The PRESIDENT (Senator the Hon. Scott Ryan) took the chair at 09:30, read prayers and made an acknowledgement of country.
Marriage Amendment (Definition and Religious Freedoms) Bill 2017
(1) Clause 2, page 2 (table item 4), omit the table item.
(2) Schedule 1, item 1, page 4 (line 8), omit "civil", substitute "authorised".
(3) Schedule 1, item 2, page 4 (line 27), omit "(iv) a religious marriage celebrant; or".
(6) Schedule 1, item 21, page 11 (lines 13 and 14), omit the heading to section 47A, substitute:
47A Authorised celebrants (other than State and Territory officers) may refuse to solemnise marriages
(7) Schedule 1, item 21, page 11 (line 15), omit "A religious marriage celebrant", substitute "An authorised celebrant (other than a State or Territory officer)".
(8) Schedule 1, item 21, page 11 (line 19), omit "a religious", substitute "an authorised".
(9) Schedule 1, item 63, page 17 (lines 11 to 19), omit subsection 40(2AA), substitute:
(2AA) An authorised celebrant (as defined in subsection 5(1) of the Marriage Act 1961 ) may refuse to solemnise marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if the circumstances mentioned in subsection 47A(1) of theMarriage Act 1961 apply.
(4) Schedule 1, item 5, page 5 (lines 13 to 17), to be opposed.
(5) Schedule 1, items 8 to 17, page 5 (line 22) to page 10 (line 6), to be opposed.
(10) Schedule 1, item 64, page 18 (lines 5 to 13), to be opposed.
(11) Schedule 1, Part 4, page 19 (lines 1 to 13), to be opposed.
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion—
and no religious test shall be required as a qualification for any office …
… it is not in order to refer to a senator's religion in debate.
… it is not in order to refer to a senator's religion in debate.
The committee divided [10:27]
(The Chair—Senator Lines)
The committee divided. [10:34]
(The Chair—Senator Lines)
(1) Schedule 1, page 5 (line 21), after item 7, insert:
7A At the end of section 39
Add:
(4) A person who is authorised by subsection (1) or under subsection (2) to solemnise marriages must not refuse to solemnise a marriage unless section 99 or 100 of this Act applies.
[State and Territory officers]
A senator calling for a division shall not leave the chamber until the division has taken place.
(2) Schedule 1, page 11 (line 20), after item 47A, insert:
47AA Authorised celebrants (other than State and Territory officers) not bound to solemnise marriages etc.
Subject to subsection 39(4), nothing in this Part:
(a) imposes an obligation on an authorised celebrant to solemnise any marriage, or
(b) prevents such an authorised celebrant from making it a condition of his or her solemnising a marriage that:
(i) longer notice of intention to marry than that required by this Act is given; or
(ii) requirements additional to those provided by this Act are observed.
[authorised celebrants (other than State and Territory officers)]
(3) Schedule 1, Part 2, page 17 (lines 1 to 29), omit the Part, substitute:
Part 2—Amendment of the Sex Discrimination Act 1984
Sex Discrimination Act 1984
63 After section 38
Insert:
38A Marriage
Nothing in Division 1 or 2, other than section 26, renders it unlawful for a person to discriminate against another person on the ground of the other person's sexual orientation, gender identity, intersex status, marital or relationship status in the course of providing, or offering to provide, goods, services or facilities for, or in connection with:
(a) the solemnisation of a marriage under the Marriage Act 1961 ; or
(b) the preparation for, or celebration of, such a marriage; or
(c) the preparation for, or celebration of, events associated with such a marriage, including:
(i) an event announcing or celebrating the engagement of the parties to be married; and
(ii) an event celebrating the anniversary of the marriage.
[allowing non ‑government discrimination regarding marriage]
It is unlawful for a person who performs any function … under a Commonwealth law or for the purposes of a Commonwealth program … to discriminate … on the ground of … sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding …
The committee divided. [11.58]
(The Chair—Senator Lines)
(1) Clause 1, page 1 (lines 6 and 7), omit " Marriage Amendment (Definition and Religious Freedoms) Act 2017 ", substitute "Marriage Amendment Act 2017 ".
(2) Schedule 1, item 1, page 4 (lines 12 to 14), omit all the words from and including "their religion" to the end of paragraph 2A(b), substitute "their religion or the views of their religious community; and".
(3) Schedule 1, page 5 (after line 17), after item 5, insert:
5A Section 6
Omit "This", substitute "(1) This".
5B At the end of section 6
Add:
(2) This Act is not intended to exclude or limit the operation of a State or Territory law dealing with anti‑discrimination, to the extent that that law is capable of operating concurrently with this Act.
(4) Schedule 1, item 8, page 6 (line 21), omit "(1) The", substitute "The".
(6) Schedule 1, item 20, page 11 (lines 6 and 7), omit paragraph 47(3) (c).
(7) Schedule 1, item 21, page 11 (lines 15 to 17), omit subsection 47A(1), substitute:
Refusing to solemnise a marriage on the basis of religious beliefs
(1) A religious marriage celebrant may refuse to solemnise a marriage despite anything in this Part if:
(a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the celebrant's religious body or religious organisation; or
(b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
(9) Schedule 1, item 48, page 14 (lines 29 and 30), omit paragraph 81(2) (c).
(10) Schedule 1, item 63, page 17 (line 10), omit "47(3) (a), (b) or (c)", substitute "47(3) (a) or (b)".
(11) Schedule 1, item 63, page 17 (line 18), omit "the circumstances mentioned in subsection 47A(1)", substitute "any of the circumstances mentioned in paragraph 47A(1) (a) or (b)".
(12) Schedule 1, item 63, page 17 (line 23), omit "81(2) (a), (b) or (c)", substitute "81(2) (a) or (b)".
(5) Schedule 1, item 8, page 7 (lines 1 to 17), subsection 39DD(2) (including the subheading) to be opposed.
(8) Schedule 1, item 21, page 11 (line 21) to page 12 (line 11), section 47B to be opposed.
The committee considers that such celebrants perform a function on behalf of the state and should be required to uphold Commonwealth law (including anti-discrimination laws).
The committee divided. [12:22]
(The Chair—Senator Lines)
That this bill be now read a third time.
That consideration of the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 may continue until not later than 2 pm and that any division on the bill may occur between the hours of 12.45 pm and 2 pm today, and that other business on the Notice Paper be suspended until the third reading of the bill has occurred.
Marriage Amendment (Definition and Religious Freedoms) Bill 2017
Hope deferred makes the heart sick, but a longing fulfilled is a tree of life.
The Senate divided. [13:30]
(The President—Senator Ryan)
Imagine being told you can't drink the water in your own home or swim in the local pool or finding out that your home may be effectively worthless because your water supply has been contaminated for years by toxic chemicals.
… there is no proven value in doing blood tests …
The only concern would be creating unnecessary anxiety in the community …
But, when that data is available, the health experts will make the assessment on whether and how, if that is appropriate, blood testing is made available.
It is generally accepted that if housing costs exceed 30 per cent of a low income household’s … gross income, the household is experiencing housing stress—
… Sam Dastyari warned Chinese Communist Party-linked political donor Huang Xiangmo last year that his phone was likely tapped by government agencies … Mr Dastyari gave Mr Huang counter-surveillance advice, saying they should leave their phones inside and go outside to speak.
… he did not pass on any classified information …
… there's no doubt that One Nation are an emerging threat in Queensland politics.
… on the question of One Nation preferences … the Prime Minister's views and mine are identical.
… a lot of that starts with the Turnbull government, its leadership and its policy direction.
That the Senate take note of the answer given by the Minister representing the Prime Minister (Senator Brandis) to a question without notice asked by Senator McAllister today relating to the Turnbull government.
… warned Chinese Communist Party-linked political donor Huang Xiangmo last year that his phone was likely tapped by government agencies …
Mr Dastyari gave Mr Huang counter-surveillance advice, saying they should leave their phones inside and go outside to speak.
That the following general business orders of the day be considered on Thursday, 30 November 2017 at the time for private senator's bills: No. 70 Public Governance, Performance and Accountability Amendment (Executive Remuneration) Bill and No. 68 Nuclear Fuel Cycle (Facilitation) Bill 2017.
That—
(a) the Senate adopt the recommendation at paragraph 4.10 of Scrutiny Digest 13 of 2017 of the Standing Committee for the Scrutiny of Bills, proposing an amendment to standing order 24; and
(b) the temporary order of the Senate of 29 November 2016, concerning an amendment to standing order 24, cease to have effect.
That the Senate—
(a) notes that:
(i) the Australian Information Commissioner Act 2010 (AIC Act) establishes three independent statutory office holders:
(A) the Information Commissioner,
(B) the Freedom of Information (FOI) Commissioner, and
(C) the Privacy Commissioner,
(ii) paragraphs 11(5) (a) and (b) and paragraphs 12(5) (a) and (b) of the AIC Act describe the independence of each Commissioner,
(iii) in the six months following the Royal Assent to the AIC Act, three commissioners were appointed to the three office holder's positions,
(iv) since the unsuccessful attempt by the Abbott Government to abolish the Office of the Australian Information Commissioner, two commissioners have left office and have not been replaced,
(v) currently Mr Timothy Pilgrim fills the statutory position of the Information Commissioner and Privacy Commissioner, and the position of FOI Commissioner is vacant on account of Mr Pilgrim not holding the legal qualifications required in section 14 of the AIC Act, and
(vi) the AIC Act requires the appointment of three independent statutory office holders and the Government is constitutionally bound to maintain and execute the laws of the land and uphold the will of the Parliament; and
(b) calls on the Government to immediately commence the process of appointing an independent Privacy Commissioner and an independent FOI Commissioner, in accordance with the AIC Act.
Notice given 28 November 2017
The advice I gave government was that I had believed that the role could be done by one person. The appointment of a further statutory office holder would be an unnecessary drain on the office of the Australian Information Commissioner's resources.
That the Senate—
(a) notes that commemorations are underway for the eighty-fifth anniversary of Holodomor, to mark an enforced famine in Ukraine caused by the deliberate actions of Stalin's Communist Government of the Union of Soviet Socialist Republics (USSR);
(b) recalls that it is estimated that up to seven million Ukrainians starved to death, as a result of Stalin's policies in 1932 to 1933 alone;
(c) condemns these acts aimed at destroying the national, cultural, religious and democratic aspirations of the Ukrainian people;
(d) condemns all similar acts during the twentieth century as the ultimate manifestations of racial, ethnic or religious hatred and violence;
(e) honours the memory of those who lost their lives during Holodomor;
(f) joins the Ukrainian Australian community and the international community in commemorating this tragic milestone under the motto, Ukraine Remembers - The World Acknowledges;
(g) recognises the importance of remembering and learning from such dark chapters in human history to ensure that such crimes against humanity are not allowed to be repeated; and
(h) pays its respects to the Australian Ukrainians who lived through this tragedy and have told their horrific stories.
That the Senate—
(a) condemns the appalling and cowardly attack on worshippers in the al Rawdah Mosque in Egypt's Northern Sinai region;
(b) extends its sympathy and support to the families of the 305 victims, including 27 children, who were killed in the attack while they were attending prayers, the 128 people who were wounded, and the Egyptian people; and
(c) stands with all people of goodwill in complete rejection of those who try to use terror and violence to destroy peace.
That the Senate—
(a) notes:
(i) that the vast majority of Australians voted for marriage equality in the recent postal survey,
(ii) that the postal survey had a negative impact on the mental health of many LGBTIQ Australians and their families, demonstrated by examples such as Reachout which saw a 40 per cent, and Switchboard which saw a 35 per cent, increase in people accessing their services between August and October 2017,
(iii) that 40 per cent of young LGBTIQ people seeking help are at a higher risk of suicide – almost double the rate for their heterosexual peers,
(iv) that many LGBTIQ people will remain scarred by the traumatic ordeal the Government has put them through by putting their rights to a public popular vote,
(v) the urgent need to address this issue and offer support to the LGBTIQ community, and
(vi) that the marriage equality postal survey came in approximately $20 million under budget; and
(b) calls on the Federal Government to show leadership and spend this unspent postal survey funding on mental health services for LGBTIQ people.
That the Senate—
(a) notes the latest publicity stunt from People for the Ethical Treatment of Animals, also known as PETA, who have called for taxpayers to build a memorial to 6,000 chickens killed in a truck crash near Lismore, New South Wales on 27 November 2017;
(b) further notes PETA's history of stunts and attacks on Australia's livestock farming, meat manufacturing, meat retail, hunting and racing sectors, putting regional jobs and economies at risk; and
(c) calls upon the Commonwealth Government and all state and territory governments to resist all attempts by PETA to:
(i) further jeopardise Australia's economy and way of life, and
(ii) make demands upon Australian taxpayers.
That the Senate—
(a) notes claims, published in Newsweek on 26 November 2017, that Tesla, a US-listed company with Mr Elon Musk as its CEO, has sacked 700 workers and stands accused of "trying to force them to avoid criticizing the company and its famous CEO", and that "the mass firings targeted pro-union, LGBT and black employees";
(b) further notes claims, published in Fortune magazine on 1 November 2017, noting that "United Auto Workers filed a complaint against Tesla on 25 October 2017, claiming the company fired workers who were trying to unionize";
(c) observes that the South Australian Premier (Mr Weatherill) has indicated he plans to travel to Jamestown, South Australia, this week to celebrate switching on Mr Musk's Tesla-provided battery before 1 December 2017; and
(d) calls upon the Commonwealth and all state and territory governments to cease any involvement with Mr Musk and his companies until the claims of targeting union members, LGBT and African-American employees are resolved.
That the Senate notes the growing public and industry concern relating to the allegations of sexism, sexual harassment and assault within the Australian media and arts industry following the Harvey Weinstein scandals in Hollywood, and;
(a) Calls on broadcasters and independent production companies to outline what steps they have taken and what steps they will take to stamp out the insidious culture of enabling sexual harassers, abusers and misogynistic bullies in their industry by not making a stand or holding perpetrators accountable, highlighted by the horrific accounts come to light this week;
(b) Asks broadcasters and independent production companies to consider the corporate reputational damage for inaction on sexual harassment in the workplace;
(c) Calls on all broadcasters and independent production companies to commit to ending the culture of sexual harassment and assault in the workplace;
(d) Acknowledges the brave people, mostly women, who were victim to despicable behaviour from their colleagues and superiors; and
(e) Encourages diversity and inclusion across race, gender, sexuality, ability and region in broadcasting in an effort to foster respectful and considerate workplaces.
That the Senate—
(a) notes Triple J's decision to move its iconic Hottest 100 from 26 January to the fourth weekend in January;
(b) acknowledges the consultation process undertaken, in which almost 65 000 people participated in a questionnaire about the Hottest 100 date, with 60 per cent in favour of moving the date;
(c) notes the Triple J Hottest 100 debuted on 5 March 1989;
(d) reminds the Minister for the Arts and the Minister for Communications (Senator Fifield), of the importance of the independence of the ABC, and calls on him not to interfere with decisions of the broadcaster; and
(e) urges other organisations and community groups to consult their communities about celebrations and events held on 26 January.
The Senate divided. [15:52]
(The President—Senator Ryan)
That the Senate—
(a) notes that:
(i) 7.30 recently aired footage of hens having their feet torn off and being boiled alive at the Star Poultry Supply slaughterhouse in the suburb of Keysborough, Victoria, in early 2017,
(ii) this footage was secretly recorded by animal rights campaigners, and showed practices which regulator PrimeSafe had failed to identify in regular audits, and
(iii) a number of cases of cruelty to animals in Australian abattoirs have been identified in Australia through covert recording;
(b) acknowledges that:
(i) this year, both the United Kingdom and France have adopted policies to implement CCTV in all abattoirs to deter animal cruelty in abattoirs and support regulators to audit effectively,
(ii) New South Wales (NSW) has mandated the appointment of animal welfare officers in all abattoirs to lift the standard of care for animals, and
(iii) all Australian consumers have an interest in animal welfare, and are entitled to feel confident that meat and poultry on Australian supermarket shelves has not arrived there by way of torture and abuse; and
(c) calls on the Government to:
(i) urgently advocate for CCTV use in all abattoirs at the next Agricultural Ministers' meeting and at the Council of Australian Governments,
(ii) urgently advocate for the national adoption of NSW's policy of appointing animal welfare officers in all Australian abattoirs,
(iii) strengthen the proposed draft Australian Animal Welfare Standards and Guidelines for Poultry to safeguard poultry welfare at abattoirs and on-farm, and
(iv) strongly encourage state governments to respond to evidence of animal cruelty with strong sanctions and prosecution.
That the Senate—
(a) notes that:
(i) figures released by the Department of Health this week show that people living in regional Australia are less likely to be bulk-billed for a GP visit, compared with those living in metropolitan cities,
(ii) people living in regional Australia pay more to access a GP, and that their out-of-pocket costs have increased since the 2016 election,
(iii) people living in regional Australia are around 20 per cent more likely to skip or delay seeing a GP because of the cost,
(iv) electorates held by The Nationals have some of the lowest bulk-billing rates in the country, including the electorates of Page ranked 104th, Flynn ranked 111th, Capricornia ranked 112th, and Dawson ranked 115th,
(v) more than 550 000 Australians living in electorates held by The Nationals will pay more tax under The Nationals' plan to unfairly increase the Medicare levy on low-income earners,
(vi) the Government is yet to lift any part of their Medicare freeze – rebates for GPs, specialists and allied health services all remain frozen, and
(vii) the Government's freeze is doing $2.2 billion in damage to Medicare – a cut to the pockets of patients every time they visit a GP, every time they visit a specialist, and every time they receive a Medicare allied health service;
(b) calls on the Government to guarantee:
(i) immediate and annual indexation of Medicare rebates that have been frozen by this Government,
(ii) proper Commonwealth investment in public hospitals, so that all Australians can access acute care without financial or other barriers, and
(iii) that savings from the Medicare Benefits Schedule Review and agreements with stakeholders will be reinvested in Medicare, and not used as an excuse for further cuts; and
(c) condemns the Government for neglecting vital Medicare services in rural and regional Australia.
The Senate divided. [16:02]
(The President—Senator Ryan)
The Senate divided. [16:06]
(The President—Senator Ryan)
That the Senate—
(a) notes that:
(i) on 3 July 2017, The Guardian Australia broke the story that private Medicare numbers were being illegally sold on the dark web,
(ii) the Minister for Human Services stated that both he and his department had only been made aware of the breach when The Guardian contacted them on 3 July 2017,
(iii) on 15 September 2017, the Finance and Public Administration References Committee questioned the Department of Human Services during the inquiry into this breach, at which time the department failed to mention any early knowledge about the breach, and
(iv) on 21 November 2017, it was revealed by The New Daily that heavily redacted FOI documents show that officers of the Department of Human Services were aware of the breach 11 days prior to The Guardian story's publication; and
(b) orders that there be laid on the table by the Minister representing the Minister for Human Services, by no later than 6.30 pm on 4 December 2017:
(i) any advice provided to the Minister by the Department of Human Services relating to the breach, prior to 3 July 2017,
(ii) any documents relating to the breach from the Department of Human Services, prior to 3 July 2017, and
(iii) any related documents.
Senator Dodson did not vote, to compensate for the vacancy caused by the resignation of Senator Parry.
Senator Farrell did not vote, to compensate for the vacancy caused by the resignation of Senator Nash.
Senator Smith did not vote, to compensate for the vacancy caused by the resignation of Senator Xenophon.
The Senate divided. [16:10]
(The President—Senator Ryan
(1) That the Senate:
(a) notes that:
(i) the New Zealand Prime Minister, the Right Honourable Jacinda Ardern, has continued to pressure Australia to accept New Zealand's offer to resettle 150 refugees who are currently in offshore detention,
(ii) New Zealand will begin work to expedite processing refugees if, and when, the offer is accepted, and
(iii) Prime Minister Ardern stated "We made the offer because we saw a great need. No matter what label you put on it there is absolute need and there is harm being done"; and
(b) calls on the Government to accept New Zealand's offer to resettle 150 refugees and negotiate conditions similar to the United States refugee resettlement agreement.
(2) That a message be sent to the House of Representatives seeking its concurrence in this resolution.
The Senate divided. [16:14]
(The President—Senator Ryan)
(1) That the Senate:
(a) notes that Australia Day is on 26 January and should remain so; and
(b) recognises that Triple J's Hottest 100 has become an iconic event since it was first proposed during Australia's bicentennial year in 1988.
(2) The Australian Broadcasting Corporation (ABC) Charter states a function of the Corporation is to broadcast programs that contribute to a sense of national identity.
(3) The ABC should restore the Hottest 100 to Australia Day, 26 January.
Senator Dodson did not vote, to compensate for the vacancy caused by the resignation of Senator Parry.
Senator Farrell did not vote, to compensate for the vacancy caused by the resignation of Senator Nash.
Senator Lines did not vote to compensate for the resignation caused by the vacancy of Senator Xenophon.
The Senate divided. [16:19]
(The President—Senator Ryan)
That the Senate—
(a) notes that the South Australian Labor Government provided $757 000 of taxpayer funding to One Community for advocacy purposes, including during the 2016 federal election;
(b) notes that the South Australian Auditor-General investigated the allocation of $757 000 by the South Australian Labor Government to One Community;
(c) notes that the South Australian Auditor-General found this funding supported activity which "included messages a reasonable person could interpret as being designed to influence support for a political party"; and
(d) calls on the South Australian branch of the Australian Labor Party to refund to South Australian taxpayers the monies that were used for a political purpose.
The Senate divided. [16:25]
(The President—Senator Ryan)
That the Senate take note of the report.
The Committee recommends that all Australian Governments recommit to the National Disability Strategy 2010-2020 and meeting associated domestic and international reporting obligations.
The committee recommends that the government takes to the Disability Reform Council for consideration a proposal to establish an Office of Disability Strategy under the oversight of the Disability Reform Council, as a coordination agency for the National Disability Strategy 2010-2020 and for the revised National Disability Strategy after 2020.
The committee recommends that if an Office of Disability Strategy is established, that people with disability are consulted at every stage of its development and implementation.
That Senator Marshall be discharged from, and Senator Kitching be appointed to, the Standing Committee of Privileges.
National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017
If you could say anything* to the people in this place what would you say?
National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017
The current mechanisms at State and Territory level are varied and inconsistent, with some consisting of relatively weak policy functions within government departments and others having established regulatory bodies and mechanisms.
It doesn't address the scale of violence and abuse against people with disability, its many different forms and the range of service and other settings where abuse occurs.
At the end of the motion, add:
", but the Senate:
(a) is of the opinion that this bill does not negate the need for a Royal Commission into violence, abuse, and neglect of people with a disability; and
(b) calls on the government to establish the Royal Commission as a matter of urgency. "
… we note with disappointment that the NDIS Quality and Safeguards Commission will not provide comprehensive protection against violence, abuse and neglect for all people with disability across a broad range of service systems and situations. It will only provide protection to the 10 per cent of people with disability who directly access NDIS supports, and it will not have a mandate to address individual or systemic issues outside of the NDIS. This means that the majority of people with disability as well as NDIS participants, when interfacing or using other service systems, will have protection only through existing regulatory and policy frameworks that have to a large extent been shown to provide inadequate protection.
… should be included in primary legislation unless a sound justification for the use of delegated legislation is provided.
The Minister may, by legislative instrument, give directions to the Commissioner about the performance of his or her functions and the exercise of his or her powers.
If you have a service—using a remote area as an example—where there are lots of complaints coming in about the service and it's clear they are not providing good service or that there are issues about their registration maybe, the commissioner has also got to manage the issue of the risk of that service provider withdrawing and there being no service provider in the area. It's an odd tension that is consciously in there. We've talked about it with the DSS quality and safeguarding people at an earlier stage. It is deliberately in there, but that's a challenge for this commission to manage. It's one where we would worry about how that's going to play out.
The current mechanisms at State and Territory level are varied and inconsistent, with some consisting of relatively weak policy functions within government departments and others having established regulatory bodies and mechanisms.
The amendments made will require the Commissioner to assist the States and Territories to develop nationally consistent minimum standards in relation to restrictive practices that are in line with the intergovernmental agreement to the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector.
There is a concern that the Bill will establish a dual role for the Commission when handling complaints. The Bill details that Commission will support people to be heard and provide protections for victimisation should they make a complaint, there is potential for impartiality to be compromised if the Commission is both interrogator and supporter. There is a strong case for independent advocacy to be available to ensure the rights of people are upheld in an unbiased way.
… will not cover the range of settings in which people with disability experience violence, nor the multiple forms of violence that people with disability experience.
A Royal Commission is the only mechanism that can provide a comprehensive, independent, and just response to all forms of violence and abuse against people with disability. People with disability in Australia deserve nothing less.
(1) Clause 2, page 2 (table item 3), omit the table item.
(2) Schedule 1, item 7, page 5 (before line 25), before the definition of key personnel , insert:
independent advocate , in relation to a person with disability, means a person who:
(a) is independent of the Agency, the Commission and any NDIS providers providing supports or services to the person with disability; and
(b) provides independent advocacy for the person with disability, to assist the person with disability to exercise choice and control and to have their voice heard in matters that affect them; and
(c) acts at the direction of the person with disability, reflecting the person with disability' s expressed wishes, will, preferences and rights; and
(d) is free of relevant conflicts of interest.
(3) Schedule 1, item 48, page 32 (after line 7), after paragraph 73W(a), insert:
(aa) acknowledges the role of advocates (including independent advocates) and other representatives of persons with disability; and
(ab) provides for cooperation with, and facilitates arrangements for, advocates (including independent advocates) and other representatives of persons with disability who are affected by the complaints process and who wish to be independently supported in that process by an advocate or other representative; and
(4) Schedule 1, item 48, page 32 (line 25), after "NDIS providers", insert ", advocates (including independent advocates)".
(5) Schedule 1, item 48, page 32 (after line 29), after paragraph 73X(2) (c), insert:
(ca) requirements relating to procedural fairness in relation to the management and resolution of complaints;
(6) Schedule 1, item 48, page 34 (before line 5), before paragraph 73Z(3) (a), insert:
(aa) requiring a registered NDIS provider to provide people with disability with information regarding the use of an advocate (including an independent advocate) in relation to an investigation into the reportable incident; and
(7) Schedule 1, item 48, page 35 (line 15), after "carer", insert", independent advocate".
(8) Schedule 1, item 60, page 64 (after line 8), after subsection 181D(3), insert:
(3A) In performing his or her functions, the Commissioner must acknowledge, recognise and respect the role of advocates (including independent advocates) in representing the interests of people with disability.
(9) Schedule 1, item 60, page 64 (before line 9), before subsection 181D(4), insert:
(3B) In performing his or her functions, the Commissioner must have due regard to procedural fairness.
(10) Schedule 1, item 60, page 67 (line 20), at the end of section 181H, add:
; and (f) assisting the States and Territories to develop a regulatory framework, including nationally consistent minimum standards, in relation to restrictive practices:
(i) in line with the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector; and
(ii) consistent with the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006.
Note: The Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No. 12 ([2008] ATS 12) and could in 2017 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
(11) Schedule 2, page 80 (line 1) to page 89 (line 17), to be opposed.
(1) Schedule 1, item 7, page 5 (lines 26 and 27), omit the definition of NDIS Code of Conduct in section 9, substitute:
NDIS Code of Conduct means the requirements referred to in subsection 73V(2).
(2) Schedule 1, item 48, page 31 (lines 17 to 23), omit subsections 73V(l) and (2), substitute:
(1) The NDIS Code of Conduct applies to the following persons or entities:
(a) NDIS providers;
(b) persons or entities employed or engaged by NDIS providers, or otherwise employed or engaged to provide supports
and services to, or in relation to, people with disability.
(2) The NDIS Code of Conduct consists of the following requirements:
(a) a person or entity must act with respect for individual rights to freedom of expression, self-determination and decision-making in accordance with relevant laws and conventions;
(b) a person or entity must respect the privacy of people with disability;
(c) a person or entity must provide supports and services in a safe and competent manner, with care and skill;
(d) a person or entity must act with integrity, honesty and transparency;
(e) a person or entity must promptly take steps to raise and act on concerns about matters that may impact the quality and safety of supports and services provided to people with disability;
(f) a person or entity must take all reasonable steps to prevent and respond to all forms of violence, exploitation, neglect and abuse;
(g) a person or entity must take all reasonable steps to prevent and respond to sexual misconduct or other inappropriate relationships against, with or between persons with disability;
(h) if guidelines have been made for the purposes of paragraph (2A) (b)-an NDIS provider must act in accordance with those guidelines; and
(i) if guidelines have been made for the purposes of paragraph (2A) (c)-a person or entity mentioned in paragraph (l) (b) must act in accordance with those guidelines.
(2A) The National Disability Insurance Scheme rules may make provision for and in relation to the following:
(a) rules specifying conduct that may contravene a requirement under the NDIS Code of Conduct;
(b) guidelines for providers;
(c) guidelines for workers.
(3) Schedule 1, item 48, page 32 (lines 15 to 18), omit subsection 73X(1), substitute:
(1) The National Disability Insurance Scheme rules may prescribe arrangements relating to the management and resolution of complaints:
(a) arising out of, or in connection with, the provision of supports or services by NDIS providers, and providers of local area coordination services and early childhood early intervention services; and
(b) arising out of, or in connection with, actions of the Agency.
(5) Schedule 1, item 60, page 65 (line 12), omit "Act;", substitute "Act.".
(6) Schedule 1, item 60, page 65 (lines 13 to 17), omit paragraph 181E(i).
(8) Schedule 1,item 60, page 67 (after line 33), after subsection 181K(l), insert:
(iA) Despite paragraph 44(2) (b) of the Legislation Act 2003, and regulations made for the purposes of that paragraph, section 42 of that Act applies to a direction by the Minister under subsection (1).
(9) Schedule 1, item 60, page 68 (lines 1 to 4), omit the note, substitute:
Note 1: Section 42 of the legislation Act 2003 provides for the disallowance of legislative instruments.
Note 2: Part 4 of Chapter 3 (sunsetting) of the legislation Act 2003 does not apply to the directions (see regulations made for the purposes of paragraph 54(2) (b) of that Act.
That this bill be now read a third time.
Statute Update (Smaller Government) Bill 2017
That the following general business orders of the day be considered on Thursday, 30 November 2017 at the time for private senators' bills: No. 68, Nuclear Fuel Cycle (Facilitation) Bill 2017, and No. 8, Commonwealth Electoral Amendment (Political Donations and Other Measures) Bill 2016.
That the Senate do now adjourn.
The Department has not utilised the flexibility mechanisms within the contract which have the potential to reduce the annual payment amounts.