ACT HUMAN RIGHTS
Ml I
28 July 2017
Committee Secretary
Senate Community Affairs Legislation Committee
PO Box 6100
Parliament House
Canberra ACT 2600
Dear Committee Secretary
Submission to the Senate Committee Inquiry into the National Disability Insurance Scheme
Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017
The ACT Human Rights Commission's ('ACT HRC') Public Advocate and Children and Young People
Commissioner has made a submission to the Senate Committee Inquiry into the National Disability
Insurance Scheme Amendment (Quality and Safegards Commission and Other Measures) Bill 2017.
As the ACT HRC Disability and Community Services Commissioner, I am making a separate
submission specifically in relation to the information handling and complaints investigation
provisions.
Complaints functions of the NDIS Quality and Safeguards Commissioner
Section 181G of the Bill sets out the proposed complaint handling functions of the NDIS Quality and
Safeguards Commissioner, and refers back to section 73X which says that the NDIS rules may set out
the arrangements relating to the management and resolution of complaints arising out of, or in
connection with, the provision of supports or services by NDIS providers.
It is not clear at this stage how complaints made to the QASC will be managed and resolved, and
what actions the NDIS QASC can take in relation to the enforcement of any outcomes. It is also not
clear what the level of involvement and inclusion complainants will have in the process and whether
the NDIS QASC will work directly with complainants to address their concerns, including providing
alternative dispute resolution options, or whether it will function along the lines of AHPRA and the
registered practitioner Boards that focus on a disciplinary approach to respondents.
Furthermore, the extent of communication between the NDIS QASC and the NDIA is not apparent. It
is unclear under what process or provisions the NDIS QASC reports back to the NDIA and whether
and how it will inform the NDIA of complaints against service providers, or concerns about the
quality of their service provision and how this could adversely impact participants who have
complained.
In the ACT, Disability ACT in the Community Services Directorate has had the responsibility for
planning, developing strategic policy, allocating funding, and providing and monitoring services for
people with disability in the ACT. As a public authority under the Human Rights Act 2004 {ACT),
Disability ACT was required to act consistently with human rights and give proper consideration to
relevant human rights when making a decision. With the removal of funding allocation and the
Transition from Disability ACT to National Office of Independent Advocacy (NOIA)
provision and monitoring of services from Disability ACT, residents of the ACT can no longer formally require consideration be given to relevant human rights when decisions that affect them are made by the NOIA. ACT users of disability services are accordingly left with less protection of their rights under the transition from Disability ACT to the NOIA.
The redress mechanisms available at a federal level to individuals are the Commonwealth Ombudsman who is limited to investigating government administrative actions and the Australian Human Rights Commission which is limited to receiving complaints of alleged discrimination including disability discrimination or an alleged breach of the Convention on the Rights of Persons with Disabilities.
Unlike the ACT Human Rights Commission, neither of these bodies is able to receive complaints about the provision of disability services more broadly and offer alternative dispute resolution as a way to resolve a complainant’s concerns.
Article 13 of the Convention on the Rights of Persons with Disabilities requires Australia to ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and other accommodations, in order to facilitate their effective role as direct participants.
Alternative dispute resolution (ADR) processes offered by the ACT HRC have provided a means of redress for people with a disability in the ACT who have concerns about disability services in the ACT. The ACT HRC complaint handling process fills a gap that currently exists in the options that are available to NDIS participants who wish to make a complaint about the services they have received from the NOIA. ADR provided by the ACT HRC is an informal and flexible process that allows the parties to a commodity to resolve matters informally at a local level with the help of a neutral and independent third party.
ADR is an important part of equal access to justice, to ensure that people have the option to choose a process that is less intimidating or legalistic, inexpensive, empowering, and better able to flexibly and creatively respond to their individual needs in a process that is generally quick, confidential and non-adversarial. Further, ADR has a documented high rate of successfully resolving complaints and assisting with maintaining ongoing relationships in circumstances where the parties choose to or are required to have an ongoing relationship of some nature.
The NDIS QASC will not have the power to investigate complaints arising out of the provision of services by the NOIA. I support this exclusion on the basis that oversight of the NOIA ought to be done by separate independent bodies. I am however concerned that existing independent external complaints bodies will not able to exercise complaint investigation powers to assist people with disabilities to enforce their legal rights due to lack of clarity about what bodies may receive complaints and what those complaints can be about.
One obstacle presently faced by persons with disabilities in attempting to exercise their rights under the ACT HRC legislation is that the NOIA has stated it does not consider itself to be providing a ‘disability service’, despite clearly providing services that go beyond the mere provision of funding, such as providing coordination, strategic and referral services to people with a disability, facilitating the preparation of a participant’s plan, and providing general support, advice and assistance to NDIS participants and prospective participants. The NOIA has assertedto the ACT HRC that it is not providing disability services and therefore is not covered by the ACT HRC Act. The basis for this claim is unclear given the types of services it provides which clearly extend beyond simply providing funding. While the NOIA does not attract Commonwealth immunity it has actively resisted
engagement with the ACT HRC to try to resolve complaints brought by participants and their families
and advocates where there is limited other means for redress.
The effect of this has been to leave persons with disabilities with less redress mechanisms available to them despite the understanding that existing State and Territory complaints and redress mechanisms would continue to be available to NDIS participants.
Information-handling and complaints investigation
In my experience, the current provisions for the protection of information in the National Disability Insurance Scheme Act 2013 (‘the NDIS Act’) have been used to impede the exercise of the ACT HRC’s functions to investigate complaints it receives about the provision of disability services by the NDIA. The discretionary powers contained in sections 60 and 66 of the NDIS Act to allow the disclosure of information if done so for the purposes of the Act or with the express or implied consent of the person to whom the information relates have not, in my experience, been exercised by the CEO in favour of people with disabilities.
Even the express protection of documents from production to bodies that have the power to require the production of documents or the answering of questions only applies if it is not for the purposes of the NDIS Act [s 65]. The first stated object of the NDIS Act is to give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities. Other objects of the Act include to give effect to certain obligations Australia has as a party to other human rights conventions to which it is a party.
One of the stated general principles guiding actions under the NDIS Act is that people with disability have the same right as other members of Australian society to pursue any grievance. Another general principle is that people with disability should be supported in all their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.
These objects and general principles which are intended to guide the Agency’s actions under the Act do not, in my experience, appear to always inform the Agency’s actions in practice. To refuse to engage with the ACT HRC in the exercise of its lawful complaint investigation functions in relation to disability services provided in the ACT does not appear to me to be an action consistent with giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities.
The Explanatory Memorandum to the National Disability Insurance Scheme Bill 2012 makes it clear that the intent behind Chapter 4 Part 2 of the NDIS Act is to protect personal information that the NDIA may obtain in the course of performing its functions. It is not intended to interfere with or inhibit the exercise of a person’s rights of redress. Indeed, the NDIS Quality and Safeguarding Framework has stated that universal complaints and redress mechanisms will continue to be available to participants. However, this does not appear to be the case in practice.
I am concerned that the replication of the provisions in Chapter 4 Part 2 for the NDIS QASC (as set out in Chapter 4 Part 2 Division 2 of the Bill) will have a similar effect in practice. That is, existing state and territory human rights and complaints bodies will be impeded in the exercise of their lawful functions, and people with disabilities will continue to be left with reduced access to redress mechanisms.
I recommend that section 67G be amended to clarify that Commonwealth, State and Territory bodies exercising lawful functions in relation to complaints about disability services continue to have
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the power to request or require the production of documents or the answering of questions. This will ensure that existing State and Territory independent external complaints bodies, including the ACT HRC, are able to provide a means for local resolution of matters regarding the provision of disability services by the NDIA, including plan preparation, coordination, review of plans, strategic and referral services to people with disability, and generally providing support and assistance to prospective participants and participants in relation to doing things or meeting obligations under, or for the purposes of, the NDIS Act.
Karen Toohey Disability & Community Services Commissioner ACT Human Rights Commission