Disability Support Services Bill

Committee of the whole House

Thank you. I have a couple of quick questions for the Minister on this part, and all of it relates to clause 17 and the review that will need to be undertaken at the conclusion of five years. I also, I guess, take the Social Services and Community Committee’s recommendation to shift the transitional period from three years to five years to enable for the consultation that is now required in this bill to take place, although the Minister had said she was going to consult anyway—but now she has an additional 2 years to do that.

My questions, though, are related to clause 17(1)(a) and the review of the operation of this Act. I would like to ask the Minister what she envisages that review to include. Will it just be whether this Act is working, which is how I would interpret that particular part of this clause. Given that the bulk of the detail is in the secondary legislation, will the review also include whether those support programmes are working, bearing in mind that the Minister’s intention is to have that, or at least some of them, concluded, presumably by the end of that five-year period. Or will it be all of the support programmes concluded via secondary legislation at the end of that review period? I’d like some clarity around what the review will actually include.

I would also like to know whether the Minister intends for there to be consultation with disability communities in that review process as well. The reason that I ask this is because I would like to know whether the review, and the report that results from that, will include a reflection on whether this legislation—given that the intention of the legislation is to provide a foundational framework for disability support services funding, but, ultimately, it is to ensure that disabled people and carers are supported to be able to lead, in the words of this bill, everyday lives. Will that be included in the review? Will it actually look at whether this legislation is working for disabled people, carers, and the disability community more broadly, rather than just whether the letter of the law is functioning in an operational sort of manner? So that’s my main question to the Minister.

I’d also like to know in clause 17(1)(b) where it states that there should be consideration as to whether any amendments to this Act are necessary or desirable, whether that will also take into account secondary legislation as part of that review.

Committee of the whole House

Madam Chair, I want to thank the Social Services and Community Committee for their work, particularly on this part, which created the inclusion of the review of the legislation after five years and increased the transition period from three years to five. Clearly, a review of any legislation would need to consider if it is acting as intended. I think that’s particularly important because there hasn’t been legislation in this space already. My expectation is that it would of course review or include in its scope support programmes that are secondary legislation. Not all of them would have been in place for long enough, so it perhaps wouldn’t make sense to review all of them, but any of them that were in place would make sense.

The other thing that I had indicated, which admittedly is out of the scope of this legislation, but I had talked about an intent that there would need to be a second Disability Support Services Bill to look specifically at some areas that have been raised. A second bill would also mean that if there was anything in this piece of legislation that was clearly not working already, it could be picked up at that stage. But what is the intent behind this legislation? What is the intent behind support programmes, specifically the ones I’ve talked about in terms of flexible funding and a carers support package? It is absolutely to make disability support services better than it is today. Why do we care about that? Because we want to improve the lives of disabled New Zealanders, their carers, and families. So, yes, that would be part of the review. The law clearly wasn’t going to be working as intended, unless disabled people, their carers, and families were seeing an improvement in their lives.

Committee of the whole House

Thank you, Madam Chair. My questions relate to clause 18, and the consequential amendments. First, as a more general question to the Minister, she was helpful in her elucidation about the purpose of the review, and the answer might be “the review” to this question, but this is a devilishly complicated piece of legislation in the way that it deals with secondary legislation and confirmable instruments that exist within the system. That’s the purpose of the legislation, is to deal with all of the things that have grown up that are regulatory-like within the system. The consequential amendments section seems light, and I want to ask her what advice she has had from officials that the consequential amendments are the whole suite of legislative changes which will be needed to be made to other Acts. What has been her process to ensure that we are capturing those people who have already had a decision under the law that is a legal decision now, but under her new law will not be a legal decision and will rely on outmoded legislation. So that’s the first question.

The second question is particularly about the ministerial directions. I think that her new clause 10 makes ministerial directions that have happened prior to the commencement of this Act secondary legislation. My question is: does this Act amend secondary legislation by giving directions which were policy now the status of regulation, or is it the case that she will need to reissue all of the ministerial—what are now directions, but were policy. To give you an example of this, programmes that the ministry would have been responsible for before are now secondary legislation. Do they automatically count as new law now, or do they need to be reissued? In which case, shouldn’t they be in the consequential amendments part? Should there not be amendments which list out all of those pieces of what is now secondary legislation? The reason I ask this is because the real-world impact is that somebody’s house that is partly funded under health, and partly funded under the new system, will rely on a ministerial direction that didn’t have the status of secondary legislation until this Act is in force. It’s useful to understand, for those people who are carrying over from the old system to the new system—it’s good that they now have a new system which is legislative—but how do the directions now become legislative?

Committee of the whole House

There are no ministerial directions.

Committee of the whole House

Back to the review—and I thank the Minister for her responses there, that the review will look at the impacts, or the effects, of support programmes as well, and not just the primary legislation alone. I would then like to ask her who will carry out the review. Will disabled people lead that review, or will they be part of that review? I would also like to know whether the terms of reference for that review will be made public before it’s undertaken, and whether they will comply with the United Nations Convention on the Rights of Persons with Disabilities as well. I would also like to ask the Minister how she is going to measure improvement. If this is foundational legislation, we don’t really have a baseline, I guess, of how it’s working for disabled people outside of what they tell us, and even that is not codified in terms of a baseline. Given the Minister has said that her intention through the review process, and the report, is to improve the lives of disabled people and carers, how will she measure that?

Committee of the whole House

I would expect that the terms of reference for the review include the disabled people’s organisations, similar to the consultation around support programmes. There are other pieces of legislation that have been reviewed, and I would expect that this would follow a similar course.

Committee of the whole House

My question to the Minister is—I understand that her answer is that there are no directions because the directions are a creature of her new clause 10. What I’m asking her is—and I’ll put to her a real-world example of a constituent of mine, for things which operated like the directions under the old system. I understand why you’re doing this, Minister—that we need a legislative framework for the sorts of instructions that Ministers need to give for the programmes and the systems, for disabled people to access the services that they require. This is a good piece of legislation, in that it at least does give legislative form to what are appropriately, laws. In a situation that my constituent had, they were trying to use funding that they were entitled to, for a trip, which was rightly funded within the rules and instructions.

The question that ended up going all the way up to the top level of the Ministry of Social Development (MSD) was whether the sort of trip that they were asking for was within the remit of the policy intent. All of the instructions said that they could have this kind of trip—for their wellbeing, for their mental health—because it was within their special interest, and because they were someone who was entitled to support for that kind of thing. All of the policy requirements were met, but the question that ended up being needed to be determined at the very highest level of leadership of MSD was whether they were entitled to use it for this particular kind of trip—and, rightly, whether that was within the full scope of the legislative design of the programmes. Those didn’t have precedential value before, where a Minister or chief executive was being asked to sign off on a particular policy question where all of the policy intentions were met for someone’s programme and for someone’s funding, but does this particular example sit within the scope of the legislative intent, that is rightly law; you are making it law. Do those decisions in the old system now have precedential value? Are they like law? Or are you going to, essentially, reissue all of those, so this person who was able to go on a cruise would not be able to in future?

Committee of the whole House

Madam Chair—Mr Chair, my apologies.

CHAIRPERSON (Greg O'Connor): It’s the year 2026.

Hon LOUISE UPSTON: The member—from the circumstances that she has outlined—refers to the flexible funding policy, and my intention would be that the flexible funding policy would be one of the first support programmes, because of the improvement we’ve already made. There are no rules, there are no guidelines now, around flexible funding. Where there is overseas travel, there is kind of a check and balance, which I think people would expect, but there is no intention to change what the policy is currently, but it is going to be important to put it into a support programme that’s one of the first that I want to be in a support programme, because we have made improvements from a year ago, two years ago, three years ago, and I want those improvements to be protected.

Committee of the whole House

Thank you, Mr Chair. Further to what the Minister has said around the review, and I note that she has not responded to how it will be measured—how improvement will be measured—so if there is a way in which it will be measured, it would be useful to hear that. I also want to know what happens in the meantime. This review—the transition period has now increased from three years to five years. The Minister has said that at the end of the five-year period, when this legislation and its effects are reviewed, some support programmes will be completed and in a position to be reviewed, whereas there will be others that will not. That makes sense, but in the meantime, if there is harm that is caused as a result of some of those support programmes, what, then, is the mechanism for feedback and change, particularly given that some of those won’t be part of the review?

Also, would the Minister consider amending this portion to include a requirement for Ministers to implement the report? Currently, as the legislation is drafted, the Minister conducts the review—presumably—the Ministry conducts review—and there is no requirement for it to be informed by disabled people. I wonder whether the Minister would consider including that amendment in this legislation. Also, the requirement then is to consider whether there are any amendments necessary, prepare a report, and then to just present that report to Parliament. Would the Minister consider some sort of binding amendment there to require a Minister to implement the report once it’s published and presented?

Committee of the whole House

I just want to clarify then the inclusion of support programmes in the five-year review would be—within the transition, my expectation is that all of the support programmes will be drafted and in place. At the end of five years, there might be one that’s only been in place for three months, for example, so it wouldn’t make sense to include that in the review, because it hasn’t been in place long enough, right? I just want to be clear about that.

I will ask the Ministry of Social Development to put some early consideration into what the starting point might be, in terms of being able to measure those outcomes in five years’ time—I think you raise a good point there. I will ask for that so that we can make sure we’ve got a starting point. As I said before, the review of the legislation—because it is about reviewing whether or not the legislation has delivered as intended—would of course include disabled people in that. To me, it would make sense in the first stages of that, which includes confirming what the terms of reference for the review would be—I don’t think it’s useful for me in this Chamber now to dictate how that review would work, who would be involved, over what time frame, etc. I would have thought any member in this Chamber and any Minister who’s responsible at that time, given that there is a very strong interest by all of us in improving the lives of disabled people, their carers and families, would want to make sure that those changes are made.

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.

A party vote was called for on the question, That Part 3 be agreed to.

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.

Part 3 agreed to.

CHAIRPERSON (Greg O'Connor): The question is that Schedule 1 stand part.

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

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.

Schedule 1 agreed to.

A party vote was called for on the question, That Schedule 2 be agreed to.

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.

Schedule 2 agreed to.

Committee of the whole House

Clauses 1 and 2

CHAIRPERSON (Greg O'Connor): Members, we come to our final debate, clauses 1 and 2, “Title” and “Commencement”.