Disability Inclusion (Restrictive Practices - NDIS) Amendment Bill

Committee Stage

In committee.

(Continued from 1 April 2021.)

Clause 5.

The Hon. C.M. SCRIVEN: My next amendment, No. 13 [Scriven-1], is consequential and I will not proceed with it.

The ACTING CHAIR (Hon. D.G.E. Hood): Is that the case for amendments Nos 14, 15, 16, 17, 18 and 19?

The Hon. C.M. SCRIVEN: It is, sir.

The ACTING CHAIR (Hon. D.G.E. Hood): What about No. 20? Can you just clarify that one, please?

The Hon. C.M. SCRIVEN: I have a question on that part of the clause and then I intend to move amendment No. 20 [Scriven-1].

The Hon. J.M.A. LENSINK: I move:

Amendment No 3 [HumanServ–1]—

Page 10, line 25 [clause 5, inserted section 23L(1)]—After 'person' insert:

who holds the qualifications, and has the experience, prescribed by the regulations

This amendment seeks to prescribe in the regulations the authorised program officer's qualifications and experience. This amendment is consequential to one of my prior amendments, which was to prescribe what I have just said. This will enable greater detail and consultation on the requirements for the role.

The Hon. C.M. SCRIVEN: I thank the government for taking on board the opposition's amendment to ensure that there are minimum qualifications for the senior authorising officer. Can the minister advise what she would see as the minimum qualification appropriate?

The Hon. J.M.A. LENSINK: The advice I have received is that it is the department's intention for these matters to be developed through the consultation, because we really want to give to people with lived experience, family members and the like, the opportunity to tell us what they think is most important.

The Hon. C.M. SCRIVEN: Does that mean that the minister does not currently have a view on what should be the minimum qualification—not in regard to all qualifications but simply the minimum?

The Hon. J.M.A. LENSINK: I am not prepared to express a view without us having actually gone to consultation first.

The Hon. C.M. SCRIVEN: The amendment that was filed in my name is very similar, except that the minister's amendment refers to someone having the 'qualifications or experience or both' prescribed by the regulations, whereas the opposition amendment was 'the qualifications and experience'. Can the minister indicate why she thinks it should not be skills and experience as proposed in the amendment filed in my name?

The Hon. J.M.A. LENSINK: I am not sure I am able to give a really explicit reason on that particular matter for the honourable member. The request would have gone to parliamentary counsel, based on our instructions, and I am assuming that the opposition's instructions were slightly different. That is the only explanation I can provide on that particular issue.

The Hon. C.M. SCRIVEN: Does the minister think it should be that the person has skills and experience or that one or the other is sufficient?

The Hon. J.M.A. LENSINK: I think we are splitting hairs a little bit here. The intent is fairly clear from these amendments.

The Hon. C.M. SCRIVEN: It is a pity that the minister cannot or will not answer that, but if that is her approach then so be it. Is there a reason that the role of senior authorising officer has already been advertised before any legislation is passed, obviously including matters to do with qualifications and experience?

The Hon. J.M.A. LENSINK: Yes; the reason it has already been advertised is that we clearly need to crack on with this. We wanted to make sure that we had that out in the field, if you like, for people to apply for. It is not the sort of position you can find every day of the week, so the sooner we put the information out that we are looking for someone to fulfil this role the greater the likelihood we will get a quality candidate to fill this role in the time we require.

The CHAIR: The Hon. Ms Scriven's amendment is a very similar amendment but it is one that is different from the minister's amendment. Do you wish to move your amendment?

The Hon. C.M. SCRIVEN: Yes. I think having skills and experience is important. Both amendments will improve the bill, but Labor's understanding is that for providers in the NDIS market there are benefits in requiring people to have both skills and experience. I move:

Amendment No 20 [Scriven–1]—

Page 10, line 25 [clause 5, inserted section 23L(1)]—After 'person' insert:

who has the qualifications or experience (or both) prescribed by the regulations for the purposes of this subsection

The CHAIR: The question will be that the words proposed to be inserted by the minister be so inserted. Those members supporting the Hon. Ms Scriven would vote no to that.

The Hon. T.A. FRANKS: I indicate that the Greens will be supporting the government. I also note that the wording of the Labor amendment was:

who has the qualifications or experience (or both) prescribed by the regulations for the purposes of this subsection

So it already allowed for it to be one or the other.

The Hon. C. BONAROS: For the record, I indicate that we will be supporting the government's position in relation to this amendment.

The Hon. J.M.A. Lensink's amendment carried.

The Hon. C.M. SCRIVEN: Amendments Nos 21, 22 and 23 are consequential and I will not be proceeding with those.

The CHAIR: Thank you. That takes us to amendment No. 24 [Scriven-1].

The Hon. C.M. SCRIVEN: Before I move the amendment, I have a question for the minister. This part, and the amendment that I will be moving shortly, is in regard to the maximum length of orders. The current bill is silent on the maximum length of orders in terms of restrictive practice authorisations. Why is it not considered necessary to have an end date to authorised restrictive practice?

The Hon. J.M.A. LENSINK: I think as I had already outlined—it may well have been in a contribution at clause 1, because this was an issue that the Labor opposition had raised in their second reading speech, and bearing in mind that this piece of legislation has been drafted to dovetail into the national rules, but I will repeat that for the benefit of the honourable member—the NDIS (Restrictive Practices and Behaviour Support) Rules 2018 require that a comprehensive behaviour support plan that contains a regulated restrictive practice be reviewed at least every 12 months or if there is a change of circumstances that requires the plan to be amended. I can speak to the honourable member's amendment. Is the honourable member still intending to move her amendment?

The Hon. C.M. SCRIVEN: Yes.

The Hon. J.M.A. LENSINK: I will speak to the reasons why we are not supporting it at that point.

The Hon. C.M. SCRIVEN: I move:

Amendment No 24 [Scriven–1]—

Page 12, lines 28 and 29 [clause 5, inserted section 23N(2)(c)(iii)]—Delete subparagraph (iii) and substitute:

(iii) the date on which the authorisation ceases to have effect (being a date not later than 6 months after the authorisation is granted); and

As I mentioned, the current bill is silent on maximum length orders, notwithstanding the response that the minister has just given that this dovetails into other legislation that requires review every 12 months. We need to be aware that certain provisions in terms of restrictive practices might result in really very major impositions on a person's physical and psychological wellbeing, so it is critical that authorisations are the subject of regular review so that people do not fall through the cracks. The last thing we could afford is another Annie Smith case, where someone has been forgotten.

The NDIS behaviour support plans may have varying lengths, and therapy of course may change a person's behaviour, so we need to ensure that restrictive practices are genuinely a last resort and not just at the time that they are first imposed. Whilst noting the undertaking from the minister that other legislation requires a 12-monthly review, 12 months for provisions that really result in major impositions on a person's wellbeing is quite a long time.

If therapy is indeed affecting their behaviour in a positive way, a review every six months, as proposed by this amendment, would ensure that there is appropriate review and potential change and removal of those restrictive practices as soon as it is appropriate for them to be removed.

The Hon. J.M.A. LENSINK: I indicate that the government will not be supporting this amendment. The bill itself requires that the authorised program officer who authorises the use of restrictive practices must set out:

(iii) the date (if any) on which the authorisation ceases to have effect; and

(iv) any other information required by the regulations;

Further, subclause (7) of the same section requires that:

(7) An Authorised Program Officer may only authorise the use of level 1 restrictive practices in relation to a prescribed person—

(a) for as long as is reasonably necessary to prevent the prescribed person from causing harm to themselves or others; or

(b) until the prescribed person's behaviour support plan expires or otherwise ceases to have effect, or is varied such that the use of level 1 restrictive practices is no longer consistent with the behaviour support plan,

whichever is the lesser.

The concern we have with inserting this particular clause into this bill is not just that it duplicates it, notwithstanding a number of comments the honourable member made that restrictive practices should only be used as a last resort, which I think everybody agrees on. The concern is that this amendment could create inconsistency and confusion for all those involved and therefore is potentially going to muddy the regulations.

The Hon. C.M. SCRIVEN: I thank the minister for her response. I think that particular term that she referred to is one of the items of concern. It currently says that the authorisation must set out 'the date (if any) on which the authorisation ceases to have effect'. There is potentially no end date and we have seen that, unfortunately, there are cases where within the NDIS things do not happen in the way that they are supposed to, including in the way that is the required time frame of 12 months, potentially.

This will in fact ensure that things are not let through the cracks, that there is a regular review every six months. If nothing has changed, then that would be a relatively simple review and process, so that if the person still does need to have those restrictive practices imposed for their safety or the safety of others that would still be able to continue, but we do not have to rely solely on things happening as they should within the NDIS. This is an extra safeguard, and of course there is nothing stopping us from having a standard that is higher than the NDIS, which is what this amendment proposes.

The Hon. J.M.A. LENSINK: I beg to differ with the interpretation of the honourable member. The NDIS rules are quite clear, so for the honourable member to claim that there is not an end date is simply incorrect. I am not quite sure what she means by we would set a high standard, because the body that is charged with enforcing any of the standards continues to be the Quality and Safeguards Commission, which is an independent statutory authority under federal regulations. I do not think she acknowledges the potential difficulty that she is going to cause with this particular amendment, and I reject a lot of the comments that she made in her previous contribution.

The Hon. C.M. SCRIVEN: I just want to note the minister's comments and thank her for those, but really what we are trying to make sure is that there is no danger involved with a person potentially having these very intrusive restrictive practices imposed for longer than is actually appropriate.

The Hon. J.M.A. LENSINK: I do not want to let that comment go unchallenged. I will just reiterate that this entire legislative regime is about minimising the use of restrictive practices, so for the Labor Party to try to construe that this amendment is somehow improving a situation is incorrect.

The Hon. C. BONAROS: I, too, am not convinced by the arguments made by the opposition in relation to this clause. I think previously I have spoken about this matter in terms of the practical implementation of these sorts of provisions, and I have spoken firsthand about the role SACAT also plays in that process. We know that there are time limits which apply in relation to the use of restrictive practices already. Ordinarily, these sorts of practices would be reviewed at least on a six-monthly and at most on a 12-monthly basis in any event.

I can say with certainty that I have had firsthand experience in relation to these sorts of restrictive practices and the way they are dealt with under the NDIS and by SACAT. It is not even the standard course for SACAT to review these on a 12-monthly basis but rather, when we are dealing with restrictive practices, I would argue that the standard course that is followed by SACAT under the NDIS is indeed a shorter period, knowing full well that the maximum is actually 12 months. So I think that we already have safeguards in place.

I think the processes we are supposed to be facilitating today are those which work towards consistency rather than inconsistency. My concern is that the opposition's amendments provide further confusion and inconsistency, and I think the minister is right to challenge the opposition in terms of the argument that was just made. I think the safeguards and the level of protection that we are seeking does exist and that this does indeed cause confusion where it is not warranted.

The Hon. T.A. FRANKS: The Greens associate themselves with the remarks of the Hon. Connie Bonaros, and we will not be supporting the opposition amendment.

The committee divided on the amendment:

Ayes 8

Noes 13

Majority 5

Amendment thus negatived.

Progress reported; committee to sit again.