NDIA Accountability Project

Victorian Government submission to the Senate Community Affairs Legislation Committee

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Martin Foley mp

Minister for Housing, Disability and Ageing 50 Lonsdale Street

Minister for Mental Health Melbourne, Victoria 3000 Australia

Minister for Equality

Minister for Creative Industries

B17/3628

Committee Secretary

Senate Standing Committees on Community Affairs

PO Box 6100

Parliament House

Canberra ACT 2600

Dear Committee Secretary

| enclose for your consideration Victoria’s submission to the Senate Community Affairs

Legislation Committee inquiry on the NDIS Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017.

Victoria is firmly committed to strengthening safeguards for people with disability and welcomes the opportunity to contribute to the development of this fundamental piece of legislation.

Victoria is proposing that the Bill be amended to ensure that the Quality and Safeguarding Framework is delivering on its key objectives and that people with disability under the NDIS are afforded the highest level of protection.

Accordingly, | would seek your support for these proposed amendments.

| look forward to the report in September 2017 and welcome any further engagement on this

important matter.

Martih Foley/MP

Minister for\Housing, Disability and Ageing

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Government

NDIS Amendment (Quality and Safeguards

Commission and Other Measures) Bill 2017

Victorian Government submission to the Senate Community Affairs Legislation Committee

The Victorian Government welcomes the opportunity to make a submission to the Senate Community Affairs Legislation Committee inquiry on the NDIS Amendment (Quality and Safegards Commission and Other Measures) Bill 2017.

The Victorian Government reaffirms its commitment to strengthening safeguards for people with disability. In signing up to the NDIS Quality and Safeguarding Framework (the Framework) endorsed by DRC and COAG in 2016, Victoria had a clear expectation that its own commitment to maintaining and strengthening safeguards would be replicated in national arrangements. To this end, the Victorian Government has maintained that Victorians with disability who transition to the NDIS will experience no diminution in the level of protection afforded to their rights and safety.

Victoria’s support for the Framework was founded in its faith that it would achieve national consistency in, at a minimum, the rights and protections currently afforded to Victorians. This is reflected in the Framework’s principles, developed by all states and territories, which support a nationally consistent, human rights focused approach that upholds the goals of the NDIS of enabling participants to exercise choice and control. While the Framework establishes the groundwork for a nationally consistent system, its ability to deliver on this depends on the quality of both its legislative and operational design.

Victoria has concerns that the Bill has been developed largely in isolation of state and territory input, with the Commonwealth providing very limited consultation late in the design and drafting process, and only incorporating feedback on technical aspects of the legislation, rather than taking more serious concerns into account. This has resulted in a Bill with some deficiencies and inconsistencies with the agreed Framework.

While Victoria acknowledges that there are timing imperatives associated with full scheme transition for some states, it considers that fast-tracking the introduction of the Bill must not come at the cost of robust protections for the rights and safety of people with disability.

Victoria’s Concerns with the Bill

Victoria considers there are some key deficiencies in the Bill that involve inconsistencies with components of the Framework, that may limit the effectiveness of the national system, or may compromise protections and the effectiveness of the quality and safeguarding system for protecting people with disability from abuse.

Victoria’s key outstanding concerns are about:

  • the structure and independence of the Commission, and the implications of that for the independence and effectiveness of the complaints-handling function in particular;
  • the limited role the Bill affords states and territories to contribute to the more detailed design of the system under the rules; and

Structure of the Commission

Victoria remains concerned that the ‘single-body’ structure of the Commission could expose it to the risk of both real and perceived conflicts of interest between its various functions, particularly between the provider registration and quality assurance function and the complaints handling function.

This approach is inconsistent with what was agreed by DRC and COAG, in particular, that the Commonwealth would establish an “independent statutory NDIS complaints commissioner”. While the Commonwealth has sought to justify the single body structure of the Commission on the basis that it is necessary to ensure effective regulatory integration, Victoria considers that such integration can be achieved through alternative means, and should not be achieved at the expense of genuine independence, clarity for participants and other stakeholders, and regulatory effectiveness.

Categorisation of rules

It is Victoria’s view that rules that are fundamental to the detailed design and implementation of key components of the Framework should require agreement from all jurisdictions, at least during the implementation phase and early years of operation.

Victoria understands that the Commonwealth intends to re-classify a majority of rules as Category D, requiring consultation from jurisdictions and some rules as Category B, which will require agreement from host jurisdictions. Victoria considers that this is inadequate and strongly believes that rules that relate to key elements of the Framework should be subject to agreement from all jurisdictions.

The Commonwealth Minister’s powers over the Commission

The Commonwealth Minister’s powers over the Commission could be seen as compromising the Commission’s capacity to act independently, particularly in relation to handling complaints and serious incidents. The legislation states the Commonwealth Minister may, by legislative instrument, give directions to the Commissioner about the performance of his or her functions and the exercise of his or her powers.

Victoria considers that this model is a step backwards in terms of establishing independent statutory complaints powers.

What should be done

States and territories must continue to play a meaningful role in developing the establishing architecture of the Framework. This is consistent with the partnership approach taken to developing the Framework. It also takes into account the significant experience states and territories have in understanding and meeting the challenges associated with protecting people with disability from harm highlighted by multiple inquiries and reports.

Victoria would recommend that the Senate Community Affairs Legislation Committee, in its review of the Bill, recommend the Bill be amended to:

  • enable the appointment of a statutory complaints commissioner;

Victorian Government submission to the Senate Community Affairs Legislation Committee 2

  • Provide for greater state and territory input into rules that implement or affect key design elements of the Commission, particularly during the early stages of implementation and in the transition from state-based arrangements; and
  • Limit the Commonwealth Minister’s powers over the Commission, including the Minister’s ability to provide written direction (e.g. written direction could occur with agreement from the DRC or an independent panel).

Victorian Government submission to the Senate Community Affairs Legislation Committee 3