Additional Comments by the Australian Greens

Summary of position

The changes that this legislation proposes have emerged from the horrific manslaughter of Ann-Marie Smith. We note that the Robertson Review was commissioned in response to those circumstances. We also note that there is currently a broader review of the NDIS Quality and Safety Commission (the Commission) being undertaken by the Joint Standing Committee on the NDIS that has heard evidence of further reforms that need to be made to ensure that the Commission works for disabled people nationally.
Safeguarding is a critical area in need of reform. Whilst the Robertson Review produced a number of key recommendations for improving the Commission, there remains ongoing discussion about how best to implement these recommendations.
This legislation proposes changes that carry serious implications for the human rights and privacy rights of participants, and some unanswered questions around the practical effect of the two-way information sharing arrangements. The Commission and the National Disability Insurance Agency (NDIA) need to do a better job of explaining, in plain language, what this legislation seeks to do and how it will affect participants.
This legislation has been brought before the parliament, without appropriate consultation with the disability community, at a time where co-design and community involvement are key issues. This is not ok, this is not acceptable, and the government must work to remedy this immediately. “Nothing about us, without us” is consistent across the entire spectrum of disability policy and it is no different in this instance.
The Greens acknowledge and thank those organisations and individuals who submitted evidence to this inquiry and gave their time, experience, and expertise. Community-led policy is fundamental to ensuring that we uphold the rights of disabled people and that we empower disabled people to occupy and lead in decision-making spaces.
There are a number of key recommendations that have emerged through the inquiry into this legislation that must be built-in to ensure that the rights of disabled people as stated in the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) are upheld.
The Greens note that the dichotomy of rights-safety often forgets the fact that the enforcement of people’s rights and strong accountability are critical elements of ensuring people's safety. This is important when looking at the broader safeguarding framework in Australia.

Lack of consultation

The disability community was not consulted with in the drafting of this legislation. They found out about this legislation on the 3rd of June 2021 when it was tabled in parliament.1
The Australian Federation of Disability Organisations (AFDO) stated in their evidence to the committee inquiry that:
The exclusion of people with disability and their representative organisations in putting forward the amendment bill and the failure of the minister to adequately include the substantive amendments being called for by the community in response to participants who were vulnerable and at risk of abuse and neglect is absolutely inappropriate and has caused this amendment bill to fail in its objectives. It is our submission that the minister has a duty to consult with people with disability and their representative organisations when making and amending laws which directly impact them. The minister has failed to do so and, as a consequence, there is a serious and significant threat to the human rights of people with disability.2
The Greens are strongly of the view that the government and its departments and agencies must at the very least properly consult with the disability community and their publicly funded disability representative bodies, and publish exposure drafts before introducing legislation to ensure that policies, systems, and services are designed by and for disabled people. This ultimately ensures that our systems are effective and fit-for-purpose.


Discourse on the use of the word ‘vulnerable’ when characterising the relative safety and wellbeing of disabled people is complex but critical to understanding how we should be working in our safeguarding frameworks. Often ‘vulnerability’ is assigned as inherent to disabled people, rather than looking at the circumstances of marginalisation and socially-driven attitudes and systems that place disabled people at risk. This carries with it serious consequences for the rights of disabled people and their safety.
As articulated in People with Disability Australia’s (PWDA) supplementary submission to the committee:
This attitude of assigning qualities of ‘vulnerability’ rather than ‘marginalisation’ means that any proposed solutions are inevitably centred on processes which often restrict or reduce the disabled persons’ rights or freedoms rather than around the perpetrators.
Violence, neglect and abuse against disabled people should not be regarded purely as the outcome of a transactional service agreement, or a breach of administrative duties and responses should be informed by best practice within trauma informed response systems.3
There needs to be a comprehensive understanding of this issue both within the context of this legislation and in the broader safeguarding framework that we have in Australia. When we talk about the safety of participants, we need to talk about risk, rather than vulnerability. We also need to ensure that we articulate the drivers of risk, namely ableism, and service systems and policy frameworks that are not designed by and for disabled people and are inaccessible and not inclusive.
There is no attempt made by this legislation to capture the above issues in relation to vulnerability and there is no definition of what a ‘vulnerable participant’ is. This legislation proposes to allow disabled people, as participants of the NDIS, to be assessed as ‘vulnerable’, without any clear guidelines as to what this means.
This issue must be addressed as a priority.

Privacy and information sharing

This legislation proposes a series of amendments that change the way in which participant information can be used and shared. In particular, this bill:
Lowers the threshold with which information can be shared and used by the NDIA and the Commission. Item 7 of the bill removes the qualifier ‘serious’ to enable the making of a record, disclosure and use of protected information where the NDIA considers it ‘for the purpose of, or in relation to, preventing or lessening a threat (whether current or future).’4
Allows for two-way information sharing between the NDIA and the Commission. Specifically, items 9 and 13 allow for information to be disclosed between these two bodies consistent with their functions.
The Greens note, with concern, that there is no requirement for the NDIA or the Commission to seek the consent of a participant or notify them that their personal information has been recorded, shared, and used for the purposes of safeguarding.
Added to this, the threshold for recording, sharing, and using participant information for the purposes of this bill has been lowered. We will have a situation where we have Commission and NDIA staff making critical decisions about people’s lives and their information without clear processes for ensuring that the privacy rights of the individual whose information is being shared is being protected.
The Greens are concerned that the privacy rights of participants are being put at risk, and that there could be significant consequences for the safety of participants should their information be mishandled.
Peak advocacy bodies who gave evidence to the inquiry also expressed deep concern about the two-way information sharing provisions being proposed.
Both PWDA and AFDO made clear in both their submissions and their evidence during the hearing that this legislation could infringe upon the rights of disabled people, particularly Article 22 of the UNCRPD.
As stated by Natalie Wade from AFDO:
... it is my view that that expansion of section 60 in particular—but arguably the entire amendment bill—will undoubtedly contravene the Convention on the Rights of Persons with Disabilities. I'm particularly concerned that public officers of the agency will be able to disclose past and unsubstantiated information that is without legal basis.5

Review of reviewable decisions

Item 42 of the bill inserts a new subsection that prevents a decision-maker reviewing a decision that they were personally involved in. However, it allows for a decision-maker to review a reviewable decision made by a delegate of the decision-maker.
The practical effect of this change has not been clearly explained by the NDIA, they must provide transparency in relation to their processes to ensure that any conflicts of interest, particularly where managers are reviewing decisions made by their staff are concerned, are addressed.

The missed opportunity

This legislation is very narrow in what it seeks to improve about the Commission. There is a broader context of review and areas of reform that have been missed here that would have driven more systemic changes that enhance safeguarding for all participants.
As noted by AFDO in their submission to the committee inquiry:
For AFDO, the lack of consultation with Disability Representative Organisations including AFDO about changes to the NDIS Act to improve supports for vulnerable participants is one of missed opportunity to formally discuss the issue of rights protections for NDIS participants detained under orders in state and territory forensic units.6
The Greens also note that this legislation does not implement all recommendations that came out of the Robertson Review. This report has been with the government since September 2020. There has been ample opportunity to undertake proper consultation with the disability community on how to implement all the recommendations and it is not good enough that this has not occurred.


This bill should only pass through the parliament if it is amended to reflect the significant feedback provided by the community during the course of the inquiry.


These amendments should address the shortfalls of the bill, and at a minimum must articulate:
Within a designated time frame, the person is notified that their information has been shared in accordance with the purposes of this legislation;
That decisions to use a person’s information consistent with the purposes of this legislation are reported on annually to the Australian Office of the Information Commissioner;
How a person’s privacy will be protected in the context of the NDIS the Commission’s investigations regarding the abuse – including an option for an independent advocate to be appointed. The Explanatory Memorandum should be amended to address this;
Identify the characteristics that determine if a person is ‘vulnerable’ not just that the person is ‘vulnerable’, and a process that notifies a participant if they have been determined to be ‘vulnerable’ and what it means for them;
Change the language used from ‘vulnerable’ to ‘at risk’;
Introduce clear records management processes that document what information has been recorded, shared, and disclosed for the purposes of this legislation as well as who recorded, shared, and/or made the disclosure. This applies to staff in both the NDIA and the Commission ;
To record, share, and disclose participant information for the purposes of this legislation, the threat of abuse (or disaster e.g. pandemic) has to be proved to be current (which will need to be defined);

Senator Rachel Siewert
Deputy Chair
Senator Jordon Steele-John

  • 1
    Mr Patrick McGee, National Manager, AFDO, Proof Committee Hansard, 2 August 2021, p. 2.
  • 2
    Ms Natalie Wade, Expert Advisor, AFDO, Proof Committee Hansard, 2 August 2021, p.3.
  • 3
    People with Disability Australia, Supplementary Submission 9.1, p. 9.
  • 4
    Explanatory Memorandum, p. 5.
  • 5
    Proof Committee Hansard, 2 August 2021, p.8.
  • 6
    Australian Federation of Disability Organisations, Submission 16, p.8.

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