Additional Comments by Labor Senators

Labor Senators support the bill’s aim to improve the support and protections to NDIS participants who may be at risk of harm and acknowledge the Government’s intent to respond to the death of NDIS participant Ann-Marie Smith who died in South Australia in April 2020 after a substantial period of neglect.
Labor called for the establishment of the Robertson Review into issues surrounding the death of Ms Smith and welcomed the ten recommendations made by the reviewer, the Hon. Alan Robertson SC on 4 September 2020. Labor also called for the Government to respond to the recommendations. Labor Senators note that this legislation was drafted in the absence of a formal Government response to the Robertson Review.
The absence of direct consultation with people with disability is concerning to Labor Senators because the displacement of people with disability from involvement in decisions about their lives directly contradicts the core ‘person-centred’ principle of the NDIS, and is part of the reason why people such as Ann-Marie Smith are frequently put in situations that place them at risk.
Labor Senators note the constructive comments by the Department of Social Services (the Department), the NDIS Quality and Safeguarding Commission and the National Disability Insurance Agency in relation to the work undertaken to ensure definitions of ‘vulnerable’ and ‘at risk’ reflect situational factors and circumstances rather than the person with a disability.
However, Labor Senators note the significant concerns raised by Disability Rights Organisations (DROs) in relation to the drafting of the bill without input from people with disability, other than the process undertaken as part of the Robertson Review which only had scope to consider the circumstances of a single NDIS participant.
Labor Senators disagree with paragraph 2.20 of the committee’s report that suggests that the Robertson Review’s consultation was sufficient for the purposes of developing the bill.
Despite these limitations, the bill seeks to amend the National Disability Insurance Scheme Act 2013 (NDIS Act) to adopt the 10 recommendations of the Robertson Review to apply to all 430,000 participants on the scheme, each with unique circumstances and experiences of disability.
Numerous submitters to the inquiry raised concerns about the lack of consultation and several organisations expressed that these concerns remain unresolved due to the absence of an extended open community consultation process.
In response to a question on notice by Labor Senators regarding the specific changes required to make the information sharing aspects of the Bill workable, the Australian Federation of Disability Organisations (AFDO) provided:
Please find below AFDO’s view on what needs to change in the NDIS Amendments Bill regarding what needs to change to balance the Q&SGC decision to override a participant’s right to privacy in order to protect in the context of allegations of abuse.
In order to support any amendments that increase access, use and sharing of people with disability’s personal information in the context of abuse the following issues must be addressed taking into account that the right to privacy is as important as the need to protect.
If the need to protect becomes more important than the participants right to privacy then a clearly identified process which articulates:
Why the participant’s rights to privacy should be overridden by the need to protect
How a person’s privacy will be protected in the context of the Q&SGC investigations regarding the abuse
Who the information is shared with
The person is notified that their privacy rights have been overridden by the need to protect
To override participant privacy the threat of abuse has to be proved to be current (which will need to be defined)
Identify the characteristics that determine if a person is vulnerable not just that the person is vulnerable
That the decision to override participant privacy in order to protect from abuse be independently assessed as part of the protective decision making process
Annual reporting for each case where the Q&SGC override participants privacy in order to protect to the Office of the Australian Information Commission.1
Throughout the evidence provided at the hearing of the inquiry, several references were made to the review of the NDIS Quality and Safeguarding Framework that is expected to be initiated by the Government, alongside state and territory governments, later this year. The Department noted this will include 'detailed consultation and engagement with the disability sector'.2
Labor Senators note that the review of the quality and safeguarding framework may provide an opportunity for a consideration of the impacts of this bill in tandem with the disability sector, in particular the practical implementation of the information sharing provisions which were of particular concern to stakeholders.
Labor Senators consider that the passage of the bill should only be made with active engagement of people with disability and the disability sector, to ensure proper resolution of the matters relating to privacy and the interaction with the quality and safeguarding framework review set for 2021.
Senator Nita Green
Senator Helen Polley

  • 1
    Mr Patrick McGee, AFDO, answers to questions on notice, 2 August 2021 (received 2 August 2021).
  • 2
    Mr Luke Mansfield, Group Manager, Department of Social Services, Proof Committee Hansard, 2 August 2021, p. 21.

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