Summary
The Australian Greens understand that the current governance arrangements have created issues in the process of efficient and effective decision making and acknowledge that the motivation of this Bill is to seek to remedy this.
The Australian Greens support, in principle, the proposed consultation timelines for certain decisions and actions; 28 days for an initial response with the possibility of an extension of 90 days upon request.
The Australian Greens note, however, that the consultation process with states and territories on matters which require agreement proposed in the Bill are already administrative arrangements for intergovernmental consultation.
The COAG Reform Council agreed to a 28-day consultation period in November 2017 which would see the Commonwealth seek agreement from the States and Territories. Once this period has lapsed, failure to respond would be taken as agreement. Further, the intergovernmental agreements between the Commonwealth, states, and territories (with the exception of Western Australia) now capture this process.
The Australian Greens do not support the proposed changes in terminology from 'States and Territories' to 'Host Jurisdictions'.
The Australian Greens do not support the proposed changes to NDIA Board and Independent Advisory Council (IAC) membership appointments and terminations and maintain that these must be made through a majority decision-making model.
The majority committee report states that the department 'suggested that the proposed changes would not change the requirement for states and territories to actively participate in decision making under the NDIS Act'. However, it is clear that the combination of changing the terminology used to refer to states and territories as 'Host Jurisdictions', and the changing of agreement requirements for critical decisions such as Board and IAC membership appointments and terminations are in fact a change in the requirement and participation of states and territories in the decision-making process.
Issues relating to ‘host jurisdictions’
The Australian Greens do not support the replacement of the term 'States and Territories' with 'Host Jurisdictions'. This proposed change in language erodes the equal partnership principle which acknowledges the integral role that both play in market stewardship, financial contribution, and policy setting which fundamentally underpin the success of the NDIS.
The Australian Greens note the Department of Social Services (the department) intent behind changing the terminology used from 'States and Territories' to 'Host Jurisdictions' in their answer given to a question put on notice:
Under section 10 of the National Disability Insurance Scheme Act 2013 (the NDIS Act), a 'host jurisdiction' refers to a jurisdiction in which the NDIS is operating. As the NDIS had not commenced in all states and territories when the NDIS Act came into force on 1 July 2013, it was appropriate to refer to 'states and territories' at this time.
The Bill replaces the words 'states and territories' with 'host jurisdictions' as the NDIS is now operating in every state and territory. As such, all states and territories have now been prescribed as 'host jurisdictions'.
However, the representation of the change in terminology given by the department is inconsistent with that given by the Young People in Nursing Homes National Alliance who submit that:
The proposed amendments to S9 and S10 [of the Bill] misrepresent and underestimate the critical role of [States and Territories] these jurisdictions in the continuing evolution and ultimate success of the NDIS.
The definition of a host jurisdiction was important in 2013 to establish the NDIS because not all jurisdictions were active during the trial. This description of a ‘host jurisdiction’ was appropriate to the context of the trial phase. However, six years on and now at full scheme, the term is no longer relevant.
Given their funding commitments to the scheme and the important role of State and Territory services play in the successful operation of the NDIS, these jurisdictions have a more central role to play in the governance and operation of the scheme than being relegated as hosts or agents for a commonwealth program.
The Australian Federation of Disability Organisations (AFDO) and the Disability Advocacy Network Australian (DANA) noted in their joint submission that:
We believe the current partnership arrangements between the Commonwealth and the States and Territories are an important signal to the community about the shared investments in the NDIS.
One of the visible ways in which that shared investment is acknowledged is by the language used. A straightforward language that can be easily understood by the disability community remains extremely important. For this reason, we believe the terminology of 'States and Territories' should remain and do not support a move to changing this to 'Host Jurisdictions'.
Issues relating to the process of appointing and terminating board members and members of the IAC
The Australian Greens do not support the proposed amendments for seeking agreement on the appointments and terminations of NDIA Board members and members of the IAC.
The Australian Greens do not support the proposed amendment to section 127(4D) granting the Commonwealth Minister the power to appoint board members without a majority agreement from the states and territories.
The Australian Greens do not support the proposed amendment to section 147(2) to (3A) which seeks to change the requirements of the Minister when seeking agreement on the appointment of a member to the IAC from unanimous agreement to consultation only.
The Australian Greens do not support the proposed amendment to section 155(3) and (4) which seeks to change the requirements of the Minister when seeking agreement on the termination of a member from the IAC from unanimous agreement to consultation only.
As noted in their submission, Young People in Nursing Homes National Alliance contend that:
... the NDIS Board, its advisory structures and its relationships with all participating governments must have a direct line of sight to the variety of communities and cohorts the NDIS must interact with. The States and Territories knowledge of their communities and services is critical to the eventual national success of the NDIS and must be retained in the selection process of these bodies.
The Australian Greens agree with the position of Young People in Nursing Homes National Alliance, and with AFDO and DANA, and assert that appointments and terminations to the NDIA Board and the IAC must remain in a majority decision model.
The Australian Greens also propose that the NDIA Board have a legislatively mandated quota of 20 per cent of its membership being comprised of people with disability to be achieved by 2021. This is an important step in ensuring that people with disability are involved in the strategic decision-making and governance of the NDIS at the highest level. This figure reflects the composition of the general Australian population where almost 20 per cent of Australia’s population are people with disability.
Issues around timing
The majority committee report notes the concerns raised about the timing of this bill which suggest that any legislative changes to the governance of the NDIS be postponed until the outcome of the NDIS Act review being undertaken by David Tune AO PSM (the Tune Review) and the review of the National Disability Strategy.
The majority committee report acknowledges that there may be scope within the aforementioned reviews to consider issues with governance arrangements for the NDIS as raised in this inquiry but recommends that the bill proceed notwithstanding the review.
The Australian Greens do not agree with the majority committee report’s recommendation to proceed with this bill. The Australian Greens acknowledge the concerns raised in evidence around the timing of this bill and recommend that, in the broader policy review context, any such changes to governance of the NDIS should be considered in the context of any changes which emerge from these reviews.
Recommendation
The Australian Greens recommend that this bill not proceed at this time.
Senator Rachel Siewert
Senator Jordon Steele-John