Carol Brown (Tasmania, Australian Labor Party, Shadow Assistant Minister for Infrastructure and Regional Tourism) Share this | Link to this | Hansard source

I rise to speak on the National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020. Labor welcomes the introduction of the national disability bill that we have before the Senate today.

The bill seeks to broaden the circumstances in which the NDIS Quality and Safeguards Commission may make a banning order against a provider or person, and clarifies the commission's powers. The bill addresses some timing issues and shortfalls in the NDIS commissioner's ability to make banning orders against a worker, including that the commissioner does not have power to issue a banning order against a person who is no longer employed or engaged by the NDIS provider and that the commissioner does not have power to make a pre-emptive banning order against a person, whether an individual or otherwise, who has been identified as unsuitable to work with people with disability as a result of their actions in another field, such as aged care or child care. The changes would allow the commissioner to make a banning order against a provider's former employee or other staff and to prevent lapse of a banning order if the employee ceases to be engaged by the provider or the provider leaves the sector.

The amendments will also empower the commissioner to include detail of the order, including enough information to identify the person in the publicly-available NDIS Provider Register. Privacy concerns are addressed in the explanatory memorandum, which notes that highly sensitive or personal information, or details on the nature of the incident that prompted the exclusion, will not be included on the register. Labor notes that, once passed by parliament, these amendments will apply immediately to any person, regardless of when they ceased to be engaged in working with people with a disability.

In his second reading speech on this bill the Minister for the National Disability Insurance Scheme, Mr Stuart Robert, stated:

The recent tragic circumstances surrounding the death of Ann Marie Smith in South Australia have highlighted just how important it is to have the strongest possible protections available for NDIS participants.

Ann-Marie Smith was a 50-year-old Adelaide NDIS participant who died on 6 April of severe septic shock, multiple organ failure, severe pressure sores, malnutrition and issues connected with her cerebral palsy after being confined to a cane chair 24 hours a day for more than a year. Ann-Marie Smith's NDIS package included six hours of support per day. Reports are that she received only two hours of care per day and had not been seen outside her house in years. Ann-Marie's terrible death is nothing short of a tragedy. She should be alive and thriving. Instead, she was neglected and abandoned, and she died. This is the nightmare of every parent with an adult child with disability. Ann-Marie was failed in life.

Labor, therefore, agrees with the minister's statement and acknowledges that Ann-Marie's death likely prompted identification of gaps in the legislation, which this legislation seeks to address. In that sense, Labor is supportive of the changes. However, the bill does not address the issue at the core of Ann-Marie Smith's death. If these amendments had been in place while the abuse was occurring, they would not have prevented Ann-Marie's death, because the care worker, Ms Maione, was an employee at the time of the abuse. That means there is something else not working in the system.

Shortly after his appointment, in 2018, the inaugural NDIS Quality and Safeguards Commissioner, Graeme Head, gave a speech to CEDA in which he said:

We're able to take a range of actions including deregistration, banning orders or seeking the application of civil penalties so we really do have a comprehensive tool kit. We have comprehensive regulatory powers and functions, and real regulatory teeth. Incidents that must be reported to the commission include the death of a participant, serious injury, abuse or neglect and importantly also the unauthorised use of a restrictive practice in relation to a participant. It does represent a significant step change in how we approach the delivery of quality services to people with disability and how we protect and prevent neglect and abuse of people with disability.

He also said, 'It represents a significant raising of the bar, in terms of how we think about quality and safeguards, in this sector.'

These comments have not aged well. If the commissioner has real teeth, why did Ann-Marie's service provider only receive a fine of $12,600 after allowing her carer to neglect her so severely? If the commission has real regulatory powers and functions, why wasn't it overseeing the care that Ann-Marie was meant to be receiving? The government must provide answers to these questions and outline what it intends to do to ensure that the commission's powers are being properly used to prevent abuse and neglect, not just to give a slap on the wrist after the fact. The National Disability Insurance Scheme is a vital national service that, after seven years of Liberal rule, has been slashed and mismanaged to such an extent that people are dying of neglect in their homes. The minister needs to get real and start acting in the interests of Australians with disability.

This kind of system failure resulting in death by neglect needs to be approached head-on with honesty and genuine reform. David Harris was found dead in his Parramatta unit. It was two months before his body was discovered by police. After he was found by authorities, his grieving sister, based interstate, learned David's NDIS funding had been cut off because he missed an annual review meeting. This meant cleaners and other NDIS-funded support stopped visiting the 55-year-old, who was schizophrenic, diabetic and incontinent and needed regular injections. How many Australians with disability have to die in their homes before the government and the minister admit there is a problem and confront the issues head-on with honesty and transparency?

The minister has so far presided over $4.6 billion ripped out of the NDIS, with 1,200 Australians with disability dying while waiting to be funded by the scheme. After her brother David's tragic death, Leonne Longfellow asked one thing of Mr Robert, that case managers be introduced to the NDIS. He wrote back saying there were no plans to do that. Labor was relieved when the Morrison government heeded Labor's calls for an independent investigation into the death of Ann-Marie Smith. Labor has argued that it should have been broadened to also look at what went wrong in the case of David Harris. Just as the loved ones of Ms Smith deserve to know that others will not be the victims of failings in the system, so do the loved ones of Mr Harris.

While the legislation is a good start, the current scope of the inquiry, the NDIS Quality and Safeguards Commission regulations or lack thereof—if you have look at the inquiry that was put in place with Ms Smith's service provider, Integrity Care, it was clearly limited. The inquiry needed to be free to look at broader considerations, such as whether the $30 million a year commission had been a toothless watchdog across multiple cases, not just Ms Smith's with provider, and whether the deaths by neglect of NDIS participants at home have been exacerbated by the government's removal of $4.6 billion from the scheme.

There also remains a clear residual conflict, with the commission appointing the investigator and the investigator reporting back to the subject of his inquiry. The investigator needed subpoena powers, which Mr Robertson did not have, and disability advocates should be supported if they wish to engage with the process. We also welcome the appointment of an investigator who is separate from the NDIA and the NDIS Quality and Safeguards Commission. This is an improvement on the previous approach of NDIS minister Stuart Robert—burying his head in the sand—albeit a change only brought about by public pressure. Now the government must do the right thing by the memories of David Harris and Ann-Marie Smith.

After Labor called for an independent inquiry into NDIS quality and safeguarding, the NDIS Quality and Safeguards Commission tasked former federal justice Mr Alan Robertson with reviewing the adequacy of the regulation of the supports and service provided to Ms Ann-Marie Smith. The report does not identify any failings in how the NDIS Quality and Safeguards Commission carried out its function around Ann-Marie Smith's death. Why is that? The Quality and Safeguards Commission didn't fail because the scope of the inquiry was too narrow. The review found there was no wrongdoing with the commission set up to protect NDIS participants. The NDIS Quality and Safeguards Commission issued a fine of $12,600 to the provider a month after she died for failing to notify the commission of Ann-Marie's death for 24 hours. As far as we know, this is the only fine the commission has issued against a provider since its set-up in 2018—a banning order to the provider Integrity Care four months after Ann-Marie died. We now know that this is the only infringement the commission has ever issued in two years of operation.

In the course of this review, Mr Robertson took the opportunity to consider wider issues of safeguarding people with disability who are particularly vulnerable, and he issued ten broad-ranging recommendations. The report clearly shows that the commission and the NDIS safeguarding framework are not set up to effectively protect people on the NDIS. The inquiry did issue broad-ranging recommendations, which I urged the government to take up and which they have failed to do in the legislation that we have before us.

The Senate should note that the government introduced legislation in June, and, if Rosa Maria Maione, Ann-Marie Smith's support worker, was not arrested, she would have still been working nine months later. It's appalling. It's terrible. And the report highlights buck-passing between the NDIA and the NDIS Quality and Safeguards Commission. The legislation before us needs to be amended to actually give real teeth to the NDIS Quality and Safeguards Commission because at the moment they are failing in their duty. (Time expired)

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

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

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

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

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

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

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

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

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

Debate interrupted.