Disability Support Services Bill

I would like to just make some introductory comments on this part, and remind the House that at the moment, Disability Support Services (DSS) operates without a dedicated legislative framework, which means that important decisions about support, funding, and service delivery don’t have a level of legal clarity, transparency, and certainty that disabled people and taxpayers should expect. The disability support system must be fair, consistent, transparent, and sustainable. Disabled people and their families should be able to understand how Disability Support Services works, and to have the confidence in how the decisions are made. Once this bill becomes law, the system will have clearer rules and greater certainty straight away.

I do want to give some thanks to the parliamentary staff, particularly to the accessibility advisors; and I want to give significant gratitude to the select committee for the significant work they put in, and in particular the chair, Joseph Mooney, for the work that you did in the process of this bill, and in recommending changes that make it clearer.

Although I have not watched the submissions, I’ve paid significant attention to them, read many of them, and my team have paid close attention. I also want to thank the team at DSS, who have worked incredibly hard to ensure that the reflections, considerations, and suggestions by submitters have been incorporated. Thank you to the team.

During this time, I’ve also met with disabled people, organisations, and providers to make sure that we did address the issues that they had presented, and I wanted to touch on a couple of them. I do want to very clearly clarify that the bill does not broaden family responsibility. The bill says that DSS makes a contribution to disabled people, and families do that where it’s appropriate; that is exactly what happens today. We do know that families’ role and contribution sits alongside the contribution and support from DSS.

I also want to make very clear that at no time did I ever make any comment about disabled people being a financial burden for the State, and I find that offensive. The point is that the lack of clarity without the legislative framework has created litigation, and the potential for system-level financial risk. The bill does create a deliberate legislative framework to support clarity and transparency, which are things that the disability community has been asking for, for many, many years. Over the time I’ve been the Minister, that has been the clarion call: to have clarity, transparency, and consistency.

The bill ensures that a Minister and officials are unable to make arbitrary decisions that impact funding for services. That is a massive improvement on the past. The bill requires consultation before approved support programmes are changed; it requires decision makers to have regard for statutory principles; it requires consideration of outcomes for disabled people. Actually, the bill provides a clearer and firmer basis for how future decisions are made than exist today. I will say it again: the bill does not change eligibility, entitlement, or support that people receive. The bill is not changing supports; it is about establishing the legal framework that sits underneath these supports. Of course, it doesn’t mean that the work to strengthen DSS stops here; quite the opposite. It allows us to make very, very important improvements in the foundation on which those further improvements can be made, which, of course, benefit disabled people and their families.

I wanted to start with clause 3, “Purposes of Act”, and I wanted to, first of all, test the language on clause 3(c). This is “mitigate litigation risk, and related fiscal risk, to the Crown”. The reason why I wanted to focus on this is that throughout the submissions, we have heard a lot from carers, particularly, and disabled people who they look after, on the reality that they see this provision—the purpose of the bill—which was to prevent further litigation risk, as preventing carers, particularly, from fighting for additional rights in the courts, which they can then secure, and obtain greater rights, and greater—basically, care.

I wanted to ask the Minister, to begin with: when it comes to the purpose of the Act, and her intention to mitigate litigation risk—related to fiscal risk—why would she be wanting to, potentially, prevent carers from being able to obtain further rights through the courts? If we’re to take a rights-based approach, why would an avenue be taken away from them to be able to secure the rights that they may be deemed to be entitled to—for example, being greater in line with the United Nations Convention on the Rights of Persons with Disabilities, or just employment matters? She did make, in her opening remarks, the comment that she finds it offensive that she sees disabled people as a financial risk, but in the purpose of the Act, there’s some very explicit language here that one of the purposes is to avoid related fiscal risk to the Crown, but if we are to interpret that “related fiscal risk to the Crown”, it’s actually greater resources for carers or disabled people, right? Because where else would this fiscal risk be coming from, if it’s not litigation relating to the very same rights, support, or resources to carers and disabled people.

I wanted to ask what kind of litigation risk would she be wanting to prevent? What are the things that she wouldn’t want carers to be able to fight for in the courts? And what are some of the related fiscal risks that the Minister could foresee that could come about with carers, for example, being able to litigate and win additional rights or resources within the court system? Ultimately, what this looks like to me is cutting an avenue for rights to be won through the courts. If she’s going to cut that, I would like to know: what are the things that she would have foreseen carers could have additionally fought for and won within the court system, that could have resulted in so-called fiscal risk to the Crown, as opposed to potentially rights being earned by carers through the court system? That’s my first question.

Secondly, what would she say to the people who had court cases that are outstanding in relationship to these matters—in relationship to these provisions—does she have a message to them? The purpose of the Act only notes one Supreme Court case, but we know that obviously there are people that would have wanted to fight this in the courts, or who would have been getting ready to fight this in the courts. If she has any message for those groups of people, in relationship to the purpose of the Act, that would be great. Thank you.

I thank the member for his question, and I think it is a really good opportunity to clarify what is intended here. There is a longstanding challenge where carers have felt undervalued and underpaid, and that’s why one of the really important parts of this legislation, which we will no doubt address later, is support programmes. One of the first ones that I envisage will be worked on is a carer support package, to resolve some of the challenges that carers face today.

Where the fiscal and legal risk comes from, I want to see—and I would have thought that every member in this House wants to see—funding that’s allocated to Disability Support Services going to disabled people, their carers, and families, as opposed to going to lawyers, and fighting things in the court. That is very simply what is meant by fiscal and legal risk, and that is why clarity is required.

The decisions around funding sit with the Government. There’s been a lot of work that’s been done around making sure that now there are assessments done across the country that are consistent. Every needs assessment and service coordination (NASC) provider uses the same assessment process. For the first time ever, carers are now considered as part of that assessment. Is it perfect? No, it’s not. We’ve still got more work to do, but that is clarifying the fact that we want to ensure that funding that is available is going to disabled people and their carers, rather than being spent in litigation and court fees, and to make it clear that there was never an intention that the Ministry of Social Development would be the employer of family carers. That was never the intention, and that is why it is important to address that. The question was raised about those that are currently in a legal process. They are under way, they have been saved, and those processes are under way and working through the court process at the moment. But I do want to say, the fact that there has been no legislative framework is what creates legal uncertainty and therefore legal risk. When there is legal risk, it creates fiscal risk, which is of course something we should all be awake to.

Thank you, Madam Chair. I would like to add a question to the line of questioning that Ricardo Menéndez March has embarked upon, and I would like the Minister for Disability Issues to clarify this. Can the Minister confirm—so the Minister said, just now, something about them being saved, the people who are going through the court processes at the moment, if I heard that correctly? Can the Minister confirm that this bill will extinguish 40 employment-related claims that are filed, but haven’t been determined or resolved at the introduction of this bill to the House—that is my first question to the Minister—and whether she can share, for the benefit of the House, what the fiscal cost is of those 40 claims?

I’d like to go right back to the start of Part 1, clause 3(a), which, as the Minister said in her opening remarks, the aim of this legislation is to provide a legal framework for Disability Support Services funding. Literally nobody argues with the need for a legislative framework, not through submissions and not on the side of the House, but it is the form of this legal framework that we’re here to test, today, at committee stage, with the Minister. The Minister has said, in this House, that there was consultation with disability communities prior to the introduction of this bill, and I would like some clarity from the Minister around that—when she said that MSD has consulted—because, time and again, we have heard from disabled people, carers, and their representative organisations that there was no specific consultation on this legislation prior to its introduction. So is the Minister then referring to consultation that was held in February and March 2025, during the review process of Disability Support Services (DSS), and then used that to inform the drafting of this legislation? So I’d like, for the sake of clarity, and for those in the sector as well, for the Minister to confirm or clarify that.

My second question around the purpose and the framework for DSS-funded disability support services is—I think all of us in this House knows that politics is about choices. There are different ways in which this framework could have been drafted. The Minister has chosen to codify and legislate, as she has said, what currently happens when it comes to DSS funding, and I have a few questions around that. The first is, the Minister will be aware that the previous Government had work under way which was to transform the disability support services - funding landscape. It was literally called the DSS Transformation Bill, and it was working towards actually implementing the principles of Enabling Good Lives when it comes to the way that DSS funding is disseminated to disabled people. That would have transformed the type of services that disabled people and carers could access through this funding. There was also $100 million ring-fenced for that. I would like to know why the Minister has chosen to codify DSS funding that is disseminated in a way that, for years, disabled people have said does not work for them, instead of transforming the system when there was a framework there that she could have built on, and money that was ring-fenced to be able to achieve that transformation.

The Minister has said that there’s been a clarion call from disability communities for a legislative framework—that is true—but there has been an even stronger clarion call from the sector to transform DSS funding, and she has chosen not to do that in this legislation, and I would like her to clarify why.

I do have one more quick question that I’ll get in there. The Minister has said in her opening remarks—and many times—that her aim is to improve certainty and transparency for disabled people through this legislation. If that is the case, why is there so little information in the primary legislation, with extensive focus on ministerial programmes through secondary legislation that nobody has been able to see when submitting on this bill? How does that improve either transparency of decision making or eligibility or access of this funding or certainty for disabled people?

There’s quite a lot to go through this, so I just hope I will get through all of them. So the first thing is that in terms of any of the claims that are currently lodged, they are saved. So once the legislation is passed, there will be no further ability for new claims. They are well under way—the existing claims—in terms of being settled or resolved.

In terms of consultation, one of the challenges has been, you know, first the work around stabilising. That work to the Disability Support Services (DSS) has been done, and then we moved after that to look at what strengthening DSS looks like. The team from DSS have done significant consultation with disabled people directly, and with organisations, and over the time that I’ve been Minister, I’ve had similar engagements where the messages around consistency, transparency, simplicity, and fairness are all kind of values and principles that came through loud and clear.

The other thing that came through really loud and clear is how much DSS needs to improve. The member referred to the Enabling Good Lives principles, which were established back in 2014-15, and that has very much been a focus of how the bill has been established so that further improvements can be made. It’s hard to improve things if you don’t have the foundations in place, which is why this first bill is very much about just laying out what the current state is. Then, one of the challenges has been the lack of understanding about how the current state operates. What we’ve heard in the consultation is, “lack of transparency, lack of understanding; it’s too complex; it’s not simple enough”. So trying to deal with, in the first stage, getting those foundations in place, and having a foundation on which things could be improved for DSS, has been really important.

The member raised the areas around transformation, and I would say that the improvements that we have made to flexible funding, that were announced in September last year and came into effect on 1 February this year, really is an example of what an improvement looks like—so having a consistent assessment around the country that is transparent, where carers are considered, but really importantly, individual needs of individual disabled people are taken into account in their assessment. That has been a significant improvement—some would say transformational—to at least have, everywhere around the country, consistent, because it was grossly unfair to have disabled people in one part of the country getting a much wider range of supports and much greater funding than others. That’s exactly what we heard in consultation. That’s exactly what I heard in meetings: that it was unfair, people didn’t understand it, and it wasn’t transparent. So that’s why it is important that we have this legislation.

I want to address the member’s question about why more wasn’t put into primary legislation. Why is it in secondary legislation? There’s this really important balance, because one of the things that is really special, that needs to be protected in the disability support system, is the fact that it is very individualised. The improvements we made to flexible funding are an example of just how individualised it is. You want to protect that flexibility, so one of the first support programmes that I envisage will be done, which is through secondary legislation, is to lock in the gains in the flexible funding changes that were announced. At the moment, without any protection, they can be changed overnight again. That’s why the intention was to get the balance right of the foundations in primary legislation but also of the support programmes in secondary legislation. In the secondary legislation—so the support programmes—there will be extensive consultation that relates to that particular support programme. We want to be able to lock in those improvements. If they’re put into primary legislation, it actually makes it harder and slower to make improvements. That is the balance of ensuring there is maximum flexibility but still having the core foundations in primary legislation.

I accept that was another area that, perhaps, wasn’t communicated well enough at the start, but following many of the conversations I’ve had, particularly with disability organisations in the last couple of weeks—

Hon Priyanca Radhakrishnan: She just keeps blaming them.

Hon LOUISE UPSTON: —they understand that clarity—look, I’m trying to answer the questions that you have raised because I think you’ve raised really important issues and I do want to communicate why things have been put in secondary legislation. If you don’t want me to answer, that’s fine.

Ricardo Menéndez March: Madam Chair.

Hon Priyanca Radhakrishnan: Madam Chair.

CHAIRPERSON (Barbara Kuriger): OK, I’m going to take Priyanca Radhakrishnan because I feel like there’s a supplementary here, then I’ll come back to you.

Thank you, Madam Chair. Minister, I do appreciate your answers. I do want to hear why you’ve made certain decisions, and I know that others do out there as well. Just on the primary versus secondary legislation decisions here, I take your point that there needs to be a balance between the two, and I’m not arguing or I’m not asking why everything is not in primary legislation, but I have looked at this legislation versus the Social Security Act, for example, which, again, has some level of discretion—not as much as the disability support services. I take your point around that, but I think the question that disabled people have and are asking is: why wasn’t there, for example, eligibility criteria? The high level of who can access disability support services funding hasn’t changed from 1996, so if you are codifying the current state of play in legislation and since you’ve been quite clear that you don’t intend to change eligibility criteria, why couldn’t then some of the bones of that—who can access disability support funding, how can they access disability support funding? You have talked about the assessment and allocation tools that you have brought in for consistency—and I’ll come back to that in a minute—but those sorts of things are not going to change through ministerial programmes from what you have said. Why could those not have been in primary legislation to give disabled people more certainty around who can access this funding?

The second point is around things not being able to be changed so much now through secondary legislation. I seek some clarity around comments that you made prior to the select committee hearing of consideration of this bill, where you had said that they won’t be able to change in the way that they did in March 2024, because Cabinet would make decisions around secondary legislation and it would be gazetted. All of those processes don’t involve any sunlight or consultation with disability communities at all. Therefore, Cabinet passed the changes that happened in March 2024. Sure, they weren’t gazetted, but the gazetting process only becomes public information after the process, so what happened in March could have happened again, except that disabled people came out in force at select committee and said that they need to be consulted when secondary legislation is passed. Select committee has recommended that, and I understand you have accepted it and will make those changes through the committee stage, which is good, but I would like on the record, Minister, to hear what you meant when you said that the Cabinet and gazetting process would have resulted in a different outcome to what the sector saw happen in March 2024. I’m keen for you to respond to that.

Firstly, starting from where you finished in terms of consultation around support programmes, those changes were made in the select committee, so the bill we are considering now has those changes in it already. I just wanted to make that clear. One of the challenges has been that without legislation—if you look back over many years under Governments of every stripe—somebody within the department, a senior official, or chief executive, let alone a Minister, can make decisions at the stroke of a pen, and those changes take effect. That is why having legislation and having support programmes is really important. The support programmes, with the additional consultation requirements, will mean that consultation is required in the creation of a support programme.

Just let me give you some examples, because it links to your comment around eligibility. You will be aware, today, that there is no black and white eligibility in disability support services. That’s a good thing because it is hugely flexible, and one of the things that we must protect is the flexibility of disability support services. When you look at individual funding programmes—let’s say, for example, hearing aids; there is eligibility for hearing aids, right? So one of the things that I was clear about is that I didn’t want to have black and white eligibility for disability support services in primary legislation. That is not what happens to date, that is not the current state, and so it would not have been suitable for it to be included in the bill. Whereas if you look at support programmes, that’s where the question of eligibility to do with a specific support programme can and should be considered, and that is where that is important.

There will be consultation, as you said, but the consultation will be related to that support programme. If we’re dealing with hearing aids, not every disability organisation and every disabled person will need to be consulted regarding hearing aids. That is why the language in the bill is carefully drafted so that the disability community don’t think they’re going to be in consultation overload, because they’re going to be involved and need to be involved in every single support programme. That is not what is intended. As I said before, there is a really difficult balance here and, I think, a balance that we have struck correctly in the foundations in primary legislation but maintaining maximum flexibility. I had advice—very, very strong advice—from people in the disability community not to make it tight and defined like the Social Security Act, because that would have had, or could have had, significant impacts. It’s been a delicate balance to walk.

Thank you so much, Madam Chair. I just want to pick up on some comments from this contribution and the one prior that I wanted to take a call on. First of all, I find it really hard to stomach that the Minister could even raise matters of consultation overload where one of the reasons the select committee process was so heated was that there was a lack of consultation. I’d love to understand what the Minister could even define as consultation overload in her eyes when quite the opposite has happened throughout the process of this bill.

This takes me back to an earlier comment she made prior to Priyanca Radhakrishnan’s call, which is that she heard in consultation, in relation to people receiving greater support than others—how extensive was that consultation? As far as I understand, there wasn’t a lot of, if any, consultation prior to this bill coming through. I just find it concerning that I keep hearing from the Minister these claims of consultation happening when submitters, across the board, have told us that they felt like they weren’t included and had full participation in helping design this bill.

I think the other comment in relation to her language is—she talks about the disability community; singular, right? I would like to challenge and test with the Minister whether she accepts that there’s no such thing as a monolithic “disability community”, which has led to a lot of the issues in the design of this bill, which is this kind of assumption that one organisation can provide a voice for a broad range of disabled people, which may not be part of it. That’s my first question.

The second one is just bringing it back to the purpose of the Act. One of the things that I wanted to get the Minister to outline was around the process that she intends to use in the design of secondary legislation. Yeah, we’ve had a lot of back and forth about what should and shouldn’t be in secondary legislation. I accept that the Minister has a view on what should be included in secondary legislation. I’m interested to know whether she has already made decisions on the level of resourcing that will go into the adequate consultation and co-design with disabled people in the provisions that will be in the secondary legislation.

For example, I want to know whether she has considered around the fiscal implications and requirements that she would like to ensure are there to make sure that there’s full participation from disabled peoples around what that secondary legislation should look like. What assurances can the Minister give us in relationship to how extensive the consultation will be in the design of secondary legislation? Has she learned from the errors of the design of this bill itself? Far and large, one of the key pieces of feedback we received in the Social Services and Community Committee was that there was no co-design, no adequate consultation, and that people felt aggrieved—rightfully so—because of it.

Can she give us a guarantee that she and her Government will ensure that there is a co-design process in any secondary legislation processes; that it will not repeat the mistakes that were found in the design of this primary legislation, where disabled people, far and large, felt excluded? If she is going to take a co-design approach, can she guarantee us that she will not treat disabled people as monolithic and assume that perhaps, for example, consulting with a service provider will count as consulting with disabled people and users of those providers, who may not formally be part of those organisations or bodies that provide those services.

I’m also keen to understand, for example, what adequate consultation or co-design could look like in the makeup of secondary legislation. I say this quite seriously, because one of the key pieces of feedback, as well, that we received from disabled people throughout the submission process has been that not all disabled people feel represented by the feedback given from service providers—and that’s OK. Again, there’s no kind of monolithic voice within disabled peoples. I want to understand what will she do to cost the resources—whether she’s already sought commitment from Cabinet on, for example, any sort of costs that could be incurred in the design of secondary legislation, so that disabled people listening to this debate can be reassured that the same mistakes of the design of this legislation won’t be repeated.

This is quite wide ranging and, if the House will allow, I will go further than the bill just to make some of the future expectations clearer. The first thing the member raises—absolutely, disabled people have a wide range of needs and wide range of views. So when we talk about the “disability community”, absolutely; they don’t all have the same opinion, they don’t belong to the same organisations, and they don’t all have the same views, which goes back to my comment before about the need to protect at all lengths the flexibility that we are trying to achieve with primary legislation and secondary legislation.

As I said before, the disability support services (DSS) team engaged in a significant consultation, with over 1,500 individuals coming to a variety of meetings over a 12- to 14-month period. They heard the same messages that I did around consistency, flexibility, transparency, simplicity, etc., which is why we have built those into solving some of those challenges with this legislation. I accept that, as a result of those sessions, it may not have been clear to people that the intent was to create legislation, but as one of the other members who has asked a question before has stated, previous Governments have had the intention of legislating for DSS and providing a legislative framework. So it shouldn’t have been a new concept. I accept that the link between the consultation and the need for legislation wasn’t made clear enough, but I can say both the ministry and myself have not just met disability organisations and service providers. We have met with disabled people. There have been open forums for people to participate. There have been discussions with providers, as well as discussions with the Disabled People’s Organisation as the formal mechanism for consultation.

The other thing the member asked about was the consultation envisaged around support programmes. One of the improvements in the bill—

Ricardo Menéndez March: Secondary legislation, more properly.

Hon LOUISE UPSTON: Well, secondary legislation support programmes. I’m trying to explain to people who are listening, and I will give a further example of that in a minute, if the member would like me to. One of the improvements that was made in the select committee was the extension from three years to five for the support programmes to be put in place.

My intention would be to draft a discussion document that would go out next year that would then lay out the areas these support programmes would be created in, and to allow feedback from disabled people and organisations and providers to then assist in the prioritisation of those support programmes. As I’ve said, only two are at the top of my list: one is around flexible funding and the other is around carer support package.

Let me use the carer support package as an example. There have been high-level conversations so far. A formal process will kick off with carers’ organisations and disabled people about what a carer support package would look like to then make decisions that would then be formalised and consulted on through the support programme. I do want to reassure the House, and I do want to reassure disabled people and their families that that is what is intended as the next stage. I would envisage that that would also then mean a second bill, which adds some more of the detail and also picks up some of the concerns that were raised in this bill around complaints, around reviews, and around safeguarding, which is a parallel piece of work in response to the royal commission of inquiry into abuse in State care.

Thank you, Madam Chair. I want to ask the Minister about the implications of the purpose clause, clause 3(b)(i). That talks about the response to the decision of the Supreme Court in Fleming v Attorney-General, and it claims that what this bill does is clarifies the nature of the relationship. Also, in this contribution, I am going to be talking about and asking questions about paragraph (c) of that same clause, which is that one of the purposes of the legislation is to “mitigate litigation risk, and related financial risk, to the Crown”.

My questions are about a case that was hard fought, and it went all the way to the Supreme Court. My understanding of that case was that it clarified that people looking after their disabled relatives do have implied contracts and that overnight care counts as work. When they are doing that work, it is something that we must actually attribute to financially, and that there is a human rights alignment in this interpretation of the Supreme Court that is directly aligned with the purposes of the United Nations Convention on the Rights of Persons with Disabilities.

Those are heavy and weighty things that the Supreme Court has done and they are not in alignment with this piece of legislation, and so the first question I’ve got for the Minister is: does she agree that they are not in alignment and that the Supreme Court has gone in a completely different way on this?

To suggest that this law clarifies the nature of that relationship is simply wrong. It doesn’t clarify it. We need to be honest about what’s happening here. We are deciding what the nature of the relationship is, and we are not deciding it in alignment with the United Nations Convention on the Rights of Persons with Disabilities and we’re not deciding it in alignment with what the Supreme Court says would make sense in terms of our employment law. We have things like a minimum code, we have minimum rates of pay and leave entitlements, and we have a definition of work which covers home-care workers, and none of that is in alignment with what we’re doing here. So does the Minister accept that this is not a clarification of such things?

Then I want to ask about that purpose clause, at clause 3(c), in relation to this particular point. It says that the purpose of this legislation is to “mitigate litigation risk, and [the financial] risk, to the Crown.”, and so what I want know here is what the litigation risk was. There were a whole lot of people, as I understand it, who were told that they would be able to take a case based on their circumstances and the work that they were doing in the home, and this bill stops them in their tracks and denies them financially. What is the risk to families—and I ask whether the Minister had advice on what that meant to other families looking after their disabled relatives—and what is that related financial risk to the Crown? I’d really appreciate hearing some really specific answers—what were we looking at?

Sometimes we make law because we simply cannot afford the alternative, but I would like to know what that was, because what I’ve heard is the Minister stand up and say that we are doing this to create a framework and that it is a neutral thing. We are trying to shore up something that’s been a bit floating, and there have been some advantages to that process, from what I’ve heard the Minister just say, because we can be bespoke. We are doing this to create a framework which always should have been there, and that’s a neutral thing and we’re not taking away anything—but we are, aren’t we? We’re taking away potential claims by litigants that are hefty in their financial weight and that would make a big difference to families who have presumably paid a huge financial cost in their pursuit of looking after their relatives. So I’d really like an answer about that financial risk.

I also would like to know about the undermining of trust here. We’ve heard a lot from my colleagues formerly about the consultation and how that rattled people, but stopping people in their tracks when they are in the midst of litigation and when they’re pursuing their rights also causes issues with trust, and these are people who work really hard. They do jobs I don’t want to do myself. I am lucky enough to be able to be here because I don’t have that kind of responsibility at the present time, but it could happen to any of us.

What does she say to the issue about the trust of those people and could she please explain whether she got any advice on that, or whether she acknowledges that, in fact, for people, this will have contributed to the kind of emotional submission we got in our listening to the submissions, and I did listen to those submissions. We had people who were howling—they were crying in the corridor. So can she talk about that trust issue and about whether she got any advice on it, either before she made the decision she made or during that process? Thank you.

I’m not going to go over territory that I’ve already covered around the purpose, but I do want to just reiterate that in terms of the savings of cases that have been settled or determined, that is taken care of in this legislation. Any that haven’t entered that process, obviously, won’t be able to or have not been concluded. As I’ve said before, there was never an intention that the Ministry of Social Development would be the employer of family carers, nor that the courts would set employment terms and conditions for individuals.

Thank you, Madam Chair. I am rising merely to put something on the record in terms of our position relating to Crown Law’s advice on the bill, and I do have a question for the Minister for Disability Issues connected to that, as well.

One of the rights that Crown Law was concerned about was the procedural right in section 27(3) of the New Zealand Bill of Rights Act, which relates to every person’s right to bring civil proceedings and to defend those proceedings. The Attorney-General in this case didn’t issue a section 7 report indicating that in his view, there was a breach of the New Zealand Bill of Rights Act. Instead, what was made public was Crown Law’s advice that found that while there were prima facie rights issues, both in relation to discrimination and also procedurally, those were justified.

My reading of the Crown Law advice is that there are two flaws in the assessment, particularly relating to the section 27 advice. Firstly, there is no pure assessment of the retrospective application of the bill and how that affects those procedural rights. I would have expected that to be assessed as part of whether it was or wasn’t considered reasonable under the New Zealand Bill of Rights Act.

The second issue is that within paragraph 38 of the advice, there’s a comparison with section 70E of the New Zealand Public Health and Disability Act 2013. That was a previous bill that had a broader bar, as it also barred future litigation. My view is that the assessment that needs to be made under section 5 of the New Zealand Bill of Rights Act—so whether it is reasonable or not—is an assessment against the current circumstances and the New Zealand Bill of Rights Act itself. It’s not a matter of saying that because this bill is, effectively, less worse than the 2013 bill, it therefore meets the threshold of being reasonable. I think that the methodology, or the logic, of that reasoning is flawed.

I want to put this on the record because I think there’s an irony that the intention is partially to mitigate future litigation when, to my mind, this invites public law litigation and, potentially, an application for a declaration of inconsistency. I’ve called bills like this boomerang bills in the past because I expect that the House may well see them returned to the House, should a declaration of inconsistency be found by the courts, and I suspect that should that case proceed, then that particular paragraph in terms of procedural rights would be raised. So this is an invitation, really, for the Minister to comment on her view of that justification of reasonableness and whether the appropriate comparator is the 2013 legislation—the less worse comparator—or whether the appropriate comparator is the New Zealand Bill of Rights Act itself. Thank you, Madam Chair.

I’m not going to challenge Crown Law advice, but I just will put on record for the House that the Attorney-General did do a consideration of the New Zealand Bill of Rights Act and found that this bill is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act of 1990.

Thank you, Madam Chair. I’m mindful that people may still have some calls on the purpose of the bill, but I just briefly wanted to move to paragraph (a)(i) and (ii) of the definition of “disability support services” in clause 4. But, again, other people may want to traverse stuff that—

CHAIRPERSON (Barbara Kuriger): No, that’s fine. We’ve sort of covered up to clause 3, and so it is time to move forward. So feel very comfortable to do so.

RICARDO MENÉNDEZ MARCH: Thank you. I’m not privy to new material that others may bring, but in my case, I just wanted to focus on the interpretation clause. In the definition of “disability support services”, it talks about “goods, services, and facilities—(i) provided to disabled persons for their care or support or to contribute towards enabling them to live”—and this is the language I want to test—“their everyday life;”. It also says, in subparagraph (ii), “provided for purposes related or incidental to the care or support of people with disabilities or to contribute towards enabling them to live their everyday life;”.

I’m really interested in understanding the Minister for Disability Issues’ interpretation of the quality of life that this guarantees, because to live your everyday life could just be to be alive. It does not guarantee a full participation—

Hon Priyanca Radhakrishnan: Or a good life.

RICARDO MENÉNDEZ MARCH: Or a good life—that’s right. Enabling Good Lives solves that, which disabled people have been telling us we should actually try and follow. I’m genuinely curious, because the Minister talked about another piece of legislation, which she compared this to—she wanted to avoid creating some of the issues—which, of course, is the Social Security Act. For example, in the purposes and principles of the Social Security Act, there’s language that permeates decision-making, which is to “alleviate hardship”. That is some of the language that is used. For example, that is often used to justify giving someone a $20 food grant as opposed to what people actually need to live well.

When I see language here that says “live their everyday life”, it’s deeply unclear what that means at a practical level and the test that will be applied to know whether the disability support services and/or secondary legislation that is designed alongside that actually supports disabled people to live good lives, to fully participate in their communities, as opposed to, for example, designing secondary legislation and the provision of services that simply keeps people alive but living miserable lives. There’s nothing stopping, as far as I’m aware, in terms of the language—and I am not trifling with this issue, because I’ve seen how that plays out when we design, in the Social Security Act, language that actually sets the bar extremely low. It does create conditions for front-line service managers to justify leaving people without enough to be well—for example, someone needing to gain weight for a surgery, and therefore needing additional support for food, not being granted that because that’s not what the interpretation of the Social Security Act is.

I’m really concerned about the fact that we’ve set the bar so low in the interpretation that it simply means “to live their everyday life”. It’s hard for me to know whether that means that the Minister is committed to ensuring that disabled people can live good lives and that they can fully participate in their communities. I am really interested to test with the Minister how she interprets the quality of life that is guaranteed to disabled people through disability support services in clause 4, paragraphs (a)(i) and (ii). I think this particularly matters. I know that when people end up testing this further—in, say, the courts or through any reviews or through advocacy—this language will, I think, be key, and it will be used time and time again to justify inadequate provision of services, because the Minister can just claim, “Well, you know, they’re alive. They’re living their everyday life. They’re still alive.”

I want to understand what the bar is and the expectations of the quality of life that should be guaranteed to disabled people on disability support services, when the legislation just says “to live their everyday life”. I am very serious about this, because I do think this has been one of the key things that has also come back from feedback from submitters. If the Minister is able to articulate what she means by that and the quality of life, that would be deeply useful.

The bill does use the language of “everyday life” because it focuses on supporting people in the realities of their own lives, their own circumstances, and their aspirations. It comes back to what we talked about before: that there is maximum flexibility, an individual assessment of the disabled person’s needs, and that’s how it should be. It’s also consistent with Enabling Good Lives (EGL) and mirrors the EGL principle of ordinary life outcomes.

Thank you, Madam Chair. A couple of things, just to draw a line under the questions that I’ve asked around primary versus secondary legislation, the sequencing of ministerial programmes, and so on and so forth, I’d just make the point that I guess what we disagree with is the sequencing of it. And I’ll leave it there. In terms of the consultation that the Minister for Disability Issues pointed to, I would just like on the record that what disabled people and carers have been saying to us is that that consultation was around what the Minister has called “stabilisation” of disability support services and wasn’t about the legislation. That’s the issue that has been raised—that feedback from that consultation for something different, related but different, has now been used for something else, and that is the issue that people have.

I would like to ask the Minister a question around her response to my question around eligibility criteria. The Minister said that there is no eligibility criteria and that is why there is no definition or interpretation of it in this bill. However, when you go to the Disability Support Services (DSS) website, her own ministry’s website, it basically tells you how to access support. It says, “Check if you’re eligible for DSS funded support”, and there is a whole list there of criteria that one must fulfil to be able to be eligible for any DSS support funding. I don’t understand why the Minister said there is no criteria. Also, part of that criteria is a confirmation that one must have at least one of the following: physical disability, intellectual disability, sensory autism. Now, autism was introduced by a Cabinet minute in, I think it was, 2013 or something like that. That’s partially what’s led to an issue, because the Government at the time didn’t increase funding to include this expansion of autism into the expanded disability criteria.

All of that points to the fact that there is disability criteria. It was set back in 1996, and there have been changes through Cabinet minute. I would have thought that if the Minister’s primary objective, as stated in documents supporting this bill, was to increase certainty and transparency, at least that level of criteria, eligibility, and so on, could have been in the primary legislation. I want to get a response from the Minister as to why she said there is no eligibility criteria, and, if there is criteria, why wasn’t at least that bit that isn’t changing in the primary legislation?

I’ve got a couple of other questions to get into the details of the role of families and means testing, two areas that were raised time and again by submitters, and I have some specific questions around those two, but just before I move on from the foundational legislation design questions, I would like to know why the Minister decided to club the two together. There were, obviously, options in the regulatory impact statement to separate this into two pieces of legislation, one that responds to the Supreme Court ruling and then one that lays out disability support services funding. The Minister has decided to join the two together, which I personally think is unhelpful, but I would like to know from the Minister why she decided to go down that route rather than having two separate bills. Was it just easier or was there something else that underpinned that decision?

The first thing I want to clarify is the consultation that I referred to earlier with the 1,500 individuals that participated. That was not about stabilising; that was about strengthening. The first piece of work, in the first 12 months, was about stabilising. The consultation that took place that I referred to earlier was about strengthening, and the bill is the kind of foundations of that.

In terms of eligibility, the member’s reference to a Cabinet minute changing eligibility is exactly why we need primary legislation and secondary legislation, so it is clear. The fact that literally overnight something could change like that is, you know—in that way it was the inclusion of autism. Imagine if it had been the exclusion of something that happened in the Cabinet minute. That would be horrendous. That would be absolutely horrendous. That is exactly what we are trying to prevent with this legislation. That’s why it is important that there is greater clarity through primary legislation or secondary legislation, as I referred to, in terms of support programmes.

Thank you so much. I just wanted to pick up on the response the Minister gave me in relation to clause 4 (a)(i) and (ii). Again, I cannot reiterate how important the language in this is. It’s great to hear that the Minister interprets this clause as disabled people being able to meet their aspirations. I just want to put it on the record that I can see, now, that disabled people and their carers could test this with the Government in relation to not just living their everyday lives but being able to meet their aspirations. This is quite important, right? If disabled people want to challenge anything through the courts or any reviews, they can go back to the Hansard and also note that the Minister has interpreted “live their everyday lives” as disabled people meeting their aspirations. That is really critical because we often do rely on, for example, the Minister—or the Government of the day—clarifying how they interpret these definitions of what the disability support services are.

I wanted to give the Minister one more chance because, again, this language will likely be continuously tested, and if she has any other language that she would like to add on what an adequate everyday life looks like, that would be useful because this, again, is one of the key pieces of feedback we received—that people just feel like the bar has been set so extremely low that they just don’t feel like the services will be adequate if it’s simply just there to keep you alive. Is there anything beyond “meeting your aspirations” that the Minister would like to add to her interpretation of this clause and that would give greater guidance to disabled people, carers, or, actually, decision makers, when it comes to funding, of what her interpretation is of this clause? Again, I cannot stress enough how much the language in this particular clause, clause 4, will end up mattering when it comes to the design and when it comes to discretionary decision-making and/or disabled people wanting to challenge any decision that is made.

Madam Chair, I would like to ask some questions specifically around the role of families as defined in this legislation. The overarching concerns that have been raised were partially responded to by select committee recommendations and the changes made in this iteration of the legislation but not entirely. If I were to summarise submissions—the few thousand submissions—to select committee, most of them made mention of this point and the anxiety that people were feeling because of the role of families being codified into legislation.

I will preface that by saying that I take the Minister’s point that her intention is for this legislation to reflect the status quo and what currently happens, and that is that families, in the first instance, do contribute to the care and the wellbeing and the support of their disabled family members. I understand that. However, the collective outcome or result of the definition of “family” in this bill—that is in clause 4, under the “Interpretation” section—under “family member”, there is a long list. That’s under 4—

CHAIRPERSON (Barbara Kuriger): Yeah, we can see those on page 4, We can see that list.

Hon PRIYANCA RADHAKRISHNAN: Yes, on page 4. It’s quite an extensive list. I’m not going to read out the whole list; it’s very extensive. It goes right from a person’s spouse through to a person’s first cousin and niece and so on. That, alongside the fact that, in a later part of the bill—and I’ll get to that in greater detail later—that, initially, the wording in this bill led people to read it, quite rightly I feel, that families had to step in and support, in the first instance, right down to their first cousin, the disabled person before funded support by the State would kick in. That is also then further compounded by wording in this legislation that states, quite clearly, that Government-funded support is contributory. All of those were then read by disabled people—again, I think, quite rightly, because that was the letter of the legislation being passed—to mean that a disabled person has had to exhaust all of those various avenues of family support before they could then get disability support services (DSS) funding, which is a massive shift from what currently happens. The Minister has said that that is not the intention of this legislation, but the question that I would like to ask—select committee could only get a few changes across the line, in terms of softening that language a little bit, to basically state that that was not the case but that families do have a role to play and that it’s contributory to State-funded supports.

The discomfort for me and for many disabled people here is that the legislation still doesn’t have wording in it that gives them a clear guarantee that family support is complementary to DSS-funded support.

CHAIRPERSON (Barbara Kuriger): The member’s transitioning into Part 2 at this point.

Hon PRIYANCA RADHAKRISHNAN: Yeah, that’s a good point.

CHAIRPERSON (Barbara Kuriger): In Part 1, we just have the list.

Hon PRIYANCA RADHAKRISHNAN: Yeah, true. All right. I will save the substantive bit of this question for when we get into Part 2, but perhaps the Minister could clarify why the list in the definition of “family member”, in the first part of this bill, is quite that extensive? Does it have to be detailed so that these family members can be paid, as in part (b) of the “paid family carer” definition in that same section? Or were there different ways to give disabled people some comfort that they didn’t have to rely on their first cousin before they could get support?

Thank you so much. Further to that—and please stop me, Madam Chair, if I’m approaching into Part 2 territory—

CHAIRPERSON (Barbara Kuriger): We will.

RICARDO MENÉNDEZ MARCH: —because that’s not my intention. Just following on the family member matter, can the Minister clarify whether she intends for the list of family members, outlined on page 4, to be treated as a resource as well?

To the previous speaker’s point, the issue around whether—and I kind of take a different angle here around whether they should be treated as resource when it comes to definition, because, then, a resource is then treated, subsequently, as something that gets measured against for eligibility criteria. Is that her intention? Submitters often talked about the need to take a rights-based approach when it comes to funding decisions. People don’t see family members as something that should get in the way of having a rights-based approach. I’m interested to know whether that list is also intended to provide decision makers with a list of the kind of people that would be treated as a resource, as per the clause we were discussing earlier, for the design of secondary legislation. When it comes to the eligibility criteria that will be set out in secondary legislation, can she guarantee to us that the list of people included in this definition will not be treated as a resource for the purposes of the design of secondary legislation as per the previous clause? I think that’s really important because that was, again, like I said, a really key theme that came through disabled people who want to see a rights-based approach.

Secondly, when it comes to the “paid family carer” definition, I just wanted to take the opportunity to understand whether the Minister intends to do further work on ensuring that paid family carers are supported in a way that keeps up to pace with other improvements in employment policy, or whether part of the reason why there’s that sort of cutting off of further litigation is to prevent paid family carers from being able to further their rights and other means.

I’m conscious I’ve strayed outside the bill, so I will keep it very tight now. I know that members have questions about Part 2, and I’ll address them then.

In terms of the questions around a “family member”, the definition and the list is to enable payment for them under a support programme, and recognition that for disabled people, the need to have choice around who they might choose to be a carer and, therefore, supported through payment under the support programme.

A party vote was called for on the question, That Part 1 be agreed to.

Ayes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Noes 48

New Zealand Labour 34; Green Party of Aotearoa New Zealand 10; Te Pāti Māori 2; Ferris; Kapa-Kingi.

Part 1 agreed to.

Committee of the whole House

Part 2 Disability support services system

CHAIRPERSON (Barbara Kuriger): Members, we come now to Part 2. This is the debate on clauses 7 to 16, “Disability support services system”. The question is that Part 2 stand part.