Penny Wong

I seek leave to move a motion relating to the considering to legislation.

Leave not granted.

Pursuant to contingent notice, I move:

That so much of the standing orders be suspended as would prevent me moving a motion to provide for the consideration of a matter, namely a motion to allow a motion relating to the consideration of legislation be moved and determined immediately.

I also move:

That the question be now put.

Sue Lines

The question is that the question be now put.

Malcolm Roberts

In serving the people of Queensland and Australia, I have four questions. I'll do a little bit of explaining to get to the point. One Nation simply cannot support a bill that establishes an entirely new disability bureaucracy when the bill does not even define 'disability'. I wonder: is this an admission that the NDIS has failed or that the government is letting it run completely out of control? I'll come back to that.

I remind everyone of the hasty and ill-thought-out concoction of the NDIS. Prime Minister Gillard hastily introduced it for election purposes before an election. Then she was voted out, and the Liberals and the National Party inherited a complete mess. They tightened it up, but it's still sloppy. In tightening it, we got mixed signals going about services that are being provided to the disabled. That leaves them in a totally inadequate situation. I'm concerned about taxpayers and the disabled in these remarks and questions. If the NDIS continues in its current form, it will send the entire country broke and continue to provide inadequate services to the disabled.

This bill does not deal with the NDIS. It establishes an entirely new bureaucracy in an entirely new agency. If the Disability Services and Inclusion Bill 2023 and the associated consequential bill pass into law, the Minister for Social Services will be given legislative authority for new spending programs to cover the 88 per cent of Australians living with a disability who cannot access support under the National Disability Insurance Scheme at the moment.

I want to talk about the NDIS now because it provides financial support to just 610,000 participants, or 12 per cent of Australia's estimated population living with a disability, while being the second-most expensive social program after the age pension. The annual running costs in the year ending 30 June 2023 were $38.8 billion. That is 26 per cent higher than Medicare, $30.8 billion; 40 per cent higher than aged care, $27.7 billion; and 40 per cent higher than the support for state government hospitals, $27.3 billion. Minister Bill Shorten expects the annual running cost in 2026 to be $50 billion, making it almost double what is spent on state government hospitals. The NDIS is unsustainable at these levels and will not be able to properly provide services for the disabled.

I'm not going to sign a blank cheque for any government. I won't be giving the government more spending power until I know how taxpayer money goes to those to whom it is intended, and many of the disabled are not getting the services necessary. Like many Australians, I've worked hard to bring up my children and to pay my taxes. Every tax dollar that the NDIA wastes is a dollar that is not spent on health, education and keeping us safe. NDIS participants using their plan money to holiday in exotic places and paying excessively for ordinary items like transit wheelchairs and aluminium shower chairs diminishes support for the program and prevents services to other disabled people who deserve support. Until I'm satisfied the Labor government can manage their departments, I'm not going to give them any more spending power.

The Auditor-General investigated decision-making in the NDIA, the agency, between 1 July 2016 and 31 March 2017 as part of his report D ecision-making_ controls _for sustainability National Disability Insurance Scheme access. In one group of 150 cases that were reviewed, the decision-maker's name was not recorded in 42 cases. In another 18 of the 150 cases, there was no record of the reasons for the decision. That's not accountability for taxpayers' money. In a review of another 1,339 cases, 13 per cent—that's almost one in seven—did not have sufficient evidence to support decisions to give lifetime support under the NDIS Act 2013.

These findings in 2017 led to the Auditor-General making a number of recommendations. Seven of the nine recommendations made in relation to improving decision-making controls and fraud controls were not fully implemented by the time the Auditor-General investigated the NDIA again last year. Despite a history of approving access to the NDIS without lawful authority, senior bureaucrats in the NDIA will not make sure all delegates are trained. Of the 1,147 NDIA planners employed by the NDIA on 30 June 2020, only 73 per cent—under three-quarters—of them had been trained to spend billions of hard-earned taxpayer money. No wonder the NDIA costs cannot be controlled!

Not only does the government need to show me it can manage the NDIA in accordance with the law passed in this chamber, but it also needs to deal with the demand shock created by the introduction of the NDIS. The sudden high demand created by the tsunami of money in NDIS participant plans has caused the cost of seeing an occupational therapist, a speech therapist or a psychologist—as well as others—to skyrocket. NDIS is more generous than the Department of Veterans' Affairs or aged care, and that leads to inequality. That should not be the case. It's a mess. It's time the government aligned the price it pays for the same service across different government programs.

Anyone can apply for a participant package under the National Disability Insurance Scheme Act 2013, but only people with a disability who meet the age, residency and disability requirements and can demonstrate that support is reasonable and necessary are intended to get support for a lifetime. As I've already said, it's a lottery at the moment because decision-making is so poor in the National Disability Insurance Agency due to its messy and improper formation and its lack of foundation at its birth.

While public servants sit in air-conditioned offices, an army of poorly paid disability workers provide the core supports needed by people with a disability. Disability workers are poorly paid, trapped in a system with little job security or prospects. They're often working with questionable service agencies. Their employers are small businesses which often have no relevant experience and are unable to provide training or support in what can be confronting and stressful situations. No wonder there's a shortage of disability workers right now.

I want to see all National Disability Insurance Agency plans de-identified and made public. Australians need to know what is being funded. They're the ultimate payers for this service. Employing a qualified chef to teach someone how to cook at home is a luxury that we cannot afford. Prior to NDIS, it was estimated that families provided 80 per cent of the support for a person with a disability and the government provided 20 per cent. The introduction of the NDIS was to shift some, but not all, responsibility to government, with families providing 60 per cent of the support and the government providing the remaining 40 per cent. We don't know much about the level of family support provided today, but we do know only 30 per cent of all plans are managed fully or partially by the participant or their family, which suggests that government is taking on far more responsibility than was ever planned. Participant managed plans account for 30 per cent of the number of plans but just 12 per cent of the NDIS budget. These budgets are spent, but not overspent. Another 60 per cent of plans are managed by someone other than the participant or their family. These managed plans account for 46 per cent of the NDIS, four times as much. The remaining 10 per cent of NDIS plans are NDIA managed, and they account for 42 per cent of the NDIS budget. The NDIA consistently underspends these plans. Why?

Until I see lawful, responsible and effective by the National Disability Insurance Agency, I will not be supporting any new spending power by government. One Nation supports disability services, yet they have to be sustainable for the Australian taxpayer or there will be no services in the future, and those services that there are won't be fit for the disabled. Spending on the NDIS will outstrip all Medicare services. There is billions of dollars of fraud currently happening in the NDIS that the government has done next to nothing to stop. We'll be opposing this bill until the government can prove it is running the NDIS in a way that isn't going to send the country broke.

I'll go back to my opening question from my first question: is this new legislation an admission that the NDIS has failed or that the government is letting it run completely out of control?

Katy Gallagher

The answer to that is no, and this bill is not about the NDIS.

Malcolm Roberts

Why are we are we setting up a duplicate and parallel bureaucracy when we can't even rein in the first one?

Katy Gallagher

We're not.

Malcolm Roberts

How much money will be required to implement this bill?

Katy Gallagher

There's no funding attached to this bill.

Malcolm Roberts

We're already in a deficit. Where is the money coming from to pay from this parallel disability system?

Katy Gallagher

The government already provides support and services outside the NDIS.

Malcolm Roberts

Will you do a root-and-branch review to assess the basic NDIA design, intent and strategy?

Katy Gallagher

There's work being led by National Cabinet in relation to reform to the NDIS, and that work will proceed at first minister level.

Malcolm Roberts

Could you give me some details on that, Minister, because it's the taxpayer and the disabled who need to be treated with respect here?

Katy Gallagher

There are communiques that are issued outside of National Cabinet. There's also the work that's been done under the NDIS review. I think parts of that information, including the terms of reference, are publicly available.

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Sue Lines

The question is that the committee have leave to meet again at a later hour.

Katy Gallagher

I move:

That the committee have leave to sit again.

And I move:

That the question be now put.

Sue Lines

The question is that the question be put.

Michaelia Cash

In my opening comments in the committee stage, I want to talk through the amendments that the Leader of the Opposition this morning put forward to the Acting Prime Minister, Mr Richard Marles. We put forward a series of amendments. In fact, there were six policy proposals that we put forward. In the first instance, why did we do that? As I said in my speech earlier today, the coalition has always believed that the first priority of the federal government is to ensure the nation's security and defence. At 7.15 this morning, when Senator Paterson, Mr Tehan, Mr Dutton and I were first presented with the legislation that is now before the Senate, it became apparent on first glance that there were serious deficiencies in relation to the areas where amendments were then put forward. So, in a constructive manner, the coalition went away and had a further look at the explanatory memorandum and the proposed legislation, and we were able to come forward with six policy proposals that we have presented to the government. I will read through those policy proposals shortly.

The government would understand and would indeed acknowledge that, unlike the opposition, the government have the benefit of the Attorney-General's Department and the drafters and the lawyers within the department—all very good lawyers, I may add as a former Attorney-General—and they also have the benefit of the Solicitor-General. So, whilst we were able to provide the government with the initial drafting of the amendments, the government have chosen to take on board those amendments, and they themselves will now be presenting five of the six amendments to the chamber. As I said, they have the benefit of the Attorney-General's Department, the lawyers within the Attorney-General's Department and the Solicitor-General. We appreciate that. We understand that the amendments are currently being drafted by the government, and they will be presented to the chamber later on this evening.

If I could briefly go through the amendments: the first one was an amendment in relation to making curfew and electronic monitoring conditions mandatory and not discretionary. If you go to page 41 of the explanatory memorandum, it takes you through some new discretionary conditions that will be imposed by the government. But, if you go to page 15 of the explanatory memorandum, you will see a number of mandatory conditions that are now going to be imposed by the government. The question that we had was: if you truly believe in keeping Australians safe, what is the reason that the curfew and the electronic monitoring conditions are not mandatory? The amendment that we put forward would see the government make the curfew and electronic monitoring conditions mandatory and not discretionary. As I said, we put forward the policy proposal. The government has had a look at it. The proposal that is coming back to us is not as strong as our proposal, but, as I said, we support the intent of what the government is doing with our proposal, and we will be supporting the amendment.

In relation to amendment No. 2, we put forward a policy proposal requiring a visa holder not to perform work or participate in any regular organised activity that involves contact with children, other than contact of a minor or incidental nature. Currently, this is permissible with the minister's permission. This is in relation to condition 8613. Again, if you take this seriously and if you do believe your No. 1 responsibility to Australians is to keep them safe, then we would say that the policy proposal that we have put forward—for them not to perform work, as opposed to being able to seek the minister's permission to perform work—is an appropriate one.

In relation to amendment No. 3, we again put forward a proposal, because it was seriously lacking in the bill, to require a visa holder not go within 150 metres of a school, child care or daycare centre. Why would we do that? When you have a look at the nature of the offences that were committed by the people that are now out on our streets, the plaintiffs themselves, one of them has been convicted of raping a 10-year-old child. They're also murderers, contract killers and those that have perpetrated the most vile domestic violence offences. I have to ask the government: on what planet do you think this should not be included, in particular when you say the purpose of many of your amendments is to support community safety? I would have thought the amendment we have put forward and the policy proposal we've put forward to the government will do that.

In relation to the fourth policy proposal we put forward, ensuring each day of a breach of a visa condition is treated as a separate offence rather than a single continuous breach, I was surprised when I went to page 14 of the explanatory memorandum, point 59, in relation to the application of the Crimes Act. It states:

… that an ongoing breach of a condition to do an act or thing within a specified period or by a specified time will constitute a single offence, rather than multiple offences for each day in which there is a failure to comply.

The proposal we put to the government is to ensure that they are treated as separate offences rather than a single continuous breach. We've had discussions with the government in relation to the effect that would have on a minimum mandatory sentence, and I understand that a compromise was reached. Again, we thank the government for working with us and for the compromise I understand will be delivered to the chamber later this evening.

In relation to amendment No. 5 in the policy proposal we put forward and the drafting of the amendment we put forward to the government, if the visa holder has been convicted of an offence involving violence or sexual assault, it would allow the minister to impose a condition requiring no contact with the victim or the victim's family. A decision to impose a no-contact condition is one that we believe is appropriate. Again, the government say they've put forward the strongest conditions they could avail themselves of, but, when Senator Paterson and I reviewed the conditions, we believed that there was certainly room for improvement. In relation to those five amendments, Mr Dutton presented the policy proposals and drafting to the Acting Prime Minister at the time, Mr Marles. Obviously, Mr Marles made a statement in the House of Representatives today, and Senator Wong followed that statement that Mr Marles made with a statement in the Senate. As I said, the government, having the benefit of the Attorney-General's Department, having the benefit of the legal drafters in the Attorney-General's Department and certainly having the benefit of the Solicitor-General's advice, has undertaken to look at the drafting and provide us with new amendments reflecting the policy options we have put forward in the discussions that Mr Marles and Mr Dutton have had. We look forward to seeing those amendments later this evening and to the government supporting those amendments as they will be putting them forward.

In relation to amendment No. 6, this is to establish a mandatory minimum sentence for the offences in the bill. The one thing that really stood out when Senator Paterson and I reviewed the bill and the explanatory memorandum is that the sentencing options that the government had placed in its initial drafting did not exclude anything else—in other words, for example, could you get a suspended sentence? It was a maximum sentence, yes, but there was no mention of a minimum sentence or the exclusion of lesser penalties. I'm pleased that Mr Marles made the statement in the House of Representatives because I know that the Prime Minister would not have done this. I congratulate the then Acting Prime Minister for accepting that the Labor Party will vote for establishing mandatory minimum sentences.

Andrew McLachlan

Senator McKim, on a point of order?

Nick McKim

Senator Cash is referring to amendments that have not been circulated and are not before the chamber. I ask you whether she is being relevant to the question before the chamber or she is in fact pre-empting a matter that the chamber is yet to be aware of.

Andrew McLachlan

I have been listening carefully to Senator Cash. She is referring to policy positions that she will be seeking to have amended, so I think it is relevant.

Michaelia Cash

I congratulate the Acting Prime Minister and the Labor Party, in the absence of the Prime Minister, for agreeing with the coalition's proposal to impose a mandatory minimum sentence. Certainly we believe that this shows the outmost—

Andrew McLachlan

Senator McKim?

Nick McKim

It's the same point of order. Senator Cash is now clearly referring to the Liberals' proposal to make an amendment in regard to mandatory minimum sentences, which obviously is against Labor Party policy, but we'll leave that aside for now. I again ask you to make a ruling on relevance.

Andrew McLachlan

Firstly, we are in committee and the committee is a free-ranging debate. Members in this instance can even flag they will amend, Senator McKim. I think the member is entitled to speak as the senator has done in this instance.

Michaelia Cash

It shows the outmost seriousness with which we take the requirements to comply with the conditions for each offence, and in relation to that we believe that a minimum mandatory sentence is appropriate.

Andrew McLachlan

Senator McKim, I will give priority to the minister. I note that you wish the call, and I will give you the call next.

Murray Watt

I won't be terribly long, so Senator McKim will have an opportunity to say something. I want to briefly respond. I welcome the constructive discussions that have occurred over the course of today between members of the government and members of the opposition. This has been a challenging episode for all Australians to deal with, with the High Court making the decision that overturned 20 years of accepted precedent. As is obviously known, the government introduced legislation to deal with the matter today. The opposition raised a number of issues that they thought needed to be addressed. We've always made clear that we wanted to ensure that we could deal with this issue as quickly as we possibly could, and we were willing to work with the opposition to address some of the issues they raised in order to have legislation passed so as to deal with this issue as quickly as possible.

One of the other things we've had to take into consideration was the constitutionality of any legislation that was introduced or further amendments that were considered. It has been somewhat more difficult to prepare legislation and ensure the constitutionality of any amendments in the absence of the full reasons from the High Court, but we consider that it is a matter of national priority and in the national interest to ensure that legislation is introduced and passed that keeps the safety of Australians paramount. That has been one of our concerns all along through this process. I know we've heard a number of comments from the Greens party, and will no doubt continue to do so tonight, that suggests that we should not be doing what we are attempting to do in this legislation, but the simple fact is that at least the Labor Party, and it would appear the coalition parties, do recognise we do have an obligation to the Australian people to keep them safe. There are a number of people who have been released who have serious criminal records, and we owe it to the Australian public to act as quickly as we can to maintain the safety of the Australian population. That's why we have moved quickly in preparing and introducing this legislation. We have been willing to work with the opposition to pass this legislation as quickly as possible so as to assure Australians of their safety in the wake of this High Court decision which, as I said, overturned 20 years of legal precedent.

I thought it was worth putting some context around what is happening here. As I say, it's been a little difficult to prepare this legislation in the absence of the reasons. But some of us do take our responsibility for national security and community safety seriously, Senator McKim. It's a matter for you and your party as to whether you place weight on that whatsoever. I look forward to us being able to consider this legislation and pass it as quickly as possible, so that the matter is dealt with.

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David Pocock

I seek leave to move a motion in relation to a message to the House of Representatives, as circulated.

Leave not granted.

Pursuant to contingent notice standing in my name, I move:

That so much of standing orders be suspended s would prevent the opposition moving a motion to provide for the consideration of a matter—namely, a motion to allow a motion relating to a message to the House of Representatives to be moved and be determined immediately.

Last week, the Senate unanimously voted for four of the 21 schedules of the government's omnibus IR bill. These are PTSD provisions for first responders, family and domestic violence provisions that would strengthen existing legislation, adding silicosis to be aligned with asbestos and important redundancy provisions where a larger business becomes a small business and people who hang on the longest to support that business often end up not getting a redundancy. It seems to me that politics is largely about negotiation and compromise, and it seems like that has been done in the Senate, where four parts of the 21-part omnibus bill have been split at the will of the Senate and passed without even a call for a division. Clearly, there is very strong support in the Senate. We have endorsed these bills, we have passed them, and the House of Representatives should now look at these bills.

My commitment to people in the ACT when I was elected was to look at each piece of legislation on its merits. I'm not here to be a rubber stamp, and I'm not here to stand in the way of much-needed protections for workers. But I am here to ensure that there is scrutiny and to stand up for the ACT.

There are clear loopholes that need to be closed. No-one is going to stand up and say that what Qantas has been doing with labour hire is okay. But this is an enormous bill. It has a 500-page explanatory memorandum and 200 pages of legislation. Whilst there are clear issues with, say, Qantas, this bill goes economy wide. When you have that, you have to be looking at the unintended consequences. As an example, for those unfamiliar with some of the details of this bill, as it's currently drafted, the same job, same pay provisions would apply to athletes. You could have Nathan Cleary being paid the same as a first-year rookie. I think anyone in the community would say, 'Hang on; that's not what this is intended for.'

Based on the fact that these measures are economy wide, parts of the crossbench have said we need more time to deal with this—noting the Jacqui Lambie Network's constant concerns about resourcing for the crossbench. Senator Watt, in answer to a question from Senator Lambie, talked about wage theft and industrial manslaughter. I'd be very happy to consider those provisions separately now, but it also highlighted that there is some misunderstanding about this omnibus bill. Minister Watt made a very clear point about wage theft, but my understanding is that the provision related to wage theft comes into effect 1 January 2025, so there's a long time until anyone will be done for wage theft. I think it adds to the argument that, with provisions that come in on 1 July or later, we should take the time to get this right for the Australian workers and for small business. We should do our duty as elected representatives to really ensure that we're working through any unintended consequences and sorting them out.

For the last industrial relations omnibus bill, the government moved 150 amendments to their own bill on day 1 in the House. We've had dozens and dozens of amendments to this bill flagged by the government, but we're yet to see those details. When it comes to these four provisions out of 21, there's clear support from the Senate. This is about simply sending a message to the House of Representatives that the Senate has made its position clear on these four bills, and it's time for the House of Representatives to deal with them.

Katy Gallagher

The government denied the senator leave to move a motion, and we don't support the motion to suspend standing orders. I'll confine my remarks to the suspension rather than the broader issues around industrial relations reform. The first point is that we have an incredibly busy program to get to today, and so this is, I think, an attempt to waste the Senate's time on a matter where we have other, more pressing and more important issues. The Senate has—

Well, I listened to people in silence, so I would appreciate having the same courtesy extended to me. The point is—and Senator Pocock made it—that the Senate formed its view on this last week. That is clear to the House of Representatives. Now, what the House of Representatives chooses to do with that is a matter for the House of Representatives, not the Senate. That vote was held last week. If it was clear, as Senator Pocock argues, then let the House of Representatives determine how to deal with that. I don't think we would take too kindly to the House of Representatives telling us how to order our program when we come and sit in this place. I can't recall the House of Representatives ever passing a motion to tell the Senate how to order its priorities and programs, and I don't think the Senate should be doing that to the House of Representatives.

I think the more pressing issues today are to get to the government's legislation program and allow the House of Representatives to do what it needs to do with whatever work gets sent its way from the Senate. I understand there was the opportunity for a procedural issue to deal with that this week and that it wasn't dealt with appropriately by the opposition. That's my understanding. So it was probably more about the opposition in the House of Representatives getting their house in order if they wanted to prioritise this matter this week. That wasn't done, and it's over to the House of Representatives to choose how it deals with this.

But the Senate has set times for these matters. We dealt with the private senators' bills last week. There is absolutely no reason why this should be taking up more time this morning, and I move:

That the question be now put.

Sue Lines

The question is that the motion moved by Senator Gallagher, that the question be now put, be agreed to.