Submission 589 — Victorian Equal Opportunity and Human Rights Commission — National Disability Insurance Scheme Bill 2012 | External submission

National Disability Insurance

Scheme Bill 2012

Submission to the Senate Community Affairs

Legislation Committee

January 2013

Prepared by the Victorian Equal Opportunity and Human Rights Commission 1

Introduction

The Victorian Equal Opportunity and Human Rights Commission (the Commission)

welcomes the opportunity to make a submission to the Senate Standing Committee on Community Affairs in its inquiry regarding the National Disability Insurance Scheme Bill 2012 (NDIS Bill).

The Commission is an independent statutory body that has functions under the Equal Opportunity Act 2010 (Vic), the Racial and Religious Tolerance Act 2001 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Commission’s functions include dispute resolution, providing education about human rights and equality of opportunity, undertaking projects and activities aimed at eliminating discrimination and promoting human rights, conducting research, and providing legal and policy advice. In addition, the Commission has a role in reporting to the Attorney-General on the operation of the Charter and, at the request of public authorities, conducting compliance reviews.

The Commission undertakes specific projects and activities aimed at eliminating disability discrimination and promoting the rights of persons with disability. The Commission has a Disability Reference Group to support its work and to enable the Commission to hear directly from people with disability. The Group, which includes members who have direct experience of disability, parents of children with disability, and service providers and advocates, provides guidance to the Commission, advice and assistance on the development of policies and procedures and a user perspective on the Commission’s Strategic Plan. Recent reports released by the Commission in this area include Desperate measures: The relinquishment of children with disability into state care in Victoria (May

and Held back: The experiences of students with disabilities in Victorian schools (Sep 2012).

Summary The Commission strongly supports the establishment of a National Disability Insurance Scheme (NDIS) to provide a rights-based model of disability services that has immense potential to better meet the long-term needs of people with disability, their families and carers.

The Commission welcomes the launch of the scheme in the Barwon region of Victoria in July 2013 and takes this opportunity to comment on issues raised by the NDIS Bill including:

the interaction between the NDIS and state and territory human rights protections and their application to registered providers of supports under the NDIS;
the legal obligations that must apply to registered providers of supports if the rights of persons with disabilities recognised in the Convention on the Rights of Persons with Disabilities (CRPD)1 are to be protected and promoted; and
areas of concern with respect to protecting the rights of particular groups, including families and carers, children, persons from culturally and linguistically diverse backgrounds, older people and non-citizens.

1 United Nations Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 611 UNTS, entered into force 3 May 2008.

Issues 3.1 Obligations of registered providers of supports

3.1.1 Distinction between service standards and legal obligations and the application of state and territory laws

The NDIS Bill provides that the NDIS rules may prescribe criteria relating to compliance with prescribed safeguards and compliance with prescribed quality assurance standards and procedures.

The Commission appreciates that certain operational aspects of the NDIS will be provided for in the NDIS rules. Progressive implementation of the NDIS means that complete nationally consistent standards applying to all registered providers of supports will be developed by the NDIS Launch Transition Agency (Agency) over time, with reference to the learnings in each host jurisdiction during the first stage of the NDIS in each launch site.

It is important to note however, that while service standards provide some protection to NDIS participants they do not have legal force. It is therefore very important that there is provision under the NDIS rules to specify that registered providers of support, depending on what jurisdiction they are operating in, be required to comply with the laws that apply within that jurisdiction.

Victoria’s legal framework includes the specific legislative protections for people with a disability that are contained in the Disability Act 2006 (Vic) (Disability Act), Mental Health Act 1986 (Vic) (currently under review), and the Guardianship and Administration Act 2006 (Vic). The important oversight mechanisms that apply to disability service providers by reason of the Disability Act include:

A Disability Services Commissioner to investigate and conciliate complaints relating to disability services and to report annually to the Victorian Parliament (Division 3 of Part 3).
A Senior Practitioner responsible for ensuring the protection of people’s rights who are subject to restrictive interventions and compulsory treatment (Division 5 of Part 3).
Community visitors managed by the Office of the Public Advocate. Community visitors may inspect premises that are residential services within the meaning of the Act (Division 6 of Part 3).
A requirement for the Minister to determine standards to be met by disability service providers in the provision of services under the Act (Division 3 of Part 6).2
A requirement for disability service providers to institute and operate a complaints system and annually report on complaints to the Disability Services Commissioner (Division 5 of Part 6).

Additionally, as providers of services within Victoria, all providers of disability services in that jurisdiction have to do so in compliance with the Equal Opportunity Act 1995 (Vic)

2 The current standards are the Department of Human Services Standards, which have applied since 1 July

Under the Standards, funded organisations are required to be accredited by a Department endorsed independent review body once every three years and need to demonstrate compliance with the Standards.

(Equal Opportunity Act) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter).

Under the Equal Opportunity Act, people with disability in Victoria are protected against discrimination in all areas of public life, including service provision. It is unlawful under that Act to treat a person unfavourably because of their disability or to impose an unreasonable requirement or a condition that is likely to have the effect of disadvantaging people with a specified attribute. The Equal Opportunity Act also places a positive duty on persons, in providing services, to take reasonable and proportionate steps to eliminate discrimination as much as possible.
The Commission’s previous submissions have highlighted that one of the most striking examples of domestic human rights protection that Victorians enjoy is the Charter. Like the CRPD, the Charter treats people not as objects of social protection but as subjects with rights and takes a person with a disability to be someone ‘born free and equal in dignity and rights’.3 It places a duty on all Victorian public authorities to act compatibly with human rights and to take human rights into account when making decisions. It requires public authorities to consider whether their decisions and actions limit human rights and whether any limits are necessary and the least restrictive possible. The Victorian Department of Human Services and its employees are public authorities under the Charter.4 Non-government disability service providers may also be public authorities under the Charter, which means they must act compatibly with human rights and take rights into account when making decisions, including when planning support.5

Recognising the importance of these protections, the Commission considers that the NDIS Bill could potentially include an avoidance of doubt provision clarifying that state and territory laws apply.

It is crucial that registered providers are fully aware not just of service standards (which have no legal force) but also of legislative requirements and the rights of people with disabilities that must be accorded in the jurisdictions they are operating in. This will require an effective communication and enforcement strategy with emerging providers under the NDIS scheme (who may not have delivered disability services in the past and may be unfamiliar with obligations under these Acts).

Recommendation 1 – The NDIS Bill should be amended to include an avoidance of doubt provision, clarifying that state and territory laws apply to registered providers of services under the NDIS. The Commission highlights the need for an effective community engagement strategy with new providers of disability services to ensure they are aware of their legal obligations.

3 The Victorian Supreme Court in Patrick’s Case [2011] VSC 327 at [130]-[137] and [333] reflected on the paradigm shift in approach to people with a disability that was marked by the entry into force of the CRPD. 4 See Charter of Human Rights and Responsibilities Act (2006), s 4(1). 5 Under s 4(1)(c) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), where the provider falls within the definition of “an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise).”

3.1.2 Ensuring coverage

While Victoria’s legal framework will apply to the first stage of the NDIS operating in the Barwon area of Victoria,6 there may be providers of supports that do not fit neatly within this framework and that may not be subject to adequate oversight.

Even within the current Victorian legal framework, there remain service providers that are not subject to sufficient regulation or oversight.7 To ensure there are no gaps in the regulation of providers registered under the NDIS at the launch stage, certain monitoring arrangements must be put into place that will apply to all registered providers of supports.8

The Commission supports the submission of the Victorian Office of the Public Advocate that a scheme should be in place for the monitoring of registered providers of supports prior to the July 2013 launch. This will also enable the test sites to provide the Agency with the best information possible about how the NDIS is operating in practice.

As recommended by the Victorian Office of the Public Advocate, this should incorporate a role for a community visitor program such as that currently managed by the Victorian Office of the Public Advocate under the Disability Act 2006 (Vic).

Recommendation 2 – In support of the recommendation of the Victorian Office of the Public Advocate the Commission recommends that, in Victoria, a clear scheme be in place for the monitoring of registered providers prior to the launch of the NDIS in July 2013 incorporating, at a minimum, a community visitor program.

3.1.3 Emerging providers

Ensuring adequate oversight is particularly important as the market develops new forms and suppliers of services during the trial. This will include new private and community service providers but could also include arrangements where parents or carers engage themselves or family members to provide supports. While it is not clear how such arrangements might work within the NDIS scheme, consideration needs to be given to how such arrangements should be regulated without imposing an unnecessary burden on families and carers. In developing the NDIS rules in relation to registered providers, consideration must be given to appropriate processes for registration and clarification of how oversight mechanisms would work in such circumstances, including the interplay with existing state legislation.

6 By reason of the Bilateral Agreement for the NDIS Launch between the Commonwealth and Victoria. 7 For example, while it is a function of the Victorian Disability Services Commissioner to investigate complaints relating to disability services (see section 16 of the Disability Act 2006 (Vic)), this protection only applies to services that meet the current definitions of “disability service” and “disability service provider” in the Disability Act. This means that private organisations who are not registered disability service providers but who may provide services to people with disabilities fall outside the jurisdiction of the Victorian Disability Services Commissioner. 8 As highlighted in the Intergovernmental Agreement for the NDIS Launch and the Bilateral Agreements for the NDIS Launch between the Commonwealth and Victoria, it is important to use the first stage of the NDIS to test central aspects of the scheme, test the boundaries and interface between the scheme and mainstream services, test the development of an effective market for disability services and test the effectiveness of the legislative framework itself and the other governance arrangements that are put into place.

3.2 A robust complaints system and availability of individual and systemic advocacy

Vulnerable people within the disability system already face challenges asserting their rights and making complaints about the quality of services provided to them. Too frequently, people are not empowered to take steps to complain about or report service providers or they are apprehensive to do so as they fear there will be negative repercussions such as service withdrawal.

The NDIS must be supported by a comprehensive complaints system for participants to bring complaints against both registered providers of supports and the Agency.

In developing the NDIS rules prescribing the process for handling complaints, it must be recognised that if the process is to be meaningful, there must be appropriate resourcing of individual and systemic advocacy to support complainants in this process.

Recommendation 3 – A complaints system for participants to bring complaints against registered providers and the Agency must be established as a matter of priority. For such a system to be meaningful and effective there must also be appropriate resourcing of individual and systemic advocacy.

3.3 Ensuring registered providers of supports are appropriately skilled

The NDIS Bill provides that support providers who receive payments directly from the Agency must be registered by the CEO in accordance with criteria specified under the NDIS rules. The CEO may approve a person or entity as a registered provider if they meet the criteria prescribed in the NDIS rules (clause 70). The scope of criteria that the NDIS rules can prescribe is provided for in clause 73.

To ensure the NDIS is as beneficial as possible to participants in the scheme, it is essential that persons and entities are assessed and confirmed to be appropriately skilled to provide the service before they are registered. For example, a respite provider for children and young people will require specific skills in working with children, as distinct from providing these services to adults. Specialist skills in working with adolescents who display challenging behaviours may also be relevant in some settings.

So that the NDIS rules are able to prescribe criteria for providers to be assessed as appropriately skilled, the Commission considers that clause 73(1)(c) of the Bill should make express reference to skills as well as qualifications.

Recommendation 4 – To ensure that the NDIS rules are able to prescribe criteria for providers to be assessed as appropriately skilled, the Commission recommends that clause 73(1)(c) be amended to refer to skills as well as qualifications. 3.4 Protecting the rights and meeting the needs of particular groups

3.4.1 Supporting families and carers with responsibilities for children

In relation to participants’ plans, the Commission welcomes the inclusion of principles to guide the preparation, review and replacement of participant’s plans and the management of the funding for supports under a participant’s plan.

Regarding the principle currently expressed in clause 31(d) of the Bill to “where possible, strengthen and build capacity of families and carers to support participants who are children”, the Commission recommends strengthening this principle by removing the phrase “where possible”. Already these principles are cast as principles to be applied “so far as reasonably practicable”.

Although small, this change better gives effect to the obligation in Article 23(3) of the CRPD to provide early and comprehensive information, services and support to children with disabilities and their families with a view to ensuring that children with disabilities have equal rights with respect to family life. It also gives better effect to the right of families and children to protection by society and the state provided for in Article 23(1) of the International Covenant on Civil and Political Rights and recognised in Victoria in section 17(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Recommendation 5 – The principle in clause 31(d) of the NDIS Bill, providing that the process around participant’s plans and funding management should, “where possible, strengthen and build capacity of families and carers to support participants who are children”, should be strengthened by removing the phrase “where possible”.

3.4.2 Protection of the best interests of the child

The Commission welcomes the promotion of the rights of children in Part 4 of the NDIS Bill, in particular in its promotion of the rights of children with disabilities as set out in Article 23 of the Convention on the Rights of the Child (CRC) and the rights of the child to have their views given due weight in accordance with the age and maturity of the child as enshrined in Article 12 of the CRC.

However, the Commission is concerned that the duties of a person who may act on behalf of a child or children do not refer to the best interests of the child principle protected and promoted in Article 7 of the CRPD, Article 3 of the CRC and, in Victoria, in section 17(2) of the Charter. Rather, the Bill provides that a person acting on behalf of a child has a duty to ascertain the wishes of the child participant and act in a manner that promotes the “personal and social well-being of the child” (clause 76). While this term may be appropriate for adults with disability, the correct principle to apply for children is best interests.

The experience in Victoria is that the system can all too easily fail children if there is not a reference to acting in the best interests of children in disability legislation. For example where families are forced to relinquish care of their child when appropriate disability supports are not provided in the quantum or timeliness required. The Commission has previously recommended that the Disability Act 2006 (Vic) be amended to include a provision that, when delivering services to children, the best interests of the child are paramount and must be observed at all decision-making points.

When acting on behalf of children and when delivering services to children under the NDIS, the best interests of the child must be a primary consideration. The Commission considers that, in line with Article 7(2) of the CRPD which creates an obligation that “in all actions concerning children with disabilities, the best interests of the child shall be a primary consideration”, clause 76 be amended to include express reference to the best

interests principle. The Objects of the Bill could also be amended to reflect this principle in regards to children.

Recommendation 6 – Clause 76 should be amended to include an express reference to the best interests principle. This is consistent with the right in Article 7(2) of the CRPD that “in all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.” Respect for the evolving capacities of children with disabilities and respect is recognised Articles 3 and 7(3) of the CRPD. Article 3(h) recognises as a general principle, “the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities”. Article 7(3) is concerned with ensuring children with disabilities have the right to express their views freely on all matters affecting them, ensuring that their views are given due weight in accordance with their age and maturity, and that they are treated on an equal basis with other children. It requires that children must be provided with disability and age-appropriate assistance to realise that right. The NDIS Bill defines a child as a person under 18. The Commission considers that the NDIS Bill could go further to recognise that the needs of children and young people are distinct at different ages and stages of their development. For example, the requirements of a child under age six are significantly different to the requirements of young people aged 15 to 17, and services must be delivered to children taking those differences into account.

The Commission considers that the rights of children could be better recognised in the Bill by including “respect for the evolving capacities of children with disabilities” as a general principle in clause 4 of the Bill.

Recommendation 7 – Consistently with Article 3 of the CRPD, the Bill should include “respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities” as a general principle guiding actions under the Act.

3.4.3 Equitable access to care for older people with disabilities

The age requirements in clause 22 of the NDIS Bill mean that people who acquire a disability over the age of 64 are denied access to the NDIS.

While the Commission appreciates that the NDIS is designed to work in conjunction with existing mainstream and specialist providers, in enacting this requirement, it must be recognised that the aged care system is designed to address ageing related needs not needs related to disability. There exist significant gaps with respect to the range and level of services available to older people with a disability in Australia. This requirement must not be allowed to jeopardise equitable access to needs based care.

As part of the Agency’s general function to develop and enhance the disability sector and build community awareness of disabilities, it must pay close attention to what work is being done to support aged care facilities to work with people with disabilities. It must recognise the existing gaps in the aged care sector and ensure that persons who do not qualify as participants because of their age are appropriately assisted by alternative support services. Continued effort must be made to support aged care facilities to have the capacity to support people with disabilities and to ensure that people who acquire a disability above the age of 64 are able to access alternative support.

Recommendation 8 – The Agency must recognise the existing gaps in the aged care sector to support people with disabilities and pay close attention to the work being done to assist aged care services provide this support.

3.4.4 Recognition of the cultural rights of indigenous Australians and people from culturally and linguistically diverse backgrounds

Article 30(4) of the CRPD recognises the right of persons with disabilities to recognition and support of their specific cultural and linguistic identity on an equal basis with others. In Victoria, section 19 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) expressly protects the right of all persons with a particular cultural, religious, racial or religious background to enjoy their culture and use their language and recognises the distinct cultural rights of Aboriginal persons.

The Commission welcomes the inclusion of the recognition of the cultural and linguistic circumstances of people with disability as one of the five general principles guiding the actions of people who may do acts or things on behalf of others (clause 5(d)).

However, the Commission considers that the principle must be strengthened to fully incorporate the positive obligation imposed by the CRPD, that requires the cultural and language rights of persons to not only be taken into account but also to be protected and promoted in decision-making. The Commission submits that the principle in the Bill be amended to provide that the cultural and linguistic circumstances of people be recognised and supported.

Recommendation 9 – The principle in clause 5(d) of the NDIS Bill that the cultural and linguistic circumstances of people should be taken into account should be strengthened by amending it to read, “the cultural and linguistic circumstances of people must be recognised and supported.”

3.4.5 Access to services for non-residents

The Commission reiterates the concern expressed in its submission to the Productivity Commission that the NDIS Bill excludes from the scheme people with a disability who are not Australian or New Zealand citizens residing in Australia (clause 23). Whether someone “resides” in Australia is determined having regard to a list of conditions determining the nature, extent and permanence of the person’s connection to Australia.

This excludes a number of people from receipt of services, including asylum seekers and people with accepted refugee status including children. It also excludes certain visa holders and their children. This requirement is arguably inconsistent with the non discrimination provisions in Article 3(b) and Article 5 of the CRPD and Article 2 of the Convention on the Rights of the Child. The Commission considers that every Australian resident should be eligible to apply to participate in the scheme for the duration of their stay irrespective of their nationality or visa status.

Recommendation 10 – The residence requirements in clause 23 of the Bill should be amended so that access to the NDIS is not denied on the basis of nationality and residency status.

Recommendations

Recommendation 1 – The NDIS Bill be amended to include an avoidance of doubt provision, clarifying that state and territory laws apply to registered providers of services under the NDIS. The Commission highlights the need for an effective community engagement strategy with new providers of disability services to ensure they are aware of their legal obligations.

Recommendation 2 – In support of the recommendation of the Victorian Office of the Public Advocate, that a clear scheme be in place for the monitoring of registered providers prior to the launch of the NDIS in July 2013 incorporating, at a minimum, a community visitor program.

Recommendation 3 – A complaints system for participants to bring complaints against registered providers and the Agency be established as a matter of priority. For such a system to be meaningful and effective there must also be appropriate resourcing of individual and systemic advocacy.

Recommendation 6 – Clause 76 be amended to include an express reference to the best interests principle. This is consistent with the right in Article 7(2) of the CRPD that “in all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.”

Recommendation 7 – Consistent with Article 3 of the CRPD, that the Bill include “respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities” as a general principle guiding actions under the Act.

Recommendation 10 – The residence requirements in clause 23 of the Bill should be amended so that access to the NDIS is not denied on the basis of nationality and residency status.