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Monday, 18 March 2013
Page: 1954


Senator SIEWERT (Western AustraliaAustralian Greens Whip) (20:19): It is with pleasure that I rise to speak on the National Disability Insurance Scheme Bill 2013. The Australian Greens welcome the National Disability Insurance Scheme package, which will help ensure that people living with a disability will receive more comprehensive support in their everyday lives.

This reform is not simply about improving the ability to fund disability services or increasing the total amount of funding available to deliver services and ensuring national consistency and availability of these services. All these things are absolutely critical but they are not enough. For me, nobody sums this up better than Monica McGhie, a person living with disability in my home state of Western Australia. She made this comment to the Senate committee inquiry when we were in Perth:

I will be 50 this year. For five decades I have been subjected to every theory and fashion in disability, from the medical model of institutionalisation and segregation to hostel living, day centres, special schools, imposed independence training, normalisations, $1 an hour sheltered workshops and the corporatisation of support and risk aversions. They are five decades with one overarching theme: powerlessness.

This legislation provides a once in a lifetime opportunity to confront powerlessness and move towards transformative change by giving much greater choice and control to the individual and providing packages of support that focus on meeting the aspirations of the individual by providing the necessary supports to help them live, work and participate in their own communities.

This legislation demonstrates our community commitment to implementing our obligations under international conventions such as the Convention on the Rights of Persons with Disabilities. These reforms will ensure people with a disability can exercise genuine choice, which includes being able to experience and learn from risky choices, and make sure their goals and aspirations guide the delivery of services rather than what blocks of funding have been allocated or which programs have openings. This is why the Australian Greens are so strongly behind this reform and want to see it pass through this parliament in time to allow the anticipated launch sites to start on 1 July. We have heard clearly how powerful this legislation will be for so many people and want to see it live up to the expectation and the commitment that we are caring for people. I believe the passage of such reforming legislation with strong multipartisan support also demonstrates something about us as a country—about our commitment to inclusion and quality of life for people living with disability.

A catchcry for people with disability, as the momentum of this reform has grown, has been: 'Nothing about us without us'. So before I continue my remarks I would like to share some direct quotes about the legislation from people who have lived with and experienced disability and who came to the committee inquiry. I must say I am being a bit one-eyed here—I am again quoting people from my home state of Western Australia. Sam Jenkinson, who lives with a disability in WA and is well known across Australia but particularly in Western Australia, said:

I think that flexibility cannot be understated. There is a diversity of people with disability and many different types of support needed by people with different needs and different circumstances. What may be seen as protection in legislation could actually end up limiting choice, control and actually the potential for growth for many people with disability …

I think the legislation has an opportunity to show people with disability as active participants and decision makers at all levels.

She says the legislation needs to provide:

… capacity-building support for people with disabilities to self-direct their plans and service, and to self-manage their funding. This is actually the biggest change for most people and the opportunity to break free from being a passive recipient.

Mrs Guilfoile, who is the mother of a person living with disability, said:

I understand that the task of writing the legislation and rules is a complex one—way beyond my capabilities. However, I remind you that what people with disability need is simple: they need power; they need control; and they need independent advocacy in their lives.

A well-functioning NDIS can deliver the flexibility, the control and the independence that these quotes so strongly emphasise.

The legislation has been highly anticipated and provides a good framework from which to begin the scheme. But, given that this scheme sets out an entirely new agency with substantially different powers to anything we have seen before, it is not unexpected that there are still some amendments and some clarifications that need to be made to the scheme. A number of the amendments that I was intending to introduce have been adopted by the government, and I take this opportunity to congratulate the government for the way they have looked at the amendments and have been open to taking those on board.

The example that I note is that the compensation scheme, which was quite contentious, has already been addressed through amendments in the House of Representatives. Briefly on that point, it has been made clear that the NDIS is not intended to replace existing entitlements to compensation, but some of the most contentious clauses in the original bill are those which allow the CEO to make it a requirement that individuals lodge a claim for compensation prior to receiving supports under the NDIS. Many people who gave evidence on this requirement expressed their concern regarding the potential impact on persons with a disability of being forced to undertake legal action to claim compensation. For example, Professor Luntz noted that litigation is always stressful and argued that vulnerable people in the position of those receiving benefits under the scheme should never be required to take action to recover those benefits from the Commonwealth.

Similarly, Avant Mutual Group pointed out that those seeking support under the scheme may well be the least able to take on either the financial risk of claiming unsuccessfully or the emotional stress of conducting a litigation. The Australian Greens are sensitive to these risks, but recognise the importance of having a mechanism to trigger compensation claims. As a result, we were supportive of the additional power introduced in the House of Representatives for the agency to be able to subrogate claims on behalf of people with a disability. However, during the Committee of the Whole stage I will seek further detailed information from the government on how these powers will operate. This particular amendment will resolve one of the 29 recommendations of the majority report by the Senate Community Affairs Legislation Committee. While I strongly support these recommendations, the Greens also made five additional recommendations in our additional comments to that process.

The committee has conducted a very substantial inquiry into the bill. We visited four launch sites, went to seven capital cities and we used teleconferencing facilities to link up with rural and remote communities. We received 1,597 submissions. As I mentioned, the committee report made 29 recommendations—and I am sure Senator Moore will address some of those in her remarks to the chamber—and I included in my additional comments in the report another five on where we think further reform is needed. As I said, I am pleased to see that the government has already taken on board some of these amendments and I understand that we will be debating some more in this place. It was very important, because this bill was of such a complex nature, that we had an extensive inquiry process so that we could thrash out those issues. Some of those issues, when they were thrashed out, turned out to be non-issues but others highlighted important areas for reform.

I do not have the time to go into all of the detail of the many important issues that the committee reported on in this particular set of remarks. In the Committee of the Whole stage for this legislation we will be addressing some of the other issues, such as residency and portability, which came up during the committee inquiry and I will be circulating amendments concerning those particular issues.

One of the substantial issues raised during the committee inquiry was the issue of risk. This was a significant issue because the inquiry heard that enabling people with a disability to take risks the same as everybody else was very important. The importance of providing choice in control is undermined if we fail to recognise the dignity of risk. The government has now moved an amendment to ensure that the word 'risk' appears in the bill, but I want to reiterate the benefits of being able to make mistakes. These benefits tend to outweigh the negatives of the mistakes themselves, and this was put best by a person living with disability who said:

I think that there is often a concern that we need to make sure that bad things do not happen, but the real world is what it is … We do not want to live in a world that is made up of hundreds of thousands of rules that prevent us from taking any risks. Sometimes risk leads to good outcomes and sometimes it leads to bad things happening—but we feel that the benefits definitely outweigh the risks.

I am glad that the government has now adopted the language of risk and the principles which were previously missing and has further amended the objects of the bill to emphasise the critical role of choice, control and independence. However, as this scheme unfolds we must avoid the temptation to continually introduce new rules which, by their very nature, restrict the choice and control that we are establishing under this legislation.

Another very important issue that came up was advocacy. We recognise and strongly support the role that advocacy plays. I do not think there could have been anybody in this chamber over the last period of time that the Greens have been in here—and certainly that I have been in here—who could have spoken out so strongly about the need for advocacy and the critical role it plays in achieving change. We need to make sure that there is provision in securing equitable access to services for individuals and also for promoting systemic change. We want to ensure that both individual and systemic advocacy is recognised and that there are resources for advocacy support agent services.

The principles of advocacy absolutely must be recognised in the principles of the bill, and we will be seeking to strengthen the bill by recognising advocacy within the principles. However, most participants in the inquiry—in particular people with disability—were clear in saying that they wanted individual advocacy services to sit outside the agency. This requires the government to make an ongoing commitment to fund advocacy and legal aid, and I will be following this up again in the Committee of the Whole debate. It is one of the reasons that we were not supportive of Mr Wilkie's proposed amendments in the House of Representatives. While there was a strong push for advocacy to be funded within the NDIS, I took the trouble to ask during the committee inquiry if people living with disability supported advocacy being funded out of the scheme by the agency. Overwhelmingly the answer was no. Overwhelmingly the answer was, yes, absolutely we need advocacy—but not funded out of the scheme. I have taken that as the direction for how we should be pursuing this issue. That is from people living with disability themselves.

I see an important role for the agency to play in ensuring greater community participation and full integration for people living with disability, using its role as an insurance scheme to push for systemic change in these areas along the lines that the Disability Commissioner, Mr Graeme Innes, articulated to the committee and has articulated in several forums. If this is not a key role for the agency, the Australian Greens share the concern of the National People with Disabilities and Carer Council that an NDIS could inadvertently end up expanding segregated services and paying for provision that should come from mainstream services. I will be looking at amendments to ensure that part of the insurance approach includes pushing for greater services across the board—in other words, that mainstream services are held accountable for the services they should be providing to every Australian, not simply ignoring the provision of services to those living with disability. These amendments will make reference to the need for a strong interface between the NDIS and other services in the objectives and make explicit that a function of the agency is to help ensure that people living with a disability have access to mainstream services and funding.

During the committee inquiry, once we looked at the rules, talked to the agency and got advice on it, it turned out that registered providers caused a lot of concern for people. A lot of that concern has been annulled to a certain extent or is not as intense as it was because of the rules coming out and people reading them. I must add my voice to that of Senator Fifield on this. The concern throughout the inquiry was about not having access to the draft rules. We got them on the last day, and I must say it was handy to get them on the last day so we could actually have them when we were talking to the agency, but it did hamper us to a certain extent. I do understand the time constraints, but we need to have a much more detailed look at the rules. My office and I have been focused on the bill itself rather than all the detail of the rules—and of course there are still more rules to come.

One of the other issues that I would like to talk about is the access to the NDIS by the Aboriginal and Torres Strait Islander community and CALD communities. There are barriers faced by people from both Aboriginal and Torres Strait Islander communities and people from culturally and linguistically diverse backgrounds. The scheme must ensure equitable access for these groups and recognise their specific needs within the context of accessing and using the NDIS. We had strong representation from both of these groups about the concerns of both Aboriginal and Torres Strait Islanders and CALD communities. The Aboriginal Disability Justice Campaign and the First People's Disability Network both provided compelling evidence to the committee inquiry, and it will be important to ensure that the concerns that they raised are addressed if we are to ensure that Aboriginal people living with a disability are able to access culturally appropriate supports. These groups also raised their concerns about access for people in custody; and, having spent a significant amount of my time in this place trying to ensure that there is access to hearing services in prisons, I am acutely aware that this is an area where it is often difficult to reach people and ensure that they get the care and support they need. There are also unique challenges faced by people living in rural and remote communities which need to be addressed. I particularly hope that launch sites which focus on learning the lessons of remote communities do become a reality.

Another issue I need to address is the cut-off line of 65. We had a great deal of evidence from people expressing concern that they are being discriminated against because they will not be able to access the scheme over the age of 65. I believe there was compelling evidence that showed that there are already differing supports between those in some states in particular who receive higher levels of support through disability and then the aged-care system. We were given some graphic examples of that through the committee inquiry. We got a lot of evidence about degenerative illnesses and people being able to access the scheme after 65. I acknowledge that the government has moved to address that issue, particularly around degenerative illnesses and enabling access through early interventions, but there are groups such as Post-Polio that quite graphically illustrated the difference between obtaining support through a disability support system and through the aged-care system. I believe this group in particular will be caught up and will potentially not get access to sufficient services to support their disability, which is directly related to the polio they had earlier in life. We will be moving some amendments to address that.

I will make some more specific remarks about the amendments when I introduce them. However, I reiterate, this is an important reform, and the amendments demonstrate how much work has gone into trying to get this legislation right. It is important that we do get this legislation right, and for that reason I welcome the review after two years because we have a lot to learn from the launch sites. I look forward to seeing the launch sites in action and I will be watching them with a great degree of intensity. Hopefully, we can all learn something from those launch sites. It will be good to see this scheme eventually rolled out nationally, but it does mean that we need to ensure ongoing funding.

People with a disability have waited long enough. I am glad that I am a member of the parliament that starts to put this scheme in place. I can tell you: every Australian counts. People living with a disability, their carers, their families and their service providers are overwhelmingly supportive of this legislation and want it passed now—in fact, they would prefer if it were passed yesterday—so that these launch sites can start. The Greens will be supporting this legislation.