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Wednesday, 20 March 2013
Page: 2123


Senator XENOPHON (South Australia) (09:39): At the outset, I indicate my support for the very worthy concept of this scheme and the National Disability Insurance Scheme Bill 2012. But it is important that we ensure the implementation of this scheme is effective, efficient and sustainable in the long term. For too long, Australia has been lagging behind the rest of the world when it comes to support and care for people with disabilities. In my view, it is unacceptable that Australians with a disability still find it so difficult to be part of everyday life and to be involved in work and activities that are meaningful and important to them—in short, to live a full and dignified life.

The Productivity Commission inquiry that prompted this scheme was scathing in its assessment of the current support systems. I know these words from the commission's report have been repeated again and again, but they are worth quoting once more:

The current disability support system is underfunded, unfair, fragmented, and inefficient. It gives people with a disability little choice, no certainty of access to appropriate supports and little scope to participate in the community.

The commission, which goes on to describe the current system as a 'system marked by invisible deprivation and lost opportunities', provides an excellent and comprehensive report, including a blueprint for a national disability insurance scheme.

I believe there are few who disagree that we need a major overhaul of the way people with disabilities are supported and cared for. The commission's excellent report delved into the issue of what it means, in everyday terms, when that support is inadequate or poorly delivered. For example, the commission found that there was a strong link between disadvantage and disability, with individuals and their carers more likely to be in financial and social difficulties. These include social isolation, lower levels of education and employment and difficulties with housing. Carers and families were more likely to be under strain and have poorer personal wellbeing. Some particularly heartbreaking findings in the report were about people with profound limitations. It found:

only 16 per cent had been visited by friends or family in 3 months, and around 59 per cent had not had a telephone call in 3 months

around 18 per cent had not had any social contact in the last 3 months

around 44 per cent had not used the Internet in the last 12 months.

It also found:

…around 18 per cent of carers only had face-to-face social contact either once every three months or less often.

This level of disconnect is both tragic and incredibly concerning. As we know, humans thrive on social interaction and it is vitally important to wellbeing. It is awful to know that this system has failed to this extent.

I believe the NDIS, if implemented correctly, will be life changing for many people with disability and their families. In particular, I note that there are specific provisions in the bill relating to early intervention for conditions such as autism spectrum disorders, where treatment from a young age is vital. I acknowledge the work of the AEIOU centre in Queensland, a not-for-profit organisation that delivers early intervention care for children on the autism spectrum, with remarkable results. Appropriate early intervention can make a huge difference, with long-term impacts that actually reduce a child's level of disability as an adult. A vital part of this service is also the respite hours they provide parents. This organisation is still small, but its services are in huge demand and they are having a massive impact.

A better and more flexible funding structure under the NDIS will give parents the resources they need to get into the AEIOU program and will hopefully give AEIOU the resources it needs to meet demand, because that demand is critical and we cannot delay that. I acknowledge the fact that this legislation is designed to establish a framework, with further detail covered by rules to be made by the minister. I note Senator Payne's quite valid concerns about the framework being somewhat vague at this stage. We need to have those rules so that we can see the details, and that is important.

I have some fundamental concerns relating to individuals who have potential compensation claims seeking support under the NDIS. As someone who has been a compensation lawyer—and I still have my practising certificate and very small law firm—it is something that I am acutely aware of. For example, under the bill as it stands, individuals will lose their right to choose whether or not they want to take legal action in relation to a possible compensation claim. Instead, that person may be compelled to take legal action: if they do not, their support under the NDIS can be suspended. That just seems fundamentally wrong. It is inconsistent with the whole tenor of the scheme.

Basically, this bill uses the right to disability support as a stick behind the carrot, and that is wrong. Further, if an individual wants to appeal the decision forcing them to take legal action, they will need to go through an internal review or take the matter to the Administrative Appeals Tribunal. This means the person in question will either have to take on the services of an advocate or a lawyer, or defend themselves. But there is no provision allowing funding for that legal representation under the NDIS, potentially leaving people out of pocket and worse off than they would have been if the scheme had never existed in the first place—and that would be a perverse outcome.

I am very concerned that the NDIS seems overly reliant on payments through compensation claims for its funding. I want to make it absolutely clear that I find this unacceptable, that the responsibility for funding even part of the scheme should rest on the very individuals it is supposed to help. In line with the Senate committee's recommendations, individuals should not be forced to take legal action unless there is some sort of safeguard to protect them from economic loss. There are no such safeguards in this bill. In fact, the government amendments in the House have made these provisions even more onerous on individuals. In fact, where a compensation claim has been taken over or made by the CEO on behalf of an individual, it appears the CEO then has full rights to act on the individual's behalf without that person's consent.

The scheme is supposed to be about giving people with a disability the power to choose and control their own treatment and support, but these provisions blatantly remove any kind of choice from the equation. They operate on the very assumption that a person's only choice in this situation is the one that is right for the NDIS, not the one that is right for the individual themselves. To me, this seems to go against the intent of the bill and treats people with a disability in a patronising and condescending manner. This is particularly clear when you consider similar provisions in other state, territory and Commonwealth legislation which do not have the same element of force and do include safeguards, and that is why I will be moving amendments to that effect and I am looking forward to the support of my colleagues on this side of the chamber and my crossbench colleagues to remedy this absolutely clear anomaly.

Beyond establishing protection for individuals in the case of subrogation—a concept that I will discuss in the committee stage of this bill—these amendments will also ensure that individuals who go through the appeals process will have access to independent advocates. These amendments will also include provisions requiring the CEO to provide reasoning for reviewable decisions and to ensure that individuals are protected from costs if a review goes to the AAT. They also state that the CEO must ensure that the agency institutes a process to ensure that communications to individuals are made in a way that takes their disability into account and allows them to interact with the agency in an effective way. For example, the agency must take into account a person's visual impairment when communicating with them and therefore communicate verbally and provide written documents in an accessible form. This will ensure that individuals dealing with the agency will not be disadvantaged because of their disability. These amendments are in line with the recommendations from the Australian Lawyers Alliance and I thank representatives from that organisation, and in particular the ALA's National President, South Australian lawyer Tony Kerin, for the time they spent with me two days ago discussing these issues.

Ultimately, I support the measures in the bill but we need to make sure that they are open and flexible enough to meet changing demands and that they do not unintentionally perpetuate the exclusion of people with a disability. I will be supporting this bill, but I will be looking forward to discussing it further in the committee stage because there are a number of amendments in order to safeguard the rights of the disabled that must be dealt with. Finally, in the course of the committee stage I do want to raise the spectre of the link between this scheme and a national injury insurance scheme—a no-fault scheme—and the dangers I think that poses, and I will be quoting from the former chief judge of the Employment Court of New Zealand, Chief Judge Tom Goddard, who is scathing about the New Zealand no-fault scheme.