7 July Submission to the Community Affairs Legislation 17 Committee on the NDIS Bill

The Seventh Estate – A state of
confusion:  contradictions  and
inconsistencies

  ABSTRACT
    This submission highlights the necessity of fully grasping the implications of particular details set down in the Bill.  It
    also highlights how these particular requirements go well beyond the original intent of establishing a National
     Disability Insurance Scheme for people with a disability approved to be participants in the scheme. Instead, it seeks
    to capture all people with a disability who receive services and supports paid for by other than NDIS funding
    [Reference: s.181E (a)&(b)], which may or may not include those people paying their own way from their Disability
   Support Pension.

    Additionally, the Bill also goes well beyond the concept of registering providers, and calling them NDIS Registered
    Providers, by making reference to NDIS Providers. This then captures those entities and individuals who elect not
    to register but who nonetheless may be the choice of provider by a self-managing NDIS participant. Significantly,
     this means that there are likely to be thousands of businesses and individuals who provide mainstream services
 who are inappropriately captured by the Bill. This is an unworkable situation that sets up the Commission to fail.

  The Bill also compromises the immutable principles of – all people with disabilities having the same rights and
   responsibilities as all other people in society; choice and the right of people with disability to have their choice
  respected without compromise; the dignity of risk; and the necessity of establishing legislation and processes that
  are user friendly and uncomplicated.

  The result of this ‘capture all’ approach is to create confusion, where contradictions and inconsistencies reign
  supreme.

      If the Bill goes ahead in its current form it will establish the Commissioner in the same league as the Taxation
  Commissioner, by providing the NDIS Commissioner with all-embracing powers to capture all providers of services
  and supports accessed by people with a disability. This potentially includes, for example, every hairdresser in every
  High Street in every suburb and every town in Australia.

  The Committee must therefore be uncompromising in rejecting all aspects of the Bill that seek to command and
   control the lives of all people with disabilities in Australia. Not to do so will deny the transformative potential of the
  NDIS in giving real choice and control to people with disabilities.

Authors: Max Jackson and Margaret Ryan

CONTENTS

Page

• Executive Summary: 3
• Introductory Comment: 4
• Platform Principles:
  • Same rights and responsibilities: …..5
  • Choice: …..6
  • The dignity of risk: …..7
  • User friendly and uncomplicated: …..8
  • Challenging a command and control approach: …..8
• Tracking the Development:
  • Not ignoring history: …..9
  • A broken system: …..9
    • Missing elements: …..10
• Similarities and Differences in Quality and Safeguarding: …..10
• Individual Funding – Variations and Differences: …..11
• Acknowledging Failure: …..12
• Fixing the Broken System:
  • Grasping the concept of consumer rights: …..13
  • A delicate balance – rights v command and control: …..14
• The Case of the Private Provider: …..15
• Concluding Comment: ….17
• Appendix 1 – Compare and Contrast Victoria’s Quality and Safeguarding Framework with the NDIS Quality and Safeguarding Framework: 18
• Appendix 2 – The Bill – Contradictions and Inconsistencies: ….24
  • Matters to be considered for inclusion in the Bill: ….29
• Appendix 3 – An Overview of the Submission’s Authors: 31

EXECUTIVE SUMMARY

Two principal themes are addressed in this submission. The Committee must accept the significance of these two themes. To not do so would dismiss the primary intent of the National Disability Insurance Scheme (NDIS) and it would dismiss a set of immutable principles that have been respected as forming the basis of contemporary approaches in supporting people with disabilities in recent decades.

The National Disability Insurance Scheme is a scheme designed to provide funds to people with disabilities who are assessed as meeting the criteria for a person to become an NDIS participant. Significantly, the scheme is not a global funding scheme for all persons with disabilities, nor is it a replacement for the Disability Support Pension and nor is it intended to be a command and control scheme.

There can be no debate – progressive contemporary approaches in disability are based on the principles of:

• All people with disabilities having the same rights and responsibilities as all other people in Australian society.
• All people with disabilities having a right to exercise choice and to have their choice respected.
• Recognising that risk exists in all aspects of our society and there is dignity in accepting and dealing with risk as individuals.
• Legislation and processes must be designed, described and applied in an uncomplicated way.
• Australian society operates under the rule of law; as such the law is paramount. However, where the law is directed to supporting particular individuals, it must not be created in such a way where command and control denies the rights of the targeted individuals.

This submission details significant concern that the Bill in its current form articulates a number of proposals that are inconsistent with and contradict both the intent of the NDIS and denies contemporary principles.

In order to test the efficacy of identified parts of the Bill, the Committee must ask and put to the test why the Bill goes outside the scope of the NDIS, by:

• Seeking to capture people with disabilities who are not participants even though these people purchase supports and services using their own funds.
• Seeking to control individual participants who choose to self-manage their funds and who choose a provider who has elected not to become an NDIS Registered Provider by requiring that provider to abide by particular requirements of the NDIS. Thus denying the participant’s choice if the provider of choice elects not to so.
• Creating a category of NDIS Registered Provider but then also creating another category called NDIS Provider, and thus confusing the concept of registration.

The current flaws in the Bill must be rectified in order that the Bill and the NDIS promote and advocate for and protect choice rather than deny it.

CONTRADICTIONS, INCONSISTENCIES AND CONFUSION

INTRODUCTORY COMMENT

1. This submission highlights what the writers have identified as significant contradictions and inconsistencies that lead to confusion.

2. If not addressed what can be considered as a glaring lack of judgment will lead to the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and other Measures) Bill 2017 (the Bill) and the NDIS Code of Conduct representing nothing more than a flimsy veil of political correctness, while hiding a complex mess of contradictory rhetoric.

3. By ignoring key concepts and principles that have been accepted for many years as being essential to the promotion and delivery of a modern and progressive disability sector, the significant principle of people with disability having the same rights and responsibilities as all others in the community will be denied.

4. The writers have deliberately focused on five principles only in this submission. They contend these matters represent platform issues that must be got right in order for the Bill and the Code of Conduct to have true meaning. If the current contradictions and inconsistencies are not fixed, confusion will undermine the effective and efficient operation of the Quality and Safegards Commission. More significantly, it will undermine the intent of the Commission, noting that the intent must be maintained as being directly related to the NDIS and only the NDIS.

5. Crucially, going outside the NDIS challenges the efficacy of Minister Porter’s statement in his Second Reading Speech, where he said “The bill seeks to balance appropriate protections that meet government’s duty of care obligations, with enabling participants to take reasonable risk in the pursuit of their goals”. The key elements of this statement, as in “balance appropriate protections”, “government’s duty of care obligations” and “enabling participants to take reasonable risk in the pursuit of their goals” in essence emphasise that the Bill should be exclusively about NDIS funding and NDIS participants only.

6. In relation to the intent “balance appropriate protections” while “enabling participants to take reasonable risk in the pursuit of their goals”, the Minister clearly recognises that protecting people with a disability to the degree where such protections become restrictive, then this in effect denies them their right “to take reasonable risks in the pursuit of their goals”, which of course must acknowledge their right to exercise choice in selecting their provider. The writers contend that particular aspects of the Bill as identified elsewhere in this submission contradict the Minister’s statement and in so doing create confusion in relation to whether the rights of people with disabilities to enjoy the same rights and responsibilities as all others in society is in fact fair dinkum or simply an illusion.

7. On the matter of the Minister’s statement concerning the “government’s duty of care obligations” the writers are confused by this statement, noting that the Minister failed to identify exactly what duty of care the government does have and why. By contrast, and as providing another example of inconsistencies and contradictions, given that the NDIS through the NDIA is a funding scheme, then the question must be asked “What is the government’s duty of care?” After all, the aged pension, disability support pension, Newstart, and no doubt other programs that provide funds to individuals do not suggest that the government has a duty of care simply because they provide such funds. Therefore, it seems reasonable to suggest that if not intended there is nonetheless an inference that “duty of care” is focussed on the dollar funds and how they are spent, and not the well-being of the individual recipient of such funds.

8. It also needs to be noted that the NDIA as a funder, and the NDIS Commission as a regulator, service monitor with the authority to impose penalties or sanctions, cannot in any shape or form be defined, as a provider of services and supports necessary to meet the reasonable and necessary needs of individual NDIS participants. As such, there can be no duty of care imposed on the government in relation to such service provision.

9. The writers therefore contend that if the Committee believes an underlying objective of the Bill must be to support the establishment of an inclusive society where all people with Disability are treated as equals with all other people in our society, then the provisions of the Bill as associated with the NDIS Commission must acknowledge this. As such, NDIS participants and indeed other people with a disability who receive services and supports, even where such services and supports have nothing to do with the NDIS, must not be treated as though they are separate from the rest of society.

10. Any endeavour to over-protect, to go beyond the dignity of risk and what is reasonable, is as unacceptable as an absence of regulatory protections that are equally applied. The Committee must ensure that the Bill does not seek to place NDIS participants, other people with disabilities and providers of services and supports, whether registered or not, in a bubble that seeks to operate separate from the realities of the broader society.

11. The writers see no point in espousing the rhetoric of rights and equality and choice if a Bill such as that before the Committee, through various clauses seeks to make contradictory and inconsistent impositions.

A note of explanation

12. It is essential to note that while this submission is submitted to the Committee in response to discussion on the Bill, the writers submit that it must be acknowledged that the Bill, once passed, will have significant implications for the NDIS Code of Conduct. This being because of the significance the Code of Conduct will play in setting the ‘rules’ about compliance. As such, particular reference is made to the proposed NDIS Code of Conduct in various parts of this submission.

THE PLATFORM PRINCIPLES

13. The writers have identified a set of platform principles that are detailed further below in an individual chart in which an explanation of the principle is provided. Details of current legislative and principled statements are provided in the second column in each chart. For a more detailed consideration, contradictions and inconsistencies between aspects of the Bill with the principles are set out in Appendix 2.

14. The writers urge that the Committee acknowledge and address the significance that each of the principles has in the context of how individuals with a disability and the broader disability sector fit with the wider environment. In particular, the same rights that exist for all other consumers in our society in terms of quality and protective mechanisms and laws must be taken into account.

15. Notwithstanding the detail as provided in Appendix 2, the writers also provide the following commentary.

Platform Principle 1: Same rights and responsibilities

16. The writers begin with the already mentioned principle of people with disability having the same rights and responsibilities as all other people in society. The writers say that unless this concept is truly embraced by the Committee then it must be assumed that the Committee does not truly accept that people with disability are equal to all other people in society.

Platform Principle: Rights

Giving Meaning to the Principle

• Since approximately the mid 1960s there has been a general push to have people with disability acknowledged as being equals with all other people in the community.
• Various terminology and practices have been invoked to enhance recognition of this concept, including the concepts of normalisation, social role valorisation, social integration and inclusion.
• The culmination of this developmental work has now reached a stage where there is a general acceptance, within the disability sector itself as well as the broader community, that people with disabilities do and must have the same rights as all others in society.
• However, rather than simply allow rights to stand alone, now married to the concept of rights is that of responsibilities.
• As such, it is now indisputable that there is an acceptance that people with disabilities do have and must have the same rights and responsibilities as all others in society.

Current Legislation and Principles

• The National Disability Insurance Scheme Act 2013 is unambiguous by way of s.4 (1), (4), (6), (7), (8), and (9) in highlighting that people with disability have the same rights as other members of Australian society.
• While not specific to all people with disabilities, Victoria’s 1986 Intellectually Disabled Persons’ Services Act, section 5(a), stated that “intellectually disabled persons have the same rights as other members of the community …”
• More recently, Victoria’s Disability Act 2006, noting that this Act applies to all disabilities, in section 5(1) states “persons with a disability have the same rights and responsibilities as other members of the community and should be empowered to exercise those rights and responsibilities.”

-not restricted in relation to individuals and groups to whom such law applies. As such, it is essential that the Committee considering the Bill acknowledges and takes into account in its deliberations the existence of consumer law.

• Significantly in relation to the NDS, the NDIS Act 2013 recognises the application of choice under the general principles in section 4(4) and 4(8).
• Section 4(4) is unambiguous in stating “people with disability should be supported to exercise choice …”
• Section 4(8) is also unambiguous in stating “people with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control …”

Platform Principle 3: The Dignity of Risk The concept of the dignity of risk came into being in the disability sector several decades ago. The principle continues to be an important driver of the way in which people with disabilities are treated. The principle recognises that while risk exists in all aspects of our society and we, as individuals, are confronted from time to time with various types and levels of risk, onetheless there is a certain dignity in accepting and dealing with risk as an individual. Therefore, to seek to establish restrictive protection mechanisms and controls that deny a dignity of risk is contradictory to the concept itself.

Giving meaning to • Dignity of risk means respecting each individual’s autonomy the principle and self-determination, or, in other words, the dignity to make choices for him or herself, even in circumstances where there may be some potential risk.

• While in circumstances where an individual or entity has a legal responsibility for a person, as in, for example, the person’s care, there can be no doubt that the individual or entity has a duty of care to the person in their care.
• However, in the context of the NDIS, and that of the person with the disability being a consumer, the provider, whether as an entity or as an individual, cannot use the duty of care requirement to extinguish their responsibility and obligation to facilitate the person’s choice, and hence the person’s dignity of risk.
• In order to overcome any confusion in terms of balancing dignity of risk with that of duty of care, significantly duty of care can largely be met by the provider ensuring that there are systems and practices in place that limit risks or the potential for harm.
• Thus as a policy position the provider must therefore ensure that the consumer is able to make decisions, albeit that their decisions may not necessarily be ones agreed with by the provider and where the decision does not in itself constitute a risk.
• Therefore, the concept of respecting the person’s right to make the decision must be part of the provider’s policy position, and hence must not be compromised by any aspect of the Bill.

Current legislation • The NDIS Act 2013 acknowledges the concept of the dignity of and principles risk. In part this is articulated in section 4(8) as detailed further above.

• More specifically, section 4(6) acknowledges that “people with disability have the same right as other members of Australian

Page 8

                                              society to respect for their worth and dignity …

• It is also inferred in section 4(11)(a) that people with disabilities should be supported “… to pursue their goals and maximise their independence.”

           Platform Principle 4: User Friendly and Uncomplicated
          The NDIS Act and the associated Bill in its broadest application has significant meaning for
              participants, those who may represent them, other people with  disability, entity and
              individual providers of services and supports, and the NDIA and NDIS Commission.  The
             linkages between all of these individuals and entities must be designed, described and applied
              in an uncomplicated and hence easily understood way at all levels, from the NDIS participant
            through to registered NDIS providers and within all parts of the NDIS Commission and the
           NDIA.
  
            Giving meaning  to  •  The pursuit of legislation and systems and processes that can
            the principle            be defined as user-friendly must be established in a way that
                                    minimises  their  complexity and makes   it  easier  for  all
                                        associated with such legislation and processes and practices to
                                         better understand.
  

• A contradiction of the above can be no better seen than in the 200 plus pages of Explanatory Memorandum which accompanies this Bill or the dichotomy between NDIS registered providers and non-registered providers.

• Or, as currently in the NDIS Act, participants and Chapter 2 people with disability as a separate funding arrangement from the rest of the Act.

• None of these contradictions add value and indeed simply add confusion.

          Current  legislation  •   For several years now there has been acknowledgement of the
         and principles           need to move away from designing legislation that is complex
                                   and convoluted to legislation that can be defined as “user
                                             friendly” in that it uses plain language.
  

• In the context of the NDIS it is necessary, if indeed the Bill is to be “user friendly”, to avoid complex standards, lots of rules and contradictions and inconsistencies.

• In some jurisdictions a law called the “Law of Least Astonishment” has been established where if used in the context of the NDIS this would mean that those using the legislation, including the yet to be promulgated Bill, should act in a way that least astonishes those who are subject to the legislation. Although originally coined for user interface in software design, nonetheless it has application when considering elements of the NDIS Bill.

           Platform Principle 5: Challenging a Command and Control Approach
                   It is essential to acknowledge that legislation in whatever form and for whatever purpose
                constitutes the law for which the particular legislation exists. As a civil society, Australian
                society operates under the rule of law, where the law is considered to be paramount.
  
            Giving meaning  to  •   Given the law plays such a significant part in every aspect of
            the principle             our society,  it is therefore essential that the way a law  is
                                            written must be sensitive to the particular matters addressed
                                       by the particular law.
  

• While in some circumstances it is essential the law be written 8

TRACKING THE DEVELOPMENT

Not ignoring history

17.

In order to give practical understanding to the platform principles in the context of the Bill, The writers contend that it is essential to acknowledge a number of developmental factors that have shaped the current thinking that underlies the development of a quality and safeguarding system, a code of conduct and the relationship of these to the Bill and the direction that is clearly being established through the Bill.

A broken system

18.

A major driver in the historical development of the NDIS was the description given by the Productivity Commission to the disability system across Australia as being broken. The Productivity Commission in its Disability Care and Support 2011 report highlighted a number of factors which pointed to the system being broken. Among these was the failure to ensure that funds allocated to the disability sector were being used as efficiently and effectively as might be expected. In part, this then evolved into the concept of funding being granted on an individual basis to people with disability in order that as individuals they would have greater choice and control in the purchasing of their services and supports.

19.

Almost running in parallel with the ongoing development of the NDIS was the significant expose of the abuse, neglect, exploitation and violence committed against people with disability. As such, this expose then became a major factor in seeking to create a national quality and safeguarding framework to be developed as part of the NDIS to replace a mixed bag of regulatory mechanisms that were operating in the States and Territories.

Missing elements

21.

The establishment of the NDIS was in fact the platform action designed by governments to fix the broken system of support for people with disabilities. Hence the Productivity Commission’s 2011 report has largely provided the blueprint for the ongoing development of the NDS legislation, the establishment of the National Disability Insurance Agency and now the current activities in relation to the NDIS Quality and Safeguards Commission.

22.

While the Productivity Commission report was significant and correct in identifying the many aspects of the disability sector that were broken, in, for example, identifying it as being inequitable, underfunded, fragmented and inefficient and giving people with disability little choice, nonetheless the report largely failed to acknowledge that some of the failures occurred not as a result of not having quality and safeguarding frameworks or standards or systems, but in the failure of those responsible for such activities.

23.

The acts of abuse, neglect, exploitation and violence that were being uncovered on a regular basis were not as a result of systems failure or a lack of regulation or an absence of protection mechanisms, but they were unambiguously a result of people responsible for the system failing to exercise their statutory responsibilities and obligations.

24.

The writers go further to suggest that while the Productivity Commission report touched on quality, safeguards and protective mechanisms, these did not translate into high level considerations. Indeed it is important to again note that the concern and considerations associated with abuse, neglect, violence and exploitation of people with disabilities was stimulated by the media’s expose over recent years of the failures of key players in the disability sector to ensure quality and adequately safeguard people with disabilities.

25.

Therefore as a result, the current Bill has been designed to establish the Quality and Safeguards Commission. It is further intended that the Commission will become the national body for ensuring the delivery of a quality system, while also addressing abuse, neglect, exploitation and violence.

26.

Given the above, a significant challenge in addressing the proposed authorities and responsibilities of the NDIS Quality and Safegards Commission is to seek to identify how this “new” system and approach will be more likely to be successful than the “old” system and approach.

27.

It must be borne in mind, however, that the new system and approach must be designed in such a way, and hence the Bill must support this, so that the platform principles identified above are fully embraced, and not compromised simply to fit what might be described as a “protectionist” model that is more intent on command and control.

Similarities and differences in quality and safeguarding

28.

Therefore, in order to analyse the old with the new, and assess how far advanced the new really is, the writers suggest that as a starting point it is prudent to compare and contrast what might be described as the “old” with the “new”.

29.

Or, in other words, what has and continues to exist at a State level, at least in Victoria, compared and contrasted with what has been proposed in terms of a national framework for quality and safeguards. It should be noted at this point in time that because of their in-depth experience with Victoria’s disability sector the writers have used Victoria as a description of the “old”.

Appendix 1

Individual funding - variations and differences

30.

For ease of reference, the writers have provided the details in a compare and contrast table as per Appendix 1.

31.

To guide the Committee however, the writers highlight the following factors as being significant in that they are essentially common to both frameworks:

• A Code of Conduct
• Provider registration including quality assurance
• A complaints handling system
• Reportable incident notification
• Behaviour support and restrictive practices oversight
• Investigation and enforcement
• Worker screening

32.

Notwithstanding the fact that Victoria’s framework replicates the functions as identified in the NDIS Framework as detailed on page 1 of the NDIS Code of Conduct Discussion Paper, the writers also wish to highlight what might be considered as variations or differences between the two frameworks.

33.

Significantly, in terms of provider registration, in the national system and as identified in the Bill, non-registered providers, including entities and individuals who provide services and supports to NDIS self-managing participants will be required to adhere to the NDIS Code of Conduct and the complaints handling system.

34.

By contrast, in Victoria, if a person with funding via an Individual Support Package chooses to receive services and supports from a non-registered provider, that person is advised they will not be protected by the regulatory mechanisms available if a registered service provider is chosen. Hence, non-registered providers are not subject to the regulatory provisions.

35.

The Chief Executive Officer (CEO) of the NDIA and the NDIS Quality and Safeguards Commissioner will have authority for a broad range of functions. By contrast in Victoria these functions are distributed between the Secretary of the Department of Health and Human Services (DHHS) and a number of identified watchdog entities. Nonetheless the functions in essence reflect the same authority, responsibility and intent. Hence, even under the NDIS there is no single authority.

36.

The question to be now asked is: What then is or might be the significance of the above and Appendix 1? The writers contend that the unequivocal significance is that despite Victoria having had what might be described by some as a comprehensive quality and safeguarding framework for over a decade, there is strong evidence to show that the framework has not always been effective in protecting people with disabilities from abuse, neglect, exploitation and violence because of the failures of people responsible for it.

37.

Minister Porter’s stated in his Second Reading Speech (31/5/2017) that “a series of recent inquiries and reports have documented the weaknesses of the current safeguarding arrangements for disability services, many of which result from a disconnection between quality assurance and oversight regulatory functions …”. Although the various inquiries identified by the Minister “found failures to uncover, report and respond to abuse … “ in Victoria the reality is that there has long been legislated and regulatory requirement to report and respond to abuse and to prevent abuse by ensuring that people with disabilities “live free from abuse, neglect or exploitation”.

38.

The fact that this has not occurred, in many instances cannot be attributed to a failure of the system. This being particularly given that it is not systems that report, it is not systems that

Acknowledging failure

39. The writers contend, based on many years of experience with Victoria’s disability sector, that the real failure has been the failure of people. People in key positions of authority and responsibility who have failed to exercise their mandated responsibilities to uncover, respond and apply penalties.

40. There have been a number of instances where Victoria’s Disability Services Commissioner has sought to conciliate complaints related to abuse. No one with any sense of fairness and the concept of what is right could ever suggest that acts of abuse, neglect, exploitation or violence should ever be conciliated. The Secretary of DHHS in Victoria, despite having significant mandated responsibilities and powers under the Disability Act 2006, has also failed in many instances to exercise her responsibilities.

41. Further, in relation to a well-publicised case of sexual abuse in a funded organisation by the name of Yooralla in Victoria, no one was held to account at Board, CEO and senior management level. Rather than hold anyone to account, the response was to simply tinker around the edges with the organisation’s policies and procedures.

Acknowledging failure

42. The writers could go on and on citing many examples where senior bureaucrats along with Boards and Chief Executive Officers of funded disability agencies have failed to exercise their responsibilities in relation to quality and safeguarding requirements.

43. The only way that the writers can see the national disability framework achieving what those responsible for Victoria’s framework have failed to achieve is by ensuring two key required actions.

44. The first requirement is to ensure that those who have mandated responsibilities for the application and monitoring of the NDIS quality and safeguarding framework are held to account in those instances where transgressions of the framework have been identified but not adequately addressed.

45. The second requirement is mandating and enacting particular sanctions and penalties for those failures identified as being significant transgressions against a person with a disability.

46. The writers argue that for too long senior bureaucrats, Boards, CEOs and senior managers and supervisors have been able to act with impunity, despite their failures to meet the mandated requirements and demands of their positions. As such, this is why the writers submit that mandated penalties should be written into the NDIS Bill.

47. Further on the point of quality and safeguarding, the writers are concerned that there seems to be a myopic view that simply by stating that something should be so, or that there is now a particular rule, standard or law requiring it to be so, this of itself acts as a preventative measure.

48. There are many examples within our society where laws are broken every day, even though the particular law is designed to be preventative. As such, in terms of the Bill, and the broader framework of the NDIS, the writers express significant concern that in focussing on safeguarding, the architects of the Bill and the proposed NDIS Code of Conduct have in effect fallen into the trap of assuming that a greater concentration on safeguarding and protectionism is the best way to go.

49. Yet, the paradox is that the more the concentration on protectionism, the less the focus on the right of the individual with a disability to be accepted in the same way as all other

Fixing the Broken System

Grasping the Concept of Consumer Rights

members of our society and having the same rights and responsibilities, including rights under criminal and consumer laws.

50. A danger therefore that exists in developing the NDIS quality and safeguarding framework, and particularly in establishing command and control mechanisms in that framework, is that the NDIS quality and safeguarding framework runs a significant risk in creating a parallel system of protections and penalties. Therefore the writers urge that in considering the Bill the Committee emphasises the existence of the laws and requirements, processes and practices that provide universal supports and protection.

51. In some ways a fortress mentality has been established where protectionism has been an outcome of the scaremongering that participants in the NDIS run the risk of being abused, neglected, exploited or subject to violence unless there is a safety net thrown over them.

52. The writers urge that the Committee resist the temptation to be seduced into believing that people with disabilities should be treated differently to others in society.

FIXING THE BROKEN SYSTEM

53. Accepting that the broken system recognised failures in quality and safeguards and that Minister Porter in his Second Reading speech noted that the NDIS provides the opportunity for people with a disability to become purchasers and consumers of services from providers, The challenge is therefore to determine how best to fix the broken system while not compromising consumer choice.

54. In order to best address this challenge it is essential that the following concept is acknowledged.

Grasping the Concept of Consumer Rights 55. There can be no debate: people with a disability accepted as participants of and funded through the NDIS for their reasonable and necessary supports, must be accepted as consumers in their own right. And, as already noted further above, they must also be accepted as having the same rights and responsibilities as any other consumer – whether having a disability or not and recognised as being entitled to be protected by consumer law, as are all other consumers.

56. Therefore, what are consumer rights and how do they work?

57. The first factor to acknowledge is that consumer rights are enshrined in federal, state and territory legislation. The significance of this fact being that the legislated protections that apply to all consumers also therefore apply to NDIS participants as consumers.

58. Australian consumer law generally reflects most of the consumer protection provisions in each State and Territory. While the law has a broad definition as to who is a consumer, it does include anyone who acquires goods or services that are priced at less than $40,000.

59. In Victoria, Consumer Affairs Victoria) CAV) administers the legislation and in particular, and as associated with the NDIS, provides information about problems affecting consumers with a disability, how to protect their rights and how CAV can assist them.

60. In addition to the specific consumer legislation, the law also provides protection through the Australian Competition and Consumer Commission (ACCC). The ACCC has significant information on their website for consumers with disability. https://www.accc.gov.au/about-us/information-for/consumers-with-disability

A delicate balance - rights v command and control

• Therefore given the authority now given to the ACCC as regards to people with disability as consumers, there should be no clauses in the existing NDIS Act or the Bill that allows the

NDIS Commission to usurp the authority of the ACCC or to deny people with disability as NDIS participants as consumers seeking retribution through ACCC if they so choose.

• People with disabilities who may wish to raise concerns about the quality of their services and supports, and where such matters come within the jurisdiction of the ACCC, must not be denied the right and opportunity to take their complaints to the ACCC. Indeed, the writers express a grave concern that by creating the NDIS Commission, unless addressed in the Bill the Commission could well operate in such a way that the right of the consumer to access the ACCC in the first instance is denied.

• While the writers acknowledge that part of the function of the NDIS Quality and Safeguards Commission is to investigate complaints relating to providers, there can be no denial or dismissal of the fact that all provider entities are businesses in their own right and therefore are subject to the authority of the Australian Securities and Investments Commission (ASIC).

• Given ASIC’s authority, this of course means that as an independent government body ASIC enforces and administers corporation law and consumer protection law as it relates to a range of financial products. Where a primary purpose of ASIC is to reduce fraud and unfair practices in financial markets and financial products so consumers use them confidently and companies and markets perform effectively.

• Therefore, while it may be that NDIS participants in general may not be so much involved in financial markets and financial products as part of their NDIS funding, nonetheless it should not automatically be dismissed that this could not occur in individual cases. Therefore, the Bill should recognise that ASIC exists and operates as part of consumer protection.

• In addition to the above and as related to entity providers, there is also the Australian Charities and Not-for-profits Commission (ACNC). While the ACNC does not have a consumer objective as involving NDIS participants, Nonetheless It Does Have Regulatory Functions For Some Entities Which Could Be Service Providers.

• The significance of the above is that there is already in existence a range of consumer protection provisions which would now apply to the disability sector and NDIS participants specifically. Therefore, the writers contend that in seeking to make the NDIS Commission as having a broad based authority in relation to NDIS participants, this in effect is contradictory and inconsistent with the concept of consumer rights as an over-arching protection through various legislations and authorities.

• As such, the Committee must fully grasp the concept of NDIS participants as consumers and therefore having the same rights and responsibilities as all other consumers, where their rights are protected through various legislative instruments and authorities. The writers go further and suggest that if the Committee does not embrace the reality of NDIS participants as consumers, and instead allows the Bill to grant the NDIS Commission an authority that already exists in legislation and for other entities, then the rights of NDIS participants as consumers will be minimised.

Page 15

70.

The concept of the dignity of risk, although not new, must still apply today as it did when it was first coined. In essence, and in the context of the NDIS, the dignity of risk suggests that people with a disability should not be placed in cotton wool to the degree where their choice and control is compromised. Thus if it is that the members of the Committee have embraced the platform principles as detailed further above, then in addressing the Bill they must see themselves as having an obligation to challenge those aspects of the Bill that deny those principles.

71.

The writers have detailed in Appendix 2 those clauses in the Bill that they contend are contradictory and inconsistent with the platform principles and therefore as such there is confusion as to just where we stand in relation to protecting rights as opposed to protecting from potential risk.

72.

However, before addressing the specifics of the Bill, the writers raise to the Committee a particular conundrum. That is - Why is it that simply because some people with a disability are allocated government funds in order to become an NDIS participant, they are subject to a regime of controls and restrictions, whereas other groups in our society, who also receive funds from the government, are not subject to any such controls and restrictions?

73.

By way of example, there would be uproar in our society if a government sought to impose controls and regulations on people who received the aged pension as to how they spend it and from whom they choose to receive their goods and services. Equally there would be uproar is a government sought to impose regulations and restrictions on how recipients of the Newstart payment spend their funds.

74.

So it is that simply because a person with a disability is in receipt of NDIS funds they are then treated differently to people with a disability who do not receive NDIS funds and other individuals who are in receipt of government funds.

75.

But of even greater relevance in the context of the NDIS and the Bill, the conundrum becomes even more complex. In relation to those people who receive a Disability Support Pension but who do not receive an NDIS payment, they are entitled to exercise their right of choice and to be responsible for their actions the same as everyone else in society. However, by the inclusion of section 181E(a) and (b) the Bill seeks to impose itself on people with a disability purchasing supports and services outside the NDIS using their own funds

The case of the private provider

76.

The writers highlight for the Committee the question as to whether or not the Bill makes any distinction between registered providers and non-registered or private providers.

77.

By seeking to capture any and all entities and individuals that may provide services or supports to a self-managing NDIS participant, the Bill fails to recognise that other than in those cases where such providers may be what can be called “specialist disability providers”, the undeniable fact is that all these providers are what can be termed private providers who operate in the market-place for all consumers who may seek their services.

78.

The writers also highlight whether or not, in imposing particular requirements on NDIS funded recipients, the control mechanisms are intended to simply ensure that the NDIS participant spends his or her money in accordance with their Plan approval, or whether the real intention is to use the process to monitor providers. Therefore on the matter of what is the real distinction, if any, between NDIS registered providers and non-registered as in private providers, the writers respectfully direct the Committee’s attention to the following four scenarios, noting that these are but four of many thousands of examples that could be described.

• Scenario 1: One or a number of NDS participants, who are each self-managing their funds, and as part of their agreed reasonable and necessary supports choose to have part of their service needs met through a non-registered sports and aquatic facility to perhaps attend the centre’s gymnasium, water based facilities or any one of the other

    activities provided by the facility. Given this scenario, the question therefore arises as to
  how the facility would be monitored in terms of its services to the participant, if indeed it
       did accept the Code of Conduct.  In the case of multiple participants, as in a group of
        individuals choosing to attend the facility, the question arises as to whether acceptance
        of the Code of Conduct is required for each person individually.
  
   -   Scenario 2: An individual NDS participant who self-manages funding has as part of her
      funding support agreement that grooming is a reasonable and necessary support. The
        individual therefore chooses to have her needs attended to at a local hair and beauty
       salon close to her home, which may be in any suburb in any city across Australia, or in
    any town across Australia. Again, the same issues as above arise in this case.
  
   -   Scenario 3: An individual NDs participant who self-manages his funding attends a
        larger town some kilometres from his home.  This transport has been assessed as a
      reasonable and necessary support associated with the participant’s independence.
      Travel to the larger centre is via a public bus company, where the bus drivers operate on
      rostered shifts. Under the proposal is it that each of the bus drivers who may be driving
         at a time when the participant uses the bus service, and the bus company, are each
      required to accept and adhere to the NDIS Code of Conduct?  If however, the drivers and
      the company decline to accept the Code of Conduct, does this therefore mean that the
        participant cannot use his NDIS funds to pay for the trip?
  
             It should be noted, although identified as a possible case scenario, a recent case in the
      Federal Court ruled in favour of a Victorian man who is an NDS participant requiring the
   NDIS pay the person's transport costs. (ABC News Vic, March 2017)
  
   -   Scenario 4: An individual NDS participant who self-manages his funding approaches a
       non-registered service provider requesting services, and advises that the Code of
    Conduct will apply when services are provided.  The potential service provider has
       previously considered becoming registered but on investigation of the compliance
     requirements decided that it was not a good business decision. The potential service
       provider advises the participant that the service provider does not accept the Code of
     Conduct and therefore is not in a position to provide the service. Hence the participant’s
       choice is denied.
  

  79. The above four scenarios are examples of possibly thousands that could be identified in relation to NDs participants choosing non-registered providers, where the providers elect not to abide by the Code of Conduct and the complaints handling system Given such an outcome this means the participant’s choice is denied.

  80. In part, the proposal to require non-registered providers providing services and supports to NDS participants to subject themselves to the NDIS Code of Conduct and the complaints process is simply impracticable, from a workability perspective. However, from the individual NDS participant’s perspective, the proposal is of even greater significance. This being that just as the individual participant is supposed to have a right to choose his or her service provider, equally the provider has a right to deny the provision of services based on the providers unwillingness to accept the NDIS Code of Conduct and the complaints process. Therefore this issue returns us to the beginning of this submission and the matter of choice. In effect, such a scenario means that the NDS participant will, under the Rules of the NDIS, be denied his or her choice.

                                                             16
      

CONCLUDING COMMENT

82.

Thus the contradiction and inconsistency in truly allowing an NDIS participant to exercise his or her choice is compromised when considered in the context of the person with a disability’s right to be treated in the same way as all other members of society - an untenable contradiction and inconsistency.

83.

Safeguards in the context of consumers must be about processes and practices. Yet particular sections of the Bill have skewed the focus towards imposing controls not only on NDIS participants but all other people with a disability who purchase services and supports. There can be little doubt that the policy advisers have sought to deal with the negative publicity concerning abuse, neglect, exploitation and violence perpetrated on people with a disability by in effect placing a protective fence around these people, with the only conclusion being that protection and safeguards are about rules and restrictions.

84.

The real issue to be addressed and as referenced elsewhere in this submission, that of people in positions of responsibility and authority failing to meet their mandated obligations, has been ignored by the Bill. The writers argue that there seems little point in having watchdog entities such as those that currently exist in Victoria if such entities not only fail their duty but they are not then held to account .

85.

The NDIS legislation and the associated Bill must be carefully perused so as to ensure that although well-meaning the intent to safeguard and protect does not become an act of a denial of rights. The writers cannot help but note that the announcement of the NDIS and its introduction was done in haste, that despite the establishment of trial sites little has been revealed as to what lessons came from these trial sites that have import for the current Bill.

86.

The significance of the above is that the Committee must avoid the desire to push this Bill through in its current form simply because there may be pressure to do so, and that the NDIS rollout is well advanced.

87.

No matter how considered, it is reasonable to conclude that the NDIS, the NDIS Commission and all the trappings associated with the Commission, once established, will be in place for many years to come. Therefore all elements associated with the NDIS and the NDIS Commission must be got right from the start.

88.

Unless this Bill is amended in accordance with the proposals made through this submission, getting it right will not be possible.

Appendix 1

Compare and Contrast Victoria’s Current Quality and Safeguarding Framework with the NDIS Quality and Safeguarding Framework

Victoria’s quality and safeguarding framework | National NDIS quality and safeguarding framework

Codes of Conduct and Values Statements -

• A Code of Conduct for Victorian public sector employees (the VPS Code) WHICH requires all Victorian public servants to adhere to its mandated requirements has been in existence for many years.
• The VPS Code addresses seven values and identifies the required behaviours of public servants.
• Some individual funded sector agencies also have their own Code of Conduct.
• In addition to the VPS Code of Conduct, DHHS issued a Vision and Values statement in 2015 and again this statement identifies particular values required to be met by all DHHS employees and contracted agencies.

Code of Conduct –

• A proposed NDIS Code of Conduct is currently in development stage, with a Discussion Paper for public consultation having been issued.
• Page 9 of the Discussion Paper identifies nine proposed requirements.
• The Code is intended to apply to all NDIS entity and individual providers.
• Requirements of the Code will be mandated in law.
• The intention is that the Code of Conduct will apply to non-registered providers who may provide services and supports to self-managing NDIS participants.

Community Visitors –|Community Visitors - Inspectors –

• Refer to section on Public Advocate
• At this stage there has been no decision as to whether Community Visitors will be part of the framework and if so the organisational structure and management control of these people.
• NDIS Inspectors are proposed under the Bill with the power to visit service providers and make reports.

Complaints mechanism -(also see Disability Services Commissioner (DSC) below)|Complaints mechanism –

• In addition to the DSC, people with disabilities or their representatives can lodge complaints about the quality of services and practices to the DHHS complaints and privacy unit, as well as the relevant funded agency.
• Complaints are recorded on an annual basis in the DSC annual reports.
• Funded service providers are required to have a complaints mechanism.
• The Bill provides for complaints to be made to the NDIS Quality and Safeguards Commission.
• A part of the registration of provider entities is the requirement that entities have established a complaints mechanism.

Disability Advisory Council – |Ministerial Council –

• Is a Ministerial advisory body.
• Section 12 of the NDIS Act provides for the establishment of a Ministerial Council.
• The Council has responsibility to consider policy matters as related to the NDIS, advise the Minister on such matters, make

Disability Services Board

Recommendations to COAG about such matters.

Disability Services Board –

• Appointed by the Minister for Disability and includes persons with a disability.
• The Board oversees the functioning of the DSC and advises the Minister on the disability complaints system.

Disability Services Commissioner (DSC)

Plays a key role in complaints management as:

• Investigating complaints relating to disability services.
• Reviewing and identifying causes of complaints.
• Inquiring into matters referred by the Minister.
• Publishing information about complaints.
• Where appropriate conciliating complaints.
• Determining action to be taken by a service provider where a complaint has been found to be justified.
• Reviewing certain incident reports.

Disability Workers Exclusion Scheme –

• Has been in existence for a number of years and operates through DHHS.

Screening and Banning of Workers –

• The Bill, section 73ZN, makes provision for what are called banning orders.
• Such orders are to be applied to both entities and individuals where a prohibition or restriction can be applied on the employment or engagement of the entity or individual in NDIS activities.
• The Bill in section 181F also covers the screening of workers.

Financial Administrators -

• Are appointed by VCAT to manage the financial affairs of a nominated individual with a disability.
• Administrators are required to make financial returns annually to VCAT.

Nominees

• The NDIS Act makes provision for a participant’s NDIS funds to be managed by a registered plan management provider, the NDIA or a plan nominee appointed by the NDIA.

Guardianship -

Guardianship –

• Appointments are made by VCAT and may be limited to particular responsibilities or the guardian may be appointed as a plenary guardian.
• In the NDIS Act section 75(3A) makes reference to children and guardianship. And section 88(4) to guardianship and the appointment of a nominee of a participant.
• The reasonable assumption is that guardianship will continue to be a state or territory jurisdictional authority.
• Given that guardianship is not limited to people with disabilities, it is also therefore reasonable to assume that this will not and should not be a jurisdictional matter for the NDIS Q&S Commission.

Individual Support Package (ISP) financial arrangements –

• ISPs as financial allocations to individuals with a disability have operated in Victoria since 2003.
• People with an ISP people are able to choose their service providers, and have a choice as to financial arrangements for payment.
• People who choose to use non-registered service providers are advised they do not have access to the DSC complaints mechanisms.

Reasonable and necessary support financial arrangements –

• Individuals accepted as NDIS participants are provided with funds to meet their agreed reasonable and necessary support needs, which are identified in the individual’s plan.
• The funds are specific to the individual only and relate to specific types of services and supports.
• Of the four fund management options, in the case of a participant choosing to manage his or her own funds, then that participant has the option of purchasing supports and services from an entity or individual who is not registered with the NDIS.
• A matter disputed by the writers is the proposal to require non-registered provider entities and individuals to be subject to certain rules.

Penalties, Response Actions and Sanctions

Penalties, Response Actions and Sanctions The system in Victoria provides for a range of options in response to transgression of standards and breaches of duty of care and responsibilities to people with disabilities.

• The DHHS Secretary can withdraw funds and deregister funded non-government service providers.
• The DHHS Secretary also has power under industrial agreements and individual contract provisions as well as the VPS Code of Conduct to impose sanctions against his or her employees.
• The DHHS Secretary can take action to exclude disability workers and place them on the Disability Workers Exclusion Register.
• The DHHS Secretary, under the provisions of the Public Administration Act 2004 (s.33), can terminate the employment of DHHS staff.
• The Disability Act 2006 provides the authority to impose penalty units associated with breaches of the Act.
• The Minister can defund funded providers and terminate contracts. Note: Media report (4/7/2017) on the ABC 7.30 report, the Minister announced such action being taken against Lifestyle Solutions.
• The Public Advocate can initiate own motion investigations and make recommendations in relation to outcomes of such investigations.
• The DHHS Secretary, all DHHS employees and management and staff of funded agencies have an obligation to report alleged criminal matters to the police.
• The DSC can publicly name entities, including DHHS, who have breached their obligations under the Disability Act 2006.

Public Advocate -

• While having authority to enable the making of guardianship orders and administrative orders at VCAT, significantly as related to the NDIS participants, can investigate any complaint or allegation that a person is under inappropriate guardianship or is being exploited or abused or in need of guardianship.

• The Public Advocate has the power of inspection of institutional premises.

• Community Visitors who come under the jurisdiction of the Public Advocate also have the power of inspection of disability residential accommodation.

Quality Audits - Quality Audits –

• These are undertaken in Victoria with funding provided by the DHHS to fulfil the Secretary’s monitoring function.

• The Bill proposes conditions around quality audits in section 73G and these are part of the registration requirements.

• As part of the regulatory functions of the NDIS Commission, the Commissioner is primarily responsible for managing NDIS Practice Standards and certification and monitoring provider compliance

Registration of Service Providers - Registration of Service Providers

• Disability Service Providers can apply to DHHS for registration and if approved are registered by the department.

• Providers as either entities or individuals may apply to the NDIS Commission for registration as a provider under the NDIS.

• Provider registration is subject to particular rules and requirements and is specifically detailed in Part 3A of the Bill.

Secretary of the Department of Health and Human Services -

• Under the Disability Act 2006 has significant responsibilities and powers, not only relating to the services provided by her department to people with disabilities but also in relation to the funding and contracting of funded sector disability entities.

Senior Practitioner - Behaviour Support

• The functions and authorities of the senior practitioner is established under the Disability Act 2006 and is significant in the approval and monitoring of restrictive practices.

• The Commissioner’s behaviour support functions (section 181H) encompass a similar range of authorities and responsibilities as Victoria’s Senior Practitioner.

Standards - Standards –

• A set of Human Service Standards that are gazetted.

• They represent a single set of service quality standards for department funded service providers and department-managed services.

• An independent review process that seeks to ensure that people with a disability experience the same quality of service, no matter which service provider they access, is used to monitor the implementation of the standards.

• The standards are supplemented by a Human Services Standards policy that sets

Page 23

out the requirements for department applied in Victoria. funded service providers that receive • Further on the matter of standards, funding under the Disability Act 2006. although detailed further above, the writers emphasise that as yet there appears to be no clarity as to the status of entities funded by the NDIA under Chapter 2 of the NDIS Act. This lack of clarity relates to whether or not such entities will be required to be registered and if not whether the standards will be applicable to such entities.

• Victorian Civil and Administrative Tribunal Appeal mechanism - (VCAT) -

• The Bill provides for the Commission to refer particular matters to other jurisdictions, for example, civil courts, or professional registration bodies

• Section 99 of the Bill covers reviewable decisions and section 103 provides for application to the Administrative Appeals Tribunal.

• Victorian Ombudsman - Commonwealth Ombudsman –

• Has a legislated authority to inquire into or • Has a legislated authority to investigate investigate administrative actions taken by complaints about actions and decisions or in an authority. about Australian Government agencies in

• The Ombudsman’s role is to investigate the order to determine whether the actions of decisions and actions of Victorian a particular agency are wrong, unjust, government bodies. unlawful, discriminatory or unfair.

• The Ombudsman seeks to ensure the • Notwithstanding the above, there is no highest possible standards of public sector reference in the Bill to the Commonwealth service delivery to all Victorians. Ombudsman as providing an avenue for

• May inquire into or investigate matters people to take up complaints about the incompatible with the Charter of Human NDIS Quality and Safeguards Commission. Rights and Responsibilities Act 2006. • There is an assumption that State and

• Must notify the IBAC of particular types of Territory Ombudsman will continue as matters referred to the Ombudsman their brief is not limited to people with

• Has significant investigative powers and disability. privileges.

Appendix 2:

The Bill - Contradictions and Inconsistencies

Page 25

                            providing services and supports to
                        NDIS participants.
                                (a) should be changed to add the
                           words "by registered
                                 providers"
                              (b) should be changed to
                             "managing and resolving
                               complaints about registered
                           NDIS providers".

            7          Part (a) of this proposed            As above.
                    amendment is appropriate because
                           as identified in (a)(i) and (ii) the
                      NDIS does have the option of
                          providing funding other than to
                      NDIS participants.
                       However, part (b)(i) and (ii) should
                       be deleted as they go beyond the
                         concept of registered providers or
                          providers as per (a) (i) and (ii).
                                   Essentially, the concept of NDIS
                      provider as a definition should be
                       deleted and instead be replaced
                     with NDIS registered provider.

           11           Clearly, the insertion of the words    While supporting this inclusion with
          Registered NDIS   "registered" and "registered NDIS     the variation on the order of words,
              provider       provider" demonstrates the intent     this amendment highlights
                                  to identify those providers who are   contradictions and inconsistencies in
                                   registered.                         attempting to have "registered
                                This wording should be amended as   providers" and then what are called
                               per 7 above, to read "NDIS            "providers" – a critical issue that
                                  registered provider".                cannot be ignored.

           12         12(a) should be changed to insert     This proposed amendment not only
                             the words "registered provider" so     is contradictory by not inserting the
                                             it reads "an NDIS registered         words as identified, but in effect is
                               provider."                              unintelligible and is far from user
                                                                           friendly.

           15        With reference to 10(A) and the      Given that Western Australia has
                                definition of 'participating            elected to be outside the NDIS,
                                  jurisdiction' this simply constitutes   suggest the wording should be
                           a set of words that makes no sense.   changed to "participating State and
                                                                   Territory jurisdictions". Further,
                                                                     that this revision should also be
                                                                included in the definition.

           21        Note the inappropriate use of "NDIS   Reference previous comments as to
             Section 55A     provider" as in 55A (1) and (2) –      the use of the terminology "NDIS
                           should be changed to NDIS            Provider".
                              registered provider.

       48 - Part 3A – NDIS Providers – NB: The heading should be amended so it refers to NDIS
          Registered Providers
              73A(c)       This section should be deleted.      As above.
                                                                 25

Page 26

Section: Definitions and Restrictions Related to Specified Classes of Supports

Clause Reference: 73(B)(1) and (2)

The use of “specified classes of supports” is not defined but more importantly the provision of such supports is restricted to registered providers only. Although an NDIS participant who self-manages his or her funds has the right to choose to use a provider who is not registered with the NDIS, in those cases where the reasonable and necessary supports may include “specified classes of supports”, this means that the participant’s choice is restricted to a registered provider only, albeit that the participant had elected in the first instance to use a provider who is not registered with the NDIS. This is a total contradiction of the right of choice and the dignity of risk.

Section: Amendment Recommendation for Clause Referring to Non-NDIS Individuals

Clause Reference: 73(c)(2)

This section should be deleted as it refers to “other than under the National Disability Insurance Scheme.” The legislation is specifically about the NDIS yet this amendment makes reference to people with a disability who are not subject to the NDIS.

Section: Deletion Recommendations Based on Inconsistencies

Clause References:

- 73E(2)(d):

Should be deleted on the basis that “other than under the National Disability Insurance Scheme” should not exist.

- 73E(5)(a)(iv): As above

Division 4 – NDIS Code of Conduct

Clause Reference: 73V(1) and (2)

These sections should only apply to NDIS registered providers whether they are entities or individuals.

Division 5 – Complaints Management and Resolution

Clause Reference: 73X(1) and (2)(b)

Should only apply to NDIS registered providers whether they are entities or individuals. Should be amended to read “NDIS registered providers”.

Division 6 – Incident Management – Registered NDIS Providers

Clause Reference: 73Y and Z

Accept the inclusion of these two amendments. These amendments highlight the inconsistencies and contradictions where elsewhere in the Bill impositions are placed on what have been termed “providers”, yet the imposition of the incident management system and reportable incidents is limited to NDIS providers only.

Clause Reference: 73Z(4)

The section fails to include transgressions of the Code of Conduct, no matter what, as constituting a reportable incident. The section should be amended to include breaches or transgressions of the Code of Conduct.

Division 7 – Protection of disclosers

73ZA(1) and (2)

All references to “NDIS provider” or “provider” should be amended to read “NDIS registered provider“.

Division 8 – Compliance and enforcement

73ZM(1) to (5)

All references to “NDIS provider” or “provider” should be amended to read “NDIS registered provider“.

73ZN(1)

All references in this section “NDIS provider” or “provider” should be amended to read “NDIS registered provider“.

Division 9 – NDIS Provider Register –NB: The heading should be amended to read NDIS Registered Provider Register

73ZS

All references in this section “NDIS provider” or “provider” should be amended to read “NDIS registered provider“.

A register which “registers” all entities and individuals which provide services to people with disability, yet some are “registered” and some are “not” is inappropriate for an Act that is specific to the National Disability Insurance Scheme and the relationship of NDIS funding to NDIS participants and registered providers.

60 - Chapter 6A – NDIS Quality and Safeguards Commission

181E(a)

Reference to “people with disability receiving supports or services” is unambiguous in its intent that the Commissioner has an overall core function related to any person with a disability in Australia receiving supports and services from anyone and in any form. This should be amended to read “to uphold the rights of and promote the health, safety and well-being of all NDIS participants or those receiving supports from entities and individuals funded under Chapter 2 or funded in some other way by the NDIS“. Note: Although the writers recognise that Australia is signatory to the UN Convention on the Rights of People with Disability and that the Convention includes the upholding of rights of and promoting the health safety and well-being of people with disability, the writers argue that it is neither appropriate nor feasible that a single agency, as in the NDIS Commissioner, is given the authority and responsibility to ensure the upholding of certain parts

Page 28

Given that the NDS is specific to of the Convention. For the people with a disability who are of the Convention to be upheld, this funded through the NDS or use services and supports funded through the NDS, this should not have an obligation and responsibility to meet be taken to mean that the NDS Act to ensure the upholding of the Convention for all does becomes the vehicle through which persons with a disability in Australia, in order to fulfill Australia’s it requires all individuals and entities responsibilities under the that have dealings with any person Convention. with a disability to have an To include this function within the obligation and responsibility to meet Commissioner’s core functions takes The concept of “a nationally this far beyond the scope of the consistent approach” infers that NDIS. is some leeway. As such, it The concept of “nationally should be changed to read consistant” in effect contradicts the “nationally mandated” approach. fact that the scheme is a “national“ as above scheme and as such is mandated as a reference to “people with disability national scheme. Again, the notion receiving supports and services” of seeking to capture all people with should be deleted and reference a disability as being an individual in should only be made to NDIS his or her own right, as in a natural participants or those receiving person, and hence having the right supports from entities and to come under the overall individuals funded under Chapter 2 jurisdictional control, albeit via a or funded in some other way by the core function, of the Commissioner. NDS”. When considered in its entirety this section is suggesting that any person with a disability who is receiving supports or services in any form, whether from a mainstream provider or individual is to be subject to the control of the Commissioner. This constitutes a form of social engineering and control.

181E(b) The concept of “a nationally The concept of “nationally consistent approach” infers that consistent” in effect contradicts the there is some leeway. As such, it fact that the scheme is a “national“ scheme and as such is mandated as a should be changed to read national scheme. Again, the notion “naturally mandated” approach. of seeking to capture all people with Reference to “people with disability a disability as being an individual in receiving supports and services” his or her own right, as in a natural should be deleted and reference person, and hence having the right should only be made to NDIS not to come under the overall participants or those receiving jurisdictional control, albeit via a general supports from entities and core function, of the Commissioner. individuals funded under Chapter 2 or funded in some other way by the NDS”. When considered in its entirety this section is suggesting that any person with a disability who is receiving supports or services in any form, whether from a mainstream provider or individual is to be subject to the control of the Commissioner. This constitutes a form of social engineering and control.

181E(c) This should be changed to read As above “NDIS registered providers”. Reference to “people with disability receiving supports and services” should be deleted and reference should only be made to NDIS participants or those receiving supports from entities and individuals funded under Chapter 2 or funded in some other way by the NDS).

             181E(e)      As above                        As above
              181E(f)       Reference to "the screening of        This clause should be changed to
                         workers involved in the provision    read "the screening of workers
                                of supports and services to people    employed by NDIS registered
                           with disability" is unambiguous in    providers or agencies receiving
                             requiring any person who provides   funding under Chapter 2 of the NDIS

supports and services, even where Act and who provide services to that person is employed by a NDIS participants only.” private or mainstream business, and also includes any person with a disability. This clause contradicts the intent of the NDIS.

181F All clauses in this section, that is (a) As with other parts of the Bill, it is to (f) inclusive, should only refer to essential to ensure that there are no NDIS registered providers, ensuring inconsistencies and contradictions that there is consistency with all caused by going beyond NDIS other sections referenced in this registered providers and NDIS part. participants or those people with a disability receiving supports from entities and individuals funded under Chapter 2 or funded in some other way by the NDIS.

181G All clauses in this section, that is (a) As above to (e) inclusive, should only refer to NDIS registered providers, ensuring that there is consistency with all other sections referenced in this part.

181H All clauses in this section, that is (a) As above to (e) inclusive, should only refer to NDIS registered providers, ensuring that there is consistency with all other sections referenced in this part.

MATTERS TO BE CONSIDERED FOR INCLUSION IN THE BILL

The writers submit that the Bill is deficient by not including the following. Thus they contend that consideration should be given to such inclusions.

Section Inclusion Rationale 181T(2) Suggest the inclusion as in The Commissioner’s holds 181T(2)(d) “The Commissioner’s a significant position. He/she must performance fails to meet the therefore be subject to performance requirements designated by his scrutiny on an ongoing basis, with an role’. annual review.

Annual Report of The Bill makes no provision for an The activities and performance of Commission Annual Report to be issued by the the Commission should be open to Commissioner. This should be public scrutiny. This should be included as part of the Bill in an through an annual report tabled in appropriately designated section the Federal Parliament and made available to the public. This is a standard practice and requirement of heads of government departments and other government agencies

29

Corporate Plan

The Bill makes no provision for the It is a standard requirement for heads of government department’s at federal and state and territory levels as well as heads of major 政府实体 to be required to produce a future oriented plan, agest 对于 which performance can be measured over time. Therefore given the significance of the Commission this should also apply to the Commission.

要求委员长制定三年期的企业计划 be incorporated in the legislation at an appropriate place.

Appendix 3:

An Overview of the Submission’s Authors

Jointly and individually the authors come to this consultation with a wealth of relevant direct experience and understanding of the disability sector and the issues assocaiteed with abuse, neglect and exploitation of people with disabilities. Significantly, the authors also have extensive experience in the monitoring and evaluating the development of quality and safeguarding processes and practices and how these have generally failed.

As colleagues in a boutique business that specialises in investigations, mediations, facilitated discussion and advocacy for people with disabilities and their families, their activities have brought them into direct contact and involvement with activities and entities associated with quality and safeguarding.

Of particular significance in the context of the NDIS and the Bill they have monitored and assessed the failure of systems and people to ensure quality services and supports and to address what can reasonably be concluded to be increasing abuse, neglect and exploitation of people with disabilities and their families. Of partcular import they have advoacted for people with disabilities and their families with Victoria’s Ombudsman, the Public Advocate the Disabilty Services Commissioner, senior managers in the Department of Health and Human Services and representatives of funded disability agencies.

Ms Ryan has been involved in the disability sector for 25 years. She has a background in research and analysis of public policy, submission writing on contemporary matters in the disability sector and a familial involvement in disability.

Mr Jackson has been involved in the disability sector for just over five decades. As a qualified special education teacher, as a former Chief Executive Officer of a large disabilty institution, senior manager in regional services and consultant to the sector, he has had a front row seat to the failures which have occurred over the past three decades in authorities seeking to establish an effective, workable approach to quality and safeguarding. Direct involvement with Victoria’s Department of Health and Human Services, Victoria’s Disability Services Commissioner, Victoria’s Public Advocate and Victoria’s Ombudsman has highlighted how all these entities and individuals have either at times ignored their legislative mandates or failed to address head on the issues of abuse, neglect and exploitation of people with disabilities and their families.

The combination of the above and the failure of the Bill to acknowledge platform principles and partcular clauses in the Bill going outside the NDIS has therefore led the writers to title their submission as one of the Bill representing contradictions and inconsistencies that create confusion.