I am speaking today on this bill, the National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020, because we need to do so much better for people with disability, their families and carers. The NDIS is a great Labor reform. Unfortunately, its implementation has been bungled by this government’s neglect and lack of interest. We have seen that reflected in the number of cases of neglect and abuse of people with disability. This just shouldn’t be the case. The reports of the death of Ann-Marie Smith shocked our country. While this bill is a first step in creating a stronger framework to ban providers, we need further provisions to stop the abuse of people with disability before it happens.
We must also go further and address the systemic failures this government has allowed to develop within the NDIS. We should not be leaving people with disability vulnerable to providers or carers who do not meet the highest of standards. We should not be leaving people with disability vulnerable to pandemics, like the current COVID pandemic. We can and we must do better.
The bill seeks to broaden the circumstances in which the NDIS Quality and Safeguards Commission may make a banning order against a provider or a person. The bill also seeks to clarify the commissioner’s powers. These are welcome changes and they do address areas where the NDIS Quality and Safeguards Commission’s powers are too narrow. But these changes do not do enough and I support the amendments moved by the member for Barton in the name of the member for Maribyrnong. Of course we need a commission that is empowered to act if abuse is found to exist. But we also need a system that means abuse is stopped before it occurs. We need a system where oversight of the care of vulnerable people is baked in from the beginning. We’ve just seen in our aged-care system during this pandemic how it plays out when a regulator does not see itself as having a preventative role, and I am concerned that the NDIS commissioner remains in a similar space. Every person with disability deserves to feel confident that the care and support they are receiving is of high quality and will keep them safe. I am very concerned that the changes in this bill do not go far enough to ensure that.
Currently, the NDIS Quality and Safeguards Commission has monitoring powers, under the regulatory powers act, to enter premises voluntarily to ensure the act is being appropriately administered, and, if it is refused entry, a monitoring warrant can be applied for. However, the number of times these powers have been used has not been reported, and this again goes to how the commission sees its role. It’s clear the commission is not exercising the full extent of its proactive monitoring powers or its powers to penalise non-compliant providers. Under the Morrison government’s watch, the commission has received more than 8,000 complaints about the abuse, neglect and even fatalities of Australians with disability. Yet, from all of these complaints, the commissioner has issued just one fine and banned only one provider and 22 individuals. That is despite thousands of complaints and thousands of tip-offs. Something is clearly amiss here.
We have already heard about the harrowing case of Ann-Marie Smith. This just should not have occurred. Adelaide NDIS participant, 54-year-old Ann-Marie Smith died on 6 April of severe septic shock, multiple organ failure, severe pressure sores and malnutrition. Her NDIS package included six hours of support per day. It has since been reported that she only received two hours of care and was confined to a cane chair, 24 hours a day, for more than a year. Her death launched a South Australian police investigation into the carer, and the SA government created a safeguarding task force to examine the current gaps in oversight and safeguarding for people with disability. Finally, this government was pressured to commission an independent review of the NDIS commission’s regulation of the provider of NDIS supports and services to Ann-Marie Smith, which was established and conducted by the Hon. Alan Robertson SC.
I say the government was ‘pressured’, because the review was established following public pressure and calls from Labor for an independent investigation. My Labor colleagues and I have continually argued that this should have been a broader inquiry. As we heard from the member for Barton, it should have also looked at what went wrong in the case of David Harris, an NDIS participate who was found dead in his house more than two months after his supports had been cut off. The inquiry should have been free to look at broader considerations such as whether the commission has in fact been a toothless watchdog across multiple cases, not just that of this provider, and whether the $4.6 billion funding cuts this government has made to the scheme mean that we’re having more deaths in homes by neglect, because the money for regulation is just not there. The investigator should have had subpoena powers, and disability advocates should have been much better supported to engage with the process.
Despite these flaws, it’s clear from the inquiry’s recommendations that the NDIS commission has not been set up properly and that the NDIS minister, Stuart Robert, has failed to fix this, despite these tragic cases of NDIS abuse, neglect and death. The inquiry does not identify any failings in how the quality and safeguards commission carried out its functions around Ann-Marie Smith’s death, but this is because the real reason the commission didn’t fail is that the commission’s scope is too narrow. It is not taking on a preventative role. It is only empowered to act once abuse has happened.
With its 10 broad-ranging recommendations, the inquiry report clearly shows that the commission and the NDIS safeguarding framework are not set up to effectively protect people who use the NDIS. The report highlights buck-passing between the NDIA and the NDIS Quality and Safeguards Commission. The problem is that the NDIS commission only regulates providers and the NDIA is set up to administer the scheme to participants. The report rightly highlights that the two agencies are not sharing information and that people are falling through the cracks of this patchy oversight. The government must respond as soon as possible to this inquiry report and implement its findings. We don’t have time to waste. Ann-Marie Smith died on 6 April 2020 after years of neglect. It is now 7 October 2020, nine months later, and we still do not have the steps we need to make sure that this will never happen again.
I referenced earlier how part of what we’re seeing at the moment has the potential to reflect what we’ve seen in aged care during the pandemic—where the regulator doesn’t see itself as having a preventive role in supporting vulnerable people but rather comes in afterwards to try to fix up a mess that is already created. We know that this government was caught off guard by COVID and we know the damage that COVID has had on our aged-care facilities because of this. We know that the Morrison government had no COVID plan for our aged-care facilities. Likewise, the disability sector is still without a comprehensive government plan or support to deal with the pandemic.
We don’t see the COVID contagion rates, locations and deaths for people with disability. The system of reporting is just not there. Again this goes to oversight and regulation. It goes to safety and quality. It goes to people with disability and their families and carers being able to be confident that the people that they let into their homes and the people they rely on for care are people who can be trusted and will provide them with the highest standard. That is not an assurance they can have at the moment. Unfortunately, it’s not an assurance that this bill gives them.
I’ve heard from disability providers in my own electorate about these issues through the pandemic. They themselves are worried about the lack of planning and support that has gone into this from this federal government. Providers have told me that they don’t feel supported through this pandemic. They were expected to, on their own, close or readjust their services to try to meet demand in a safe way. These adjustments were unfunded by the government. They didn’t get extra support for COVID plans and communication systems they needed. Not all participants were able to adjust to new systems and new ways of working, meaning that some participants have been left unsupported and providers have been left without income.
The loading that was available to service providers through the NDIA ceased on 30 June 2020, despite here in Victoria still experiencing a very severe COVID outbreak. Providers are having to meet the immense cost of PPE, having to support their workers and trying to do the best by people with disability all without the support they should get from the federal government and all without a system that has the right level of quality, safety and oversight that vulnerable people with disability deserve.
It’s not a cliche for us to say that as a society we should be judged on how we protect vulnerable people. People with disability deserve choice and control. They deserve a NDIS that works for them. They also deserve to know that the care they get is of the highest standard. As I’ve said before, that is not what this bill delivers. It is not what we have seen happening under the NDIS Quality and Safeguards Commission. It is very concerning—and remains very concerning for people with disability, their families and their carers and it remains concerning for the providers who want to do the best by their clients and by the people they support—that these frameworks are not in place as they should be.
They’re concerned that this government has dropped the ball. They’re concerned that there hasn’t been action taken since these tragic deaths that I’ve highlighted to change the way that the system is regulated to the extent that it will mean that we are taking preventive action and not waiting for tragedies to occur, and that people with disability and their families and carers are assured that the system is set up to do the job it should—to keep them safe and to make sure they get the highest possible standard of care. We should not have a system where people have to die for an investigation to take place. We should not have a system where neglect has to occur before someone is found to be unfit to be working in it.
It’s time for this government to take more action. It’s time for it to take this issue more seriously. This bill starts the process. It does not finish it. I urge the government to make sure that it goes a lot further than what we have seen to date.