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Proof Committee Hansard


National Disability Insurance Scheme Amendment (Quality and Safeguards

Commission and Other Measures) Bill 2017




This is an uncorrected proof of evidence taken before the committee.
It is made available under the condition that it is recognised as such.



Hansard transcripts of public hearings are made available on the

internet when authorised by the committee.

To search the parliamentary database, go to:


Tuesday, 5 September 2017

Members in attendance: Senators Brockman, Carol Brown, Duniam, Siewert.

Terms of Reference for the Inquiry:

To inquire into and report on:
National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017.

AHRENS MURRAY, Ms Petra, ASU delegate, c/- New South Wales Branch, Australian
Services Union .................................................................................................................................................... 13
ANDERSON, Ms Deborah, ASU delegate, c/- New South Wales Branch, Australian Services Union .......... 13
BLACKWOOD, Mr Alan, Policy Director, Young People in Nursing Homes National Alliance .................... 1
BRESNAN, Ms Amanda, Executive Director, Community Mental Health Australia ..................................... 17
FIELDHOUSE, Ms Anna, Director, Quality and Safeguards Commission Service Model,
Department of Social Services .......................................................................................................................... 23
GASKE, Ms Emeline, National Campaign and Growth Coordinator, Australian Services Union ................ 13
GOTLIB, Ms Stephanie, Chief Executive Officer, Children and Young People with Disability Australia ..... 1
GRIFFITHS-COOK, Ms Jodie, Public Advocate and Children and Young People Commissioner, ACT
Human Rights Commission ................................................................................................................................ 7
HAWKE, Ms Sarah, Director, Policy and Legislation, Department of Social Services .................................. 23
McFARLAND, Mr Angus, Assistant Secretary, New South Wales Branch and ACT Branch Australian
Services Union .................................................................................................................................................... 13
MCKINNON, Ms Margaret, Acting Deputy Chief Executive Officer, Governance and Stakeholder
Relations, National Disability Insurance Agency............................................................................................ 23
NEVILLE, Ms Liz, Branch Manager, Provider Pathway Design and Engagement Branch, National
Disability Insurance Agency ............................................................................................................................. 23
PEARCE, Ms Colleen, Public Advocate, Office of the Public Advocate, Victoria............................................. 7
SLADE, Ms Trudie, ASU delegate, c/- New South Wales Branch, Australian Services Union ...................... 13
SMITH, Mr Bruce, Branch Manager, Quality and Safeguards Policy, Department of Social Services ........ 23
STONE, Mr Kevin, Chief Executive Officer, Victorian Advocacy League for Individuals with Disability
Inc........................................................................................................................................................................ 17
TOOHEY, Ms Karen, Disability and Community Services Commissioner, ACT Human Rights
Commission .......................................................................................................................................................... 7
VIERECK, Mr Simon, Executive Officer, Mental Health Community Coalition ACT .................................. 17
WHITE, Ms Linda, Assistant National Secretary, Australian Services Union ................................................ 13
WHITECROSS, Mr Andrew, Group Manager, NDIS Market Reform, Department of Social Services ...... 23
Tuesday, 5 September 2017 Senate Page 1

BLACKWOOD, Mr Alan, Policy Director, Young People in Nursing Homes National Alliance
GOTLIB, Ms Stephanie, Chief Executive Officer, Children and Young People with Disability Australia
Committee met at 17:30
CHAIR (Senator Brockman): I declare open this public hearing and welcome everyone here today. This is a
hearing into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and
Other Measures) Bill 2017. I thank everyone who has made a submission to this inquiry.
This is a public hearing and a Hansard transcript of the proceedings is being made. This public hearing is also
being broadcast by the internet. Before the committee starts taking evidence, I remind all present here today that,
in giving evidence to the committee, witnesses are protected by parliamentary privilege. It is unlawful for anyone
to threaten or disadvantage a witness on account of evidence given to the committee and such action may be
treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to the committee.
The committee prefers all evidence to be given in public, but, under the Senate's resolutions, witnesses have the
right to request to be heard in private session. It is important that witnesses give the committee notice if they
intend to ask to give evidence in private. If you are a witness today and you intend to request to give evidence in
private, please speak to the secretariat staff. Finally, all please check your mobile phones and make sure that they
are turned to silent.
I welcome representatives from Young People in Nursing Homes National Alliance, and Children and Young
People with Disability Australia. For the Hansard transcript, will you please state your full names and the
capacities in which you appear today?
Mr Blackwood: Alan Blackwood, Director of Policy and Innovation, Young People In Nursing Homes
National Alliance.
Ms Gotlib: Stephanie Gotlib, Chief Executive Officer, Children and Young People with Disability Australia.
CHAIR: Can you please confirm that information on parliamentary privilege and the protection of witnesses
and evidence has been provided to you?
Mr Blackwood: It has.
Ms Gotlib: Yes.
CHAIR: The committee has your respective submissions. I now invite each of you to make a short opening
statement. At the conclusion of your remarks, I will invite members of the committee to put questions to you.
Mr Blackwood: In the interests of time, given that we had a late start, I'm happy to talk to the submission and
take questions rather than take up time with an opening statement.
CHAIR: Great.
Ms Gotlib: It is the same for me, but I suppose I wanted to make one point. I wanted to quickly say that
Children and Young People with Disability Australia is the national representative persons organisation for
children and young people aged nought to 25. We are very much about direct experience informing policy and
practice. We have a national membership of around 5,500 with a very extensive social media reach outside of
that, probably going up to 25,000 to 30,000 these days. I'll only take a couple of minutes because I'm aware that
some of this material is new to some of the members of the committee.
Abuse and violence, unfortunately, is something that is typically experienced by children with disability. It's a
core focus of our work. Obviously it is really important as we go into the new scheme, which CYDA is very
supportive of. It has done extensive work in the development and establishment of the scheme. We are very
invested, along with our peers in the advocacy sector, around quality and safeguarding. It is almost atypical for a
child with disability not to experience some form of abuse and violence, which is a great shame, I think, in the
Australian community. That experience, as it is reported to us, is very much supported in research which shows
that children with disability are 3.4 times more vulnerable to abuse than their peers without disability, and even
more when we are looking at children with high-behaviour and communication-support needs.
I suppose the big, outstanding issue for me, which we haven't really touched on in our submission, because our
submission was brief for a number of reasons, is that, with the quality and safeguarding framework and
subsequently the bill, there is very little specific focus and consideration of children with disability. As a
community, generally, we afford great protections to children with disability, yet it seems to be an area that isn't a
key focus and specific consideration when we are looking at this work.
The only other thing I want to say, before I forgetI don't want to overlook itis that we've worked really
closely with the DSS team over the last couple of years around the development of this legislation. That is one of


Page 2 Senate Tuesday, 5 September 2017

the reasons why our submission is quite scant. I want to acknowledge that that team in particular have been
incredibly consultative and considerate of the feedback and the issues that we have raised. I think it's really
important that's not lost in this inquiry.
CHAIR: Thank you very much. That' good feedback to hear.
Senator CAROL BROWN: You say in your submission that the commission should work with other
safeguarding systems. How do you see that working?
Mr Blackwood: There appears to be scope in the act for the commissioner to initiate own motion inquiries
and liaise with other safeguarding systems, including things like appointing investigators who may come from
another regulator. The point that we were trying to make is that we really don't want this commission to end up
being a silo just to do with disability and just being limited to NDIS-funded services. The notion around the NDIS
is to get people more engaged across the community. People with disability use a whole range of systems, and
there are varying mechanisms for complaint, for investigation and for oversight. We think that, if we end up with
all this work with just a sector-specific safeguarding systemwe've had that in other state jurisdictions where it's
been very limitedthe reform will have partly failed. We really want to encourage the commission and the
commissioners to engage.
From our members who are living in nursing homes, it's a different quality standard system in aged care. The
structure of the commission will address that in time through the transition, as well as in health other services. We
think the commission should take a leadership role amongst regulators to make sure that there is at least some
coherence and the ability toI think we say this in the submissionrefer issues to other regulators, for example,
work health and safety laws. There may be instances where it's unclear whether or not a provider has breached
work health and safety obligations over an incident, so it's important that it works out that it can be investigated
properly by the appropriate authority. At the moment, I think, everything to do with disability gets put to
disability agencies and a lot of that stuff may get overlooked, so we'd like to see a thoroughness in all of it.
Senator CAROL BROWN: Do you have a view about the proposed power of the minister in the legislation?
This is relating to his ability to direct the commission.
Mr Blackwood: It's probably not a great surprise that it's there: that the minister has reserved a right to
intervene where appropriate. I think, given the NDIS is a co-owned scheme by the states and the Commonwealth,
that should really be a shared function with states as well. I think that it's perhaps not appropriate that only one
party in a collaboratively-owned scheme, takes such a leading role to the exclusion of others. There may need to
be limits about what interventions can be made. I note Minister Foley's evidence yesterday that there are times
when it's appropriate and times when it's absolutely inappropriateso perhaps some greater guidance in the bill
about what grounds and on what evidence the minister can intervene.
Senator CAROL BROWN: Do you have a comment, Ms Gotlib?
Ms Gotlib: Complaints are an incredibly important part, and there's a history that we are dealing with where
complaints haven't typically been handled well in many circumstances. So I think it is important that it is
stipulated in what circumstances and areas intervention by the minister can occur; that it takes into account the
partnership approach to the scheme, which is the states and territories; and that the independence of inquiries,
which are often around very serious issues of death, violence and abuse, is maintained at all cost so that we have
absolute confidence in the complaints mechanisms and other functions of the commissioner.
Senator CAROL BROWN: Mr Blackwood, I want to go to what you said in your submission around section
24. Do you think that the NDIS has enough rigour, in section 24, to determine whether it is responsible for
funding of supports for participants or whether some other service system should be responsible?
Mr Blackwood: I think the point that we make in the submission is that section 24 as it stands establishes
eligibility on the basis of disability and other factors. The test about whether or not supports are more
appropriately provided by another system or whether the supports are reasonable and necessary exists, I think, in
section 35.
Senator CAROL BROWN: Section 34.
Mr Blackwood: We think that's quite adequate. And it's the right place to determine whether a support is to be
delivered by one system or another. We've found so far that the scheme has been particularly poor at making that
judgement around what its responsibility is and what the responsibility of another sector is. It's been done very
much in the abstract. They've decided a particular support is just health; it's just not us. Whether or not that's
realistic, whether or notin the case of young people in nursing homeshealth services can or do provide that
type of support, is just a unilateral decision. A lot more work needs to be done on understanding what the
interface is between the scheme and other systems and what the various responsibilities are. I think putting that


Tuesday, 5 September 2017 Senate Page 3

extra test in the eligibility component of the scheme has the potential to exclude a lot of people and mean that
there are no other supports, because there are plenty of examples where there isn't an alternative in another
system. It may be the NDIS's view that it should be there, but the fact that it isn't means that person will be
unsupported. So we think it's a major overreach. I think the scheme is rigorous enough with the two tests of
section 24 and section 34, and I think the scheme needs to have confidence in section 34that it can determine
what's reasonable and necessary across all the criteria in section 34.
Senator CAROL BROWN: Why do you think the government has moved to put in this amendment?
Mr Blackwood: Our understanding, from reading the explanatory memorandum, is that it was a
recommendation of the independent review into the legislation. It was a recommendation by the NDIS itself. This
is where we have to be a little bit careful. The NDIS will have its own interests at heart. We hear a lot about
sustainability, but that's only part of the picture. The scheme may have that judgement call about whether or not
someone's in or out, but we've really got to think: if someone's not in the scheme, what are their options for
receiving support? Given that the scheme is being publicly funded from the budgetwherever the specific
funding is raisedI think there's an obligation that the government can guarantee that no-one will actually be left
out completely. Just because the scheme doesn't want to have them and there's no alternative, that is unacceptable.
We believe that, if someone gets in the scheme and goes through a plan, they may well get a support coordinator
or access to a local area coordinator that can actually direct them to other areas. That's the appropriate thingat
least invest in making sure the person gets access to support. Not letting them in in the first place is a denial of
their needs. There's actually no place for it in this bill. If this bill's about safeguards, that is a clause that's
exclusionary, and puts people at risk in fact.
Senator CAROL BROWN: Ms Gotlib, you mentioned in your opening statement the protection of children
and whether the legislation as it stands is adequate for the protection of children in the NDIS. What would you
like to see included?
Ms Gotlib: At some level, the question needs to be addressedand I have certainly had some discussions
with the department around this, but it needs to be firmed up and made definitiveof what is going to be the
relationship between national providers under the NDIS and child-safe standards and what the expectations are,
particularly given, as I've said before, the extreme vulnerability. Whether it is in the practice standards, which we
haven't seen yet, there needs to be something quite definitive around what is being done to ensure that more
protections are afforded to children. Victoria's got a very strong child-safe system, though it's not adequately
funded, in my opinion. And there should be some liaison around establishing what that should be with the existing
state and federal children's commissioners. I find it incredible that, at this point in our time, when we are coming
to the end of the Royal Commission into Institutional Responses to Child Sexual Abuse and looking carefully at a
community around child-safe organisations and what we need to do to provide better protections to children, here
we have a cohort that is known to be extremely vulnerable, as we've seen time and time again through numerous
inquiries. So it needs to be very strong, whether that's in practice standards or whether there's an amendment to
the legislation which requires a practice standard around itthey're all options that need to be on the table.
Senator CAROL BROWN: There has been a call for a royal commission into violence and abuse of people
with disability. Do you believe the quality and safeguarding legislation that we have before us negates the need to
have a royal commission now?
Ms Gotlib: No, not at all. This has got a limited jurisdiction; it's not going to have coverage over many areas
where people access services and supports. Also, my understanding is the royal commission has a broader scope
and is not looking just at service responses. There's a whole body of research that needs to be done in the
domestic and family context for children and young people with disability. No, I don't think this negates the need
for that at all, and CYDA is on the record supporting the call for a royal commission.
Senator CAROL BROWN: What do you see as the role for advocacy in quality and safeguards?
Ms Gotlib: It's integral to quality and safeguards. They will be greatly diminished unless we have strong
individual and systemic advocacy that supports the pathway to the commission and enforces this framework and
bill. I can't see one without the other.
Senator CAROL BROWN: How would you like to see it improved?
Ms Gotlib: Advocacy?
Senator CAROL BROWN: Yes, in regard to the quality and safeguards.
Ms Gotlib: It needs to be written in so that we can assure that people can have participants and that those
accessing the commission can have access to independent advocacy.


Page 4 Senate Tuesday, 5 September 2017

Senator SIEWERT: I want to ask both of you this question. Mr Blackwood, you make the point that it is hard
to tell and hard to make comment on this particular legislation because so much of it is in the rules. What are the
key elements? I think there are 23 sets of rules to be developed. What would be the key things from those areas
thatwe have just talked about practice standardsyou think should be in the legislation rather than in the rules?
Do either of you have thoughts on those issues, or do you want to get back to us?
Ms Gotlib: It is difficult to answer that until we know what the proposed content is.
Senator SIEWERT: I understand that, but are there key things that are being dealt with in the rules that aren't
in here that you think should actually be in the legislation?
Mr Blackwood: It might be something we could get back to you on and have a look through
Ms Gotlib: I would have to review and give you a more considered response.
Senator SIEWERT: If you could.
Ms Gotlib: Yes.
Senator SIEWERT: What is your view on this legislation passing before you've seen what's in the rules?
Mr Blackwood: It is a hard one because the speed at which this is moving means that there's an imperative to
have the bill passed so other things can happen. The NDIS legislation followed a similar pathway in that the rules
were established after the act, which, again, was driven by time and the need for speed.
I suppose we'd need to have some sort of guarantee in getting these rules established that there was going to be
full consultation and the involvement of the states and territories, particularly when, as I said before, we need to
make sure that this commission doesn't end up as a silo. The involvement of the states and territories is critical
because they operate most of the mainstream service sectors. The failure of the NDIS or the failure of the
commission will have an impact on those mainstream programs and those other regulatoryso the states have to
have a big input. Given the time frames, perhaps the process needs to be articulated or, at least, there needs to be
some guarantees about who is involved and what has to happen to make the rules.
Ms Gotlib: CYDA would agree with that.
Senator SIEWERT: Mr Blackwood, feel free to kick in if you have some thoughts too, but, Ms Gotlib, in
your submission and also in your opening statement you referred to 'restrictive practices'. It is one area that's come
up time and time again in various inquiries. Are there specific amendments to the legislation on restrictive
practices that you think are needed? And I'll also add to that reportable-incident investigations. You raised both of
these points.
Ms Gotlib: For us, from memory, it was around the reporting of all incidents of restrictive practices and not
just ones that were outside approval. It was seen as important that there is monitoring. I would want to take the
other stuff on notice because I'd want to go through it.
Senator SIEWERT: If you could. You said here that the rules and associated standards and policies ensured
that all users of restrictive practices were strictly recorded and monitored. I take that point, but are there things in
those particular areas that you think would be better in the legislation?
Ms Gotlib: Certainly.
Senator SIEWERT: Mr Blackwood, do you have anything to add?
Mr Blackwood: Perhaps the role of the senior practitioner and how the behaviour plans are going to be
established could be better articulated. I agree with Stephanie about the need for better data, because, againstill
in the disability sector and certainly within the aged-care sector where we spend a bit of timethe notion of what
is a restrictive practice is not well understood. Just opening up the conversation about what that is and why it's
something that needs to be eliminated is an important conversation and we can't do that at the moment unless
there's good data. I think those sorts of things and things like the senior practitioner's role could be better defined.
How they do data and how they share data with other systems is something that needs to be established.
Ms Gotlib: And some further allowance of discussion and analysis about what is deemed acceptable and not
acceptable. Often at CYDA we have, particularly in the education space, a range of restraint and seclusion which
is deemed acceptable, which is a very different opinion that we would have as an organisation. So if that data
were available, it would allow for some further discussion and perhaps change the discourse around that.
Senator SIEWERT: I wanted to ask about the marketplace and market oversight. We had some witnesses
yesterday that didn't think that oversight of the market was appropriatethey raised concerns about it. You
mentioned, Mr Blackwood, in your submission, issues around market. Could you just articulate a bit more broadly


Tuesday, 5 September 2017 Senate Page 5

the role you would see the commission having? I must admit, I can sort of see where they are coming froma bit
of usefulnessbut I can also see big problems with it.
Mr Blackwood: It is something that has been a big feature of the NDIS itselfto move to a more market
model and to support what they call stewardship of the market. I suppose that goes to the independence of the
commissioner and what role it may have. Obviously, as a regulator, it is going to have eyes on the market and
market behaviour. I suppose the commission is going to have to understand how the market's developing, how it's
working and the impact on some of the regulation around suspending or banning providers where there aren't
many providers. Those sorts of things are going to have to be a consideration.
Senator SIEWERT: That is the discussion we were having with NDIS yesterday. Ms Gotlib, I'd appreciate
your input too. That was the discussion we were having yesterday. I must admit, it really concerns me that if they
are the sole provider in a region, it may be considered okay that they keep operating because they are the only
provider. I have big problems with that, I must say.
Mr Blackwood: That's really where there has to be some liaison with the NDIS. If that provider needs to be
put out of business or put out of the market, there is going to be an investigation and good reason for that. It is
then up to the NDIS to have a response and a plan B for those participants. At that point, does it stop being a
market? Should we be looking at ways of providing options for people other than just a transactional approach? I
think that's something the NDIS is going to have to consider. I suppose, through DSS, what happens in those
circumstances? Maybe there needs to be some articulation of some processes.
I think participants will need to understand that as well. The thing that is different in the NDIS environment is
that participants are the commissioners of their services now; it is not government buying services on behalf of
people. These sorts of decisions and/or conversations need to be had with participants, and they will have to be
fairly transparent around, 'Here are the options around the buying services and here's the regulatory framework.'
There's a lot to understand for people and I think people with disability need to be involved in these sorts of
decisions about what happens, rather than the NDIS wheeling in a service because there's been a market failure.
The participants are commissioning the services now, so there is a different dynamic at play and I'm not sure
whether the system is set up yet to fully support that.
Ms Gotlib: I would agree that there is a real tension in that. I think we've seen that in previous experiences to
date. We've had big service providers in some of the states and territories that have gotten significant attention
around quality and safeguarding, and yet they have continued. They are big providers, and if they ceased to be it
would have a huge impact in some states in particular. I think it's a real tension that needs to be addressed. I think
it needs to be articulated how that's going to be addressed, and I don't think it's been considered enough to date.
Mr Blackwood: No, and it's very much part of the capacity building of people with disability that I think
needs to be built in somewhere, whether it is the NDIS or the ILC, because that's a really important element of
making people good consumers and active decision-makers around their support. There's not a huge investment in
that. Compared to the investment in service provider capacity building, which runs to the tens of millions, I'm not
sure that there's been an adequate investment in capacity building for people with disability. Yet, if we're moving
down this path of a market where people will be involved in some of these more strategic decisions around what
happens in the market, there's a real imperative, I think, to invest in that capacity buildingwhich then also is
related to your question, Senator Brown, about advocacy. There's a real role for advocacy in this space as well. So
that needs to be ramped up. I'm not sure whether the structures are there yet across DSS, the states, the NDIS and
even the commission to understand what the need is for increased investment in advocacy and capacity building.
CHAIR: Doesn't the system itself, in effect, just by its sheer nature, invest in that capacity building, in your
Mr Blackwood: Not in the ways that are required. People with disability who have been accessing the
disability services system to date have been service users. They haven't been involved in choosing providers, in
designing services or in their own planning. It's been very much a government-driven and a system-driven
imperative. Now that's changing. For the role that people with disability are going to need to play to be effective,
and for them to be agents in their own service delivery, there's a need for greater skills and greater resourcing,
greater access to information. I think at the moment there really hasn't been a lot of investment in that capacity
building at that level.
It's not about service providers just being more open and sharing more information with people. That's not
where the capacity really needs to come from. It has to come from member-driven organisations and the advocacy
sector. It's got to be independent of service provision.


Page 6 Senate Tuesday, 5 September 2017

Ms Gotlib: The other thing that is kind of related, but it's an issue that I want to raise, is around being a
participant and being the commissioner of your own services. I think there's some further definition and thought
that need to happen around the provision of information around complaints and investigations to participants. I
certainly feel like, for some of the results of findings and things, as a commissioner of services and when you're a
nominee for someone who's very dependent as well, you should be able to have access to that information so you
can make an informed decision. But, reading the legislation, it's unclear that you will actually be able to have that.
It says who the commissioner can provide the information to, but it's not clear how publicly available that
information will be.
CHAIR: Thank you very much.


Tuesday, 5 September 2017 Senate Page 7

GRIFFITHS-COOK, Ms Jodie, Public Advocate and Children and Young People Commissioner, ACT
Human Rights Commission
PEARCE, Ms Colleen, Public Advocate, Office of the Public Advocate, Victoria
TOOHEY, Ms Karen, Disability and Community Services Commissioner, ACT Human Rights
CHAIR: I welcome representatives from the Office of the Public Advocate, Victoria, and the ACT Human
Rights Commission. Sorry for the delays. Can you please confirm that information on parliamentary privilege and
the protection of witnesses and evidence has been provided to you?
Ms Pearce: Yes.
Ms Griffiths-Cook: Yes, it has.
Ms Toohey: Yes.
CHAIR: The committee has your respective submissions. I now invite you to each make a short opening
statement. At the conclusion of your remarks, I will invite members of the committee to put questions to you.
Ms Pearce: Thank you very much for the invitation to appear before this committee. The Victorian Office of
the Public Advocate has a range of functions, many of which are relevant in relation to this committee. Our
mission is to safeguard the rights and interests and dignity of people with disability, and to protect people with
disability from abuse, neglect and exploitation.
OPA's experience with NDIS includes the provision of guardianship to 83 participants and advocacy for an
additional 57 participants in the Barwon trial site. My office also coordinates the Victorian Community Visitors
program. As a key part of the quality and safeguard arrangements operating during transition, OPA community
visitors continue to visit disability residential accommodations, supported residential services and mental health
facilities, the residents and patients of which have various interactions with NDIS.
OPA's submission on the bill made eight recommendations, with a view to improved protections for people
with a cognitive impairment or mental illness who are NDIS participants. Our submission was based on the
position that despite the scheme's profound potential to transform the lives of people with disability, the
significant changes in the disability service system have the potential to place people with disability at increased
risk of violence, abuse and neglect. At the same time, the consumer choice philosophy that underwrites NDIS
creates challenges for many people with cognitive impairments, and these shouldn't be underestimated.
I would like to take the opportunity this evening to speak to the committee about community visitors, identified
by my office as a glaring omission in the bill. The Disability Reform Council indicated that an independent
evaluation of community visitor schemes operating across Australia would be undertaken during the transition to
NDIS in order to inform a decision about their role within the quality and safeguarding framework. This is still
outstanding. There continues to be a need for a comprehensive, independent review of community visitor
schemes. This review should include consultation with the bodies that coordinate the schemes as well as with
community visitors themselves. This is particularly important given the need to consider the scope of a
community visitor function and how it might integrate with other escalation pathways and oversight mechanisms
contained within the bill.
The key elements of the Community Visitors program in Victoria align with the objects and principles guiding
actions under the NDIS Act, in particular sections 31(c) and 31(h) and sections 4, 2, 6, 7, 13 and 16. The key
elements of Victoria's Community Visitors program are a human rights safeguard focus that highlights system
failures and advocates for systemic change; reliance on community visitors as the eyes and ears of the
community, who bring extensive experience and skills to the role; governor and council appointments
independent of government; and an annual report to parliament with recommendations for changes and
The contemporary role of the Community Visitors program is as an advocate, inquirer and monitor.
Community visitors are dedicated advocates who pursue the resolution of concerns both for and with the clients
they support. They are critical to ensuring a functioning and effective complaints process. Given that 72 per cent
of active participants with an approved plan in the NDIS have a diagnosis of intellectual disability, autism or
psychosocial disability, community visitors are vital in ensuring that these participants are able to make
complaints, can access and navigate complaints mechanisms, and can achieve resolutions for issues that matter to


Page 8 Senate Tuesday, 5 September 2017

It's clear from the experience of community visitors that it's unrealistic to assume that people with cognitive
impairment, especially clients who are nonverbal, can self-advocate and access these mechanisms. Indeed, this
erodes any concept of choice and control for these participants. Effectively, without community visitors
programs, there is no mechanism for people with a cognitive impairment, in particular non-verbal clients, to get to
the front door of the complaints commission and raise their concerns. I'm of the view that, given the high
incidence of persons with cognitive impairments who are participants within the NDIS, if no provision is made
for community visitors programs within the complaints scheme, the scheme will not work. Without a fully funded
community visitors program within the NDIS, there will only be a small subset of NDS clients to whom the
complaints commission is able to offer rights protection.
The Disability Reform Council noted that there was considerable support in the consultations for a community
visitors type function within the NDIS Quality and Safeguarding Framework, including from the majority of
providers. Further, the Productivity Commission, in its 2011 inquiry report Disability care and support,
acknowledged the important role that official visitors perform in promoting the rights and overseeing the welfare
of the most vulnerable people in the disability system. It proposed a quality and safeguarding system replicating
the features of the Victorian model, including the publication of annual reports and the use of volunteers. I
continue to advocate for the role of community visitors to be articulated in legislation.
Other key recommendations in OPA's submission centred on our concerns around the level of independence of
the NDIS Quality and Safeguards Commissioner. OPA recommended a number of remedies for this: greater
public annual reporting requirements in relation to the various functions of the commissioner, a longer period of
employment for the commissioner, and stronger and clearer investigation powers based on broad powers recently
added to the remit of the Victorian Disability Services Commissioner, particularly that of systemic advocacy
based on persistent or recurring systemic issues about abuse and neglect in the provision of services. I flag here
the important core function of the commissioner to promote the provision of advice, information, education and
training to NDIS providers and people with disability. I would be concerned if this function is overshadowed by
the commissioner's compliance-related functions. Given the expected difficulty providers will face in the delivery
of training and supervision of staff, this core function will become even more important.
As was noted in our submission, it's difficult to comprehensively comment on the bill without knowledge of
accompanying rules and practice standards, which will, in effect, contain much of the important requirements. It's
critical that the Australian government consult with people with disability, key state and territory regulatory
bodies and the community around the rules and practice standards.
Finally, I recommend that the amendments made to the NDIS Act following the passage of the bill should be
reviewed following a two-year period of operation. Thank you.
Ms Griffiths-Cook: I'd like to thank the committee for the invitation to appear today and acknowledge the
traditional owners of the land on which we meet. I wholeheartedly support my colleagues' views regarding the
importance of the community and official visitor programs. The information obtained from such schemes would
be a significant advantage for the continuous improvement of the NDIS. As public advocate and Children and
Young People Commissioner, I have legislative responsibility for protecting and promoting the rights and
interests of people in the ACT whose condition or situation makes them potentially vulnerable to abuse,
exploitation or neglect. This includes but is not limited to children, young people and adults with a disability
and/or mental illness.
In 2016-17 my office provided advocacy for over 550 individuals with complex support needs relating to their
experience of disability and/or mental illness. Many of these, but not the majority, were NDIS participants, and
local feedback has suggested to us that, for those who were not yet NDIS participants, that situation exists due to
their difficulties in navigating the system of access. Advocacy was provided relating to concerns about a lack of
suitable accommodation, inadequate or inconsistent support, and difficulties interacting with a negotiating system
such as the NDIS.
The bill that we speak to today has a critical role in supporting the transformational change heralded by the
introduction of the NDIS, particularly in respect of protecting the rights, interests and safety of people with
disability throughout this process. Further, the establishment of the Quality and Safeguards Commission is a
positive and necessary step in pursuing optimal standards of service and consistency in the resolution of issues
across jurisdictions.
I will briefly speak to two key points related to the bill and establishment of the commission and then hand
over to my colleague Karen Toohey to provide further opening remarks. The first of these issues is that of
consumer participation in the implementation of the bill and that of the commission. While the commission will
take the lead role in facilitating the development of a comprehensive quality and safeguards framework,


Tuesday, 5 September 2017 Senate Page 9

participants need to be actively involved in this design process. Essential to delivering safe and high-quality
supports is the need to ensure informed and empowered consumers with the skills to co-design the necessary
standards and ensure that accountability and oversight mechanisms are robust and accessible. People with
impaired capacity or more significant intellectual or cognitive disabilities may need additional support to
contribute to doing so, and this must be considered as a fundamental element of the design and development
process. The involvement of and active focus on consumers within the functions of the commission should be
addressed in the bill to ensure this fundamental approach within the NDIS is upheld.
My second point relates to the national framework for preventing and responding to allegations of abuse,
neglect and exploitation. An essential function for the commission is the development of a holistic and
comprehensive national framework for preventing and responding to allegations of abuse, neglect or exploitation
for people with disability. For example, the commission will have an important role in promoting awareness
amongst participants and carers of the features of child-safe organisations so that they can act protectively and
choose providers that adopt best-practice standards.
As noted by Ms Gotlib in her opening statement, children and young people with disability are particularly
vulnerable to abuse, neglect and exploitation. With this in mind, contemporary research such as that undertaken
by the Royal Commission into Institutional Responses to Child Sexual Abuse should clearly guide this work.
While often addressed as a separate issue, the use of restrictive practices needs to be considered within the context
of abuse, neglect and exploitation also. Without a clearly articulated regulatory framework that positions
restrictive practice use within the context of a positive behaviour support approach and ensures appropriate
accountability and monitoring, this too becomes an area where its use can easily create its own risks for people
with disability. At that I will leave my remarks and hand over to Karen.
Ms Toohey: Thanks, senators, for the opportunity to appear. I've only made a brief formal submission. I just
want to draw attention to two key points in that submission. As the ACT Disability and Community Services
Commissioner, I have jurisdiction to deal with complaints in the ACT made about any person or organisation
providing disability services in the ACT. We investigate complaints and, where appropriate, try to resolve those
matters through conciliation. This provides people with a personal, quick, accessible and informal resolution of
their concerns.
To date we have had poor cooperation from the NDIS in responding to complaints, and this has left NDIS
clients in the ACT frustrated that they have limited options for easy and quick resolution of their concerns. In our
experience, the Ombudsman generally has been focused on systemic issues and does not provide a conciliation or
alternative dispute resolution function. The NDIS response often is that people have had to pursue their concerns
in the AAT.
In establishing the NDIS Quality and Safeguards Commission, it will be critical that the agency be required to
ensure that the individual who has brought the complaint or is the affected person is not left behind in the process.
Any national body handling complaints has limited local knowledge and has limited accessibility to the local
community. I have worked for both Commonwealth and state based complaint-handling bodies, and this is a
limitation of a centralised Commonwealth system. These issues are particularly important for people with
disability, their carers and support people.
In my experience as Health Services Commissioner in the ACT, the process for regulating registered medical
practitioners can be so focused on the medical practitioners themselves that the person who brought the complaint
can be lost, and this significantly limits the capacity for an individual remedy. In this case, there is a danger that
the commission will be focused on a process to investigate and take regulatory action against service providers
which is entirely appropriate, but they may well lose sight of the person who brought the complaint, which will
have the effect of further disadvantaging people with a disability.
I'm also concerned that the current legislation does not provide the commission with oversight of the NDIA.
While I am of the view that oversight of that agency should be independent from the QASC, it is apparent that
current remedies are inadequate given the issues outlined above and, in my experience, the NDIS's resistance to
existing mechanisms such as state and territory disability complaints processes which are seeking to assist people
with a disability to resolve their concerns locally. If the QASC will not have jurisdiction to handle complaints
regarding the NDIS, the existing mechanisms need to be reviewed as an outcome of this inquiry process, as the
current framework and engagement by the NDIA leave people with a disability who are NDIS participants with
limited effective remedies for their individual concerns. Thank you.
Senator SIEWERT: Since you've just finished saying your piece, Ms Toohey, I'm going to ask you a
question about one of the issues that you just raised. I understand what you've just said about the participant being
lost, and this committee, in other inquiries, has been looking at the medical complaints process, so I hear what


Page 10 Senate Tuesday, 5 September 2017

you're saying. Are there changes to the bill that you think should be made to address that issue about the
participant making the complaint not being lost? Your comments, I think, are very valid, but are there ways that
the legislation could be amended to better support participants or to make sure that they're not lost and that the
commission doesn't just focus on the process?
Ms Toohey: I think some of the comments that were made earlier were around transparency. That is not
articulated well in the current bill, particularly with respect to the person bringing the complaint, be that the
individual or be that the support person or an advocate that they have involved. I think the advocacy issue that
was raised earlier as well needs to be really clearly articulated. In our experience, we've had matters with the
NDIS. Some of the provisions that relate to the NDIS are being translated over into this legislation. Even where
we've had consent to get information, we've been refused that information by the NDIS. There needs to be a real
focus. I haven't brought the specific provisions with me, but I'm happy to take that on notice with respect to what
that might look like. Certainly our experience with APRA, as you're well aware, is that often the person who has
brought the matter does get lost in that process. In these circumstances, while clearly there are concerns about the
providers ensuring the quality and safety of the system, it is really important that the individual does not get lost.
We did make a couple of recommendations in my submission about particular provisions to be amended to
ensure that there is recognition of the state and territory processes. It is not clearly articulated, and, as I said, we
have certainly met a lot of resistance from the agency in engaging in those processes, even where we have explicit
consent from the person who's brought the complaint.
Senator SIEWERT: Can I go back to this issue of the NDIS? Other people have made similar comments
around complaints about the NDIS. I thought you said that you didn't think the commission was the right place to
do that? Did I understand what you said correctly, or did I misinterpret it?
Ms Toohey: I think it needs to be independent from the agency.
Senator SIEWERT: Which agency?
Ms Toohey: From the quality and safety commission.
Senator SIEWERT: Yes, that's what I thought you said.
Ms Toohey: I'm not 100 per cent clear on the mechanism for that, and we haven't suggested one in here. We
have pointed out the current limitations with respect to both the Ombudsman and the Australian Human Rights
Commission, which is one of the other mechanisms that was identified, but, obviously, it has to be a
discrimination complaint or if it's a complaint with respect to the convention, it's not enforceable, so there's no
real mechanism there.
Senator SIEWERT: You make that point.
Ms Toohey: Which is why we would say, given we do have jurisdictionand there's a bit of resistance to that
from that the state and territory disability commissioners who currently do have jurisdictionthat needs to be
clearly articulated in the legislation, from our point of view. Some people I know will say, and certainly I've seen
in some submissions, that the quality and safeguarding commission should have jurisdiction. I do think there are
risks associated with that.
Senator SIEWERT: So you think that should be strengthened in the legislation.
Ms Toohey: Yes.
Senator SIEWERT: I've got that one. You made a previous comment that triggered another question for
mehopefully it'll come back to me. You also made a comment that, if those sorts of things don't happen, there
needs to be a relook at the processes. I presume you mean the NDIS's overarching legislation?
Ms Toohey: Yes.
Senator SIEWERT: In terms of the data released, I presume when you were commenting on transparency
you were referring to the point thatI'm looking at Ms Gotlib behind youshe was making in terms of access to
the data and whether it's going to be publicly available?
Ms Toohey: Yes, and access to information with respect to investigations and outcomes and that sort of
information. As you are awareand maybe I'm over reading the APRA modelthere have been significant
issues in that model with respect to information coming out of an investigation or outcomes being available to the
person who brought the complaint. By my reading, similar concerns, unless they are clearly articulated, will arise
in this model.
Senator SIEWERT: That takes me to the issue that you've both raised around the capacity of the
commissioner to initiate investigations. Ms Pearce, you made two recommendations. The first point you made


Tuesday, 5 September 2017 Senate Page 11

was around the commissioner being empowered to conduct investigations where there are allegations. The second
point you made was around commission-initiated investigations. Can I ask any of the three of you to expand on
that a little bit further?
Ms Pearce: It is absolutely critical. What we often see where allegations of abuse are investigated is a
response to that individual. But what we need to see is the systemic issues that are occurring, either within a
particular agency or across systems. It is really about the oversight capacity that the commissioner may have to be
able to see those broader issues and to be able to raise those issues. Without the capacity for own-motion
investigative powers, you are really limited to solving individual issues and not being able to look at the system as
a whole.
Senator SIEWERT: Does anyone have anything to add there?
Ms Toohey: At a state and territory level, I certainly have those own-motion powers and that is what we do.
One of the issues will be that information exchangethat we will have an organisation that is not necessarily
locally based but has a lot of information about organisations that we work with. And I guess the fragmentation of
information is a concern for us in terms of dealing with those systemic issues. Again, one of the points we have
made in the submission is to make clear those information flows between organisations that are regulating in the
same space.
Ms Griffiths-Cook: I think it also speaks to the importance of that opening and transparency in terms of
reporting and accountability and those things as well. Knowing the issues that are being identified, and how they
are being attended to, also lets people with disability know about the expectations they can and should have about
the operation of the NDIS. So I think all of that needs to come together in that cohesive way to support people and
empower them to be able to get what they need from the scheme.
Senator SIEWERT: It should make very clear that the commissioner does have those specific powers?
Ms Griffiths-Cook: Yes.
Senator SIEWERT: Ms Pearce, you commented around the randomised audit of the behaviour support plans
to determine if the plans are compliant with legislative requirements and consistent with best practice.
Ms Pearce: We think that is absolutely critical. What community visitors often see is a lack of compliance
with the regulatory frameworks. On-site monitors see that, but on-site monitoring is only one mechanism. The
ability of a senior practitioner to have an auditing function that will enable them to get some insight into what is
happening is absolutely critical. You can monitor it, but there is nothing like having a regulatory approach as
Senator CAROL BROWN: Was there any consultation with your organisation on this legislation? Did the
department consult with you in any way about the content of the legislation?
Ms Pearce: To the best of my knowledge, no.
Senator CAROL BROWN: You question the commissioner's independence from the minister. Why do you
say that?
Ms Pearce: I think that is very critical. As Public Advocate in Victoria, my independence is set out in
legislation, alongside my role and function. So I am able to be a fearless advocate, and sometimes that means
being critical of government or government agencies as well as the non-government sector. And it is that ability I
have in my role that I think gives the office its power in the community, and that is because we are independent. I
think it is absolutely critical that the commissioner is independent and that is set out in the legislation.
Senator CAROL BROWN: So what in the current legislation needs to change for that independence to be
Ms Pearce: For me, one of the issues is the reporting to the minister. As was said earlier, this is a position that
is shared between the states and the Commonwealth, and to have it being subject to the direction of the minister
means the commissioner cannot be independent. How can the commissioner be independent if it's subject to
ministerial direction?
Senator CAROL BROWN: You also made a recommendation about the commissioner being appointed for a
term of five years.
Ms Pearce: Yes.
Senator CAROL BROWN: Why do you make that recommendation? Why would that strengthen the
independence of the commissioner?


Page 12 Senate Tuesday, 5 September 2017

Ms Pearce: I think, when you've got a longer term, it means that you can plan better and set some clearer
goals. If your contract is only for three years, that really limits what you can achieve. A person in that role can
feel more secure if they have a longer term appointment. Three years seems to me to be particularly short.
Senator CAROL BROWN: Are there any other improvements that can be made to the legislation that you
believe would make sure that the commissioner is independent of the minister?
Ms Pearce: We've talkedand others have spokenabout the need to be transparent about the work that
they're undertaking. Having the commissioner reporting annually to the minister but tabling those reports in
parliament would be a significant improvement.
Senator CAROL BROWN: On the ability of the minister to direct, we've had a discussion with other
witnesses here that any direction from the minister should be agreed to by states and territories. Do you have a
Ms Pearce: Just thinking about my own legislation, the minister can ask me to undertake particular inquiries
or functions, and I think that is entirely appropriate. Also, having my own independence firmly established in
legislation, the minister's the ability to not direct me but request that I undertake particular activities is quite
different from me being directed. It sits very comfortably with me that the minister is able to ask me to undertake
particular functions. That's very different to directing me to do so.
Senator CAROL BROWN: I was interested in the comments in your opening statement about community
visitors. In your submission, you talk about awaiting the outcome of an independent evaluation of community
visitors schemes operating. When is that evaluation supposed to happen?
Ms Pearce: That's an answer that I'd be very keen to get as well, but, as far as I understand it, there has been
no independent evaluation undertaken. There's certainly been no consultation with any state body that has
oversight responsibilities for community visitors. So this legislation will proceed and I think
Senator CAROL BROWN: Was that evaluation indicated in the NDIS Quality and Safeguarding
Ms Pearce: I believe so, yes.
Senator CAROL BROWN: But, as far as you are aware, it hasn't happened?
Ms Pearce: As far as I'm aware, it hasn't happened, and, as I said, there's certainly been no discussion with
any state body that oversees community visitor programs.
CHAIR: Thank you for your attendance this evening. You took a question on notice, Ms Toohey. We need
answers to questions on notice by close of business on Friday, 8 September.
Ms Toohey: Yes, thank you.


Tuesday, 5 September 2017 Senate Page 13

AHRENS MURRAY, Ms Petra, ASU delegate, c/- New South Wales Branch, Australian Services Union
ANDERSON, Ms Deborah, ASU delegate, c/- New South Wales Branch, Australian Services Union
GASKE, Ms Emeline, National Campaign and Growth Coordinator, Australian Services Union
McFARLAND, Mr Angus, Assistant Secretary, New South Wales Branch and ACT Branch Australian
Services Union
SLADE, Ms Trudie, ASU delegate, c/- New South Wales Branch, Australian Services Union
WHITE, Ms Linda, Assistant National Secretary, Australian Services Union
CHAIR: I welcome representatives of the Australian Services Union. Could you please confirm that
information on parliamentary privilege and the protection of witnesses and evidence has been provided to you?
Ms Ahrens Murray: Yes.
Ms Anderson: Yes.
Ms Gaske: Yes.
Mr McFarland: Yes.
Ms Slade: Yes.
Ms White: Yes.
CHAIR: The committee has your submission. I invite each of youperhaps not each of youto make a short
opening statement and at the conclusion I will invite members of the committee to put questions to you.
Ms White: I will make an opening statement and our delegates will make short opening statements as they are
front-line workers.
CHAIR: Thank you.
Ms White: Thank you very much for the opportunity to appear before you today. I should say at the outset
that ASU members want to make sure that the NDIS is the best that it can be. ASU members support robust
quality and safeguarding arrangements to ensure that NDIS supports are delivered to a high standard. However,
we have serious concerns about the bill and the extent to which it will ensure that people with disability have
access to quality and safe supports.
Firstly, we must draw the committee's attention to the fact that there has been no consultation with disability
workers or their representatives in relation to this bill or the draft code of conduct that has been circulated by the
Department of Social Services. The bill in section 73(v) proposes to impose fines of up to $52,500 on individual
workers yet no-one has engaged the workforce on the elements contained in the bill or the code of conduct. To
ensure the efficiency of the quality and safeguarding arrangements, there needs to be buy-in from the workforce.
This is more likely to happen when the workforce is treated as a partner in the development of the scheme rather
than having imposed upon them a scheme that they were not involved in developing.
Secondly, there is no baseline level of quality assurance that is provided for in the bill as not all providers of
supports are required to be registered and the obligations of registered providers will not apply to them. We
consider that this brings a significant risk to the scheme. In our view, the starting position must be that all
providers of supports under the NDIS should be registered.
Thirdly, the bill is entirely silent on what workers can expect in the event that a complaint is made or an
investigation is commenced in relation to their conduct. In our view, at a minimum, the legislation needs to be
clear that workers will be afforded procedural fairness following a complaint or during an investigation, and it
must be a requirement that any investigation is completed as soon as practicable.
Fourthly, we are concerned that this legislation is entirely focused on dealing with incidents after they occur
rather than proactively focusing on workforce skills and quality of supports. The obligations set out in the bill and
in the draft code of conduct will require workers to continuously develop new skills and qualifications relevant to
the diverse needs of individual clients. However, there is currently no person-centred professional development
plan for the NDIS workforce. Current training arrangements for NDIS workers are wholly inadequate, in our
view. Further, as you will have seen in the University of New South Wales research report on pricing that has
been provided to the committee, there is little ability for NDIS workers to access supervision and training under
current NDIS price settings. In our view, in addition to the registration and complaints function, the Quality and


Page 14 Senate Tuesday, 5 September 2017

Safeguards Commission should have additional responsibilities for workforce development, skills and training. Of
course the commission must be resourced to fulfil this responsibility.
If I can turn to pricing: NDIS pricing arrangements need to account for time for workers and providers to meet
their quality and safeguarding obligations. It is critical that the measures to ensure quality and safety are not
introduced in a vacuum. As it presently stands, the quality and safeguarding arrangements appear to be divorced
from the NDIS funding model. NDIS pricing only allows for three minutes an hour of a worker's time to be spent
not on client-facing work. Already we can see how this will cause problems for compliance with the draft code of
conduct. For example, the expectation contained in the draft code that providers must offer reasonable supervision
is limited by the fact that there is inadequate time and funding for supervision built in to the NDIS pricing model,
as I've described. Another example is the expectation for workers to keep detailed and comprehensive records.
Three minutes an hour is inadequate to allow for the administration that may be required, let alone training and
supervision requirements.
Finally, we are concerned that there is so little said about the code of conduct and the practice standards in the
bill. This makes it difficult to properly provide meaningful feedback on a scheme that will apply to the workforce
because so little is currently known about it. We consider there needs to be an overarching framework provided
for in the bill, and the consideration of the bill should not occur before the development of practice standards is
further progressed, in our view.
Our delegates are here to represent members across the country; they are not here to talk on behalf of or
represent their employers, but they would like to say a few things about their experience with the NDIS to date
and the issues that they have observed.
Ms Anderson: I have been in the disability sector for just over 10 years. I am currently a local area
coordinator in the disability sector. One of my real concerns with the rollout of the NDIS is about the level of
formal training and skills building to meet the requirements of frontline workers. I believe it falls short of the code
of conduct and safeguards set out by the NDIS.
I have an example which I would like to quickly outline for you. Staff are being trained on the floor by other
staff, and not by a formal separate entity. A prime example of that is administration of medications. The flow-on
effect of being trained by another staff member in something that is so important could be detrimental, as it's very
similar to Chinese whispers. When you've got someone on the floor training someone else, who then trains
someone else, who then trains someone else, it then doesn't usually look exactly the same as for the first person
that was trained. There are pieces missed. That can be quite detrimental to a participant, their family and, in turn,
the worker because it leaves them open to mistakes where things aren't being followed and there are no guidelines
around that training formally. Basically, I believe this can be avoided by organisations being provided the support
to roll out the adequate training in any sector to eliminate any incorrect training. None of us on the floor is trained
to be a trainer. That's one of my main concerns for frontline workers in the sector.
Ms Ahrens Murray: Thank you for this opportunity. I have spent all my working life in social services, with
17 of those years in disability services in various roles, recently as coordinator of support in the trial area since the
first conception. I've noticed specifically a drop in clinical supervision. Before, I used to do a coordination of
support and I also looked after hiring and supporting individual support workers. These workers are those who
support people with disabilities out in the communities. They don't work in teams. They don't work in houses with
supports but are out there directly working with the person and with nobody to fall back onto.
It used to be practice that they had clinical supervision provided, so there were conversations about how to best
provide services, what works well, what didn't work well, where they might have doubts about practice and how
they can resource further. There were education and information, and that was at a pro rata of, depending on how
many hours they worked, an hour per month for full-time work.
I also think it's been crucial for that to be provided, because more and more support workers nowadays don't
come with a background, experience or education around those issues. Many are just starting out in the field.
What I have noticed strongly is that nowadaysand I believe that's a costing and pricing issue from the NDIA
these supports are not provided anymore. The clinical supervision has fallen away. We also used to provide quite
lengthy introductions to make sure the worker knew exactly what was expected, and that has also fallen away,
now just leaving attending to emergencies. When something has gone wrong, that conversation is reported back
and then gets addressed. It's just a problem-solving exercise.
I'm really concerned about that trend and that this is happening, and a part of that is also that the discussions of
best practice have fallen away and it's just about filling the hours and providing the workers.


Tuesday, 5 September 2017 Senate Page 15

Ms Slade: Thank you very much. My name is Trudie. I've been in the disability sector since 2008. I have been
in multiple roles from support worker through to service manager. My experience since the NDIS has commenced
rolling out relates to training specifically. I've noticed that face-to-face training has dropped and there's been a
huge increase in online training.
I believe this has occurred due to the direct support costs, which reflect three minutes in every hour of off-the-
floor support. The NDIS pricing model does not reflect the actual time necessary for quality off-the-floor support
such as training, writing critical case notes and liaising with other people. The quality of the off-the-floor supports
such as training are important for quality supports to the people and the customers through the NDIS.
Online training has its place. However, my worry is for the circumstances surrounding online training. Some of
the things that are occurring right now are that employees are doing this training within their own time and they're
using computers in the office or at their home to complete this training, so there's no way to monitor if that
employee is the person completing the training. The training is a series of ABC-multiple-choice or yes-or-no
responses, which means it's pass or fail. In comparison to face-to-face training, online training means you can't
gauge that person's strengths or weaknesses. The floor for open discussion around how things are going to be
implemented in a practical way is no longer there, because you do not have that face-to-face time with someone.
When a worker's weaknesses and strengths can't be identified, you can't pinpoint and target specific training they
may need.
My worry is about the costings. They're hugely underestimated, which has a flow-on effect to the quality of
support that is provided. If the quality of training decreases, the quality of support will decrease.
CHAIR: Thank you very much. Senator Brown.
Senator CAROL BROWN: Thank you all for your opening statements. Do you think the legislation before
us will support workers to meet the code of conduct and continue best practice? I've understood what you have
said here today, but what do you think needs to change?
Ms White: I think many things need to change. I think that we are uncertain about the code of conduct. I think
it would be fair to say that the discussion paper that we have seen from the Department of Social Security causes
a lot of concern among workers when they become aware of it. As brief as it is, I think that it is very difficult for
people to understand what it means, because it isn't detailed enough to understand what is expected of them.
As our members have also suggested to you, the pricing system does not support the sorts of things that we
presume the code of conduct wants to achieve. There is little for training, there is little time for supervision and
there seem to be very onerous things put onto workers in particular. It's not a small thing to be fined $52,500,
which is what this legislation proposes as a maximum. Yet, if we were asked what the practice standards are that
we have to fulfil, what the code of conduct is going to be and how we do not breach that, we could not tell from
this legislation. It would be unusual, I think, to have legislation that imposes such a high impost and a high civil
penalty upon a person. Yet, at this stage of its development in the bill, you could not tell a person what they
needed to do to comply. That's a massive failure, as far as we're concerned. The other failure, as I said, is the issue
that the pricing is disconnected totally from this code of conduct and quality framework.
Senator CAROL BROWN: What would you like to see? I will go back a step. In your opening statement,
you said that there was no consultation. Is that right?
Ms White: There was no consultation. We put in a submission to the DSS about the code of conduct, but
nobody has ever come back to us. DSS, in their own submission, say that, in relation to the practice standards,
they have created a technical reference group to develop those. They have included the Department of Health, the
NDIA, Disabled People's Organisations Australia and the employer organisation, the NDS, but, noticeably, there's
not any input being asked for from any employee or employee organisation. That is a massive failure. This is
imposing big penalties on people for failure to comply and they're not even being asked for their opinion. We
have probably 50 years of expertise, if not more, sitting here that could easily contributeand that's three people
out of our thousands of members. Nobody has been asked about it.
Senator CAROL BROWN: So you put your submission in and you had no feedback whatsoever?
Ms White: No feedback whatsoever.
Senator CAROL BROWN: Have you made any comment on that technical group, as I think you called it?
Ms White: No. We've learned of its existence from the submission by the Department of Social Security.
That's how we learnt about it. Apparently, workers are not stakeholdersthe organisations who represent them
have made more submissions on the NDIS than I care to number and apparently workers are not relevant


Page 16 Senate Tuesday, 5 September 2017

Senator CAROL BROWN: What do think needs to be in the legislation around the role of training and
professional development?
Ms White: We really think that there should be a further commissioner. We think there should be a quality
commissioner. We think that somebody's task should be to look at the quality standards and the training that
should be developed and how the workforce are going to be supported. We think that the commission should be
less punitive and more supportive of the frontline workers so that they can deliver for their customers and their
clients, who they are devoted to. That's what we think. We think that there should be a major change of focus.
That would provide a clear indication to the workforce and to people with disability that quality and workers are
incredibly important.
Senator CAROL BROWN: From the support workers here, we heard about training, or non-training. I
wonder if you could further explain how access to training comes about in your workplace, if it does.
Ms Slade: I think that is going to vary across organisations quite dramatically. It's also going to vary across
regions and the types of service being provided, especially when you consider some are what you would call
high-risk services with positive behaviour support plans. So I think that is a difficult question to answer because it
really varies.
CHAIR: Sorry, Senator Brown. Senator Siewert does need to leave soon, so we might pass to her.
Senator SIEWERT: Senator Brown has actually asked some of the questions I was going to follow up. I did
want to go to the procedural fairness issue. It's an absolutely critical issue. Could you outline how you think that
issue could be addressed? I understand the importance of it, but how do you think it could be addressed in the
Ms Gaske: One way you could do it would be to put a reference that any investigation arising out of the
practice standards or code of conduct need to include an element of procedural fairness. Whether you wanted to
expand on that in great detail or whether you wanted to make it a requirement of the rules, that's a matter for
Senator SIEWERT: Basically, you are name checking it in there
Ms Gaske: I think that's right.
Senator SIEWERT: to say a key element of the process is that it has to involve procedural fairness.
Ms Gaske: The Fair Work Act, for example, just name checks the idea of procedural fairness in the course of
an unfair dismissal application. You could do something similar in this legislation.
Ms White: This current legislation does talk about thatnot in deregistering, but in banning orders. It goes
into great depth. We think to call it out would be the way to go.
Senator CAROL BROWN: I do have a comment about worker screening.
Ms White: It's got to be consistent across the country and it has to be able to be understood. We also think that
screening might need to be done with different levels of screening, and not one-size-fits-all, depending on what
you do in disabilities. There might be different types of screening or, for want of a better word, different
qualifications that you need to have in a regime of screening. Although we don't think they are perfect, the
vulnerable persons screening in the ACT and the blue card system in Queensland have a regime which is
graduated. We think that is not a bad way to go because we don't think one size fits all; it depends on the position
and the type of activity the person would undertake with a person with disability.
Senator CAROL BROWN: A tiered system?
Ms White: A tiered system is what we think. Again, the way the code of conduct operates, it does seem to
suggest that if you do something wrong, colloquially, then somehow the screening unit will change or put a note
on your file. Again, we think procedural fairness is extremely important if that is to occur. If it is going to affect
your livelihood, you need to be in a position to be able to address what is put to you or put on your file in
Senator CAROL BROWN: With the legislation before us, do you have any other concerns? We have heard a
lot of concerns in the hearings and the evidence that we have received about the ministerial power. Have you had
a look at that?
Ms White: I can't say that we have. I can take that on notice and give you an opinion if we have one.
Senator CAROL BROWN: All right. I think that's all the questions I have.
CHAIR: Thank you all very much for your attendance tonight. Answers to the question you took on notice
will be needed by Friday, the 8th. Thank you


Tuesday, 5 September 2017 Senate Page 17

BRESNAN, Ms Amanda, Executive Director, Community Mental Health Australia

STONE, Mr Kevin, Chief Executive Officer, Victorian Advocacy League for Individuals with Disability
VIERECK, Mr Simon, Executive Officer, Mental Health Community Coalition ACT
Evidence from Mr Stone was taken via teleconference
CHAIR: I welcome representatives from Community Mental Health Australia and, via teleconference, the
Victorian Advocacy League for Individuals with Disability Inc. Could you please confirm that information on
parliamentary privilege and the protection of witnesses and evidence has been provided to you?
Mr Stone: Yes.
CHAIR: The committee has your respective submissions. I now invite you each to make a short opening
statement, and at the conclusion of your remarks I will invite members of the committee to put questions to you.
Mr Stone, would you like to start?
Mr Stone: Yes, certainly. You have our submission there. I thought I would just go through some of the
highlights there and first of all explain that VALID is Victoria's chief advocacy agency, representing adults with
intellectual disability and their families. We provide a range of advocacy and support services: individual
advocacy, systemic advocacy, self-advocacy training and support, and family advocacy training and support. We
provide information resources across the stateparticularly, over the last three years, NDIS-related information
and supportas well as community development and support groups. We're very strongly supportive of the NDIS
principles and always have beenin particular the principle that people with a disability are presumed to have
capacity, which implies that they should inform and direct their own planning, make their own decisions and have
control and choice in their lives.
But, while we're supportive of that, we're also very mindful of the fact that in reality many people with
intellectual disabilities lack the capacity and/or the power to exercise control and choice. They're often assumed
incapable. They're often stigmatised and shunned, systematically congregated, often captured by services and
often herded. They're recipients of support, in many cases, rather than leaders of their own lives. Many people
with a disability, particularly people with an intellectual disability, are disempowered in their lives. They
commonly experience the effects of stigma, alienation, oppression and abuse. While the need for control and
choice is critically important to them, often the higher priority is the need for safety, security and freedom from
Our submission highlights our support for the establishment of the Quality and Safeguards Commission. In
Victoria, we consider ourselves lucky to have had the Disability Services Commissioner for the last 10 years
playing such an active role in keeping people safe. They, along with the Office of the Public Advocate, the
Community Visitors Scheme and the Office of the Senior Practitioner, have made an important positive difference
in the way people with disability in this state are made less vulnerable.
VALID's been around since 1988, and I've been in the disability sector for 40 years. The truth is that, despite
the positive difference that these mechanisms make, I think they would be the first to acknowledge that they
cannot do their job effectively without advocacy organisations like ours supporting people with disability and
their families, empowering them, giving them confidence and guiding them to engage in the sorts of mechanisms
that exist. I think the same is going to be true of the Quality and Safeguards Commission. We very much welcome
these mechanisms, but the truth is that, without effective independent advocacy and organisations that are
helpfully supporting and empowering people with disability across the country, I'm afraid that we are not going to
see the sorts of positive inroads into addressing abuse and neglect that we need to see.
Our submission states that the rollout of the NDIS has placed the advocacy sector under tremendous pressure,
assisting a high number of people without natural supports through the transition to the NDIS, assisting people
with complex needs to transition, responding to the increasing number of requests for independent information
and support, and responding to increased demand as the number of disability providers rapidly increases and
people become more aware of the role and the need for independent advocates. We're seeing incredible demand.
We're seeing it rising, but we're seeing no-one talking effectively about how advocacy is going to be funded into
the future in such a way that we can be healthy.
Our submission goes on to deal with some of the details of the bill. I would refer you to page 7 of our
submission in particular, which relates to banning orders. VALID strongly supports the commission having the
power to make banning orders prohibiting or restricting activities of an NDIS provider or person, as per section


Page 18 Senate Tuesday, 5 September 2017

73ZN. However, we have serious concerns about the scope of the banning orders. How will the list of banning
orders interact with the nationally consistent prohibition orders issued to a health service provider that has
breached the healthcare code and poses serious risks to an individual or the public? What steps are being taken to
ensure providers or people that receive a prohibition order within the health sector don't bob up and re-emerge as
NDIS providers or vice versa? Will the commissioner have powers to prevent a provider or person who is banned
within the NDIS working with other vulnerable groupsfor example, the frail aged? We've made two
recommendations: (1) that the powers of the NDIS Quality and Safeguards Commissioner be appropriate to
prevent unsuitable people moving between sectors and preying on vulnerable people; and (2) that consideration
be given to ensuring that the banning orders of the NDIS commission and the prohibition powers of state and
territory health commissioners overlap so that people banned in the NDIS cannot provide health services and vice
We then talk about the importance of the provider register, which we are strongly supportive of. However, it
doesn't go far enough. It's one thing to regulate services, but the fact is that people will always remain vulnerable
to the support worker, who may not have their best interests at heart. There need to be provisions and assurances
around the accreditation and skilling of the workforce to ensure not only that they are good people of virtue
without criminal convictions et cetera but also that they have the knowledge and skills to empower people with
disability to achieve their potential.
We're well aware here of the debate about the degree to which staff need to be trained, and we're very
supportive of the fact that many people with disabilities should be able to, and can, choose their own workers and
skill them appropriately. But for people with intellectual disability, the majority of whom are dependent on
services to make those choices about staffing et cetera, there needs to be accreditation and there needs to be
guaranteed training. In this regard, we would commend the work of the Victorian government, which has set up a
task force to develop a registration and accreditation scheme, and in particular the work of the Future Social
Service Institute, run by VCOSS, to scope out the future needs of the disability workforce. These are critical
issues for people with intellectual disabilities.
I'm not going through all the submission, but the next issue I would like to highlight is on page 8, regarding
access to assessments. This is a critical issue for us too. Section 26 states:
(1) The requests the CEO may make under this subsection after a prospective participant has made an access request (see
paragraph 20(b)) are as follows:
(a) that the prospective participant, or another person, provide information that is reasonably necessary for deciding
whether or not the prospective participant meets the access criteria;
(b) that the prospective participant do either or both of the following:
(i) undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the
The act makes no provision for which publicly funded, appropriately qualified person will conduct such
examinations, or how the examination will be funded. For many people, especially people with complex support
needs, the cost of appropriate assessments are a barrier to accessing and navigating the NDIS and having their
support needs met. We therefore recommend that the amended bill include direction on how disability assessment
should be funded such that people with disability do not miss on support because of a lack of access to
I won't go into more detail other than asking you to give some attention to recommendations we make on page
8 regarding the use of the term 'behaviour supports'. We really believe the bill should reflect best practice. The
term 'positive behaviour supports' is best practice, and it should be amended thusly. Thank you for your time.
Ms Bresnan: I will briefly go through some of the issues raised in our submission, given the committee has
probably already seen those issues. Obviously, our submission to this bill primarily related to that intersection
with chronic health and disability and that amendment in the bill which relates to that. We didn't raise any major
concerns with the actual establishment of the Quality and Safeguards Commission.
We did put in a separate submission to the code of conduct, which we attached to our submission, which
obviously raises relevant issues in relation to the establishment of the commission. Quickly, the issues we raised
in that were: how providers were going to meet the requirements of the code of conduct, given, as has already
been noted in other evidence tonight, that the NDIS pricing structure doesn't actually include it; there isn't actually
any information about who would provide that training or how it would be developed, and that's in the code of
conduct itself; the level of accountability that's actually applied to the NDIA, which is not a part of the code of
conduct or the commission at present; the rights and responsibilities that come with the code of conduct, not just


Tuesday, 5 September 2017 Senate Page 19

for service providers but also for users of services, and considering having some part of that included in the code
of conduct and the legislation; and that we can envisage difficulties with nonregistered providers being required to
undertake or be a part of the code of conduct, which seems to shift the responsibility on consumers to make
themselves aware of that information. I would also note that the code of conduct was still open for consultation
when this legislation was tabled. I think that is a somewhat unusual step. I would have thought that process would
have been allowed to go through until the legislation was tabled because there may be very useful issues raised in
people's submission to that code.
As I said, the main change we do have concerns with is the inclusion of that wording which, as noted in the
explanatory statement, is primarily around people, particularly with chronic health, accessing services that might
be more appropriately provided somewhere elsenamely, we would imagine, the health system of states and
territories. We believe this is an issue which requires much more considerable examination before making
amendments to the act around this. This includes that examination of the funding that states and territories have
transferred to the NDIS which might providing chronic disease assistance to people with disability.
With regard to the overall amendments, we have concerns that these changes are being made on issues where
concerns have been raised with the NDIA, but they haven't actually consulted on the implications of making these
changes to the act. When you make changes to the act that's quite a definite statement and, obviously, it is then
more difficult to make changes if unintended consequences eventuate. We wrote to the minister, Christian Porter,
around our concerns with these changes. Basically, the response noted that these were amendments which were
proposed in a response to the EY review of the act in 2015.
The top line message that came out of that review, and which we keep reinforcing to people, is that their
recommendations were being made at a time when the act was not actually being implemented, and that these
need to be tested at the time of implementation. As we know, there have been a number of issues that have
eventuated through the implementation process. We wouldn't actually want to see a proper review of the act, now
that it's being implemented, before we make changes to the legislation. That seems like a not fully informed step
to be taking.
We provided a case study to the committee, which we also provided to the minister, which was from
Queensland. It was around a person with chronic mental health and diabetes who had been receiving assistance
for their diabetes through disability funding through the state department. This funding was transferred to the
NDIS. This person was found eligible for the NDIS; however, they were then told they couldn't receive assistance
for their diabetes, despite the fact that the funding they had been receiving had gone to the NDIS. I imagine this
would not be the only case study. It underlines that complexity of where the disability finishes and where the
chronic disease finishes.
We totally recognise that there are going to be services that have to be provided by state departments. We've
said many times that the NDIS was never meant to replace existing services. However, there will be those case
studies where funding has gone to the NDIS and those people should be able to receive one package and not have
to be told, 'You have to go to another system.' It also goes to the Productivity Commission's recommendations
around these intersectoral issues, that we need to determine whofederal, state, territory governmentsis
funding what before we start withdrawing funding, because obviously it may have unintended consequences.
CHAIR: Thank you.
Mr Viereck: I have nothing further to add to that.
CHAIR: Mr Stone, there's been discussion tonight about the fact that advocacy is not adequately provided for.
Can you talk about what you actually think is missing in the advocacy space in a practical sense? Are you talking
about there's no funding provided for it? What do you actually mean? What's missing in the advocacy space?
Mr Stone: First of all, we're a member of DANAthe Disability Advocacy Network Australia. If we're
talking about where the gaps are nationally, I would refer you to DANA's submission and to Mary Mallett. From
my position as the CEO of an advocacy organisation in Victoria, the gaps are particularlywe're funded as an
individual advocacy organisation. We have a state government that has pledged some commitment to continue
advocacy, and that's very reassuring, but there hasn't been any significant increase in the resources we have,
particularly for advocacy, in the 30 years that I've been here.
To give you a sense of that, we have basically the equivalent of three advocates to support people with
disability across the entire state. Over the last three years we've seen this exponential rise in demand for people
seeking information and guidance through the NDIS process. One of the critical areas for us currently is the
number of people with disability, particularly living in supported accommodation, who don't have active family
involvement, who don't have guardianship and who don't have anyone in their lives to stand alongside them to


Page 20 Senate Tuesday, 5 September 2017

support them in making decisions about access to services, or access to quality services in particular. That's red
hot at the moment; it's a major gap. Who actually stands alongside and supports people to make sure they are
getting a good deal in a market-based system? That's one critical area.
I could go on and list all of the critical areas. We deal with many incidents of abuse that tie our advocates up in
legal processes, court processes. We deal with very intensive family dynamics et cetera. I don't think anyone
really has an appreciation of the depth and the complexity of work that individual advocates do. A lot of it is done
behind the scenes and on the quiet.
CHAIR: Sorry, we will have to suspend there. We've got the bells ringing for the chamber.
Proceedings suspended from 19:19 to 19:25
CHAIR: We will resume the hearing. Sorry, Mr Stonehad you completed your answer or did you want to
finish up there?
Mr Stone: Well, I was making the point about the importance of advocacy. I could continue to make that
point for another two weeks if you'd let me! I won't. But I do want to emphasise one thing. I'm a parent of three
adults with disabilities; I've been in the disability sector for over 40 years; I've been CEO of this organisation for
nearly 30. I just want to say this to youand it's not from a vested interest, I promise you. Advocacy is the most
critical elementone that's been seriously overlookedin making the NDIS work, and not only the NDIS but the
National Disability Strategy. Advocacy is a critical component, and I just don't see it taken seriously by
CHAIR: Where does the funding for current advocacy come from? Is that coming from the state level?
Mr Stone: It comes from a combination of state and Commonwealth. In Victoria we've got quite a few
advocacy organisations, but many of them are very much underfundedsmell-of-an-oily-rag stuff. VALID, our
organisation, has benefited over the last few years from a state government that's actually committed to building
advocacy up so as to better deliver information, particularly about the NDIS. So we are enjoying that, at the
moment, but it doesn't actually help our advocacyour core, individual-advocacy people. That really hasn't
increased dramatically at all.
I really think it comes from peopleparticularly people in positions of power and authority who are decision-
makersnot really appreciating or understanding what it is that we actually do. I don't want to take up too much
time with this, because it's a different matter, but enough to say that, as to the job of safeguarding people with
disabilities, particularly people with intellectual disability, it's what happens really close to the ground; it's about
building those relationships of trust with people; it's about supporting families so that they feel more confident to
raise their hand and rock the boat and do stuff. That's what individual advocacy is doing constantly. And if you
just leave it to high-level mechanisms, external mechanisms, you won't address these problems at all.
CHAIR: Thank you very much. Senator Brown?
Senator CAROL BROWN: These are just general questions for whoever wishes to jump in. We've had quite
a lot of discussion over a couple of days about the current drafting for the commissioner and whether that will be
seen as independent. Do you have a view on how it's currently drafted?
Ms Bresnan: As has been pointed out in the evidence I've heard this eveningand I've looked at some of the
other submissions as wellI think there is still that lack of clarity around the commission, as to where it will sit.
Obviously, the issue of the ministerial discretion has been raised, and that was an issue I raised. I didn't put it in
our submission, but I did actually raise it initially with the minister's office. We got a response saying that that
was a typical inclusion, but it was something that struck me as not being a typical inclusion, and obviously that's
raised issues with other people as well. That's around the ministerial oversight, sorry, I should say. But I think it's
relevant in terms of those issues about how independent the commission is. I think it's really importantas we've
seen with other, similar commissions, and we're familiar with the Mental Health Commission, obviouslyto have
that independence, to be able to provide some oversight, and to not just look at issues around the code of conduct
but also, as other people have raised, issues about complaints processes, and that would include around the NDIS
itself and the NDIA. I'm not a legal expert at all; I admit that. But it wasn't clear to me what the exact level of
independence for the commission would be, particularlyas people have raised thatin providing that reporting
about the work they're doing. Providing that to the parliament I think is a really vital mechanismto have that
independence so the parliament itself is providing that oversight. That didn't seem to be a part of the legislation as
it was currently.
Senator CAROL BROWN: Are there any other comments? No? In your opening submission, you talked
about people with chronic illness and mental health conditions, so how would you propose that the bill could offer
better protections?


Tuesday, 5 September 2017 Senate Page 21

Ms Bresnan: I think for a start there is the fact that we're including this in the bill when we actually don't have
a clear understanding of those intersectoral issues, and the fact that the Productivity Commission raised this.
Before we have a real understanding about this and also about that whole continuity of support which we keep
talking about, I think it's quite pre-emptive to be putting an amendment into the act which might then have
unintended consequences.
I know I referred to our case study earlier, but that showed there's obviously still a lack of clarity when you've
got funding that was sitting in disability to assist chronic health. It goes to the NDIS, but then you have this fight
between the state department and the NDIS about who should provide that support, and this person's stuck in the
middle, not getting that support. I understand that this case still hasn't been rectified. It shows, I think, that it's too
early to put an amendment like this in.
I think it's one of those issues. How would it be framed? That's something we would have to look around the
wording of. Then, if you're going to do something like that, there needs to be acknowledgement that people
shouldn't have to go to two different parts of the system to get one package to support them, particularly when
they don't have the ability to coordinate that. That's the whole point of the NDIS: to provide people with the
support they need over their lifetime.
It's not a move we should be making right now, and that's one of the things we've recommended. It goes to that
analogy which is used often: we're building the plane as it's flying. We seem to be patching things up as we're
going along. We think there's a problem there, and this obviously relates to the cost of the scheme. I'm guessing
that this is where that's come fromand some of the other amendments that are in there. But we've got to have
that real basis of understanding before we do things that then have unintended consequences. I think the Ernst &
Young recommendation said the proviso is that this is not happening at implementation. There needs to be that
full review of the implementation of the Productivity Commission recommendations so we know exactly that
what we're doing is not going to have negative consequences for the person. Really, that's what we should all be
thinking about.
Senator CAROL BROWN: Are you saying that you believe the reason why it's in there is cost?
Ms Bresnan: I can only assume. Again, I know that it was one of the things that have been the response from
the minister's officewhich was prepared by the departmentthat it is something which Ernst & Young
recommended in their 2015 review. However, again, as I said, this has to be tested at implementation. I can only
assume that's one of the motivations, because there are other things there around inserting the word 'sustainable'
when it goes to innovation.
As we said, we understand that the NDIS is not meant to be replacing other parts of the system. However,
we've got to have an understanding of what funding has gone where andagain, like I saidnot saying to this
person: 'You'll get an NDIS package. You're eligible. You've got to go somewhere else to get support to
administer your insulin.' We're breaking up a system which we've been fighting for so long to bring together. That
issue of comorbidity won't only be in mental health. We know people with disability have above-average levels of
chronic disease as well. It seems to be going against everything we're saying is evidence based practice.
Senator CAROL BROWN: Mr Stone, do you feel that the powers of the NDIS Quality and Safeguards
Commission are appropriate to prevent unsuitable people moving between sectors and preying on vulnerable
Mr Stone: No. I guess that goes to the recommendation we've made around banning orders. That's what you're
referring to?
Senator CAROL BROWN: Yes.
Mr Stone: I guess that's why we've highlighted here that we're not satisfied that there's been adequate
attention given to that for that issue. You know, we see people bobbing up. They will get fired from one particular
place and then they will show up somewhere else. That practice has been going on for a long time from the
education department through to health, disability and into other areas. I just think there is an opportunity here to
actually get some consistency and to make it much more difficult for perpetrators of abuse to be able to pick and
choose who they are going to prey on. It is a gap that needs to be closed.
Senator CAROL BROWN: Sorry, I didn't quite catch your last comment.
Mr Stone: It's a gap that needs to be closed. If you go to page 7 of our submission, we're recommending that
consideration be given to ensuring the banning powers of the commissioner and the prohibition powers of state
and territories are consistent. We are talking about people who may be banned in the health sector so we want to
ensure that the NDIS commission is alerted to that and that they share a list to ensure that people aren't able to go
from one system to the other. I just think it needs to be looked at more closely than it has been.


Page 22 Senate Tuesday, 5 September 2017

Senator CAROL BROWN: Do you have any other comments in terms of improvements that you think
should be made to the legislation?
Ms Bresnan: I was going to note that Mental Health Australia wrote to the committee around the definition of
permanency as it relates to mental health. We, in a separate inquiry to the joint standing committee on the NDIS,
put in a submission with Mental Health Australia and Mental Illness Fellowship around that issue as well. So
again, that is an issue which we believe needs to be addressed in the legislation in terms of mental health and
permanency. So that would be an obvious improvement that could be made.
Senator CAROL BROWN: Is the recommendation that came out of that inquiry something that you would
be happy to see?
Ms Bresnan: It is. Yes. That is something which, in terms of the sector, we believe, would be required with
the act. Obviously we need an overall approach to recovery oriented practice and care, but that would be an
improvement to the act. There are a number of issues occurring around the interpretation of the act, particularly
what's reasonable and necessary. I know with that joint standing committee there was an open hearing here in
Canberra and there were numerous stories across different disabilities about that. We've had two court cases
around that. For me, I think we still need to have that thorough review, as Ernst & Young said, now that NDIS is
actually at implementation. Because obviously there seems to be differences between what a consumer interprets
as a reasonable and necessary and what the NDIA does. I think there are numerous cases of that. We have to look
at how the act is working at implementation. I don't know if someone else wanted to comment.
Mr Viereck: Just to reinforce that, I think testing things in implementation is crucial to understanding how
they actually play out and to understand what, in fact, changes are required. We're certainly seeing on a daily
basis across the mental health sector areas where we feel that the current way the scheme is being implemented is
negatively impacting on people with psychosocial disability in particular, in terms of the high rates of rejection
and in terms of some of those barriers Amanda raised around the concept of permanency and how that is
interpreted. For changes to an act to be driven by the issues and problems that are seen in implementation rather
than the other way around, I think is okay.
Senator SIEWERT: Apologies to the witnesses. I had to stay in the chamber to do an adjournment speech.
I'm not sure what was covered. What I will do is I'll read the Hansard. If I have got any questions I will put them
on notice very quickly.
CHAIR: If there were questions taken on notice, we will need the answers by Friday, 8 September. So we'll
make sure we get you those questions as quickly as humanly possible.
Senator SIEWERT: I just don't want to repeat anything anybody else has asked.
CHAIR: Thank you very much for your participation.
Ms Bresnan: Thank you, Chair.
Mr Viereck: Thank you.
Mr Stone: Thank you.


Tuesday, 5 September 2017 Senate Page 23

FIELDHOUSE, Ms Anna, Director, Quality and Safeguards Commission Service Model, Department of
Social Services
HAWKE, Ms Sarah, Director, Policy and Legislation, Department of Social Services
MCKINNON, Ms Margaret, Acting Deputy Chief Executive Officer, Governance and Stakeholder
Relations, National Disability Insurance Agency
NEVILLE, Ms Liz, Branch Manager, Provider Pathway Design and Engagement Branch, National
Disability Insurance Agency
SMITH, Mr Bruce, Branch Manager, Quality and Safeguards Policy, Department of Social Services
WHITECROSS, Mr Andrew, Group Manager, NDIS Market Reform, Department of Social Services
CHAIR: I welcome officers of Department of Social Services and the National Disability Insurance Agency. I
remind witnesses that the Senate has resolved that an officer of a department of the Commonwealth or of a state
shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer
questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking
for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual
questions about when and how policies were adopted. Could you please confirm that information on
parliamentary privilege and the protection of witnesses and evidence has been provided to you.
Mr Whitecross: Yes.
Mr Smith: Yes.
Ms Hawke: Yes.
Ms Neville: Yes.
Ms Fieldhouse: Yes.
Ms McKinnon: Yes.
CHAIR: The committee has your organisations' respective submissions. I invite you to make short opening
statements and, at the conclusion of your remarks, I will invite members of the committee to put questions to you.
Mr Whitecross: Noting the previous submissions that we've made and, indeed, the legislation itself, I will
keep my remarks as brief as I can. First of all, the department welcomes the submissions that have been made in
relation to this bill and recognises that they reflect the broad commitment across the community and within the
disability sector to getting the best outcomes for people with disability. That commitment is also reflected in the
department's approach to the development of quality and safeguard arrangements for the NDIS. A number of
submissions have reflected concerns or anxieties about poor outcomes. While it is understandable that people
worry and it's appropriate that people express those concerns, we believe that the context of the development of
the quality and safeguards approach and the approach we're taking to implementing the quality and safeguards
framework through this legislation will demonstrate that some of those concerns are misplaced and that we have
an appropriate approach in mind to achieve the objectives of the quality and safeguards framework. We're
obviously happy to address specific issues that are raised. However, if I can just take a moment longer, I want to
comment a little on our approach to this legislation.
The government began developing the elements of the quality and safeguards framework in 2014 and the first
major milestone of this work was the extensive public consultation held in early 2015, which ran from February
to May and involved public meetings in capital cities and regional locations, and workshops with specific
stakeholder groups. We received 220 submissions, 585 questionnaire responses resulting in a consultation report
setting out themes. Later in 2015 and on the basis of these consultations, governmentsthat's Commonwealth
and state and territory governmentsagreed to the quality and safeguards framework late in 2016.
There was a large degree of agreement in consultations and this was reflected in the key elements of the
framework: a national independent complaints and reportable incidents function; nationally consistent quality and
assurance and registration, regulation and oversight of restrictive practices, and national worker screening. Since
the framework was published, the government has announced funding for a quality and safeguards commission in
the 2017-18 budget and introduced the current bill into parliament in May.
In relation to the bill, the department first shared drafting instructions on the bill in February with jurisdictions
and also shared three different versions of the bill with jurisdictions prior to introducing it into parliament. The
government agreed that the commission will take over responsibility for quality and safeguards from jurisdictions


Page 24 Senate Tuesday, 5 September 2017

consistent with the broader rollout of the NDIS scheme, which means it will first commence in New South Wales
and South Australia in July 2018, which is not very far away really. But in order to meet that time line, we are
now working on the development of rules which underpin the operation of the legislation and there has been quite
a bit discussion about that in submissions over the last two days.
The bill includes 23 rule-making powers. Of these rule-making powers, the following six rules are essential to
the operation of the commission: NDIS practice standards, NDIS code of conduct, complaints management and
resolution rules, incident management and reportable incident rules, behaviour support rules, and protection and
disclosure of information rules. In developing the bill, we considered that there would need to be some flexibility
and evolution in the development of the detail of the rules as the commission is gradually established nationally
across participating jurisdictions. This would enable the commission to reflect best practice, for example, in
complaints management and in responding to emerging risks in the changing NDIS market through the practice
standards and code of conduct.
The remaining 17 rules powers in the legislation are in the nature of reserve powers, where provision is already
made in the bill for relevant matters which can be supplemented by the rules later down the track if needed, for
example, the matters to be set out in compliance notices, additional information to be published on the NDIS
provider register, record keeping, et cetera. We're now developing essential rules in partnership with states and
territories and then intend to consult on the development more widely from October this year. The development of
NDIS practice standards is an example of DSS continuing the practice along the whole development of the NDIS
by working with stakeholders, governments, people with disability, peaks, industry bodies representing providers,
to develop the standards. We are basing these standards on the longstanding national standards for disability
services and mental health standards, and we're conducting pilot audits of draft practice standards with a range of
NDIS providers across Australia to inform the final drafts and test their effectiveness with providers and auditors.
I just wanted to contextualise that to indicate that the legislation that we are dealing with now is an
operationalisation of the Commonwealth's commitments under the quality and safeguards framework, which has
been extensively broadly agreed to and consulted on. Arising out of the legislation, we are working closely with
state and territory jurisdictions and will involve other key stakeholders in the development of the key standards
and rules that we need to operationalise the legislation. Having said that, I'm happy to answer questions on issues
the committee wants to raise.
CHAIR: Is there a statement from the NDIA?
Ms McKinnon: We welcome the introduction of this legislation as an important mechanism for improving
service quality and strengthening the safeguards available to NDIS participants. We believe the bill to establish
the commission is a key mechanism to give effect to our obligations under the UN Convention on the Rights of
Persons with Disabilitiesin particular, Article 16, 'Freedom from exploitation, violence and abuse'. I would also
note that the NDIA endorses the elements of the bill that reinforce the central tenets of choice and controlin
particular, the dignity of risk.
CHAIR: Could you talk about how this bill will assist disabled people to have choice and take control over
their own decisions?
Ms McKinnon: In particular, my remarks go to self-managed participants, a central feature of the scheme
which was strongly endorsed during the establishment of the scheme itself. In terms of the issues from
submissions about the requirement for unregistered providers to be subjectI will allow my colleagues to
comment on how they are subjectmaintaining the capacity for self-managed participants to choose the services
they wish, whether it is an unregistered provider or a registered provider, is important in choice and control.
Mr Whitecross: Further to that, one of the key roles of the commission in managing risk and protecting the
interests of people with disability in the NDIS is to assist people with disability to be empowered and informed
consumers of disability services. In doing so, the commission would obviously work in partnership with the
NDIA, which also has an interest in that. But one of the key elements of a successful market is that the consumers
in the market can exercise judgement about whether they are receiving appropriate services and can be assured
about the quality of services they receive in relation to self-management. There are a range of measures in place
which protect people who choose to self-manage and ensure that that option is available in circumstances that are
appropriate. Obviously, people have to opt intheir first choice is to opt in to self-managementbut the NDIA
has to agree that the decision to self-manage is appropriate, taking into account any risks the individual might be
exposed to. Also, in doing that, the NDIA clearly explains any risk to the participant and would be able to provide
advice where appropriate to help to manage those risks.
It is also important to notebecause it is sometimes overlookedthat high-risk supports and services such as
behavioural support and specialist disability accommodation are only able to be accessed through registered


Tuesday, 5 September 2017 Senate Page 25

providers. As Ms McKinnon said, unregistered providers are still subject to the NDIA's code of conduct and can
still be the subject of complaints if something does go wrong. So, apart from having the support to exercise choice
and control where appropriate, they still have the protection of a complaints process to correct problems that
CHAIR: Thank you. In hearings yesterday we had a couple of witnesses raisesorry, I am going off
memorysection 181, the powers of the minister to give a direction.
Mr Whitecross: Yes.
CHAIR: Could you just talk through the thinking behind those provisions and how they compare to other
pieces of legislation, if they do.
Mr Whitecross: Yes. In relation to ministerial directions, first of all, we would strongly assert that the
commission will be an independent agency. I know that there was some question cast on that, but the framework
for this legislation is consistent with that of an independent agency in the Commonwealth, and it would be
accountable to parliament through the minister. The commissioner is required to comply with directions from the
minister, except to the extent that they're inconsistent with the PGPA Act or the Public Service Act. But it's
important to note that the directions to the commissioner must be of a general nature. They can't go to specific
decisions of the commissioner in relation to a specific individual provider, for example, which helps to ensure the
independence of the commissioner in exercising its powers. All directions from the minister are also legislative
instruments, which means that they're transparent and open to public scrutiny.
Senator SIEWERT: That's all directions?
Mr Whitecross: Yes. This is a common governance arrangement for Commonwealth independent authorities
and, in our view, is appropriate to the scope and role of the commission. The content of ministerial directions
would be expected to be similar to a statement of expectation which might be issued by government, a minister or
a collection of ministers to provide greater clarity about government policies and objectives relevant to a statutory
authority, for example, including policies and priorities it is expected to observe in conducting its operations.
They generally concern matters related to good governance, strategic priorities, regulatory approach and
stakeholder engagement.
It was suggested yesterday, I think, that the minister could use direction-making power to make directions
about inquiriesto establish an inquiry. They could do that. However, they won't be able to issue directions
restricting information-gathering powers of the commissioner.
If we think about other bodies who are in a similar situation, the Tertiary Education Quality and Standards
Agency is subject to general directions of the minister. Comcare and the Independent Hospital Pricing Authority
are subject to general directions by the minister. The Australian Communications and Media Authority is subject
to general directions. The minister may give general directions to the Australian Federal Police. So this is not an
unusual model, and I don't think it's intended or envisaged that the minister would envisage using this direction-
making power to constrain the ability of the commission to protect the rights of people with disabilityquite the
Ms McKinnon: If I may, I think the other thing that is being reflected on here in the feedback is the fact that
current models have governments that are the owners, the operators, the funders and the regulators often within
the same portfolio, whereas the NDIS doesn't directly fund service providers; the participant does that. Therefore,
the Commonwealth government is not directly funding service providers in that sense, which adds a level of
independence which sometimes doesn't exist in current systems.
CHAIR: We had some discussion tonight about the need to harmonise banning regimes in the healthcare
sector and the disability sector and state versus federal. I don't know if you have an answer to that, but I would be
interested to know if there's been discussion of that at COAG or at the department level. I'm happy for you to take
that one on notice.
Mr Whitecross: They made a good point, on the face of it. If someone is a banned worker in the NDIS, I
would think that it would be appropriate for careful consideration to be given as to whether it would be
appropriate for them to be providing services in a similar sector. I don't think that's an unreasonable point. I think
the way that would be operationalised would be through communication of information and memorandums of
understanding between different regulators so that they are working closely together to ensure that this sort of
market intelligence is available between sections of the market to ensure that the regulator of a similar market
would have access to that information. We would envisage that being operationalised through collaborative
arrangements and through the fact of people having been banned from operating in the NDIS being public
information that other people could pick up and use.


Page 26 Senate Tuesday, 5 September 2017

Senator SIEWERT: I want to go first to the consultation process. In your opening comments you built on the
comment that you made in your submission. I've come to realiseit's taken me quite a long time to verbalise it,
though I probably realised it earlierthat when the government says it has consulted it shouldn't be taken to mean
that they have taken on board what people have said. We've got recent experience with that on another bill that we
heard about last week. How many people and how many organisations that you consulted with in the second
group on the exposure draft supported it? What concerns were raised by the organisations that didn't necessarily
support it? For example, you say here that you've consulted with Disabled People's Organisations Australia. We
heard some very clear concerns from them last night. So what feedback did you get and why did you make the
decisions on some things when clearly there's not support from the sector for some of these provisions or the way
that you've gone about them?
Mr Whitecross: I'm not sure I can fully answer that question off the top of my head. Bruce might be able to
shed some light on that.
Mr Smith: We had a range of feedback from those providers. You're talking about the feedback on the
exposure bill?
Senator SIEWERT: Yes.
Mr Smith: We actually picked up a number of comments that people made. For example, one of the
comments that organisations made was that they wanted a commitment in the bill that one of the functions of the
commission would be ongoing consultation and seeking advice from the sector. We built that in. There were a
number of other changes that were made. We didn't pick up every suggestion that organisations made. Indeed,
you've heard in these hearings and in the submissions some of the issues where we didn't agree with the feedback
we received. Some of the organisations did make the point, for example, about ministerial direction. Our view, as
Mr Whitecross has outlined, or certainly the government's view, is that it's a perfectly reasonable thing and that
it's not out of the ordinary. As such, we left that element in. So it was a case of accepting some and not others.
Senator SIEWERT: Okay. Just as an aside, I suspect that for some of the other organisations you've named
the same sort of comments about ministerial directions were made at the time. You establish a precedent and then
keep using it to justify ministerial discretion.
Mr Whitecross: I don't know if that is a question or a comment.
Senator SIEWERT: It's probably a comment. I acknowledge that. Further, in terms of the consultationand
I appreciate you pointing out the key areas because people have been making comment about those key areas to
do with the rulesin terms of then developing those key areas, there is some fairly strong feedback. Mr
Whitecross, I know you sat through the whole and that you heard and were listening as people were making
comments. What was the thinkinggiven that they are so critical, as you have rightly pointed outin terms of
proceeding with this before those instruments or rules are finalised? We've had legislation before where quite a lot
of the guts of it were in the allowable instrument. Given that you already have articulated them, why was the
decision made to proceed before they are developed. So many people are saying, 'It's hard for us to comment
because until we see, particularly, the key ones, we can't comment on the effectiveness until we see the rules.' But
the legislation may have been passed by the time they see the rules.
Mr Whitecross: The legislation may have been passed but the rules themselves are disallowable instruments
and they will still be subject to the scrutiny of parliament. The reality is that, first of all, from a legislative point of
view, we think it is better practice to create a framework in the legislation that sets out some important principles
about what the role of the national Quality and Safeguards Commission is and then to develop things like practice
standards, worker screening rules and code of conduct through rules which can be adapted over time and in
response to other things. That's the first point. The second point is that we are developing these rules in parallel to
the legislation. We've already beenas I think some people have acknowledgedout for one round of public
consultation on the code of conduct.
Senator SIEWERT: My take on that is that there's a lot of concern about it.
Mr Whitecross: Maybe that just reflects concern about the unknown. We have been out for one round of
consultation on the code of conduct and we will be having a second round of consultation on the code of conduct
starting in October. We intend to go out to a broader range of stakeholders in relation to other rules in that same
time frame of October. It's really about the time we're taking to progress these things in parallel with the
legislation. We need the legislation in place in order to establish the commission and to start appointing
commissioners, and doing other things as well. It is important to note that the rules are building on things that
have already been extensively consulted about, like the quality and safeguards framework. Some of the key things
reflected in the national workers screening approach, for example, reflect things that are already in the public


Tuesday, 5 September 2017 Senate Page 27

domain, already the subject of public consultation and in the national quality and safeguarding framework. In
relation to the practice standards, they have been developed building on the National Standards for Disability
Services and mental health services, so they're not coming out of thin air. They are effectively developed to apply
existing known standards in the context of the NDIS. That doesn't mean that we don't need to consult about them.
That doesn't mean that we don't need to test their appropriateness and fitness for purpose in relation to this
market. But it wouldn't be fair to describe any of these things as a black box, because each of these is another step
down the path, building on the framework which we've already established and already agreed and already
consulted on, in relation to the quality and safeguards framework.
Senator SIEWERT: Mr Whitecross, stakeholdersthe people who know this area pretty wellare saying
they have concerns. I did listen to what you've just said about the existing material that's out there. But they're
concerned that this is racing ahead. I can't marry the two. You're saying, 'We've consulted; this is already out
there,' and they're saying that they have a problem with this.
Mr Whitecross: As I said at the beginning, I fully respect the fact that individuals in organisations in this
sector are concerned about how this lands. I mean, obviously everybody wants this to go well and wants it to
work well. So, if they're anxious to see that that happens, I think that's a good thing, not a bad thing. That doesn't
mean that all their concerns are well founded. For example, as to some of the concerns that have been expressed
in evidence about national worker screening: if we went back to the quality and safeguarding framework, we
would find that there are principles in the quality and safeguarding framework which exactly go to some of the
concerns that they raised. I'm not having a go at anybody for being concerned. But I think it's also fair to say that
there is a lot of information already available about how this is going to work, and this piece of legislation is the
Commonwealth operationalising its responsibilities under that framework. It's not a blank sheet of paper, out of
any other context.
Senator SIEWERT: I understand what you've just said. The point that I took out of what they're saying is:
some of those things, they wanted in the legislation. Let's take one that we just heard: the procedural fairness
issue, for example. My understanding, from what a lot of people said, is: there are some key things that they don't
think should be in the instruments, that they don't see in the legislation, and they're concerned that they are not in
the legislation. I understand the argument about scrutiny. I've been on scrutiny of bills, so I've looked at
instruments and legislation a lot. The concern there, as you well know, is that you cannot amend an instrument.
It's a very blunt instrument.
Mr Whitecross: Yes, I appreciate that.
Senator SIEWERT: That's where people have concerns. People don't see it in this legislation, and then they
don't see it adequately in the instrument. The parliament can't do a lot, other than disallowing it. And disallowing
it has some very significant consequences. I know that. I've disallowed, in fact, a couple of instruments. So that's
part of the concern: that there are some key elements that people want to see in the legislation, not in the
instruments. That's one of the issues.
Mr Whitecross: I think that goes to the point I made before, which is that the risk in putting things into the
legislation is that they will be difficult to change.
Senator SIEWERT: Why would you ever want to change something like procedural fairness?
Mr Whitecross: In relation specifically to procedural fairness: procedural fairness is already a requirement for
the commissioner under general administrative law. If the commissioner doesn't apply procedural fairness in
relation to an investigation into a worker then they won't be able to apply any sanction against the worker, and, if
they try to, it won't be upheld. The High Court has repeatedly confirmed that, in the absence of any constraint on
procedural fairness, procedural fairness applies. So I understand that it could be reassuring to see all these things
described in the bill, but the risk in doing that is that we are actually constraining rather than improving people's
right to procedural fairness, and they've already got that right under existing law.
Senator SIEWERT: I'll follow up with the witnesses to ask if that's a satisfactory answer.
CHAIR: Senator Siewert, I'll just interrupt momentarily. I have to leave now, so I'll hand the chair to you.
ACTING CHAIR (Senator Siewert): Okay. I know I've had a chunk of time, so I will hand over. I have a
series of questions, some of which I'm going to have to put on notice.
Senator CAROL BROWN: I've got a follow-up on that, and I really only want to be quick, Mr Whitecross, if
you can.
Mr Whitecross: Sure.


Page 28 Senate Tuesday, 5 September 2017

Senator CAROL BROWN: Is this list of consultations on the exposure draft an exhaustive list? I'm just
wondering. You talked about going out to consultation on the exposure draft of the bill, so can you tell me
whether unions were part of that consultation?
Mr Smith: No, they were not, Senator.
Senator CAROL BROWN: Why is that?
Mr Smith: We went to a group of stakeholders who'd engaged us over time and shown a strong interest in the
legislation. We went to that group because we had very, very limited time and we'd
Senator CAROL BROWN: But you started consultationsorry, I don't want to be rudeaccording to Mr
Whitecross, in 2015, and then of course in 2017 when you had the exposure draft of the legislation. So in 2015
were the unions consulted?
Mr Whitecross: A number of those consultations that I referred to are public consultations, and unions,
including some of the unions which have appeared before the committee, made submissions in those public
consultations and indeed made submissions this year in relation to the code of conduct. So unions have been
Senator CAROL BROWN: That was throughsorry, we've got a limited timethe consultations you talked
about in terms of the rules? But I'm just particularly interested, considering that unions have submitted to nearly
every inquiry that has been about the NDIS and every other relevant area. I'm surprisedyou've got employers
herethat you haven't invited any unions that represent the workers.
Mr Whitecross: In relation
Senator CAROL BROWN: To the exposure draft. Because there was that criticismand I know, Mr
Whitecross, you've enjoyed the last couple of days here with us, but
Mr Whitecross: Of course.
Senator CAROL BROWN: I just made that point. I really think that that list should have included unions.
But I want to go down to the consultation on the rules. I'm assuming that unions will be invited to that as well.
When you get to that final draft of the rulesthe code of conduct, practice standards, worker screeningdo they
have to be signed off by the states and territories?
Mr Whitecross: The worker screening is a responsibility of the states and territories. Under the agreement
with the states and territories, the Commonwealth has the lead in the development of the national worker-
screening rules, to create a consistent set of rules, but they have to be signed off by the states and territories.
Senator CAROL BROWN: When you say 'a consistent set of rules', will they be the same across the
Mr Whitecross: Well, there would be a set of rules which would be the same across the country. That doesn't
mean there couldn't be some specific elements of the operationalisation of them which would be different in
different jurisdictions, but
Senator CAROL BROWN: Could you give me an example.
Mr Whitecross: One example that springs to mind is that, under the quality and safeguards framework, we're
meant to have regard to whether someone has been the subject of a child protection order. How that would be
operationalised in different states might be slightly different because of the way their records are kept. Some
states have better record keeping than others in relation to that. So in all cases it would be a requirement that
people would declare if they'd been subject to a child protection order. The capacity of a state to independently
check that might vary between jurisdictions, for example.
Senator CAROL BROWN: So all rules have to be signed off by states and territories?
Mr Whitecross: No. There are the rules which involve agreement by the states and territories, the workers
screening rules and
Mr Smith: the authorisation of restrictive practices and how that intersects with the role of the senior
practitioner, because, along with worker screening, the authorisation of restricted practices remains a state
responsibility in the framework.
Senator CAROL BROWN: And all the others are signed off by government?
Mr Whitecross: We have an obligation to consult with states and territories and we're doing that at the
Senator CAROL BROWN: Okay. It is consultation but not necessarily agreementobviously not. In answer
to a question to Mr Brockman about section 181, one of the concerns that was raised was that this is a system


Tuesday, 5 September 2017 Senate Page 29

that's a partnership between states and territories and the Commonwealth. That was the concern about
consultation and agreement. Are those other organisations you raised as having the same sorts of ministerial
direction also partnerships? I can't even remember which ones you actually listed. But you can see the point.
Mr Whitecross: It might be difficult for me to tell what level of Commonwealth/state agreement underpins
Senator CAROL BROWN: The concern was that there's a genuine partnership between states and territories
and the Commonwealth and then we have a situation where there's ministerial direction without consultation with
the states and territories.
Mr Whitecross: Under the quality and safeguards framework, the Commonwealth is taking on responsibility
in relation to quality and safeguards under the NDIS. The Commonwealth is resourcing that function and
operating that function, so I think that the proposed approach is reasonable. That doesn't mean that there won't
continue to be a high degree of collaboration in relation to the operation of the NDIS and disability more
generally under the Disability Reform Council. So Commonwealth/state relations are an important element.
Cooperation is an important element of the operation of all elements of the disability sector, but the quality and
safeguards function is a Commonwealth function. I think it's an appropriate allocation of responsibilities in that
Senator CAROL BROWN: Okay. You heard the concern that has been raised, so I think I just might move
on unless somebody wants to
ACTING CHAIR: No, I think we're going have to agree to disagree on that.
Senator CAROL BROWN: Okay. I did want to ask about something that was raised here by, I think, the
ASU about the technical reference group and who is in that group. Is that a finalised group? Can you remind me
about who its members are?
Mr Whitecross: We could probably do that.
Senator CAROL BROWN: This is, I think, the core practice standards.
Mr Whitecross: Yes, I think that's the one you're referring to.
Ms Fieldhouse: A technical reference group was established last year to commence the development of the
NDIS practice standards. As Mr Whitecross mentioned earlier, these build on the national standards for disability
services and the national standards for mental health services. That technical reference group comprised members
ofexcuse me while I go back to my list. It was a group of stakeholders including the Department of Health; the
NDIA; the members of the Disabled People's Organisations Australia, and there were a few of those alliance
members; Children and Young People with Disability Australia, so Stephanie who was with us todayI'm sorry,
but I'm unable to lay my hands on the precise listas well as the states and territories.
ACTING CHAIR: If you could take it on notice.
Ms Fieldhouse: Sure.
Senator CAROL BROWN: If that's the case then, could I get on notice the stakeholders that are participating
infirst of all, have the reference groups been established, and what stakeholders are participating in the
proposed quality and safeguarding framework practice standards covering disability practice, mental health
practice, positive behaviour support practice, complex support coordination practice, early childhood support
practice, high-intensity daily personal activities practice, participants with complex needs practice, and specialist
disability accommodation practice?
Ms Fieldhouse: That is the technical reference group I was just referring to, and I will provide you that
Senator CAROL BROWN: Are they subgroups though?
Ms Fieldhouse: No, it's a single group.
Senator CAROL BROWN: So one group?
Ms Fieldhouse: Yes.
ACTING CHAIR: They're doing all that?
Ms Fieldhouse: That's right.
Senator CAROL BROWN: Could I have a list of that, please. So it's been established, and you will send me
a list of who's participating and, so far, what meetings have been held?
Ms Fieldhouse: Certainly.


Page 30 Senate Tuesday, 5 September 2017

Senator CAROL BROWN: And anything else you're allowed to give me.
ACTING CHAIR: That's just a catch-all question!
Mr Smith: It's also worth mentioning that the consultation on that hasn't been limited to the technical
reference group. We've had discussions around the practice standards with, for example, Disability Advocacy
Network AustraliaDANAand other organisations as we've gone along, and we will continue to do that with
other groups.
Senator CAROL BROWN: Okay.
Mr Whitecross: And there will be a broader consultation in October as well.
Senator CAROL BROWN: I know Senator Siewert sort of asked this question, about what consultation is
really, so I will ask on notice about what the actual consultation process is, particularly around the code of
Mr Whitecross: We put out a discussion paper on the code of conduct.
Senator CAROL BROWN: Yes, I know that.
Mr Whitecross: We invited public submissions, which we have collected. We're collating them and we're
developing a report and a revised version of the code of conduct, taking account of submissions in the report. That
will go back out, I think, in October as well, so there will be an opportunity for people to see how we've
responded to the first round of consultation and to have whatever further input they want to.
Ms McKinnon: I'd also make the point about the recognition that the expertise in a lot of these technical areas
lies with the states and territories and with disability support organisations, so it's less a matter of putting a fait
accompli on the table than working with them to actually build up the product.
Senator CAROL BROWN: There are other people who are involved in this sector who haven't really been
included that have expertise as well.
Mr Whitecross: I appreciate that and that's why, before we finalise these rules, we intend to go more broadly.
But the practicality of developing a set of practice standards is we have to get a selected group of people in the
room who we think have the expertise to help us build that. We build something and then we share that more
broadly and test it to make sure that we haven't missed anything. I think that is not an unreasonable approach to
development of these sorts of things.
Senator CAROL BROWN: We'll see.
ACTING CHAIR: Can I clarify something? I was desperately trying to look through the EM to check, but I
think it's just easier if I ask you. For the ministerial discretion, 181K, you said that the directions that are made are
Mr Whitecross: No, I didn't say that.
ACTING CHAIR: I misheard you then.
Mr Whitecross: They have to be tabled. Sorry, did you want to add something?
Ms Hawke: I believe there's a specific exemption in the legislation to ministerial directions being
disallowable. But they must be published on the federal register of legislative instruments.
ACTING CHAIR: That was what I wanted to check. I heard that and went, 'Okay, like, disallowable'. That's
why I was trying to check, because I'd understood originally that they weren't. So they have to be registered but
they are not disallowable?
Senator CAROL BROWN: That's right.
ACTING CHAIR: I wanted to clarify that.
Mr Whitecross: Sorry, I think I made that reference to disallowance in relation to the rules.
Senator CAROL BROWN: To Ms McKinnon, what risk assessment tool do you currently use for children's
Ms McKinnon: I'm sorry, I will have to take that on notice because it's outside my area of expertise.
Senator CAROL BROWN: I should know the answer to this but how much has been allocated for the QNS?
Mr Whitecross: $209 million.
Senator CAROL BROWN: What are the proportions allocated to the establishment of the systems or
Mr Whitecross: Are you going to the breakdown of the budget?


Tuesday, 5 September 2017 Senate Page 31

Senator CAROL BROWN: Yes.

Mr Whitecross: Do we have any of that information?
Ms Fieldhouse: No. The budget allocation is to the commission. However, I can note that $29.3 million over
four years is allocated to developing the ICT solution to support the work of the commission.
Senator CAROL BROWN: There was a budget allocation of $54.9 million for 2020-21 for the quality and
safeguards commission. I'm just trying to get an understanding of how those figures were arrived at. I might have
to put these on notice.
Mr Whitecross: That sounds like the budget for that particular year. So the $209 million would be over the
forward estimates, and that would be the amount that was allocated for that particular year.
Senator CAROL BROWN: Yes. That's right. I was wanting to know how the figures were arrived at.
Mr Whitecross: So it's how we estimated the budget? I can answer that, I think.
Mr Smith: While Mr Whitecross is looking for that, in broad terms, what we did was we drew on available
information from a range of sources, drawing as close as we could to the predicted functions of the commission.
For example, on the complaints function we drew projections and costings from a combination of the Victorian
Disability Services Commission, the Commonwealth Ombudsman and the aged-care complaints function. We
looked at those kinds of ranges and then basically picked the one that looked the most plausible.
Senator CAROL BROWN: 2021 is the year that the Q&S takes over and replaces all the state and territory
based quality and safeguarding frameworksis that right?
Mr Whitecross: In '19-20 it will be operating in every jurisdiction except Western Australia.
Senator CAROL BROWN: 2020?
Mr Whitecross: '19-20. Sorry2019-20.
ACTING CHAIR: You did say that, but I knew what you meant!
Senator CAROL BROWN: That is why I'm asking. Do you have any further
Mr Whitecross: I think, as Mr Smith said, we looked at comparable models to establish what looked like an
appropriate level of resourcing to undertake the function.
Senator CAROL BROWN: How many people are we talking about being involved in the Q&S?
Mr Whitecross: Roughly 300.
Senator CAROL BROWN: How did you arrive at that figure?
Mr Whitecross: We looked at those other examples, what their workloads looked like and what their
resourcing looked like, and we used that as a basis for coming up with an estimate.
Senator CAROL BROWN: Have you done any further work on how many of that workforce of 300 will be
working in registration support? How many will you need for complaints handling? How many will you need for
workforce screening?
Mr Whitecross: We're working through the detail of that at the moment. We obviously had that sort of
information about the estimated size of this function and how that compared to other functions in order to
estimate the number. Now, with the budget that we've been allocated, we're working through the detail of how we
think the resources should be allocated within the commission. Obviously, once the commission is established,
this will be a matter for the commissioner, and the commissioner will be able to apply resources according to
where they believe the resources need to be applied, and they'll be able to come back to government if the
estimate of the workload that we've done is not right.
Senator CAROL BROWN: All right. I am trying to get it clear. So the estimate of 300 was based on some of
the data and information that Mr Smith outlined?
Mr Whitecross: Yes.
Senator CAROL BROWN: Was that information sourced from states and territories as well asI think you
mentioned some Commonwealth
Mr Smith: That's rightfrom some Commonwealth agencies and from states and territories. For example, on
the functions of the senior practitioner, we took the projections from Victoria and Queensland, because they have
the functions that most closely approximate what we're thinking the commission will do in that area.
Senator CAROL BROWN: How many people work in that area in Victoria and Queensland?
Mr Smith: I don't have those figures on me, but we can take that on notice.


Page 32 Senate Tuesday, 5 September 2017

Senator CAROL BROWN: All right. I will have to put some questions on notice. Will the Quality and
Safeguarding Framework cover all people with disability?
Mr Whitecross: It will cover people in the NDIS and it will cover some people in related activities, won't it?
Mr Smith: Some other groupssuch as the over-65 continuity of support group, who are being administered
by the Department of Healthwon't be NDIS participants but they will be largely situated in disability services,
so it made sense to extend the coverage to that group. So there are some marginal exceptions, but by and large it
is focused on the NDIS and NDIS participants.
ACTING CHAIR: In fact, that was one of the areas I wanted to go to. I won't forget you, Senator Duniam!
What happens to those people with disability who are receiving services but aren't participants? As you know, the
NDIS is only covering a certain percentage of people with disability. So there are a whole lot of other people
there that aren't included in this. A majority aren't included in this mechanism. Certain states, as I understand it,
are winding back a lot of their processes, so what happens to those people where the states are winding back their
Mr Whitecross: For people outside the NDIS who are in other state services like state education systems or
state health systems
ACTING CHAIR: No, those who are receiving disability services. I understand where you're going with the
mainstream services, but I'm talking about those that are in disability services, for example.
Mr Whitecross: If they're receiving disability services from state governments outside the NDIS, that's a
matter for the states.
ACTING CHAIR: I asked a specific question about where the states are winding back those processes.
Mr Whitecross: It's still a matter for the states, though, if they are providing a service, to provide safeguards.
They will have processes in their states which are appropriate to protect them, according to the state jurisdiction.
What we are doing is operationalising the quality and safeguards framework. I appreciate the point you're making,
but we're operationalising the quality and safeguards framework for the NDIS; not trying to cover the field for
state provision.
ACTING CHAIR: I could be here all night if I have an argument with you about this.
Mr Whitecross: I don't think you need to.
ACTING CHAIR: It's just appalling that we're going to have a two-class system here. I have made this point.
Mr Whitecross: We have a Commonwealth state agreement to set up a quality and safeguards framework for
the NDIS, and that's what we're implementing. I appreciate that that doesn't solve every problem in the country,
but that's what we're doing in this particular exercise.
Senator CAROL BROWN: But the point, Mr Whitecross, is that in your response to violence, abuse and
neglect of people with disability, you did use the quality and safeguarding framework and legislation as a reason
not to set up a further inquiry.
ACTING CHAIR: Or a national approach.
Senator CAROL BROWN: That was a comment.
ACTING CHAIR: I have one other question you may need to take on notice, and then I promise I will go to
Senator Duniam. It's about the issues around self-referral and the commission's ability to self-refer and undertake
Mr Whitecross: They have full power to conduct investigations. The bill triggers the operation of the
Regulatory Powers (Standard Provisions) Act 2014, which creates a consistent framework across Commonwealth
bodies for monitoring and investigative powers, use of civil penalties and infringement notices, acceptance and
enforcement of undertakings and use of injunctions. That includes full investigative powers and that gives the
commissioner the power to commence its own investigation in response to any regulatory intelligence, complaint,
Senator SIEWERT: The more systemic ones?
Mr Whitecross: Yes.
Senator SIEWERT: Because that's particularlyso they can do both?
Mr Whitecross: Absolutely.
Senator SIEWERT: Individual complaints?
Mr Whitecross: Yes.


Tuesday, 5 September 2017 Senate Page 33

Senator SIEWERT: It's more the systemic one that I'm

Mr Whitecross: No. They can definitely do that.
Senator SIEWERT: Okay. Thank you.
Senator DUNIAM: I'm after a bit of practical advice. A lot's been talked about in the consultation space, but,
prospectively, in terms of the rules and legislative instruments, how do any individuals or groups that want to
contribute to the construction of these rules go about providing input to this process? I'm sure they'll all read our
report when we table it.
Mr Whitecross: As I said, we're intending to go out more broadly around these things in October, so I
suppose that, if people indicated to us that they wanted to be included, if they were worried we wouldn't include
them, they could
Senator DUNIAM: contact the department?
Mr Whitecross: contact the department, and we'll ensure that they get included.
Senator DUNIAM: The point was madeby you, Mr Smith, I thinkthat you'd engaged in consultation with
entities that had been engaging with the department previously on issues. Is that how you ordinarily define a list
of those you would go out to seek input from in preparing legislation, draft bills or anything like that?
Mr Smith: It depends on the nature of the process. For the original round of consultations and the code of
conduct, we've actually set that up as a general public consultation. We've gone out and put advertisements in
papers. We've gone through social media to actually get the range of responses.
Senator DUNIAM: Okay.
Mr Smith: There is then another group of consultation that we tend to do, which is a much more targeted one.
Yes, you're right: it tends to be targeted to those organisations who have actually shown a particular interest in the
Senator DUNIAM: Sure.
Senator CAROL BROWN: Except that you missed the unions.
Mr Whitecross: I was just going to say that we'll certainly be engaging unions, in particular in relation to the
practice standards and the worker screening, but of course they're entitled to have a view on anything they want
to. As I said, they have previously made submissions in relation to code of conduct, and I would expect that they
would be engaged in that again as well.
Senator DUNIAM: I will put this on notice. You mentioned social media and newspaper advertisements.
Could I could get an understanding of what sort of communication you have undertaken in preparation for this
legislation and for the rules? Has there been any communication with the general public through those mediums
you described?
Mr Whitecross: Certainly we can take that on notice.
Senator DUNIAM: Thank you.
CHAIR: Speaking of questions on notice, we have a very lengthy period of time to get them back! It will be
the 8th, so Friday, which is better than one of the other inquiries where we had to get it the next day or the next
two days or something. So there is a fairly tight time line. Blame the governmentsorry.
Senator DUNIAM: Everyone else does!
CHAIR: They're the ones who set the reporting date. Thank you very much for your time today. That
concludes today's hearing. Thank you for your evidence today and, in advance, for the questions that we'll get on
notice. Thank you to all our witnesses, to Hansard and to our secretariat. Thank you.
Committee adjourned at 20:48