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Disability Services Amendment Bill 2019

29 May 2019

Ms O'CONNOR (Clark - Leader of the Greens) - Madam Speaker, I am pleased to speak on the Disability Services Amendment Bill 2019. This was my first legislation as a minister, the Disability Services Bill. I am not aware if the minister is aware of the history -

Mrs Petrusma - I was the shadow. We worked together on it quite well.

Ms O'CONNOR - Yes, and I remember you were trying to get us not to implement the legislation. The history of the structure of the legislation, as I was told by the department, was that this was in some ways a mechanical bill that was designed, as it says, as the framework for the funding of service providers. There was a push from me and my office to put some of those principles that are in the UN Convention on the Rights of Persons with Disabilities into the legislation. At the time, it was not supported. I am very pleased to see this legislation now reflects the UN Convention on the Rights of Persons with Disabilities.

For anyone who has not been in to look at the UN convention, it is a profound legal document that established the rights-based principles for people living with a disability. It requires state parties who sign up to it to, for example, recognise that discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person. It recognises the diversity of persons with disability, recognises the need to promote and protect the human rights of all persons with disabilities, including those who require more extensive support. It is clear that persons with disability should have the opportunity to be actively involved in decision-making processes about policies and programs including those directly concerning them. The principles in the legislation that establishes the National Disability Insurance Agency are reflective of the UN convention.

My first question to the minister is, what level of consultation through the Fay Robinson Consulting Group was undertaken with people with a lived experience of disability? This act is about the service providers, or it was as it was originally enacted, but at its core it is about the services we as a community fund and deliver to support people living with a disability. A foundational principle of the National Disability Insurance Scheme is that people living with a disability have choice and control over the services and supports they receive.

There is no question that some of the foundational principles of the National Disability Insurance Scheme have been eroded under a conservative government in Canberra. We have a new minister for the National Disability Insurance Scheme, which is a positive, Stuart Robert. I quote from Senator Jordan Steele-John, who was able to work collaboratively across the parliament to have the Prime Minister agree to establish a royal commission into the care and support provided to people living with disability in institutional settings. The Productivity Commission found that the NDIS would require 10 000 direct employees by 2019 at full roll-out, which is only a few short weeks away, in order to manage funding and eligibility for the roughly half a million people in Australia living with disabilities.

Prime minister Abbott arrived and the then Social Services minister, Mitch Fifield, created a cap of 3000 employees. Mitch Fifield is a graduate of the IPA, which is a right wing think tank that does not support stronger investment in public services, so we had a 7000-person reduction in the staffing for the NDIS. The thinking was that those other 7000 positions, or a portion of them, would be outsourced, but that was emblematic of an undermining of the philosophy, the principles and the funding for the NDIS. When you speak to people living with disability who have accessed the scheme or who have a plan, there are some people who are really happy with the plan, the services and supports they receive. Then there are people who are left waiting months for a plan to be finalised and are being told, well, this is what we have for you; this is what you will have to accept. Those foundational principles of choice and control have been undermined.

As Senator Steele-John says, one of the most consistent complaints from participants is that after their needs are assessed they do not have the opportunity to view draft service plans before approval by the NDIA, the agency that administers the NDIS. They can only restart the planning process if they discover errors. He says -

You wouldn't buy a garden shed before you were able to actually see it, yet they expect you to sign up to an NDIS plan that would cover a year or more, with all your complex support and community engagement in there, without actually seeing the plan. And that's driven, partly, by the IT system not being able to function.

The minister today has a good heart and a good heart for people living with disability. I am sure there are still ministerial councils the minister attends where the NDIS is discussed. I do hope that the treasurers of the various jurisdictions are not also at the table of those ministerial councils because, going right back, one of the problems we had there was the influence of the treasurers on those foundational principles and the architecture of the scheme. There is no question that the scheme itself, its implementation, was rushed to an extent. That is why there have been some of these issues with the scheme. It was rushed with the best of intentions by the minister at the time, Jenny Macklin, because, as she said at the time, 'We are here to serve the people of Australia and to acknowledge that people living with a disability right now are being denied the services that they need and this is impacting very negatively on their lives'.

The NDIS has suffered as a result of conservative governments in Canberra. I hope the minister is able to influence the federal government in relation to the roll-out of the scheme because it is actually disgraceful that $2.6 billion of the forecast surplus from the re-elected Prime Minister, Scott Morrison - but this is before the election - and it was actually founded on an underspend from the NDIS.

This amendment bill only deals with some of the recommendations that came out of the review. I had a quick look at those recommendations and I think it only deals with a small number of the recommendations of the review. It is a small number, so I ask the minister what the plan is to further strengthen the Disability Services Act in Tasmania. I cannot see anything in this amendment bill about ensuring appropriate inclusive engagement of people with disability to be included in future disability services legislation. I cannot see anything in this amendment bill about ensuring workers in the disability sector in Tasmania are held accountable to an appropriate code of conduct.

Minister, I am very happy for you to correct the record in relation to some of the concerns that I have on behalf of people living with a disability, their families, carers, and the services that support them. In fact, there is not anything in the amendment bill that more clearly defines the role of the senior practitioner to act independently in relation to matters under Division 4 of the act. That is the division that gives them powers to undertake investigations and to give directions. I would like the minister to provide some clarity on when, for example, those changes will be made that better clarify the senior practitioner's role.

I understand that one of the issues raised by stakeholders in the consultation process was in relation to the approval to carry out restrictive interventions and to provide a capacity for an interim order to be made that a person have restraints. One of the questions relates to the new section 41A to insert 'in the principal act' which talks about the provisional grant of approval to carry out restrictive intervention and it steps out the process where the Guardianship and Administration Board may subject to subsection (2), which is below here, grant provisional approval to carry out a restrictive intervention of a type referred to in the following clause in the principal act.

This is the amendment that enables the Guardianship and Administration Board to request the senior practitioner to provide an assessment. My question to the minister is, will this assessment be detailed and in writing that deals with the following matters: what are the best interests of a person with disability?

The consequences to the person with disability, of a restricted intervention of that type, is carried out in relation to the person. The consequence to the person with disability or other persons if restrictive intervention of that type is not carried out in relation to the person with disability. Any alternative method reasonably suitable and able to be used in relation to the person with disability to control the behaviour for which the type of restrictive intervention has been proposed, the nature and degree of any significant risks to the person with disability if the restrictive intervention is carried out and the extent to which carrying out the restrictive intervention will promote or reduce the safety, health and wellbeing of the person with the disability.

On paper, that looks like a reasonably thorough process. My concern is that the legislation then allows that provisional approval to stand for 90 days. So, what we are saying in this amendment is that through a newly-established process the organisation that is in place to act on behalf of, or in some instances a person living with a disability, can now seek an interim restrictive interventions order that is in place for three months. That is a long time. That is a long time to empower the state or a funded organisation that is not part of the public service to carry out restrictive interventions on a person. What we are saying through this amendment is that we can have a new process that requires only one person to provide an opinion to the Guardianship and Administration Board that can stay in place for 90 days.

I am concerned about this clause. I would like the minister to explain why this model is being put forward, why 90 days has been established as the time frame for an interim order to be in place, what level of consultation there was with, for example, Advocacy Tasmania, Speak Out Tasmania, any other organisation that advocates on behalf of people living with a disability. What consultation was carried out about this provision? That is serious; it is a very significant change to the original legislation. It requires much more explanation on the minister's part because, of course, there are situations when a form of restraint or an intervention keeps a person safe or it keeps someone who is supporting them or caring for them or people who are doing so, safe.

In narrow circumstances there are arguments for restrictive interventions but they are very narrow circumstances. A number of people in this Chamber will be aware of the horrific history of Willow Court and Royal Derwent. For any person here who has not taken the opportunity to walk through that place I strongly recommend that you do if you want to understand how far we have come as a society and what we used to do to people with a disability, what we used to do to children, and what we used to do to people with mental illness, where interventions and restraint were standard operating procedure by the state. We have to be very careful when we legislate to empower government or its delegated organisation through this provision with the right to restrain someone living with a disability.

This legislation specifically relates to the specialist services that are provided to people with disability and the minister has talked about an ongoing review process. My question in part reflects one of the issues that has been raised by Ms Standen. Once there has been full scheme rollout what services will the state fund? What application will the Disability Services Act have following the full rollout of the National Disability Insurance Scheme? We have heard from stakeholders, from organisations that have been advocacy organisations for a very long time that they are living in financial limbo and there has not been clarity from the state about how they will be funded into the future.

A grant round which is survival money if they are lucky enough to get it is one thing but what is the state's thinking about the long-term systemic needs of every Tasmanian living with a disability? We can have those reassurances and that temporary response but ultimately there has to be some firm agreement between the state and the Commonwealth about these services that fall outside the NDIS as it stands right now.

I was pleased to hear that there has been money allocated to those advocacy organisations, those three specific advocacy organisations - Speak Out, Advocacy Tasmania and the Association for Children with a Disability, but there are a whole lot of question marks about what happens in the future and what responsibilities does the state see itself having to people living with a disability?

One of the problems we find in this place in advocating for someone who is dissatisfied, or who feel mistreated by the NDIS, or short-changed, or they are waiting and waiting, is that when the issue is raised with the state Government and with the minister the finger points north to Canberra. That is problematic because the state contributes towards the NDIS and the state must take and hold on to responsibility for policy for that whole suite of Tasmanians who live with a disability. We have demonstrated in our alternative budget how it is possible to fund disability advocacy services, and that includes organisations like TasDeaf, Guide Dogs for the Blind and the Brain Injury Association of Tasmania. It is possible to provide that funding. It depends on what your priorities are. We were disappointed not to see funding in this year's state Budget for individual advocacy for people living with disability.

There are people in the community right now, including Michael Small and Fiona Gilding , who work on promoting the rights of people living with a disability, to create an organisation that gives people living with a disability their own voice. In this parliament we are, through no specific fault of our own, breaching that principle of 'nothing about us without us' through which people with disability are given their own voice to advocate on their own behalf. The state should fund and support those efforts for those people living with a disability to have their own voice and their own organisation so that they can speak on behalf of other people with disability and advocate for their own needs and for systemic change.

I hope the minister or her advisers have taken down my questions. The minister referred to some recommendations that needed to be deferred until the NDIS operational landscape is more clearly defined. On behalf of people living with disability and the services that support them, what is that time frame? The National Disability Agreement was signed in 2012 and it is now seven years down the track and there is still enormous uncertainty about what the operational landscape will be for people with disability.

What level of consultation was undertaken with people with disability, service providers and advocacy organisations about the operation of the act? Where did the restriction interventions time frame come from? What was the genesis of a 90-day interim restrictive intervention order, which could feasibly see a person with disability subject to a level of restraint for a prolonged period in a government estate or Commonwealth governmentfunded service? I am quite concerned about that clause. I believe it is problematic and we need to have a really clear understanding of where that came from.

The act is improved as a result of putting those principles in the front. Could the minister also explain the clause 8 amendment, which amends section 36 of the principle act, use of an unauthorised restrictive intervention prohibited? It talks about the Chief Civil Psychiatrist and the Chief Forensic Psychiatrist. Could the minister explain for the House the difference between those two roles and how they interact with the operation of the amendments we are debating today? That would be helpful to me to understand. Could the minister explain in more detail to provide more certainty to organisations that fall outside the NDIS what the actual long-term plan is? Does the minister foresee a future where the Disability Services Act applies to state governmentfunded services? What is the future of this legislation, in the minister's view?

We are quite comfortable supporting the improvements to the legislation that instil those UN principles that certainly the Greens in government wanted to see in the legislation seven years ago. However, we want a clearer explanation of those questions we have asked here today.