Division Description Changes — Bills — National Disability Insurance Scheme Amendment (Improving Supports for at Risk Participants) Bill 2021; Second Reading — 20th Oct 2021

Change	Division
senate vote 2021-10-20#4 Edited by mackay staff on 2021-10-29 15:33:52	Title Bills — National Disability Insurance Scheme Amendment (Improving Supports for at Risk Participants) Bill 2021; Second Reading National Disability Insurance Scheme Amendment (Improving Supports for at Risk Participants) Bill 2021 - Second Reading - Consultation Description ~~<p class="speaker">Janet Rice</p>~~ <p>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.</p> The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2021-10-20.21.1) to *the usual [second reading](https://peo.gov.au/understand-our-parliament/how-parliament-works/bills-and-laws/making-a-law-in-the-australian-parliament/) motion, which is "that the bill be read a second time" - parliamentary jargon for agreeing with* the main idea of the bill. ### Amendment text *> At the end of the mo*tion, 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 recommend*ations 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.* <p>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.</p> <p>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:</p> <p class="italic">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.</p> <p class="italic">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.</p> <p class="italic">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.</p> ~~<p>In our additional comments that we made as part of the inquiry report, the Australian Greens noted:</p>~~ <p class="italic">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.</p> ~~<p class="italic">…   …   …</p>~~ <p class="italic">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.</p> ~~<p class="italic">…   …   …</p>~~ <p class="italic">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.</p> <p>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:</p> <p class="italic">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.</p> <p class="italic">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.</p> <p class="italic">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.</p> <p class="italic">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 …</p> ~~<p>The right to privacy is incredibly important, and this is something the Greens pointed out in additional comments in the community affairs committee report:</p>~~ <p class="italic">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.</p> ~~<p>Peak advocacy bodies that gave evidence to the inquiry also expressed deep concern about the two-way information-sharing provisions being proposed.</p>~~ ~~<p>I want to highlight another distinct concern, about reviewable decisions. As our additional comments noted:</p>~~ <p class="italic">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.</p> <p class="italic">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.</p> <p>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.'</p> <p>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.</p> <p>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.</p> ~~<p>In their submission to the DSP inquiry, the Australian Federation of Disability Organisations said:</p>~~ <p class="italic">… 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.</p> ~~<p>People with Disability Australia said:</p>~~ <p class="italic">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.</p> <p>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.</p> <p>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.</p> <p>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.</p> ~~<p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>~~

~~Janet Rice~~
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.
The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2021-10-20.21.1) to the usual [second reading](https://peo.gov.au/understand-our-parliament/how-parliament-works/bills-and-laws/making-a-law-in-the-australian-parliament/) motion, which is "*that the bill be read a second time*" - parliamentary jargon for agreeing with the main idea of the bill.
### Amendment text
> *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.*
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.
~~Long debate text truncated.~~