David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

The committee is considering the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 and opposition amendment (1) on sheet 2649, moved by Senator Hughes.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Mental Health and Suicide Prevention) Share this | Link to this | Hansard source

Minister, throughout the discussion and debate on the need for this reform, we've seen this as an ongoing issue around the NDIS, and we know sex sells. We know that it gets a sexy headline and that lots of people will click as soon as the word 'sex' turns up in the headline of an article. What we have seen not just during this process but for a few years around the NDIS is outrage that people with disability may require assistance when it comes to being a sexual being.

Unlike a lot of people in this place—certainly unlike a lot of people that sit on my side of the chamber—I have a very different view on this issue and how it's addressed. I don't support the use of it as clickbait. There is no overwhelming money being spent on services that relate to sexual health for it, in any way, to be tied to overspending within the NDIS. It is insulting and ridiculous. I do particularly enjoy it when particularly middle-aged men raise with me the issue that no-one should be accessing sexual services through the NDIS. I make point that if you were to have a car accident on the way home today and would then require assistance to have sexual relationships with your wife, girlfriend or both, you may be pretty keen to ensure that you can access those services. It's amazing how that tunes the mind on what is the intent of some of these supports.

I'm ignoring Senator Cadell, I didn't hear what he said, but I can imagine it was a pearler.

The TEMPORARY CHAIR: Order! Senators, interjections are disorderly.

Sometimes they're entertaining, Temporary Chair, but I do think that it is used as a salacious point and is misunderstood. I remember Jonathan Lea did a story on Sky News, and I happened to be on Paul Murray Live, and Paul was expressing outrage, as many do with regard to sexual services being accessible through the NDIS. Being on his show, I said, 'Paul, I'm actually going to disagree with you,' and I outlined some of the reasons I just said. I then received a phone call from Jonathan Lea that night. His mother had called him and said: 'I think you better call Senator Hughes. She made some pretty good points about this.' I don't think I'm disclosing a private conversation, but I know that Jonathan certainly had his eyes opened whilst working and investigating that story.

It is not as simple, clean cut or salacious as some would have you believe, but we know that it is something that garners headlines. I find it personally distressing and a return to the old paternalistic attitudes that people with a disability are somehow not fully human—that they do not have the same urges and needs of every other person in society and that includes the need for physical contact. You just need to think of someone with a profound disability who is never, ever hugged. No-one ever touches them in any way, not even in a sexual way. They are just never receiving any form of physical affection, and that is a very, very sad state of affairs. I think it is something that we need to acknowledge—that people with a disability are full humans. We need to remove the paternalistic attitude that they somehow do not exist as sexual beings, because that is simply not true. I am sure plenty of people with a disability would back me up on that.

I do appreciate that there are lists and amendments and services that aren't going to be provided under the NDIS. Some of that is very well and good. To buy into the rhetoric, do I think that people should be able to hire prostitutes? No, I don't. Do I think that people may require assistance to participate in sex? They should be able to acquire those support workers that enable them to assist that. Without going into too many of the details of some of the aides that are required, they can include harnesses and frames et cetera. Those things are important, and I think we need to make sure that we are mindful throughout this process not to get sucked into the political rhetoric and the sexy clickbait headline and denigrate people with a disability when we talk about this.

What has garnered some attention, but I don't think the full scope of attention that it may deserve, is that we had an instance of someone who was convicted of sex crimes as an NDIS participant who was self-managing their plan and advertising on Facebook groups for young women to walk along the beach with him and potentially go swimming. At no stage was the person's background revealed. I acknowledge that this bill and the amendments attached to it will rectify that for people who are convicted, particularly of sex offences, who may require NDIS plans on their release from prison. The CEO informed us at estimates that all people with a disability who are eligible should be eligible, and that is regardless of their criminal background. I'm not sure I'm one hundred per cent on board with some of that, but that was the advice of the CEO. I totally support that position in relation to those convicted of serious crimes, and I think it should go beyond sexual crimes; it should be for all crimes that you are then put onto agency management of your NDIS plan, for the sake of the Australian taxpayers who fund it.

Perhaps the minister can update us on one of the concerns I have and let us know whether it's addressed as part of the next tranche of legislation or whether it's something that's being examined. There is nothing that I can see in this bill that will protect support workers who are appointed, via the company that they work with, to work with a participant who has previously been convicted of a serious crime or, in particular, a sexual offence. A lot of the support workers—particularly those who work in behavioural supports and activities of basic daily living, whether it's assistance with shopping or chores around the home—tend to be women, and, very often, they are young women. I'm concerned that, at this stage, we can see no requirement for the agency, the providers or the participant who's been put on a self-managed plan because of a previous conviction to notify the support worker of this situation so that they are in a position to decide whether or not they want to work with that participant.

We hear an awful lot about choice and control for participants of the NDIS. That is a feature of the scheme which I am very, very much in support of and one which should be protected vigorously by all of us, but the choice and control must extend to support workers. They must have the choice and control to determine who they are prepared to work with. Minister, as we're coming towards the guillotine for the committee stage and debate on this legislation, is this issue addressed anywhere in the legislation or is there anything planned as part of the next tranche of legislation that addresses it? Is there something that the minister is aware of that means that protections for support workers will be as much a part of this legislation as the required protections for participants?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Senator Hughes, I'll endeavour to work through those questions, and I'll address that last issue last because I want to make sure that the view I'm offering is correct. I'm grateful for your outline in relation to questions around sex and your, I think, absolutely correct assertion about people being sexual beings and having a requirement for intimacy. The scheme and the government—and, indeed, all of us—should have proper regard for the dignity of the whole person in relation to those questions. I do think it's been unfortunate, to say the least, that the debate has focused on these questions in what I regard as a prurient and undignified way. Maybe the less said about that the better, but it certainly hasn't assisted a proper public debate about what is at stake here, what it is that the government is trying to achieve and the representations made to the government by the disability community and by experts.

There is an amendment on sheet 2650 that is supported by the government and it does say that you may not have an NDIS support for a participant or prospective participant that includes the provision of sexual services. It is quite narrow in its construction. It does not include, for example, provision of therapy or counselling or other kinds of assistance that a participant or a potential participant could have in their plan now, or as a result of the needs assessment tool, properly found in the sections that we have traversed over the course of the last few days of committee discussion in relation to these questions. I should say that is a good thing. We should offend that principle, I think, and I hope that we do.

I will come back to the final question in a moment. I just want to use this moment while I am on my feet to indicate that amendment SK120 relating to the governance of the scheme has been circulated. It goes to the fact that the NDIS is a joint scheme between the Commonwealth and states. Given, as you say, we are approaching the guillotine on this, I wanted to set that out as efficiently as I could. We also recognise that the critical need to get the scheme back on track is all about making sure that it continues to provide the services which it was established for by a Labor government.

The bill includes a range of reforms that go to improving the experience of participants and to making sure that planning and budget-setting arrangements for participants contribute to this. In the course of this, the government put a proposition to the states and to the parliament that created the ability for the Commonwealth to make legislative instruments for select elements of the bill. These instruments cover things like what the NDIS should pay for, how new needs assessments will work, and how people will be moved to new budget arrangements over time. This is because these are administrative and operational elements that will need to be updated regularly as the reforms progress. States and territories expressed concerns with this approach.

It has always been the approach of the ministry and the government that we will work with the states, but the government has listened carefully to the concerns raised by the Council for the Australian Federation about the use of legislative instruments. The minister has been working very hard with the states behind the scenes to land an acceptable way forward for both the Commonwealth the states.

The amendment sheet that has been circulated signifies agreement with states and territories to significantly improve processes for NDIS rule-making. Statements have also been made outside of here today in relation to that. This agreement with the states and territories is to ensure that they continue to play their critical governance role while also ensuring that decisions can be made in a timely and effective manner.

There are a number of aspects to this agreement. First, most legislative instruments in the bill will be made into category A NDIS rules. Second, there will be a new clearer process for seeking agreement to category A rules, with specific guidance around the kinds of objections that states and territories may raise to the rules. Instead of the current 90-day timeframe for states and territories to provide agreement, each jurisdiction will have 14 days to disagree to the rules. This disagreement must be based on the objects and principles of the act. If agreement cannot be reached with all states and territories, a new dispute resolution process will allow for referral to the Prime Minister and direct engagement with first ministers. If unanimous agreement can still not be reached, only majority agreement is required before the rules can be made.

Third, there is a truncated process for agreeing to certain amendments to the rules setting out the needs assessment and budget tools. If the amendments will have no substantial policy or financial implications for the NDIS, agreement from states and territories is not necessary. They will still have the ability to object if they consider that the amendments will have substantial policy or financial obligations. Finally, revisions for consequential amendments have been made to sheets PA112 and SK118 to facilitate these amendments. This has necessitated revised sheets being circulated, and I understand that that has occurred.

Much has been said in this place about the views of the states and territories. This agreed approach to this amendment, and the agreement that that amendment secures, demonstrate the support of the states for this bill and will usher in a new era of collaboration between the Commonwealth and the states and territories on NDIS and disability reforms. That is a good thing for the future operation of the scheme and should give participants, future participants and their families more confidence about the future direction and sustainability of this vital service and reform.

In relation to the last matter you raised with me, Senator Hughes, about carers, the minister has already directed the NDIA to ensure that participants that have significant risk, as was the case for the participant that you referred to, are agency managed and not self-managing. This is based upon an assessment of the risk of the individual circumstances, and no doubt there will continue to be engagement and consultation on those questions over the coming months.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Mental Health and Suicide Prevention) Share this | Link to this | Hansard source

I want to reconfirm something, and I know we might not have an answer now—but for when we hopefully come back this afternoon. The question was in regard to the notification of the backgrounds of support workers. They may be agency managed; they may be working for a large provider, but, when they are allocated to a participant, the participant themselves may not know the worker's background. I'm happy for you to take that and come back later.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Thank you. If we can provide further information early this afternoon, we will. If we can provide it later on this afternoon, we will and, if we need to provide it directly to you, we will.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

I've been reflecting on the last series of interchanges between senators last night in the debate on this legislation, and I fully understand the need for robust policy debate under parliamentary privilege and the role that it plays in our democracy. But I, more than most, now have a very clear understanding of the personal toll this abuse takes when parliamentary privilege is abused for personal attacks.

I also had cause to reflect on the comments that were directed at Senator Steele-John last night. What we very rarely reflect on in this chamber is that just because we can say something doesn't mean we should. It certainly doesn't mean that it is compassionate or that it is, indeed, humane at all. Last night, I think, was one such opportunity to reflect on our shared humanity and our shared compassion. In this place, we are now reflecting on the appropriate standards that we all should adopt, and that has to include what we do and say to each other in this chamber.

It's also important for us to remember the impact that our words have, as much as we can say them under parliamentary privilege. Clearly, last night, the words that were used in the debate were deeply wounding to Senator Steele-John, who was clearly very distressed. It wasn't just Senator Steele-John, because this is not just another bill that we pass in this place. This is a bill that will impact the lives of 660,000 NDIS participants, including some of our most severely and permanently disabled, who over the last 10 years have had their lives changed by getting the supports they need and getting out of the most disgusting conditions in group homes. They are worried, they are deeply concerned and they are watching these proceedings in record numbers. So even though we can say them, sometimes we have to stop and reflect on the impact that these words will have in the circumstances, as they did on Senator Steele-John last night. And this morning many people have contacted me to express dismay at the fact that they have not been listened to and that the tenor of the debate in this chamber is causing them genuine concern, genuine fear and genuine terror about their future.

So while the minister did technically withdraw his comment, it was done not as an apology. It was done as, 'Well, if it assists the chamber.' That was not an apology. It was technically correct, but it wasn't a humane response to Senator Steele-John's distress that was reflecting the distress of so many other Australians. If there was ever a time in this debate to think about how we go forward and how the government communicates these significant changes to a community that is in uproar, but ultimately who is afraid, then the time is now. This is something that I think is beholden on all of us in this chamber.

Minister, I have been asking questions in estimates. I have been looking through the quarterly reports, through the annual financial sustainability report. We've had OPDs and questions on notice. We have had smart-arsed responses in all of these areas; the minister is finding new and smart ways to not provide this information and this transparency. But, Minister, we don't ask for this information for ourselves. We understand how important the actuarial data is to be able to explain to people who are watching, who are terrified, what is going to occur with this bill. Whose packages will be impacted? How they will be impacted? They are not stupid.

There are over 50,000 people who are waiting for planned variations at the moment. They are all terrified. Will this legislation and the cuts that it will implement mean that they won't be able to get any more services because they've had intra-plan inflation through their own fault, the cost-of-living increase or abuse by somebody else. There are tens of thousands of people who are waiting to get into the scheme, who have been waiting and waiting and waiting due to technical IT reasons. We all know what's going on, but, ultimately, it is those people who are on the waiting list that deserve our compassion. Those people deserve transparency and they deserve for this government to stop the games, stop the Redbridge rhetoric, and actually provide information to this place on this bill and in this debate so that we can provide that information to those who this bill will impact.

It is good that the states and territories have come on board in relation to the categories, but they are not on board with foundational supports. They are not on board with all of the other assessments and the processes that will impact them. Given we're about to move out of this debate at 12.15, I would implore you, Minister, to ask Minister Shorten to provide this information that this place and these senators have asked for. To not play any political games, but to provide this data and this information so that those who are so terrified by this bill can be reassured, or at least understand what is going to happen to their lives.

What you heard from Senator Steele-John last night is the weight of the disability sector on his shoulders. It is an unfair burden for any government to place on a single senator. Just out of human decency, when we get back to this legislation, please bring the answers to the questions I am asking on behalf of the sector.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

If we get an opportunity to deal with these issues further, I'd be delighted to respond to Senator Reynolds's question.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

As it is 12.15 pm, the committee will report to the Senate.

Progress reported.