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Wednesday, 29 November 2017
Page: 9260


Senator CAROL BROWN (Tasmania) (17:29): Through this process, I'm pleased to say that Labor has managed to work with the government to secure some important amendments to the bill. The government will move these amendments. I'd like to talk through these amendments now.

In regard to advocacy, several submissions to the inquiry raised concerns about the absence of the role for advocacy in the bill, including those from AFDO, DANA, DPO Australia and QAI. Disability organisations have raised concerns that independent advocacy is not well understood in the context of the NDIS and that there is confusion and marginalisation of this important role. In a number of situations independent advocates were refused entry into closed settings such as boarding houses, group homes and larger residential facilities, despite the evidence that indicates higher risks of violence and abuse in these settings. Sometimes independent advocates are the only trusted support for people with disability, and NDIS providers must acknowledge and facilitate access to independent advocacy.

In consultation with disability organisations Labor has been able to secure amendments to ensure that the bill explicitly states that NDIS participants have the right to access independent advocacy and that provisions are made to define and protect this role. The bill will be amended to define an 'independent advocate' under section 9 of the Disability Insurance Scheme Act 2013 in a definition agreed with advocacy groups. These amendments will ensure that registered NDIS providers implement and maintain a complaints management and resolution system that acknowledges the role of independent advocates and other representatives of people with disability, and provides for cooperation with independent advocates and other representatives of persons with disabilities who are affected by the complaints process and who wish to be independently supported in that process by an advocate or other representative.

The bill will also be amended to expand actions that must be taken in relation to reportable incidents. They may include requiring a registered NDIS provider to provide people with disability with information regarding the use of an advocate in relation to an investigation into the reportable incident. The amendments will provide independent advocates with protection for disclosure and ensure that the commissioner must acknowledge, recognise and respect the roles of independent advocates in representing the interests of people with disability.

I turn to procedural fairness for workers. Unions have raised concern about the absence of provisions in the bill to ensure procedural fairness for NDIS workers who are subject to complaints or investigation. In consultation with unions and other stakeholders, Labor has been able to secure amendments that address these concerns. Amendments will be moved which allow for NDIS rules in relation to the management and resolution of complaints arising out of or in connection with the provision of supports or services by NDIS providers to deal with requirements relating to procedural fairness in relation to the management and resolution of complaints, and to ensure that the commissioner must have due regard to procedural fairness in performing his or her functions.

The commissioner will be able to make guidelines relating to procedural fairness under proposed section 181D(2). Labor has secured a commitment from the government in a letter from the Minister for Social Services to the shadow minister, ensuring the commissioner will consult with stakeholders, including unions, in the development of these guidelines. The government has also agreed to amend the complaints rules to include requirements for providers to afford procedural fairness to any person under their internal complaint management system, including a worker who is the subject of allegations in a complaint that results in an investigation. This would include provisions for providers and the commission for complaints handling to be completed as expediently as possible and the right of any person who is the subject of a complaint to have a representative with them in any meeting or interview in relation to that complaint. The explanatory memorandum states that the commission will have responsibility for national oversight and policy setting in relation to behaviour support and monitoring the use of restricted practices within the NDIS, with the aim of reducing and eliminating such practices.

Disability organisations, including DPO Australia, AFTO, NDNA, NDS and CEDA have raised particular concern that the bill does not include regulatory powers to enable the NDIS Commissioner to prohibit certain restricted practices. As DPO Australia states:

The current mechanisms at State and Territory level are varied and inconsistent, with some consisting of relatively weak policy functions within government departments and others having established regulatory bodies and mechanisms.

This creates inequity in protection from practices that have been found to constitute torture and ill-treatment, and this bill should be providing the highest level of protections equally across Australia.

Labor has secured an amendment that will expand the commissioner's behaviour support function to include insisting the states develop a regulatory framework including national minimum standards in relation to restrictive practices that is in line with the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector and consistent with the Convention on the Rights of Persons with Disabilities. This will strengthen the commissioner's role in a very important area.

An area that we have been particularly concerned about is the Commonwealth's consultation with the states and territories on the NDIS. We are concerned that the Minister for Social Services is forcing governance changes that will reduce the role of the states, and this is something that will undermine the success of the scheme. It needs to be emphasised that states and territories have a vital role in the successful delivery of the NDIS. It is a national scheme in which the jurisdictions play a very important part. It is imperative that the Commonwealth works cooperatively with the states and territories—genuinely cooperatively. It is important that the perspectives of the states and territories are sought and genuinely listened to. This is a national scheme, not only a Commonwealth-led scheme. This is something Labor will continue to hold the government to account on. Again, I cannot stress enough the need for the government to include stakeholders as the NDIS is rolled out. People with disability, advocates, unions and providers must all genuinely be listened to and involved to get the best results for the scheme.

In our additional comments on the inquiry report, Labor senators raised a range of other issues that the government needs to continue to work on with stakeholders to resolve. Screening and registration of workers are very important issues that the government must work on with people with disability, and with unions, to resolve. The government must talk with unions and providers about workforce training as the rules are finalised. Adequate training is obviously fundamental to the success of the NDIS. We also want to see appropriate and specific safeguards for children provided in the NDIS. We welcome the government's commitment in writing from the Minister for Social Services to the shadow minister for families and social services to work with Children and Young People with Disability Australia, CYDA, and other stakeholders to address issues specific to children in the NDIS.

Labour remains concerned about people with disability who receive supports outside of the NDIS and who will not be covered by the NDIS Quality and Safeguarding Framework. I note that the government's response to this has been that people receiving supports through other systems, such as health, education and justice systems, will continue to be covered by the quality and safeguards arrangements of those systems and that the commission will not replace existing functions in the states and territories that have a broader scope, such as an ombudsman, a human rights commission or a public advocate. Disability organisations remain concerned about people falling through the cracks and not being covered by a disability-specific quality and safeguarding framework. We want to see the government work with stakeholders and states and territories to address this issue and ensure that people with disability are sufficiently covered in all jurisdictions. Labor will continue to hold the government to account on these important issues. They should be closely monitored as the commission is established, and in the review to be undertaken in 2021.

In closing, I want to state again that this legislation does not negate the need for a royal commission into violence and abuse against people with disability, as the government claims. Disabled People’s Organisations Australia's Therese Sands has said of the NDIS quality and safeguards framework:

It doesn't address the scale of violence and abuse against people with disability, its many different forms and the range of service and other settings where abuse occurs.

So, this bill does not negate the need for a royal commission into abuse against people with disability. Labor announced in May that should we win the next federal election we will establish a royal commission into violence and abuse against people with disability. The continued abuse of Australians with disability by people who are meant to care for them demands a royal commission. People with disability experience much higher rates of violence than the rest of the community, and in many cases this violence occurs in places where they are meant to be receiving support. Children with disability are at least three times as likely to experience abuse than other children. People with disability and their families have been campaigning for a royal commission for years. Only a royal commission has the weight, authority and investigative powers to examine these horrific accounts of abuse and violence against people with disability. Labor calls on the government to now establish a royal commission into abuse of people with disability.

In conclusion, this is an important piece of legislation. Labor welcomes the willingness of the minister to collaborate with Labor and the Senate crossbench on a number of amendments to improve this bill. They are important amendments that will strengthen protections for people with disability as part of the NDIS. We should never forget that the driving purpose of the National Disability Insurance Scheme is to improve the lives of people with disability, their families and carers. The old system of disability support in this country was broken. We now have the opportunity, through the NDIS, to improve the life of some of the most vulnerable Australians. It is my hope that, with the passage of these amendments today, we will do exactly that. Thank you.