAIR: Thank you for that clarification, minister. Senator Siewert?

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

I move Greens amendment (3), amendments (5) and (6), and amendments (8) and (9) on sheet 8307, together:

(3) Schedule 1, item 48, page 32 (lines 15 to 18), omit subsection 73X(1), substitute:

(1) The National Disability Insurance Scheme rules may prescribe arrangements relating to the management and resolution of complaints:

(a) arising out of, or in connection with, the provision of supports or services by NDIS providers, and providers of local area coordination services and early childhood early intervention services; and

(b) arising out of, or in connection with, actions of the Agency.

(5) Schedule 1, item 60, page 65 (line 12), omit "Act;", substitute "Act.".

(6) Schedule 1, item 60, page 65 (lines 13 to 17), omit paragraph 181E(i).

(8) Schedule 1,item 60, page 67 (after line 33), after subsection 181K(l), insert:

(iA) Despite paragraph 44(2) (b) of the Legislation Act 2003, and regulations made for the purposes of that paragraph, section 42 of that Act applies to a direction by the Minister under subsection (1).

(9) Schedule 1, item 60, page 68 (lines 1 to 4), omit the note, substitute:

Note 1: Section 42 of the legislation Act 2003 provides for the disallowance of legislative instruments.

Note 2: Part 4 of Chapter 3 (sunsetting) of the legislation Act 2003 does not apply to the directions (see regulations made for the purposes of paragraph 54(2) (b) of that Act.

I would love it if somebody were going to vote differently on some of these amendments, but I get a vibe that this is not going to happen, so I am happy to hear the will of the chamber on all of them together, unless somebody wants to put them differently. But I would like to articulate very briefly what these amendments are about, and why we are moving them. Again, I did foreshadow all of these amendments in my second reading contribution. Amendments (1), (2), (4), (7), (10), (11), (12) and (13) are about the role of a senior practitioner, a position that we regard very seriously. It is an absolutely critical role. At the moment, the role of the senior practitioner is not articulated fully in the—

The TEMPORARY CHAIR: The minister on a point of order.

Zed Seselja (ACT, Liberal Party, Assistant Minister for Social Services and Multicultural Affairs) Share this | Link to this | Hansard source

Perhaps I could seek clarification. It is my understanding that Senator Siewert asked to move three of her remaining amendments together, but she appears to be speaking to one that she didn't move together. So I am just seeking clarification on that.

The TEMPORARY CHAIR: Senator Siewert, you might just clarify that.

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

Yes. I was proposing that we deal with all of them and then put them. Sorry, if I wasn't clear.

The TEMPORARY CHAIR: Could I just make the point here, Minister, that we're all talking about sheet 8307, amendment (3), as well as amendments (5) and (6), as well as amendments (8) and (9), which have been moved by Senator Siewert together. She's saying, for simplicity's sake, to debate them together. Senator Brown?

Carol Brown (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary for Families and Payments) Share this | Link to this | Hansard source

My understanding is that we will debate all the amendments and then we will vote on them separately as they appear on the running sheet.

The TEMPORARY CHAIR: My understanding is that we will debate them all together and then if senators require separate divisions and votes on those amendments we can put them that way. Is everyone happy? Continue, Senator Siewert.

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

I'm trying to get the issues out there on the table and talk about them but not hold the chamber up.

The TEMPORARY CHAIR: Continue, Senator Siewert.

As I was articulating, we believe this particular role is absolutely essential to the work of the commission. It's an issue that will come up time and time again in terms of those restrictive practices. I am aware of the sensitivities with the states and territories. I feel a great deal of sorrow at the fact that we can't work together with the states and territories across this country to achieve some harmony in the approaches to those particular issues. We're in 2017 and we still haven't worked that out. I'm pleased that there will be ongoing negotiations, but we think these amendments are so important in making sure that the role of the senior practitioner is enshrined in the legislation.

Another set of amendments I have moved are related to market oversight. We in this bit of the chamber are deeply concerned about the conflicting roles for the commission in market oversight and in looking at complaints when they are raised. If there's a provider that is fairly dodgy but the only provider in a particular place, it may be allowed to continue because of the market. We are deeply concerned about that, and I'm articulating the concerns of people with disability that were raised during the inquiry and that have been raised with me privately on a number of occasions.

I have also articulated that we have concerns about the minister's directions to the commissioner under subclause 181K(1). We believe those directions should be disallowable. I'm sure I will hear the argument from the government that it is the same provision that applies to other agencies, but it doesn't apply to all agencies, so we believe that it should be amended.

The last set of amendments provides for the NDIS rules to prescribe arrangements relating to the management and resolution of complaints, both those arising out of, or in connection with, the provision of supports or services by NDIS providers and providers of local area coordination services and early childhood early intervention services and those arising out, of or in connection with, actions of the agency. Again, I articulated that in my second reading speech. We believe that the role of the commission should extend to LACs, to providers of early childhood intervention services and, of course, to the actions of the agency because people accessing those services are going to be left to very clunky existing services, about which people complain all the time. We think these belong in the purview of the commission.

Carol Brown (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary for Families and Payments) Share this | Link to this | Hansard source

Labor does not support these amendments. It does not seem necessary to formalise the role of the senior practitioner further in this bill. We believe it is sufficiently covered by clause 181D. We are confident that this important role will be maintained without this amendment.

In relation to this, I note that we have secured an amendment that strengthens the commissioner's role with regard to restrictive practices. We do not support removing the market oversight role of the commissioner. We think that it's a positive role for the commissioner to have, particularly given the government's inaction on NDIS market development and market failure. It is vital that the government develop their provider-of-last-resort policy. The devastating story of Francis, the young Victorian man in prison because there was no appropriate accommodation available, which was brought to light by the ABC the week before last, clearly demonstrates this. Given the independent commissioner market oversight can only help to ensure that these issues are addressed, the government should do this immediately.

We do not believe it is necessary for the minister's direction to be made disallowable as we believe the limitations on these directions set out in the bill are sufficient. The bill provides that the minister may, by legislative instrument, give directions to the commissioner about the performance of his or her functions and the exercise of his or her powers. A direction given must not relate to a particular individual provider and must not be inconsistent with the act, the regulations or an instrument made under this act. It is standard for such ministerial directions not to be disallowable. We don't support the broadening of the complaints role to include the NDIA and other APS staff, as we believe complaints relating to these staff are adequately and more appropriately dealt with under existing mechanisms.

Zed Seselja (ACT, Liberal Party, Assistant Minister for Social Services and Multicultural Affairs) Share this | Link to this | Hansard source

I will just deal with each amendment one by one. The government doesn't support the amendments on sheet 8307. The government also does not support the amendment establishing the role of a senior practitioner in the act. While there is an intention to establish a senior practitioner to administer the behaviour support function, as set out in the EM, all of the functions of the commission should be the responsibility of the statutorily appointed NDIS Quality and Safeguards Commissioner. This is paramount to the capacity of the commissioner to undertake his or her key functions as an integrated whole.

We believe—respectfully—that the Greens amendments (5) and (6) on sheet 8307, in relation to market oversight function of the commissioner, misunderstand that function. The commissioner's role is to provide additional prudential oversight to large providers with significant coverage in the NDIS market to ensure that these providers are not at risk of failure, leading to adverse outcomes for people with disability. The market oversight function doesn't authorise the commissioner to overlook legitimate complaints by people with disability in order to protect the commercial standing of a provider.

We also won't be supporting amendments (8) and (9) on sheet 8307. The commission will be independent from the agency and from service delivery. The commission will be accountable to parliament through the minister, and any directions from the minister to the commissioner must be of a general nature only and cannot, for example, relate to a decision of the commissioner in respect of a specific individual or NDIS provider. This is to ensure the independence of the commissioner.

The commission's role is to regulate the provision of disability services by providers. There are established avenues for appeal and complaint in relation to the NDIA and its contracted partners through the Commonwealth Ombudsman and the AAT, and for that reason the government won't support the amendments.

The TEMPORARY CHAIR: The question is that amendments (1), (2), (4) and (10) to (13) on sheet 8307 be agreed to.

Question negatived.

The TEMPORARY CHAIR: The question is that section 181H in item 60 of schedule 1 stand as printed.

Question agreed to.

The TEMPORARY CHAIR: The question is that amendments, (3), (5), (6), (8) and (9) on sheet 8307 be agreed to.

Question negatived.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.