Transcript – NDIS QSF Hearing

CHAIR: Thank you. We have your submission. Would one of you or both of you like to make some opening comments?

Mr Joyce: Thank you. Chair. Thank you for the opportunity to present in person. I think you’re well aware of who AFDO is. We’re the peak advocacy body for people with disability across Australia, and we undertake systemic advocacy work.  We wanted to highlight today a few of the issues that we thought were really important from our perspective.  One of those would be looking at the need for there to be a balance to the quality and safeguards commission through compliance and prevention. We think it’s rather heavily weighted towards the compliance side, and we think there’s a real role that the commission could be playing in the preventative side of it. The other side would
be looking at its role and how it functions in engagement with systemic advocacy: how it undertakes that particular role and what it can bring to that. I’ll let Patrick maybe talk about the next one.

Mr McGee: Thanks, Ross. We remain concerned about access to the commission for Indigenous Australians with disability, particularly those living in remote, rural and regional areas. It is the case that something like ‘The Commission’ may in fact be very frightening for people. Let me give you an example. Recently, a young man I’m guardian for was in the Supreme Court and, whilst we invited many of his family and community to come into that court to witness the proceedings, many have stated that they were far too frightened to attend. I’m extrapolating here, but I’m imagining that many might find going to the commission and talking about complaints against what would be, largely, white service providers as very difficult—even Indigenous service providers: it
would be just as difficult.

There is one more thing—and I notice Georgi Hadden is back online, and I’d just like to reiterate and acknowledge Georgi for the contribution she just made: it was extraordinary to listen to you, and thank you very much for your braveness. The other concern that has been expressed to us by people like the Public Advocate of Victoria is this issue around privacy over protection. Obviously, both need to be balanced, but I think we see a weighting towards maintaining confidentiality and privacy that might actually come at the expense of the protection of the individual. They’re our opening remarks, Chair.

CHAIR: Thank you very much. I’ve just read your recommendations again. In relation to the first one, concerning state and territory forensic services, does that mean that, if somebody is in that situation, there is no way of complaining, or no quality and safeguards coverage for them?

Mr McGee: That’s right, yes.

CHAIR: Has this been raised with the quality and safeguards commission?

Mr McGee: If you’re in a state funded service, which all of the forensic services are, then you’re not considered eligible for access to the quality and safeguards commission. This hasn’t been formally raised with them, but it will be after this hearing. We were waiting for this hearing, and then we were going to go and have a bit of a chat to them. There is enough evidence in our submission—and we can provide you with more, if you would so choose—to show that the vulnerability of this group of people is incredibly significant. They are detained under orders, in closed environments and under state and territory governments, who don’t see themselves as the bearer of the responsibility for obligations under the CRPD, for example.  I think that we’ve got is, again, another weighting issue, where agencies like the Director of Public Prosecutions will say—as they just have said in the Supreme Court in the Northern Territory—that forensic orders are there for the safety of the community. So the justice rights of individuals seem to come second, in the eyes of a number of state government agencies who have responsibility and legislative power over forensic orders. I think that many of the pieces of information that we provided to you testify to, in fact, not just the individual nature of the abuse that occurs or the violence or the neglect—and much of it may be unintentional; we accept that, but nonetheless it occurs. It’s systemic. It’s in every jurisdiction. It relates to people who don’t have the power to speak for themselves. These are people for whom guardianship and guardianship decision-making can be contested
under forensic orders, and I think that at least 30 per cent of every forensic population will be Indigenous Australians or First Nations people with disabilities.  We originally made a recommendation that, really, perhaps all forensic facilities should become registered
providers. And that’s certainly a mechanism, but it may not actually be able to be implemented, and we understand that. What we now say is perhaps the legislation should be amended so that access to the commission is provided to all places where there is an NDIS participant. This would then cover jails. It would also then cover forensic facilities in the cognitive impairment space and in the psychosocial impairment space. We think that’s probably a better recommendation, a more comprehensive recommendation.

Mr Joyce: If I could add to that, we have thought about this since we put in our submission, and we believe that the legislative change would be the preferred course of action because it provides that broader path. In one sense, we were predominantly focusing on forensic detention facilities, and this would allow it to be taken across anyone who is a participant in any environment. We saw it as being probably more key for the role of the quality and safeguards commission to have that relevant impact.

Mr McGee: Let me give you a very specific example. One of the problems is the oversight mechanism that occurs at the state and territory level. You would be aware that the DSS has just undertaken a comprehensive analysis of the community visitors programs. Community visitors programs operate in every state and territory, but the legislative authority under which they operate is different, and you’ve got different levels of authority operating in different jurisdictions. Some are better than others. Where there isn’t a comprehensive oversight mechanism for the most vulnerable, who are detained in closed environments, who don’t have an option to speak for themselves and of whom 30 per cent are Indigenous, you have a real problem on your hands when you don’t have a consistent and nationally applicable oversight mechanism and you’re relying on state and territory governments to employ those oversight mechanisms.  In the Northern Territory only two community visitors have been employed. That’s just impossible. Another example in the Northern Territory is that there is, under the legislation, a restrictive practices panel. That’s been in the legislation since 2012, and it would be for those people who you would, say, provide or exercised a complaints mechanism. It doesn’t exist, it’s never been implemented or convened and there is currently no plan to do so. We’ve got examples of those things in every state and territory, and people are very worried about this.

CHAIR: Many people in their submissions and many witnesses have said that there is very little knowledge or understanding of the commission amongst participants in the scheme. Is that your experience?

Mr McGee: Yes, that would be correct. If you go into a mental health unit, a psychiatric unit in a hospital, in the main area there will be a noticeboard and one of the things that’s always on that noticeboard is: ‘Are your rights being breached? These are the people to call. This is a confidential, independent service.’ No such thing exists for people with cognitive impairments. Not only that, but even if it did, how would they make that phone call? How would they have that conversation? We do not see any evidence of any contact by the commission in any forensics space around the country. When I rang the commission, because we were involved in a conflict in the Northern Territory, where the guardians are being shut out of the decision-making process for a person under order, the commission said that we’re not eligible.

Senator CAROL BROWN: Thank you, Mr Joyce and Mr McGee, for your submission. I echo your comments with regard to Ms Hadden’s evidence today. It’s evidence that I’m sure will help the committee in formulating our final report. I would like to go to your recommendation about a community technical experts program. Could you explain your recommendation for the implementation of that program. Are you aware of the reason that this hasn’t been done in the last two years?

Mr Joyce: Thank you, Senator Brown, for your question. Yes, I can probably tell you why it hasn’t been happening in the last three years. It’s not a priority, to be quite honest, of the quality and safeguards commission.  On a number of occasions we’ve put forward our proposal and approached and convened a number of meetings with the commission. I suppose, in fairness, in one sense they were obviously getting the commission up and rolling across Australia and having to establish those offices, and that was on a timeline. But on the other side of it, from our perspective, we see that the community technical expertise is really an important element that should
be there. It actually involves people with disability using their expertise of lived experience to look at the service providers and be part of an audit team. They’re not there on their own; they are part of an audit team. They are trained. They have a definitive role in what they can provide. They can look at it from their lived experience point of view and offer other views on how that service provider is operating and what the actual clients are experiencing as part of that service provision. We see that as a really important part in ensuring the quality of what service providers are undertaking around the country.  I think it will also highlight the inconsistencies that are happening across different jurisdictions and through different service providers in how they are working. So we see it as really important that that is enacted—hence why it’s in our recommendations. We’ve done a fair amount of background work on that, exploring it and looking at it with other parties, such as New Zealand, where they’ve had it for about 10 years or more.

Mr McGee: Twenty years. Perhaps I can talk to the New Zealand experience. Both the UK and New Zealand, who have similar systems to us, have had a version of this in place for 20 years. There are two things I would say about it. In New Zealand it is being repeatedly reviewed. Every time it’s reviewed there are a group of people who are clearly not in favour of it continuing. It survives each of these reviews and it comes out looking very positive.  It’s a mechanism of co-design. It’s a mechanism for lived experience to play a significant role in shaping the services they seek support from. It’s supported by the families of people with disabilities because they can see that
their children and brothers and sisters actually have expertise that is then used to develop up the service providers.  The other thing that’s clear in both the UK and the New Zealand experience is that service providers are not as in favour of this as others. I think that that’s something that’s important to acknowledge. We’re not saying that that’s going on here, but there’s a certain level of resistance that we would like to highlight in relation to that. It’s a little bit harder to get up and running, but I think that, in the end, it does a number of things. If you want good engagement, this is a really good way to get to that. If you want people with disabilities to be participating in the
implementation and the running of the quality and safeguards commission, this is a good example of that. If you want people with disabilities to play a role in shaping the way in which the standards under which service providers operate, this is a really good example of that.  Finally, it actually gives people with disability a very strong job, employment and career in an expert capacity.  It does what we are all hoping this whole business of the NDIS will do, which is acknowledge the expertise of people with disabilities and involve them in the life of their communities.

Senator CAROL BROWN: What is your overall assessment of the work of the commission? What feedback have you heard from people with disability about the adequacy of the commission?

Mr Joyce: The access problems, as Georgi mentioned earlier in her statements, are there across the board for everybody—getting access with information and that privacy that we spoke about earlier. There is that overly proscriptive approach to privacy and the unwillingness to share information or to provide information. That’s been of significant concern. From our point of view, we think that the commission’s been a bit missing in action. We think there should be much more engagement with systemic advocacy organisations such as ours and others. We think that that provides an invaluable source of information on what the current issues happening are for people with disability out there in the community. Again, we emphasise that there’s been a significant focus on compliance as opposed to also looking at a role, which we believe they should be able to take, in that prevention space.

Mr McGee: I absolutely think engagement with advocates is a key problem. It seems like the commission is a very closed access point around how it’s supporting people with disabilities. What we’re hearing from people is that they don’t get a good deal at the commission, and that the commission seems to be incredibly supportive of service providers. An example is the South Australian person who died. The fine that that agency got was minuscule and, only a few weeks ago, we were advised that their website still had them operating even though they’d been asked to close it down. There is very scant evidence that the commission is acting in pursuing the transgressions of service providers. We understand that you don’t want to—it’s that thing: if you close everybody down because they’re not doing a good job, then who’s left to run the show? But we’re not talking about all service providers. The majority of service providers do a very good job.
But where there are clear transgressions of the rights to people with disabilities, there doesn’t seem to be a journeying alongside the person with a disability to the place where the outcome sits in their favour. It does seem to, as Ms Hadden has so articulately explained, set weight with belief in the service providers. This would match the way police interview women with disabilities around sexual assault. This would match the way courts work with people with disabilities who are giving evidence. This would match the experience of people with disabilities talking to doctors about medication and restrictive practices. So this is not out of the ordinary, but it is disappointing.

Senator CAROL BROWN: What sort of message do you think it sends when a provider receives a slap on the wrist, when we’re talking about a death, like with Ms Smith?

Mr Joyce: It sends a shocking message across the disability community and, again, it starts to reinforce that they’re not valued, that their rights aren’t being protected and that a body that you think would have more teeth to it doesn’t seem to have them. Patrick mentioned that the service provider in South Australia was still operating.  More importantly, their website still said that they were an NDIS provider. I [inaudible] that myself, which is pretty outrageous. Potentially, that might be about: what are the powers that the commission really has in terms of ensuring that suitable prosecutions are undertaken?  I think that’s what we’re all looking for the commission to do, but, again, I’d just emphasise that the compliance element is incredibly important, but we don’t want to forget about the fact that there should be that prevention focus. The commission needs to be involved in that as well.

Mr McGee: That’s right—both sides of the coin. Can I just say that if a doctor acts illegally, they’re struck off.  They can no longer practice. If a physiotherapist or an occupational therapist or a social worker acts illegally, their licence or their certificate is suspended. Why is this not happening more in disability? The message it is sending is the message that Georgi is telling us: ‘We don’t matter as much as service providers matter.’ That simply has to change because people with disabilities have been so disappointed by the wider community’s uptake of their rights and the protection of their rights. We’ve always put them second—not even second—we’ve always put them last.

Mr Joyce: Correct.

Mr McGee: The NDIS was supposed to be this social revolution in how we understand and protect and uphold the rights of people with disabilities. The commission is the vanguard of that, but we do not see them operating in a way that makes us confident that, in fact, they are upholding the rights of people with disabilities.

Mr Joyce: Could I just emphasise a point that Patrick made earlier. We believe the majority of service providers do do the right thing and are attempting to undertake their supports in an appropriate way and in a manner that’s consistent with the needs of the person who’s requesting those supports. But where we have those examples where there’s just a complete, disgraceful disregard, and the South Australian one is exactly that, we need to see some strong—incredibly strong—action taken.

Mr McGee: Could I jump in there. If you think about protection in sophisticated systems that operate in cities, where it’s clearly not operating in the way we would like for people with disabilities, imagine what’s going on in rural and regional and remote Australia, where the level of oversight and monitoring is almost non-existent. Let me give you three examples out of Alice Springs, and you all know I operate a lot in Alice Springs. The first one is, if I’m a service provider in Alice Springs—there’s about seven of us—and there’s only a small group of people who are disability support workers. If I am engaged in illegal activity in one service, the reality is that because there’s such a small pool of people available I can go and get employed in one of the other six agencies. That is a real problem for us all to grapple with—it’s not just the quality and safeguards commission—but we’re not grappling with it. The second issue relates to rural and regional and remote areas. In those areas this oversight, this monitoring, which is very thin, allows practices to go unreported on. So, for example, an agency that’s operating on an Aboriginal community, where the idea is to employ Aboriginal people to provide support to Aboriginal people, an NDIA office literally just took all of the clients off that particular agency doing that particular work under that particular model and gave them to another agency that was much more compliant with the way in which the NDIA saw the world. So it went from an agency wanting to employ Aboriginal people to an agency that is not going to do that at all. The third area is this direct input of practices that are leaving people with disabilities with the status quo, if you like. As Georgi said, they’re not believed and they’re not supported to reach a resolution in which the person with a disability at least feels like they’ve been heard and responded to.  But I’m really worried about regional and remote communities and access to the quality and safeguards commission, because I just see too many practices that are going unreported that have direct negative outcomes for people with disability, particularly Indigenous Australians.

Senator CAROL BROWN: Do you think that the commission has adequate powers to fulfil its functions and protect people with disability? We have heard people giving evidence say that they are often told that what seem to be quite easily identified as areas of abuse are outside the remit of the commission. Do you think the powers the commission currently has are adequate?

Mr Joyce: In answer to that, I think originally we did. But, from the experience so far, ‘maybe not’ seems to be the answer. We certainly thought that they were strong when we are looking at the legislation coming in. We had some great meetings. And, by the way, there are some great operating staff at the quality and safeguards commission. We need to say that. However, it’s how it was put into operation—and, quite clearly, from what you’ve just said, you’ve been hearing the same thing. Again, what we would think they should be examining and  exploring is, they say—for some reason unknown to us—outside of what they can do, or their powers or whatever. We know we’re talking about participants in the NDIS. That part’s pretty clear; yes, we realise that that’s their brief. But we don’t see on the ground enough evidence that that’s really happening to protect people with disability.

Mr McGee: Let’s talk about chemical restraints, for example. We do not have the necessary legislative mechanisms to force governments to attend to the issue—the overreliance on chemical restraints on people with disabilities. That’s an issue in forensic settings, people just being put onto medication that has direct impacts on their ability to function in the world, because their behaviour is of concern. Again, Ms Hadden articulated that very well in talking about the community environment. I think this is the point: what is the commission’s role and what are its powers? I would have said that in an insurance model you want to focus on prevention as much as you want to focus on compliance, because you want things to not be a problem in the future.  We came to you, Mr Andrews, almost 18 months ago, I think, about children in home care. We were promised a national set of principles that detailed the obligations of the NDIA and, in, fact the state and territory governments around who provides support and who pays for support, and who provides accommodation and who pays for accommodation. We still don’t have any national principles. We still don’t have, in fact, state and territory governments and the NDIA agreeing on these responsibilities. And, Mr Andrews, I rang your office just two days ago to try to meet with you about this—and, Ms Brown, I’m going to be talking to your office as well—because some of the families that you met with 18 months ago are in positions where they’re being told by the NDIA that they’re not SCA applicable and that they should go and talk to their state and territory governments about accommodation. Now, this is the sort of stuff that we think the commission could have a role in, but I don’t think the powers of the commission in its current format enable it to do this type of prevention work.

Senator CAROL BROWN: This is my last question, but I have a lot of questions for you, Mr Joyce and Mr McGee; perhaps we’ll meet up separately. We’ve talked about compliance versus prevention, we’ve talked about issues where complaints are deemed to be outside remits, we’ve talked about information being provided to people who put in complaints, and, Mr McGee, you’ve talked about people wanting to be heard and responded to.  You’ve also talked about the commission supposedly being the vanguard of protection, in terms of quality and safeguarding. Do you think the commission is adequately resourced to take on enforcement and compliance? All the things that you’ve talked about are extremely important. All the things that Ms Hadden talked about were extremely important. But do you think the commission is living up to the title of ‘the vanguard of safety and quality’?

Mr Joyce: The short answer, I think, is no, from what we’ve already been saying. We think it’s still got a way to go. In fairness, the commission hasn’t been operating that long, but we certainly expected a lot more, and particularly in relation to a whole host of complaints that have been found not to be things that it can pursue, for a variety of reasons; they might be legitimate or not. And maybe it gets back to the earlier question you had, Senator Brown, on: are their powers sufficient to undertake that? Maybe that’s a good question for Graeme Head to do a sort of retrospective about, ‘Here’s where we think we are with our powers, and here’s what we can and can’t do.’ But, again, our, I suppose, disappointment is that there’s been a huge amount of focus on compliance, and we think that’s been driving everything else. So we think we’re getting some of the outcome from that. Now when I say compliance, I’m talking more about the registrations and that sort of thing. When we talk about compliance, we mean getting complaints appropriately considered, heard and acknowledged, and actions being undertaken. That’s what we talk about when we talk about compliance.

Mr McGee: I would say two things to your question, Senator Brown. One is—and, again, going back to Ms Hadden, who just really nailed it—where you have to prove yourself before a group of people who don’t have a disability, where you have to provide evidence and ‘prove’ the evidence, people with disabilities are going to be at a disadvantage. It’s simply the case that the mechanism by which all of that occurs means people without a disability just do better, because we have more access to all sorts of things: cognitive processes, perhaps, in some people’s cases; confidence; assurance; the ability to keep records—I mean, these are things that sometimes are beyond the capacity of people with disabilities to do. So this idea that you have to ‘prove’ your evidence before the commission, I think, is problematic. We absolutely want equity in the process. But there is no equity at the moment for people with disabilities in that mechanism.  I work with many Commonwealth public servants, and many of them are fine individuals. I, as an advocate, struggle with the cautious nature that some public servants bring to the progress towards the implementation of Australia’s obligations to meet the articles under the CRPD. But, nonetheless, there is a need for the employment of not only public servants in the commission but also advocates and people with disabilities—these are people who are sitting on the other side of the fence—rather than just a very well-considered, cautious, public-service approach to the enablement of complaints by people with disabilities, to come out in favour of them. Because public servants, I think, by their very nature and the service—and not just the individuals, but the systems that they use—are not weighted towards people with disabilities having positive outcomes in this framework.

Senator ASKEW: Thank you very much, gentlemen, for your time today and for the evidence you’ve provided. I must admit Senator Brown has covered off a lot of the points I wanted to make. But I just wanted to follow up on something. You said earlier—I’m not sure which of you actually made the comment—that when you walk into a mental health institution you’d likely find signs on the wall about complaints and things like that. I would like your thoughts and for you, if you could, to expand further on what sort of actions we could recommend that would actually raise the awareness of the commission, making sure, as you so ably put, that people are heard and responded to. What do we need to be doing to make that happen?

Mr McGee: There certainly needs to be a community education process that targets forensic facilities.  However, in forensic facilities you have people who are under forensic orders. So I think that it actually has to start at the police and the arrest moment. At that moment, in the police station, there need to be posters that say, ‘Do you have a disability and would like to lodge a complaint?’ That needs to be in the police stations, courts, prisons and forensic facilities. The problem that we’ve got with simply giving out a phone number is that people with disabilities and cognitive impairments, like acquired brain injury or fetal alcohol spectrum disorder, will not be able to follow that. So I think that it’s a two-stage process where you both enable the commission to go and visit those places in a proactive and assertive outreach capacity and partner up with the community visitor programs in each state and territory so that the community visitors and the commission work hand in hand. So it’s an education program and then assertive outreach in partnership between the commission and the state and territory monitoring and oversight systems.

Senator ASKEW: By ‘outreach’ do you mean people then actually specifically following up and educating individuals?

Mr McGee: Yes, I think people have to go and say. It’s really complicated, but that process will help us along enormously. They will go into prisons and ask people to tell them about bad things that are happening. That’s a really complicated business to do. But if we’re going to be doing it in prisons, and we’ve signed up to that, then certainly we can do it in forensic facilities. I’m saying that specially trained people need to go into forensic facilities and say: ‘I’m here to talk to you in a confidential manner. Is there anything you’d like to tell me?’ That’s because these are not people who will go to the commission and say, ‘I have a complaint.’  I would say that this is another mechanism by which people with lived experience could participate. It’s that old adage. Doctors like talking to doctors, lawyers like talking to lawyers and people with disabilities actually find themselves talking to people with disabilities. It’s a different conversation. So the people with lived experience should be part of that process where people go into these facilities and ask the question, ‘Is there anything you’d like to talk about?’

Senator ASKEW: That makes sense.

CHAIR: Thank you, Mr Joyce and Mr McGee. I think we’ve exhausted our questions. Thank you for your submission and for discussing it with us today. Thank you very much.

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