Disability Support Services Bill

Committee of the whole House

Thank you, Madam Chair. I will now get into the question that I asked previously around family care. I won’t traverse all of the detail. The Minister said she’s read some submissions. I’m sure she’s heard loud and clear what the concerns are that many submitters have raised. It’s basically that family circumstances are very varied depending on where one lives; proximity to other family members; abuse that can also take place and that disabled people are more susceptible to, as evidence shows; relationship breakdown; and carer health needs. All of those things have been shared by disabled people, organisations, and carers.

I guess that the question is twofold; one is: why does it even need to be in the legislation? If the State’s view is that families need to step in and need to provide care to disabled people and, therefore, that the State’s contribution is contributory—it’s only part of the support and the care—families already do this. This has been raised by many people. Families, by and large, if they can support their disabled family member, will do so. Why does the State need to legislate for it? Why does it even need to be in this legislation? That is my first question.

My second question is: if it needs to be legislated for to fully represent the status quo, then will the Minister consider an amendment that clarifies and provides disabled people and carers with a guarantee that family care and support will be complementary to State-funded support? There is then no shadow of a doubt that disabled people will need to exhaust their family’s ability to care for them before they can get the support that they need from the State to be able to live with dignity and independence, which is at the heart of the Enabling Good Lives vision and principles. I’ll leave it there for now, but I’ve got a couple more questions around this.

Committee of the whole House

I want to just put on record the considerable concern and alarm that the wording in the bill, as drafted, created, and I apologise for that. There was never any intention for the role of families to be expanded from what occurred. I just want to put on record my thanks to the submitters and to the Social Services and Community Committee for coming up with wording that better reflects what happens in the current state. The member asked about whether or not it needed to be included at all, but, because this is describing the current state, it does.

I think it’s also worth recognising that many of the organisations that were involved recognised that the change to the language around families’ responsibilities—where it says, “responsibility in the first instance”, replaced with “a responsibility to contribute to”—and recognises that it’s “as well as” instead of “instead of”. There’s not an expectation that families exhaust their resources first. That was never the intention. As the member raised in her comments before, in some circumstances, family support isn’t available, or, actually, it’s not appropriate, and it’s not safe. That’s why I think the language that we have in the bill, now, better reflects what the current state is and recognises that family do have an important role, but it is alongside disability support services.

Committee of the whole House

Thank you so much, Madam Chair. On Part 2, clause 8(2), I wanted to also focus on the language around “family, whānau, and other culturally recognised family groups”. One thing that she did not address in my previous contribution in Part 1—but I think it actually is quite suited to be debated in here, as well, and I just want to repeat it because I didn’t get engagement—is whether she intends for the provisions in here to, then, if families are deemed to have responsibility for the wellbeing of their members—

CHAIRPERSON (Barbara Kuriger): Sorry to interrupt the member, but to my right, there are a lot of conversations going on, and I hope that the Minister can hear the questions because I’m actually struggling a little bit to hear them myself due to the conversations. If you want to have a conversation, go in the lobby.

RICARDO MENÉNDEZ MARCH: Maybe they have some questions for the Minister, too—I don’t know. Look, I just wanted to test with the Minister whether that responsibility will be translated, or is it her intention for that responsibility to be translated as family members treated as a resource for the purposes of eligibility of those very same services? This is key to have engagement, in answer, from the Minister on because, as I said, submitters have often talked about the needs for a rights-based approach. In the moment that you treat the responsibility of family members as a resource for the purposes of eligibility criteria, you create the conditions where care stepping in actually undermines disabled people’s ability to access some of those disability support services. That is exactly what we want to prevent and I want to prevent and the Greens want to prevent.

A rights-based approach should not then deem family members stepping in, because they want to, as a negative for purposes of any eligibility criteria. I just want to have stated by the Minister what her intention is on how those family members stepping in is going to be treated in that secondary legislation. The other sort of unintended consequence, if the Minister does treat family members stepping in as a resource, is that if that then prevents people from accessing other types of disability support services, you could see what you see in the welfare system, which is that families feel like they have to almost try and present a breakdown in the family for the simple purposes of accessing support. I don’t think that honours the care and the interdependence that people have to one another, the interdependence that family members have to disabled people they care for, and the interdependence that disabled people have with their families as well. That’s my first question, that has not been addressed, and I think it’s really, really key.

I go back, now, to page 6. This is clause 8(2)(b)(ii) around the language of a “person’s safety and dignity”. Now, I was quite interested in the language around dignity. I’ve always talked about how we should treat everybody with respect and dignity, but one thing that I note is missing is full participation. Again, this is language that really matters because full participation means, for example, that a disabled person isn’t just supported to stay alive or to live with dignity, but full participation means they could be resourced to participate in, for example, going to the movies, which sounds trivial, right? But it is actually that enablement of fully participating in the communities that they are part of. That includes recreation, which people should have a right to access as well. Can I test with the Minister whether the choice of the word “dignity”, on page 6, includes, for example, access to full participation in the communities through recreational activities to the things that just make someone feel like they’re fully part of the physical spaces and relationships that they want to be part of and belong to, and, if not, does she think that the omission of language around full participation is an unfortunate omission? I just wanted to test how she interprets the term “dignity” for the purposes of, for example, the design of secondary legislation when it comes to eligibility criteria.

Committee of the whole House

We addressed some of the member’s questions, or intent behind the questions, in answering in relation to everyday life. In terms of that particular statement around an eligible person’s safety and dignity, I did touch on that in my answer to the previous speaker’s question—that, yes, it is a contribution, yes families are considered, but there will be some circumstances, for a range of reasons, where a disabled person doesn’t want to have the support of their family, or it’s not safe for them to have the support of a family member, which is where the individual circumstances of the disabled person are paramount. That won’t change under this bill.

Committee of the whole House

Given that the Minister has said that this needs to be reflected in the legislation because it reflects what’s currently happening, would the Minister then consider amendments to change the wording from “obligation to contribute”, in a sense, to reflect that that is what families currently do—that many families, as and when they can, already contribute to the care and support of the disabled person. Also, I point to particularly the submission by Enabling Good Lives (EGL) MidCentral, where they’ve said that ideally what this legislation should do is reflect the intent—so not just the language, because the select committee has made changes to include the language of the UN Convention on the Rights of Persons with Disabilities and the EGL, but to go beyond that: to include the intent of the Convention on the Rights of Persons with Disabilities, and to say that this is an obligation, or that it’s an option that families already do this, and many, when they can go well beyond, will do so. But as the Minister has said, in certain cases where there are issues around safety, that is not an obligation there. Can the legislation be a bit more explicit about this and the fact that family support is complementary and not assumed?

CHAIRPERSON (Barbara Kuriger): Does the member want to refer to her tabled amendment on this issue?

Hon PRIYANCA RADHAKRISHNAN: Yes, I think my tabled amendment is currently on its way, on this issue.

CHAIRPERSON (Barbara Kuriger): No, we have it.

Hon PRIYANCA RADHAKRISHNAN: Oh, do you have it?

CHAIRPERSON (Barbara Kuriger): Yes.

Hon PRIYANCA RADHAKRISHNAN: OK. I would like to refer to my tabled amendment that I do not have in front of me, but thank you.

CHAIRPERSON (Barbara Kuriger): Well, is has been tabled, so perhaps one of your team could go and get you a copy.

Hon PRIYANCA RADHAKRISHNAN: Yes, yes. I have got a copy now. That is, in essence, the crux of the amendment: to ensure that care is complementary and not—[turns to Hon Jo Luxton] Can you find my actual amendment, please. Thank you.

The other question that I’ll ask in the meantime is specifically related to clause 8(2)(b)(iv), and that is around families, whānau, and other culturally recognised family groups, where appropriate, having the responsibility to contribute. There’s a bit in subparagraph (iv) that says, “where appropriate, the eligible person’s resources;”. This is, basically, what Needs Assessment and Service Coordination (NASC) and others have to take into account when determining the families’ contribution. What is being raised by NASC and others is who determines appropriateness, and how is appropriateness determined? That is the worry that many others have raised as well: that the disabled person may not consider their family support to be appropriate to them, but that the decision maker in this equation might. So then who makes the ultimate decision there?

I do point to the changes in terms of including the choice of preference of the eligible person when it comes to determining the provision of disability support services support, and that was a good change that the select committee has made, and a meaningful one, and also to include the eligible person’s safety and dignity.

That then takes me to the other point. The Minister said that details around safeguarding complaints mechanisms and appeals processes will come in later legislation. But the decision not to include those provisions or those guardrails in this legislation is what has led to a lot of the anxiety as well. So it’s not just the language, which, you know, is partially changed, in the situation of the bill, but it’s the lack of safeguarding as well. So can the Minister clarify her decision not to include those when this piece of legislation makes it so clear that families have a role to play to contribute to the care. So saying that the safety of an individual will be taken into account is different from having mechanisms to enable that to happen.

Committee of the whole House

I want to clarify in terms of this legislation covering the current state. There are currently complaints reviews and safeguarding that already occur. I don’t want anyone to think that they don’t occur, but in terms of this particular bill, we have kept the scope of it narrow, and my expectation is, particularly around safeguarding with the work that’s going on in parallel with the royal commission into abuse in State care, that there will be further improvements to what the current state is, which would be captured in the second piece of legislation. I hope that clarifies it.

Committee of the whole House

Thank you, Madam Chair, and, again, I’m mindful that the member who spoke prior to me may have questions on clauses 9 and 10. I just wanted to talk about clause 11, and particularly I want the Minister’s commitments on how she intends to use the existing income-based and asset-based criteria. One of the things that people have raised concerns about is whether there are further or additional limitations to it. But I wanted to, first of all, just test whether the Minister believes in a rights-based approach, because income-based or asset-based criteria goes against that. So I wanted to just test whether she interprets the approved disability support services programme criteria that may be specified to be taking a rights-based approach.

Secondly, on the income-based criteria, I wanted to just test whether the income and asset base that could be used for any eligibility requirements would be just the disabled person’s income and asset base or whether any family member’s income and assets could also be included, in the way that the legislation is written. Again, it’s not just the family members that do the care work and could be treated as a resource that I’m concerned about; it’s the family member’s income and asset base, that could also be treated as a resource for eligibility criteria, that I am worried about. So I just wanted to check with the Minister how she interprets that to be.

I wanted to ask her on clause 11(3)(ga), which states “eligibility for an entitlement card issued under—(i) regulations made under section 437 of the Social Security Act 2018; or regulations saved as if they were made under section 437 of the Social Security Act 2018;”—a community services card, for the right person. I wanted to get a sense of why this was added. You know, we were reassured that no additional limitations would be put in, but we’ve got this additional bit that clearly spells out additional limitations that could be put on to the criteria that may be specified. This seems contrary to the reassurances that we’ve been given. I mean, this is one of the key criticisms that has come from disability justice advocates across the country, when the Minister came out after the select committee stage trying to reassure us.

I will just wait for the whip and the Minister to stop talking—I’ll just pause for a second. OK, cool; I’ll resume.

The issue I have here is that the language in clause 11(3)(ga) seems to hint at a new criteria that could be applied to the provision of services. How is that consistent with the comment that she made post the select committee process? I have heard a disability advocate question whether her comments after the select committee were actually factually correct when those provisions are still in place. So I wanted to test whether they’re correct in their assessment of her follow-up comments on concerns on further restrictions to access.

To recap—and I know we have a new presiding officer in the Chair—I’m really interested in the income and asset testing and whether that could be expanded to the income and asset base of family members as well. Does the Minister have any hints around, for example, how broad in range the income and asset base criteria that are specified here will be? I know that she said that she does not intend to further those, but I’m just curious as to at least as the legislation is written, what a future Minister is able to do with these provisions. This bill will endure with her as Minister but I want to know what she thinks a future Minister could do with it.

Committee of the whole House

As I have said previously, this is just documenting the current state in terms of means testing. There are a limited number of programmes that are related to, for example, the community services card, so that doesn’t change. In terms of what a future Minister may or may not do, that’s a different matter that I can’t crystal-ball into, but I have said on the record, and will say again, that there is no intention for me as Minister to introduce or change anything related to means testing.

Committee of the whole House

Thank you, Madam Chair. That’s exactly what I want to get into, because why would she create legislation that still allows for a future Minister to further restrict access to disability support services? You know, all it takes is a Cabinet reshuffle after another leadership challenge for a future Minister to be in her place and do exactly what she said she wouldn’t do—like, literally the way the bill is written does not guarantee disabled people that no further restrictions will be added. So why would she not have clarified that no further restrictions will be made in primary legislation? Why does she not add those safeguards in primary legislation, not just have disabled people have to take this current Minister at her word but actually safeguard any future Government from being able to add additional restrictions?

Perhaps if their coalition partner gets to secure her ministry in the next term, what is to say that they may not want to add further restrictions into this? Does she accept at least that the way that the bill is written does leave it really open for a future Minister to cause harm to disabled people by restricting access to services by tweaking and changing the income and asset base criteria?

Does she accept the concerns that have been raised by submitters and by advocacy groups that the way that the bill is written leaves disabled people and carers very open to a future Government choosing to harm and actively restrict access to disability support services? I just want her to at least be able to be upfront not just about her intentions but that a bill cannot just stand on the current measures and intentions; the bill has to stand the test of time when it comes to the protections that are afforded to groups that have had to fight for their rights in the courts and in the streets and in Parliament. So, again, does she accept that a future Minister could just, because of the way she’s written the bill, further restrict access to disability support services; and if so, why did she not deem that primary legislation would be a better place to actually add further safeguards?

I know the Minister has talked about engagement with some of my previous comments but the one that I haven’t had engagement with—and I will just reiterate that I’m really interested in having a bit of engagement on it—is whether family members will be treated as a resource. That is a simple question I’m asking for engagement on—whether they will be treated as a resource for the purpose of eligibility criteria.

Committee of the whole House

The irony in the member’s question is that yesterday or the day before, for years in the past Ministers have been able to make decisions at a whim. So by the time we have this piece of legislation and support programmes in place, that will be consulted on with disabled people and the communities and families. Those support programmes will ensure that changes can’t happen quickly.

That period, admittedly, we’ve now extended from three years to five years to enable the support programmes to be established, and my expectation is that with a discussion document early next year, disabled people and organisations and carers will signal where the priorities are for those support programmes to be established. This does not change anything around means testing. It simply states that they exist already in a very limited number of occasions and it would not have been accurate in describing the current state in the legislation if that had been ignored.

Committee of the whole House

Following up on that exchange, the Minister often talks about not changing things that are already there, but isn’t part of the issue that we’re finding ourselves in that disabled people have talked about how the status quo isn’t good enough? So when she says, “Hey, look, we’re not changing anything.”, does she concede that that speaks volumes of the fact that inadequate consultation with and input from disabled people has been taken on board when it comes to the fact that even the current income and asset base criteria doesn’t adequately uphold the dignity of disabled people. So I just wanted to test whether the Minister actually thinks that the current settings, including lack of safeguards that have already presently existed, are fit for purpose. I think that just saying—

CHAIRPERSON (Maureen Pugh): We’re discussing this bill. Which clause are you speaking to?

RICARDO MENÉNDEZ MARCH: Clause 11(3)(f) and (g), and (ga) specifically—just following up on the Minister’s answers.

The key thing that I want to test with the Minister is that she is saying she’s not changing anything. Does she think that the current settings, then, actually reflect the voices and the feedback of disabled people or is she just simply conceding to the fact that not changing anything just means that things are well and fine and no one needs to worry about them?

I will move on to clause 11(4) which is about the things that the Minister is required to do before approving and establishing a programme and the fact that the Minister needs to take into account the purpose of the disability support services and the likely outcomes for disabled people of approving and establishing that programme, and any other matters that the Minister considers relevant.

I have a series of questions on this one. For the purpose of interpreting how the Minister will likely execute these provisions in the bill, would the Minister outline some examples of any other matters that the Minister may consider to be relevant? Has the Minister already thought of matters that have previously been considered or that she intends to consider? The second question I have is, when it comes to the likely outcomes for disabled people of approving and establishing the programme, how will those outcomes be measured? Will it be through extensive engagement and co-design with disabled people and carers? Will it be just through sort of consulting Government officials? And what happens if inadequate engagement has happened for the likely outcomes for disabled people? This takes me to clause (4A), which says, “the Minister must also consult such representatives of disabled persons as the Minister considers appropriate.”

I’m keen to understand—and I know there’s been a lot of questions and I am happy to traverse further engagement if the Minister’s not capturing it. What does the Minister consider to be an appropriate level of consultation as per clause 11(4A)? If there hasn’t been adequate consultation should any programme be approved—because that is one of the key things that disabled people have noted—that there are no protections that safeguard disabled people from a programme that disabled people may deem inadequate from being rolled out despite these requirements being in place. There’s no sort of, like, that you “must” have adequate consultation. It kind of just leaves it to the Minister. So, you know, it would be useful at least for the Minister to clarify what in her view “appropriate”, as per (4A), looks like in practice, so that maybe disabled people have a bit of reassurance of how much resourcing will go into ensuring that there’s a “code assigned” process with disabled people, or whether she thinks that maybe talking to one service provider will be enough to be deemed appropriate consultation over 4A in clause 11.

I’m really interested, and I will have some further engagements on this, because I know that this has been one of the key pieces of feedback that has come—particularly post our comments after the Social Services and Community Committee stage, around disabled people’s feelings of sort of inadequate safeguards on consultation. And also, that sort of retraumatising process and feeling of the errors of the bill process being then mirrored in the rolling out of these programmes, because of that lack of faith that disabled people currently have with the way that the—well, what I would say is with the Minister and the Government, due to the legislative process and the lack of faith therefore being extended to how particularly close 11(4A) will be rolling out.

Committee of the whole House

I did traverse some of this area in the earlier part, which I acknowledged at the time went beyond the bill to explain the process that would go beyond this. The example that I used at the time was in terms of consultation; if the support programme was around hearing devices, for example, the consultation and the organisations and the representatives of disabled persons that would be considered appropriate would be very different for a support programme around hearing devices as it would be around residential care. So that is what is intended there. It is important that disabled people directly—as well as disabled people’s organisations, as well as those who provide services—are involved in that process. As the member himself raised in an earlier part of the debate, the disability community is not an amorphous group and they don’t have the same views or agreements. That’s why the consultation here will be important, but it won’t be the same for every support programme.

Committee of the whole House

I’ve got a few more questions that are related to clause 8 and the various things that Needs Assessment Service Coordination agencies (NASCs), for example, will need to take into account when making decisions around who gets Disability Support Services (DSS). My first question is related to clause 8(2)(b): “decisions about the provision of DSS-funded disability support services to an eligible person should be made taking into account—” all of the rest of the things that are laid out underneath it. I want to ask the Minister for Disability Issues why the wording there is “taking into account”, which to me is rather vague and not as strong as it could be, for example. I’d like to refer to my tabled amendment that recommends or suggests changing that to “give effect to”, which is stronger legal language. So that’s the first part of my question.

The second is related to clause 8(2)(b)(iii), and that is that people who are making these decisions around DSS access, or eligibility to support funding there, must take into account “the eligible person’s immediate, and long-term, needs and circumstances;”. I’d like to know what definitions would be used around that; what are the parameters that must be considered around the immediate and long-term needs, what circumstances will be in versus what will be out?

And then going down to clause 8(2)(b)(iv), “where appropriate, the eligible person’s resources;”—is that related to income and assets that the eligible person may hold? If not, what is the thinking behind including “eligible person’s resources” in there, and what does that actually mean?

The next part of that, clause 8(2)(b)(v), “any support that is available to the eligible person from other publicly funded sources;” given that the whole point previously of Disability Support Services transformation towards an Enabling Good Lives (EGL)—and the Minister made a comment earlier on that she had heard from the disability communities that various different assessment tools, allocation tools, and decisions were being made around the country, where one disabled person in one part of the country would get more support than somebody else, and that’s why she’s brought in the assessment and allocation tools, to bring in consistency and this legislation is the next part of that work. I would put to the Minister that that has lowered, potentially, the access or the types of services that disabled people can access. Because what we were trying to do was to transform the other way around, towards the EGL sites and the ways in which funding was disseminated by EGL sites. Instead, everything’s been brought back to how NASCs, previously, were doing things. So I would put that to the Minister.

But the other issue that’s been raised around this is: when the changes were made back—some of the subsequent changes to the initial ones made in March 2024, where, for example, children and schools couldn’t use their DSS funding for things like writing for the disabled, because the Government’s view at that point, the Minister’s view at the time, was that education should be funding that, not DSS. Whereas previously—and the transformation of the moves that we were wanting to make in the previous Government was that the person was central to the types of services and support that they could access. That is, in essence, the EGL vision. This legislation just imports some EGL language, but not the intent or the vision of the Enabling Good Lives approach. So is that what is now being captured in legislation in clause 8(2)(b)(v), Minister, where if there’s support that comes out of the education pot, or the transport pot, or the housing pot, this will be—my fear, and the fear of many, is that this will lead to the further fragmentation of the type of support that disabled people can get and not a better, more cohesive package of money that actually transforms a person’s life and makes it better. So I’ll leave my questions there for that.

Committee of the whole House

I keep getting into trouble with going further than outside the bill, but let me just, in terms of the questions that the member the Hon Priyanca Radhakrishnan asks, the principles of Enabling Good Lives (EGL) are absolutely reflected through the section here. If you think about the eligible person’s immediate long-term needs and circumstances, one of the things that we do want greater consideration of is investing early. So the social investment approach, which might mean, when considering a disabled person’s long-term needs, actually there might be different assessments made around what support is available now. An example of that is the powered wheelchair research that’s under way at the moment.

In terms of your question around other Government departments and support that’s available, that is also one of the EGL principles, about mainstream access. So access should be equally available to health for disabled people—

Hon Priyanca Radhakrishnan: That’s not what it means.

Hon LOUISE UPSTON: No, no—let me explain. So health should be accessible and available to disabled people, and clearly there’s improvements that we need to make across the board there. The changes that were made to flexible funding—that started 1 February—took away all the guidelines, took away all the rules around flexible funding, to maximise disabled peoples’ choice and to ensure that they are able to access the services and supports that they require.

Committee of the whole House

Thank you, Madam Chair. I would like to dig down on the wording in clause 8, which is about “where appropriate”. My colleagues touched on it, but I want to kind of dig down into this issue as it arises in clause 8(2)(b)(iv) and (vi). So my major concern would be with the first of those, but it is a principal question.

Here, we have a clause that says that one of the criteria is “where appropriate, the eligible person’s resources;”, and then we have another which says, “where appropriate, any other support that is available to the eligible person, including from—(A) their family, whānau, or other culturally recognised family group; and (B) their community.” Now, that looks to me like there’s a lot of capacity there to decide what is appropriate. What I’d like to know is, what is meant by “where appropriate”? When would it be appropriate and when would it not? What kind of restrictions are there on the Minister for Disability Issues changing what that criteria is through that pathway of just simply deciding that it is now appropriate, and moving a lot away from the status quo into something that is much more burdensome on both that person’s resources and their family and community?

For example, we had the Minister talk about how that wasn’t her intention at the moment. She was categorical in the House that her intention was that there would be no means testing beyond the point it is now, but does she accept that that particular wording is permissive? What kinds of constraints has she put in place to hold firm to her assertion in the House that that would not be happening under, at least, her watch? What kind of constraints has she put on others in this piece of legislation if it is her intention that this is not the beginning of an increased use of means testing or becoming overly burdensome on family and community in a way which actually means that people are being asked to do something that’s simply burdensome to the point of becoming dysfunctional?

One of my portfolios is community and voluntary. I appreciate that the community steps up so many times in this area, but I also appreciate that it often fails in those situations because of a scarcity of resource, often from, actually, Government funding, but also because it’s hard out there and there just isn’t the money to support the organisations the way they were. We’re seeing a dip in giving, so we do not have those kinds of resources available in the community anymore. I’m also aware in areas that are well beyond the scope of this bill, things like in the—

CHAIRPERSON (Maureen Pugh): Then we won’t be talking about it.

HELEN WHITE: Well, no, it’s important because it does relate, I promise, Madam Chair. We have a situation in something like Oranga Tamariki where there is a pushing out to whānau and pushing out to community when that resource is not there, and it is known not to be there. That can happen in a situation where we’re trying to stop the burden coming on to the State. We can push to these places that just don’t exist.

I am aware that, in these situations, it’s a problem that’s systemic that we push out, and we can say it’s appropriate when it’s actually just simply factually impractical. I would love for the Minister to tell me what is the constraint on the use of that beyond what is actually really appropriate? What kind of stop has she put on others misusing this, even if she has made a binding commitment in this House to it not being used in that way? Those are my primary questions. That use of the language, “where appropriate” —did she have advice on that? That really concerns me that there is so much wiggle room in it, even if the Minister is bona fide trying to do the right thing. What was the purpose of using that wording? Why does it need to be so wide?

CHAIRPERSON (Maureen Pugh): The member’s time has expired. Before I take the next call, I’ve been in the chair a short time and I believe we have thrashed subclause 8(2), so I am looking for new material please.

Committee of the whole House

Thank you very much. Just a question on definitions in the bill, and this will be very brief stuff, and I note your comments, but one thing that I wanted to note that seems to not be defined in the bill is there’s a lot of definitions for what “family member” is—

CHAIRPERSON (Maureen Pugh): Under what clause?

RICARDO MENÉNDEZ MARCH: This is my final contribution on clause 8, so I will move on immediately after, but I just wanted to note that there is quite an extensive definition of what a “family member” is considered as, but there seems to be no definition of what a “community” is for the purposes of this bill and disability support services (DSS) funding services. I’m concerned that we have this kind of thing where “community” is just left out and not really defined, and I wanted to get the Minister for Disability Issues’ views on what interpretations she will be giving, or wants to give, the term “community” for the purposes of, for example, whether frontline decision makers could be using, “Well, you belong to a church that runs Sunday programmes and that counts as a community stepping in for you.” Would it be like, “Hey, look, in your neighborhood, there are volunteer-run programmes that exist, say, three blocks away from where you live. That counts as a community for the purposes of the resources that exist.”? Could it be that, in small rural areas, just somewhere in your whole township that provides some sort of support is considered “community” for the purpose of eligibility criteria? Because we have quite an extensive definition of who is and is not a family member, but I’m concerned about the fact that “community” just doesn’t have that.

The reason why I think this is quite important is that, if we look at other Acts where, for example, people are asked to look outside for support that could be met—for example, the Social Security Act—we often have case managers saying, “Well, have you checked out this food bank that exists several neighborhoods away before we give you assistance?” It’s really fraught how, for example, in the Social Security Act, those provisions cover “Have you checked for other support first before we give you support?” I am really concerned that “community” is just left out so broadly. I am none the wiser as to how that will be interpreted when it comes to the DSS funding decision making. If the Minister would like to elucidate on what her definition of “community” is and how that could be used to the detriment, if at all, obviously, of people, I’d love to know, because I do think that that is really, really, really important criteria.

Now, moving onto clause 11—and to signal to the chair that the only reason I would go back to clause 8 is if I don’t get engagement from the Minister on the “community” definition—but on subclause (4A), on page 8, something that the Minister did not engage with in my previous comments was just on a reassurance that no programme will go through without adequate engagement and co-design with disabled people. Because, again, that’s one of the key tensions that has existed post-select committee stage in the reassurance that the Minister has given. I note that the Minister has apologised for, say, the process and the hurt for what has occurred in this legislative process, but this subclause (4A) on page 8 is, in my view, the place in which those mistakes could be redressed by giving a reassurance that no programme will go ahead without an adequate co-design process. Otherwise, what we have heard from the likes of Dr Huhana Hickey, from CCS, and others is that the Minister can just claim, “Well, I talked to one service provider and that is good enough.” I know that the Minister said in previous comments, “I’ve already addressed that, and I agree with Ricardo that community is not monolithic and there are many views.”, but that doesn’t really address or engage with the matter of whether programmes could still go ahead without a high bar of consultation.

If the Minister could engage with subclause (4A) specifically, and what bar and standards she wants to set before any programme gets rolled out in terms of the level of co-design, and what, for example, “representatives of disabled people” mean. Representatives of disabled people could be someone who’s not disabled. You could literally talk to a bunch of able-bodied people who are not disabled and who deem themselves as representatives, and the programme could then be rolled out. Could she please set the standard that she wishes to use for the purpose of subclause (4A), and, to recap, what does she define as “community” for the purposes of—

CHAIRPERSON (Maureen Pugh): The member’s time has expired. Just to reiterate the point—this is my second warning about repetition—even though I did make that clear before the member stood up, he has repeated two items that were previously answered by the Minister—

Ricardo Menéndez March: It’s new material on those items.

CHAIRPERSON (Maureen Pugh): Please don’t argue with me, Mr March. I am explaining myself. Repetition is not getting us anywhere. You are going to get the same answers to the same questions.

Ricardo Menéndez March: She’s dismissing the questions.

Committee of the whole House

Thank you, Madam Chair. This is my first call in the entire debate—I’ll just point that out. This is new material that the Minister has not addressed. I am anxious to give it because it does relate to the definition of “communities”, which is the clause 8 that you’re warning us to move on from, but it is relevant to the points that I also want to make about another section. I hope that the Chair can give me the ability to do this because what I am wanting to raise here is the lack of any reference in this legislation to Te Tiriti o Waitangi and the impact of these legislative changes on Māori.

I’m referring in particular to a submission from Te Ao Mārama Aotearoa, who represent tāngata whaikaha and their whānau and who in their submissions point out how disappointed and how upset they are that they were not consulted at all in the development of this legislation. They have concerns around the wide definition of “community” and the impact on concepts and tikanga like whanaungatanga that are important in terms of clause 8. They also have concerns around the lack of consultation in the development of this bill. Talking to clause 11(4A), it says the Minister must consult, and yet we didn’t see that consultation happen in the development of a very significant piece of legislation—a huge change in a generation, essentially—with no references to Te Tiriti o Waitangi and no engagement with the representative body of tāngata whaikaha and their whānau.

Te Ao Mārama Aotearoa point out that the Crown is obliged to engage with them directly under Te Tiriti o Waitangi and many other conventions that we are part of, and the Crown did not. They also said that when it comes to conscription of whānau in clause 8—I just want to read the submission and see if the Minister has any response to this. They say: “The communities with the most expansive conceptions of collective responsibility, our communities, carry the heaviest statutory expectation, while the Crown that drafted the clause carries none: no duty to assess whether the presumed support exists, is safe, is sustainable, or is consented to by the whānau or by the disabled person; no training, no respite guarantee, no income protection; no limit in scope or duration; no point at which the obligation is fulfilled.” The point they make is that “Whanaungatanga is a taonga. It is not fiscal infrastructure for the Crown to draw down, and aroha is not a substitute for the State meeting its obligations to its disabled citizens.”

In terms of clause 11(4A), “Before approving and establishing a programme under subsection (1), the Minister must also consult such representatives of disabled persons as the Minister considers appropriate.” Does the Minister consider Te Ao Mārama Aotearoa, the representative organisation for

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appropriate to engage with? Why did she not engage with them in the development of this legislation? Will she engage with them under that particular clause, and will she reconsider the fact that they do not have any reference to Te Tiriti o Waitangi in this legislation and, as these submissions point out, what the need for that is?

Committee of the whole House

I’ve answered questions around consultation in the creation of the bill; I’ve answered questions around consultation going forward, and I’ve answered questions about family.

Committee of the whole House

I would like to ask the Minister some questions around clause 10, and that is the ability for the Minister to give the ministry binding directions. This is the section of the legislation that allows the Minister to create, through secondary legislation, ministerial programmes or support programmes, which basically contains all of the detail that disabled people and carers are interested in and wanting to see.

I will note the Minister’s comments earlier on in this debate; we did have a back and forth on decisions around the line between primary and secondary legislation and why so much of this detail the Minister has decided to put in secondary legislation instead of primary. I won’t traverse that bit, but what I do want to ask the Minister is, given that the authority to make secondary legislation is both by convention and through the Legislation Act, from memory—the guidelines around that are to be really careful about the level of detail, technicality, and complexity that Ministers put into secondary legislation. If I look at the Department of the Prime Minister and Cabinet’s own website—and I’m looking at this because in clause 10(3)—it basically says to “(see Part 3 of the Legislation Act 2019 for publication requirements).”

This is to the Minister’s previous point, where she stated that her decision to include all of the detail around support programmes in secondary legislation rather than a mix of primary and secondary is to give people comfort that things can’t be changed very quickly. I’d like to tease that aspect of the Minister’s comments out through this particular clause. The guidelines are basically that substantive policy shouldn’t be in secondary legislation, but it should just be, for example, the amounts or the thresholds that need to be changed that should be in secondary legislation. But the specific types of support programmes that people can access should be in primary legislation so that they cannot be changed quickly and without the oversight of Parliament. Can the Minister give us some clarity around that later part of that point?

Disabled people who have been submitting to this, who have been listening to debates in the House around this, don’t feel a level of comfort, because it’s easier to change secondary legislation than primary legislation. I also understand that there is specific language that the Minister could have used in this legislation, in this particular clause, to require the Regulations Review Committee—and I understand that my colleague Arena Williams would like to speak to that a little bit further. That could have then given people some comfort that changes cannot be made to support programmes quickly. Can the Minister clarify why she said that, given that secondary legislation is easier to change than primary legislation?

Committee of the whole House

We have traversed this in the earlier conversation around flexibility as one component. The other thing I would point out here, in terms of clause 10 that the member is referring to, is that this is also about how the ministry performs its duties. Without traversing history, I think there are many examples of how it was previously set up that it didn’t perform those duties anywhere near well enough.

Committee of the whole House

Thank you. I would like to talk about the employment provisions here—so I’m looking at clause 13. I have a background in this area, so it is of great concern to me when I see clauses like clause 13(2), which talks about “If A is a party to, or covered by, a written agreement with the Crown stating that A is an employee, the agreement is conclusive proof that A is an employee of the Crown.” My problem with this is that employment relationships are a matter of fact. We have some very strong rules about what those things look like in the real world, and we also have a long-term relationship, here, just like many employment relationships, and things morph—they change significantly in that time—and employment law has always recognised that reality versus anything that’s written down. I’m concerned that, here, we have a very dangerous—it’s not really a precedent because it’s also being done with contractors—idea that writing overrides reality.

In these situations, we have a whole lot of people who are working their socks off, and we are deciding what they are, as a matter of signing the document, when, in employment law, we recognise that the reality morphs over time. We also recognise that there is a power imbalance in these situations. I couldn’t think of anything more likely to have a power imbalance in it than this particular relationship, where people are trying to look after their loved ones. They really don’t have a lot of choice in what they sign at that point. They are actually in a position of deep moral quandary.

And so, I wanted to know from the Minister, what she looked at when she looked at that issue of the consistency of our country’s moral approach to work and the issue of power imbalance, which is built into our Employment Relations Act. It recognises that straight up, and then all these other things hang off it, but we don’t recognise a power imbalance in this relationship. Why not? That’s what I’d like to know. And I’d like to know what safeguards there are with regard to that power imbalance. In other situations—for example, the contractor situation—we have often a reliance on independent legal advice. Is there anything going on here like that?

Then, I have an issue with regard to that relationship choice: were there other options about the way we could handle this relationship that would not have excluded this community from the employment paradigm entirely? If there’s a dispute, what happens? What happens in that situation? If there’s a dispute about the way that people are treated—we have a whole scaffolding in employment law around that. What’s going to happen to these people if there are issues that emerge in terms of the way that they are treated?

I also asked questions about this when we were in the select committee—about the issues around their employment treatment and the savings that were associated with excluding this group of workers from that scaffolding of employment. I asked questions about how much the Government would save, and I’m asking you those questions now.

CHAIRPERSON (Maureen Pugh): I don’t answer.

HELEN WHITE: Sorry, Madam Chair. I’m asking the Minister to talk and be transparent about how much money the Government saved in this circumstance, but also how much there is an unintended consequence of people simply refusing to do this work in these conditions and that work being bounced into institutional care or other frameworks for care because they cannot do it. Is there a risk of economic impact with regard to that, and did she do some work on that? Thank you.

Committee of the whole House

I spoke about this earlier in terms of one of the priority pieces of work being the future carers support package, which basically would resolve many of the issues the member raises.

Committee of the whole House

Thank you, Madam Chair. I’ll take a brief call for the Minister. I just want to ask her about her comments that the directions will allow who the flexibility—it’s the other way I want to ask about. Why is it formal and formally recognised as secondary legislation when the option for her was, obviously, then, policy, which would not be secondary legislation? The directions in this bill are similar in nature to the old system. I commend the Minister for this framework, which, as she, quite rightly, points out, didn’t have a legislative basis before, so the directions were more akin to the immigration instructions in that they didn’t have a legislative effect but they were something more binding than departmental policy.

The amendment in the name of the Hon Priyanca Radhakrishnan that we have suggested to clause10, after (3), would make these confirmable instruments, which would give them the same status as confirmable instruments, which are a more commonly used tool to give ministerial directions. When the Regulations Review Committee confirms instruments, its only check is that they are made in line with the purposes and objects of the Act. That is what this clause 10 purports to do, but there is no check that the directions do, in fact, realise the objects and purposes of the Act.

My question is: if it is her intention to make the directions secondary legislation, then what is the check and balance to ensure that that secondary legislation is made within the purposes of the Act, and that it’s not ultra vires to the Act? Policy can be extra to the legislative framework; this is not policy and so the choice here to make it legislative, in effect, binds the Public Service in a way, which you’re only able to do at this level, at the parliamentary level, if it is in line with the legislative intent. We’re having a debate, right now, about what the legislative intent is, so it’s also useful to be clear about what the checks and balances are to keep it in line with that intent. The alternative, then, is that it’s meant to function more like the immigration instructions.

Committee of the whole House

Thank you, Madam Chair. I have a few questions to the Minister on clause 11, and they are related to tabled amendments of mine as well. This particular clause brings into the debate issues around income testing, means testing, and asset testing, and that is another area that many have expressed significant levels of discomfort and anxiety around. I’d like to test a few things with the Minister with regard to this. I won’t go into the details, but it’s across the various parts of clause 11.

The Minister has said, many times, that the inclusion of income- and asset-based criteria in this clause is only meant to reflect where it’s currently taken into account, and that is in very few circumstances. I would ask the Minister to consider my tabled amendments to remove these criteria completely to give disabled people comfort that they will not be means tested before disability support services support is made available to them. In the event that the Minister does not want to take it out completely, because it is currently criteria for specific things, I would draw her attention to my tabled amendment that is to replace, in clause 11(3)(g), after “criteria”, to then be specific about what this current criteria for income and asset testing refers to—specifically, the Community Services Card for hearing aids, home modifications, or vehicle modifications. From memory, those are the only areas that the Minister has said is currently means-tested. If that is not the case, I would like the Minister to clarify what other areas are currently means tested, and I’m happy to include those in my amendments as well. That will then give disabled people absolute surety and certainty, which is what the Minister wants to achieve out of this legislation—that it will not then be used to means test further types of disability support funding that they can access, because those changes can be made, through clauses 10 and 11, in future support programmes.

My next question around criteria for the Minister is reflecting on a previous discussion as to why eligibility criteria, more broadly, as laid out on her own Ministry’s website, is not included in primary legislation. The Minister said, firstly, that there was no such thing but also that her decision there was to ensure a maximum level of flexibility.

Now, reading clause 11 in its entirety, it occurs to me, and I’ll put this to the Minister—I would like her to either confirm or clarify that her decision not to include disability services support (DSS) eligibility criteria in primary legislation is so that it can be changed for various types of support, which is, again, a departure from current practice. Currently, if you are a disabled person and you meet some of the criteria that is currently listed on the ministry’s website—you have specific types of disability—the Needs Assessment Service Coordination (NASC) organisation will assess what particular supports you need based on your disability and then give you a support package that will allow you to access the support that you need to be able to live an ordinary life—presumably.

Not including that in primary legislation but saying in clause 11 that there will be different types of eligibility criteria for different types of disability support is anxiety-inducing, because at this point, although the Minister has repeatedly said that this legislation does not change current eligibility or entitlement today to DSS support, this indicates that it will change. This indicates that the Minister, through secondary legislation, can change the criteria for, say, community-based support versus residential support or flexible funding. The Minister is shaking her head, which is good—if that is not the intention—but can she please clarify how else anyone is meant to interpret this legislation other than the interpretation that I have just put to her?

Committee of the whole House

We’re going over the same ground again, so I’m not going to traverse that. In terms of means testing, it would not be an accurate reflection of the current state if it had been excluded from the legislation. That is why it is included, and it has been amended to make it clearer as a result of the select committee.

CHAIRPERSON (Maureen Pugh): This is my final warning on repetition. We have traversed up to clause 12, and we are moving on.

Committee of the whole House

Thank you, Madam Chair. I wanted to speak to Priyanca Radhakrishnan’s amendment, tabled at 9.13.07 a.m., which hasn’t been spoken about yet, so bringing some new material to it. This is the deletion of clause 11(4B)(b)—and I haven’t spoken about new subclause (4B) in clause 11 myself yet; I don’t think anyone has. So, on (4B), and particularly looking at paragraph (b).

First of all, I want to know what the Minister’s justification is to have the ability to basically override the provisions in new subclause (4A), which is about consultation—basically, to say that there’s a “must also consult” with disabled people, but, actually, in (4B), failure to comply with those consultation requirements does not affect the validity of any programme. Can she see why (4B)(b) doesn’t give any teeth to the provisions in (4A), because, basically, why would the Minister have a requirement to consult and then have a provision that says, “Well, actually, but if it doesn’t happen, it doesn’t really change anything.”?

Can I get a sense of the Minister’s intention for having a provision in (4B)(b) to say that “Look, at the end of the day, if you do not comply with any of these consultation requirements, the programme can go ahead anyway.”? Which takes me to the point that, you know, if the Minister is genuine about having a requirement to consult, why wouldn’t she support Priyanca Radhakrishnan’s amendment that seeks to delete clause 11(4B)(b)? If she doesn’t support it, I’d love to know what her justification is for just simply scrapping those constitutional requirements.

That takes me to my final point, which I haven’t had engaged with the Minister, which is whether the term “representatives” actually includes disabled people or whether it can include non-disabled people, or whether the Minister would be satisfied if she only consulted with able-bodied people that seek to represent disabled people for the purposes of (4A). Again, I just don’t understand why you would have this interaction between (4A) and (4B)(b), which seems to just sort of allow the Minister to ignore disabled people or their representatives anyway. Any comments, justification, or indication of support—not “or”; and indication of support—for the amendment would be very welcomed.

Committee of the whole House

Where there’s a minor, in effect, issue that wouldn’t be consulted on—for example, it could be where there is an increase in a rate, so you wouldn’t go out with wide consultation where a rate is being increased. Clearly, if there were changes the other way, which would not be minor and which would have an impact, that would require consultation. So that is an example.

Committee of the whole House

I move, That debate on this question now close.

A party vote was called for on the question, That debate on this question now close.

Ayes 67

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

Noes 50

New Zealand Labour 34; Green Party of Aotearoa New Zealand 10; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Motion agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Priyanca Radhakrishnan’s tabled amendment to clause 8(2) to replace “take into account” with “to give effect to” be agreed to.

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

Ayes 50

New Zealand Labour 34; Green Party of Aotearoa New Zealand 10; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Priyanca Radhakrishnan’s tabled amendment to clause 8(2)(a) to insert words after “members” be agreed to.

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

Ayes 50

New Zealand Labour 34; Green Party of Aotearoa New Zealand 10; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Priyanca Radhakrishnan’s tabled amendment to clause 8 to insert new paragraph (c) into subsection 8(2) be agreed to.

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

Ayes 50

New Zealand Labour 34; Green Party of Aotearoa New Zealand 10; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The Hon Priyanca Radhakrishnan’s tabled amendment to clause 10 is out of order as not being in the correct form of legislation.

The question is that the Hon Priyanca Radhakrishnan’s tabled amendment to clause 11(3) deleting paragraph (f) be agreed to.

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

Ayes 50

New Zealand Labour 34; Green Party of Aotearoa New Zealand 10; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Priyanca Radhakrishnan’s tabled amendment to clause 11(3) deleting paragraph (g) be agreed to.

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

Ayes 50

New Zealand Labour 34; Green Party of Aotearoa New Zealand 10; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Priyanca Radhakrishnan’s tabled amendment to clause 11(3)(f) restricting income-based criteria for matters relating to community services card be agreed to.

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

Ayes 50

New Zealand Labour 34; Green Party of Aotearoa New Zealand 10; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Priyanca Radhakrishnan’s tabled amendment to clause 11(3)(g) restricting asset-based criteria for matters relating to community services card be agreed to.

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

Ayes 50

New Zealand Labour 34; Green Party of Aotearoa New Zealand 10; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Priyanca Radhakrishnan’s tabled amendment to clause 11(4B) deleting paragraph (b) be agreed to.

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

Ayes 50

New Zealand Labour 34; Green Party of Aotearoa New Zealand 10; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

Part 2 agreed to.

Committee of the whole House

Part 3 Miscellaneous provisions, and Schedule 2

CHAIRPERSON (Maureen Pugh): Members, we come now to Part 3, which is the debate on clauses 17 and 18, “Miscellaneous provisions”, and Schedule 2. The question is that Part 3 stand part.