Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

In rising to speak to the National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021, I want to start by particularly acknowledging the important and valuable work that my colleague Senator Steele-John has done as disability rights and services spokesperson both on this bill and in this portfolio more generally. I want to start by just setting the framework of what the Australian Greens' position on people with disabilities is. The Australian Greens believe that disabled people have a universal and immutable right to agency, safety, bodily autonomy, privacy, education, employment, housing, social support and health care. They have a right to participate in decision-making and policy creation in their communities. As Greens, we want to see the removal of all environmental, social, cultural, attitudinal and communication barriers to the full and equal participation of disabled people in all aspects of life and community.

In addition to commenting on specific provisions in this bill, I want to show how the government's failures in relation to this bill are linked to a broader pattern of the rights of disabled people, sadly, not being upheld. Clearly, this bill came about because of the horrific circumstances of the manslaughter of Ann-Marie Smith, which really shocked the nation. Certainly, on the basis of the speeches we've heard here in the parliament today, every one of us was filled with horror at the torture, essentially, that Ann-Marie was put through.

We then had the Robertson review, which led to the bill currently before us. This, of course, occurred within the context of the broader review of the NDIS Quality and Safeguards Commission. The Joint Standing Committee on the NDIS has heard evidence of further reforms that need to be made to ensure that the NDIS Quality and Safeguards Commission works for disabled people nationally. I want to particularly highlight some of the process concerns that have been raised by stakeholders as part of this review, including through the Senate Community Affairs References Committee Inquiry into the disability support pension. The submission from the Australian Federation of Disability Organisations to the Senate Community Affairs Legislation Committee inquiry into the provisions of this bill particularly noted the lack of consultation. They said:

In responding to the death of Ms Anne-Marie Smith in South Australia, AFDO was contacted by the Robertson Review to provide perspective on how to improve support for vulnerable participants. That was the sole point of consultation in this process that led to Minister Reynolds seeking changes to the NDIS Act to improve supports for at risk participants.

In receiving the Review Report in September 2020, it is AFDO's view that the Quality and Safeguards Commission had a responsibility to once again involve people with disability and Disability Representative Organisations in consultations regarding what changes to the NDIS Act might be needed. This did not occur.

It is AFDO's view that the lack of consultation about the recommendations of the Robertson Review and proposed changes to the NDIS Act has led in this particular circumstance to a missed opportunity. The 'missed opportunity' here for AFDO was discussion about improving supports for at risk participants such as those detained under order in state and territory forensic facilities.

In our additional comments that we made as part of the inquiry report, the Australian Greens noted:

This legislation has been brought before the parliament, without appropriate consultation with the disability community, at a time where co-design and community involvement are key issues. This is not ok, this is not acceptable, and the government must work to remedy this immediately. "Nothing about us, without us" is consistent across the entire spectrum of disability policy and it is no different in this instance.

…   …   …

The disability community was not consulted with in the drafting of this legislation. They found out about this legislation on the 3rd of June 2021 when it was tabled in parliament.

…   …   …

The Greens are strongly of the view that the government and its departments and agencies must at the very least properly consult with the disability community and their publicly funded disability representative bodies, and publish exposure drafts before introducing legislation to ensure that policies, systems, and services are designed by and for disabled people. This ultimately ensures that our systems are effective and fit-for-purpose.

This bill would change the way that participant information can be used and shared. I want to quote here from the submission from People with Disability Australia and present their perspective on the changes:

Currently, there is an extremely high threshold the NDIS Quality and Safeguards Commission and the National Disability Insurance Agency (NDIA) must meet before protected and private information is disclosed about people with disability.

The NDIS Act provides that disclosure is allowed only when it is "necessary to prevent or lessen a serious threat to an individual's life, health or safety". We find it highly concerning that the Bill ratifies quite expansive data-sharing on the alleged basis of keeping people with disability safe—from future unknown possible events or given past potentially irrelevant events—which then enables unspecified actions to be undertaken, without a person knowing and or the ability to appeal.

This potentially secretive breach of our privacy could mean the NDIA or its data manager(s) has access to our private health information, psychiatry records, or other private records, potentially for the purposes of defending legal actions, such as Administrative Appeals Tribunal hearings, Centrelink prosecutions and other legal action.

This breach of our privacy is a direct breach of the international human rights law Australia is a signatory to, including article 22 of the United Nations Convention on the Rights of Persons with Disabilities …

The right to privacy is incredibly important, and this is something the Greens pointed out in additional comments in the community affairs committee report:

The Greens are concerned that the privacy rights of participants are being put at risk, and that there could be significant consequences for the safety of participants should their information be mishandled.

Peak advocacy bodies that gave evidence to the inquiry also expressed deep concern about the two-way information-sharing provisions being proposed.

I want to highlight another distinct concern, about reviewable decisions. As our additional comments noted:

Item 42 of the bill inserts a new subsection that prevents a decision-maker reviewing a decision that they were personally involved in. However, it allows for a decision-maker to review a reviewable decision made by a delegate of the decision-maker.

The practical effect of this change has not been clearly explained by the NDIA, they must provide transparency in relation to their processes to ensure that any conflicts of interest, particularly where managers are reviewing decisions made by their staff are concerned, are addressed.

Given the concerns with this bill, I also want to take the opportunity to reflect on the evidence we've heard through a separate community affairs references inquiry about the disability support pension. This is relevant to this NDIS bill because it goes to the heart of the government's failure to remove all barriers to the full and equal participation of disabled people in all aspects of life and community. Everybody agrees that disabled people should be valued, respected, treated with dignity and able to live fulfilling and meaningful lives. I would say that, to a person, everybody in this place would say: 'Of course that's right. Of course disabled people should be able to live their lives to the full.'

Everybody that we have heard speak on this bill today was horrified about the horrific treatment of Ann-Marie Smith. But, sadly, Ann-Marie Smith was not an isolated case. Her tragic death was an extreme case, but she's not the only person with disabilities being badly treated by this government. Much of this mistreatment is not being addressed by this bill or even by the broader review of the NDIS Quality and Safeguards Commission. The basics of ensuring that disabled people aren't living in poverty is under attack by this government. The disability support pension leaves people with hardly enough to get by, particularly when the extra costs of having a disability are factored in. Eligibility has been massively tightened up in recent years, with more and more people found to not be eligible despite living with really significant disabilities. More and more people with disabilities who are deemed to have a partial capacity to work are left languishing, living hand to mouth on JobSeeker, not able to afford the basics of food, rent and clothes.

In the inquiry into the disability support pension which is currently underway by the Senate Community Affairs References Committee, we have heard so many stories of people who are really struggling. One that sticks in my mind is the story of Doug from East Gippsland in Victoria. Doug was almost killed in the catastrophic 2019 fires, but he's had his DSP application rejected. He's living with chronic physical injuries and PTSD. Doug has had 37 referrals to psychologists and other health professionals, but he actually couldn't even get an appointment with one of them for over a year because he lives in a remote part of Australia and those professionals just aren't there. Because he couldn't get that assessment, he couldn't complete the application. Then, even when he got to completing the application, his application was rejected.

In their submission to the DSP inquiry, the Australian Federation of Disability Organisations said:

… the Disability Support Pension (DSP) application and review processes serve as a vehicle for systemic harm, wherein the power of the Australian Government is leveraged against some of the most vulnerable people with disability.

People with Disability Australia said:

Rules and processes have evolved to gradually erode the safety net for people with disability. Either the Government's policies are working as intended to prevent people with disability from getting the support they need, or their negligence has left a system in place that harms us.

That is powerful, damning evidence. Through the inquiry process to date we've heard stories from people who have been forced to pay for their medications using AfterPay or who have been pressured to undergo medical sterilisation so they can be considered fully diagnosed, treated and stabilised. We've heard awful accounts of people being forced to choose between treatment and feeding their families and of not being able to get treatment for cancer because they can't afford the transport to appointments.

The choices this government is making have left people trapped in poverty. People with disabilities have been trapped on an income support payment that's below the poverty line. That's unacceptable. It shows that the concerns that we raised about this bill aren't isolated, that there is a pattern here and that the rights of people with disabilities are not being fully considered and given the import that they deserve by this government. This reflects a systematic failure by the Liberals.

As foreshadowed in our additional comments in the committee report and reflecting the amendments that have been circulated, we believe that this bill should only pass through the parliament if it is amended to reflect the significant feedback provided by the community during the course of this inquiry. But, sadly, once again, the Morrison government has failed to consult disabled people in the drafting and design of legislation. This repeated indifference and deliberate exclusion of disabled voices from policy processes is, frankly, ridiculous and it continues to endanger the safety and the lives of the people who are affected by these changes in legislation.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The point that Senator Rice made just before she resumed her seat is an absolutely critical point for this chamber to consider, and that is that the Migration Amendment (Strengthening the Character Test) Bill 2019 has been brought before the parliament without appropriate consultation with the disability community. This is particularly egregious, given that co-design of legislation such as this and genuine community involvement in the drafting of legislation like this is absolutely imperative.

Time after time, we see this parliament pass legislation that has a significant impact on the lives of a group of people in this country without having adequately engaged with them on the drafting of the relevant legislation. That is not okay. That is not acceptable. The onus here is on everyone in this chamber, but in particular the government, to ensure that, when the government presents legislation to this chamber, it has done the often time-consuming work of genuinely engaging with the people who are going to be impacted by that legislation. The government's got a lot of lessons to learn in this area and it's got to work to improve the way that it engages and consults, as a matter of urgency. Something that's consistent across the spectrum of disability policy is the adage 'nothing about us without us', and that absolutely encapsulates what should be the way the government approaches legislation such as this, but all too often we find the government does something to people without adequately engaging with and consulting them.

The Greens want to acknowledge and thank those organisations and people who submitted evidence to the committee inquiry and gave their time, their effort, their experience and their expertise. As I was just saying, community led policy is fundamental to ensuring that we collectively uphold the rights of disabled people and that we empower disabled people to lead the decision-making process and to occupy the places where decisions are made. 'Nothing about us without us.' I want to acknowledge my friend and colleague Senator Steele-John for the way that he has conducted himself as the holder of the relevant Australian Greens portfolio and as a disabled person who genuinely leads his community by genuine engagement with that community. It is absolutely inspirational to see the way that he has done that, and there are lessons that all of us could learn from Senator Steele-John on the way we represent people in this place.

There are a number of key recommendations that have emerged through the inquiry into this legislation that we have to build on to ensure that the rights of disabled people—as stated in the United Nations Convention on the Rights of Persons with Disabilities—are upheld. And I want to say here that this government has made an absolute art form of ignoring its international obligations. They are quite happy to sideline their international obligations when it suits them politically. And we see that time after time, and in issues that I speak on often in this place, such as the rights of people who are refugees or who seek asylum in Australia under the provisions of the refugee convention. And this country, shamefully on a bipartisan basis, turns a blind eye to the obligations that we have signed up to under the refugee convention, and abuses most terribly the human rights of those people. We need to stop turning a blind eye to our international obligations. We have given our word as a country on the international stage that we will abide by these international obligations, and we have a lot of work to do to make sure that the rights of disabled people that are enshrined in the United Nations Convention on the Rights of Persons with Disabilities are upheld.

A key issue which frames the conversation around this legislation is around the dichotomy of rights safety. Now, this dichotomy often forgets the fact that the enforcement of people's rights and strong accountability are critical elements of ensuring people's safety—and that, colleagues, is what we need to focus on; those critical elements that ensure the safety of disabled people. It is absolutely critical when looking at the broader safeguarding framework in Australia. And safeguarding is a critical area in need of reform. The Robertson review produced a number of key recommendations for improving the National Disability Insurance Scheme Quality and Safeguards Commission, and there remains an ongoing discussion about how best to implement those recommendations.

This legislation proposes changes that carry serious implications for the human rights of participants, and, critically, for the privacy rights of participants and some unanswered questions around the practical effect of the two-way information sharing arrangements. The National Disability Insurance Scheme Quality and Safeguards Commission and the National Disability Insurance Agency need to understand that it is incumbent on them to improve the way that they explain—in plain, easily understandable language—what this legislation seeks to do and how it will affect participants. Again, this goes back to the principle of genuine engagement with the people who are impacted and affected by any piece of legislation, because that engagement shouldn't only happen as the legislation is developed and drafted and ultimately debated in this parliament. It needs to keep happening if the legislation passes to make sure that the people who are affected by that legislation understand what the impacts on them will be and understand what their rights are, whether they be human rights or privacy rights or any other rights.

The changes that are proposed in this legislation emerged from the horrific manslaughter of Ann-Marie Smith. The Robertson review, from which this legislation has sprung, was commissioned in response to those tragic circumstances. The Greens want to note that there is currently a broader review of the NDIS Quality and Safeguards Commission being undertaken by the Joint Standing Committee on the NDIS. We understand that committee has heard evidence of further reforms that need to be made to ensure that the NDIS Quality and Safeguards Commission works properly for disabled people nationally. With regard to a lack of consultation, we want to place very firmly on the record that the disability community were not adequately consulted as this legislation was being drafted; in fact, shamefully, they found out about this legislation on 3 June this year, when it was tabled in parliament. That is a completely unacceptable way to treat people.

The Australian Federation of Disability Organisations stated in their evidence to the committee inquiry that:

The exclusion of people with disability and their representative organisations in putting forward the amendment bill and the failure of the minister to adequately include the substantive amendments being called for by the community in response to participants who were vulnerable and at risk of abuse and neglect is absolutely inappropriate and has caused this amendment bill to fail in its objectives. It is our submission that the minister has a duty to consult with people with disability and their representative organisations when making and amending laws which directly impact them. The minister has failed to do so and, as a consequence, there is a serious and significant threat to the human rights of people with disability.

Well, that lays it out pretty starkly for colleagues here. It reiterates the arrogance of a government that thinks it can come in here and legislate in a way that has impacts on the lived experiences and lives of disabled people without adequately consulting with them and their representative organisations. That is such a shame. In fact, it's just the attitude that has led us to where we are now—a royal commission. Again, I congratulate Senator Steele-John for his leadership in ensuring that that royal commission was established and his leadership in ensuring that, to the greatest degree possible, it is being run in a way that respects the rights and the needs of disabled people. Looking after the rights and the needs of disabled people is exactly why that royal commission was established in the first place. We haven't been doing that for so long in this country, and we are yet to get this country to a place where we can all say that we fundamentally respect and deliver on the rights of disabled people in Australia. I move:

At the end of the motion, add ", but the Senate:

(a) notes that whilst the disability community was variably consulted during the course of the Robertson Review, it was not consulted on this bill and the implementation of the recommendations that emerged from the final report of the Robertson Review; and

(b) is strongly of the view that the Government and its departments and agencies must properly consult the disability community and their publicly funded disability representative bodies, and publish exposure drafts before introducing legislation, to ensure that policies, systems, and services are designed by and for disabled people.

I urge all colleagues to support this amendment. It goes to the very heart of the way the government has failed to consult on this legislation. It expresses extremely clearly, and allows the Senate to adopt, a view that the government and all of its departments and agencies must in the future properly consult with disabled people and their representative bodies; and that that consultation should be genuine in that it needs to ensure that exposure drafts of legislation are published before legislation is introduced and puts disabled people at the very heart of designing policies, systems and services that impact on their lives and their lived experiences as disabled people.

Linda Reynolds (WA, Liberal Party, Minister for Government Services) Share this | Link to this | Hansard source

First of all, let me thank most sincerely all colleagues across the chamber for their heartfelt and very sincere contributions on this most important bill, the National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021. I also thank them all for their acknowledgement of the significance of this bill. I think the debate that we've had on this bill is a really important reminder to us all of the great good that we can do for some of our most vulnerable when we come together in a common cause in this chamber.

I commence my remarks by recognising the tragic circumstances in which South Australian NDIS participant Ms Ann-Marie Smith died. I also recognise all the circumstances in which an NDIS participant has been subject to abuse, neglect or exploitation. As all colleagues in this place who have spoken have acknowledged, Ms Smith's death continues to be a source of deep distress for all Australians. It is my most sincere hope that this bill provides comfort and assurance to participants, to families, to their friends, to their carers, that this government, with the support of all in this chamber, is taking action to better protect them, to reduce the likelihood or the risk that such a horrific event could happen again.

This bill makes changes to the NDIS Act 2013 in response to issues identified in various inquiries into recent cases of abuse and neglect of people with disability, including the independent review conducted by former Federal Court judge the Hon. Alan Robertson SC into the tragic death of Ms Ann-Marie Smith. The review was done at the request of the NDIS Quality and Safeguards Commissioner, and the report was a report to the commission and not directly to government.

Specifically, this bill strengthens information-sharing arrangements. It allows conditions to be attached to the approval of quality auditors. It enables the NDIS Commissioner to further specify reportable incidents and it makes a range of other technical changes designed to improve the operation of the NDIS Commission. In summary, these amendments will help ensure the wellbeing of NDIS participants, including those who are at greater risk of harm, and ensure that the commissioner has clear and effective powers to regulate NDIS providers and respond to incidence of violence, abuse, neglect, and shameful exploitation.

I cannot possibly overstate this government's commitment to improving protections and safeguards for NDIS participants, especially those most vulnerable and at risk of harm and exploitation. This includes recognising the importance of continuing to review the NDIS Quality and Safeguarding Framework to ensure a quality and safe market for NDIS participants through providing nearly $1 million for a framework review in last year's budget. This key review will consider the framework's effectiveness in the context of NDIS policy development and the evolving nature of the NDIS market, to identify any further opportunities to strengthen protections for all participants, with a report due by the end of next year.

The government does not support the second reading amendment by the Greens. I'd like to explain to all in this chamber the reasons for that. We've heard from the Greens that there hasn't been sufficient consultation, and I would like to refute that most strongly and sincerely. Let me explain why. The amendments in the bill relate to recommendations, as I've said, from the Robertson review, a review requested by the Quality and Safeguards Commissioner and delivered to the commission. Importantly, in informing his views, the Hon. Alan Robertson invited public consultation in the context of his investigation. The recommendations that he delivered were very well received by the sector, including by people with disability, and all major political parties have called on the Australian government to implement these recommendations. That is exactly what we are doing here today. During his consultations, 46 submissions were received either verbally or in writing. In addition to the submissions received, Mr Robertson also wrote, as a courtesy, to 38 individuals who may have an interest, to inform them of his review and the terms of reference. This bill here today responds to this consultation and the recommendations. It is an important next step—and I highlight that that is just a next step but a very important one.

Discussions were also held between the Department of Social Services and the Australian Federation of Disability Organisations on 16 June this year to discuss these very amendments and to get their input into the proposed bill, but the discussions also provided the opportunity for a policy explanation of the intent of the government in these recommendations. Additionally, a further consultation will occur where amendments to NDIS rules are required to implement these legislative amendments during the scheduled review of the NDIS Quality and Safeguarding Framework later this year. So there remain many other opportunities on an ongoing basis for the sector, participants and all of those who are interested in improving how we care for and safeguard NDIS participants.

In addition to this consultation, the bill was scrutinised by the Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills, and by the Senate Community Affairs Legislation Committee, where sector representatives were able to provide comment and speak to their concerns at the public hearing. I thank each and every one of you who provided input, because it was very important input into the development and finalisation of the bill that we are dealing with today.

I would like to note that while the government is not supporting Senator Hanson's second reading amendments it is not because we don't agree with the sentiments in that amendment. The government is very grateful for Senator Hanson's engagement in the NDIS to ensure its future sustainability and viability.

Lastly, I thank the Senate Standing Committee for the Scrutiny of Bills, the Parliamentary Joint Committee on Human Rights and the Senate Community Affairs Legislation Committee for their consideration of this bill. Most importantly, I thank each and every one of you in this chamber and in this place more generally who have contributed to this bill today, because if there is anything that unites all of us in the chamber it is this bill today to make life safer for NDIS participants who are at risk. So I say to everybody here: For Ann-Marie Smith and every single NDIS participant who has been subject to abuse, neglect and exploitation: this bill is for you. I commend the bill.

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

The question before the chair is that the second reading amendment, standing in the name of Senator Steele-John and moved by Senator McKim, be agreed to.

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

I believe there has been a second reading amendment foreshadowed by Senator Roberts.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

At the request of Senator Hanson, I move:

At the end of the motion, add ", and in view of the projected cost of the scheme, the Senate calls on the Government to do more to rein in costs so that the scheme is sustainable for those Australians who rely on its support to lead a reasonable quality of life".

Question negatived.

by leave—Mr President, could I have my name recorded as supporting that amendment?

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

Yes, Senator Roberts, we certainly will.

Original question agreed to.

Bill read a second time.