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4           National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021

Order of the day read for the further consideration of the bill in committee of the whole.

 

 

 

In the committee

Consideration resumed of the bill— and of the amendments moved by Senator McKim, at the request of Senators Steele-John and Farrell, on sheet 1443 revised :

(1)—Page 2 (after line 11), after clause 3, insert:

4   Sunset clause

   (1)  The amendments made to the National Disability Insurance Scheme Act 2013 by Schedule 1 of this Act cease to be in force at the start of the day after the end of the period of:

                       (a)  if the Minister has not announced by notifiable instrument under subsection 208A(6) of the National Disability Insurance Scheme Act 2013 that a copy of the report has been received—12 months beginning on the day Schedule 1 commenced; or

                      (b)  otherwise—2 years beginning on the day Schedule 1 commenced.

   (2)  However, the amendments set out in Schedule 1 of this Act do not cease to be in force under paragraph (1)(b) if a resolution passed by both Houses of the Parliament provides that the amendments remain in force .

(2)—Heading to Schedule 1, page 3 (line 1), omit “ Amendments ”, substitute “ Robertson review amendments ”.

(3)—Page 14 (after line 23), at the end of the bill, add:

Schedule 2 Quality and safeguarding framework review

National Disability Insurance Scheme Act 2013

1  Part 4 of Chapter 7 (at the end of the heading)

Add “ and other matters ”.

2  At the end of Part 4 of Chapter 7

Add:

208A   Review of quality and safeguarding framework

Review to be conducted

   (1)  The Minister must cause a review to be conducted of the NDIS quality and safeguarding framework.

   (2)  The review must commence as soon as practicable, and in any event within 1 month, after the commencement of this section.

   (3)  Without limiting subsection (1), the persons who undertake the review must consider the effect of the amendments contained in Schedule 1 of the National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Act 2021 as part of the review.

Report of the review

   (4)  The persons who undertake the review must give the Minister a written report of the review within 12 months after the commencement of this section.

   (5)  The Minister must announce, by notifiable instrument, the day the Minister receives the report.

   (6)  The Minister must table a copy of the report in each House of the Parliament within 10 sittings days of that House after the report is given to the Minister.

Government response

   (7)  The Minister must cause a report (a government response ) to be prepared setting out the Commonwealth Government’s response to the report referred to in subsection (6).

   (8)  The government response must be prepared, as soon as practicable, and in any event within 3 months, after the report referred to in subsection (6) is first tabled in a House of the Parliament.

   (9)  The Minister must table a copy of the government response in each House of the Parliament within 10 sitting days of that House after the government response is given to the Minister.

Debate ensued.

Question—That the amendment be agreed to—put.

The committee divided—

AYES, 21

Senators—

Ayres

Faruqi

Lines

Sheldon

Carr

Gallagher

McKim

Thorpe

Chisholm

Green

O’Neill

Urquhart*

Ciccone

Grogan

Pratt

Walsh

Cox

Hanson-Young

Rice

Waters

Farrell

 

 

 

 

NOES, 25

Senators—

Abetz

Davey*

Molan

Reynolds

Bragg

Fierravanti-Wells

O’Sullivan

Roberts

Brockman

Hughes

Paterson

Ruston

Canavan

Hume

Patrick

Small

Cash

McGrath

Payne

Smith, Dean

Chandler

McKenzie

Rennick

Stoker

Colbeck

 

 

 

* Tellers

Question negatived.

Senator McKim, at the request of Senators Steele-John and Farrell, moved the following amendment on sheet 1444 revised:

(1)—Clause 2, page 2 (cell at table item 1, column headed “Commencement”), omit the cell, substitute:

A single day to be fixed by Proclamation.

A Proclamation must not specify a day earlier than the day after the day the Minister is given a written report of the review into the NDIS quality and safeguarding framework. The Minister must announce by notifiable instrument the day the Minister is given the report.

Debate ensued.

Question—That the amendment be agreed to—put.

The committee divided—

AYES, 23

Senators—

Ayres

Faruqi

McAllister

Thorpe

Carr

Gallagher

McKim

Urquhart*

Chisholm

Green

O’Neill

Walsh

Ciccone

Grogan

Pratt

Waters

Cox

Hanson-Young

Rice

Watt

Farrell

Lines

Sheldon

 

 

NOES, 27

Senators—

Abetz

Davey

Paterson

Scarr

Bragg

Hughes

Patrick

Seselja

Brockman

Hume

Payne

Small

Canavan

McGrath*

Rennick

Smith, Dean

Cash

McKenzie

Reynolds

Stoker

Chandler

Molan

Roberts

Van

Colbeck

O’Sullivan

Ruston

 

* Tellers

Question negatived.

Senator McKim, at the request of Senators Steele-John and Farrell, moved the following amendments on sheet 1426 revised together by leave:

(1)—Schedule 1, item 7, page 4 (lines 3 and 4), omit “a threat (whether current or future)”, substitute “a current threat”.

(2)—Schedule 1, item 8, page 4 (line 9), omit “past”, substitute “current”.

(3)—Schedule 1, page 4 (after line 10), after item 8, insert:

8A  After subsection 60(2)

Insert:

(2A)  For the purposes of paragraphs (2)(e) and (f):

                       (a)  a threat is current if the threat exists at the time of the making of the record, or the disclosure or use of the information; and

                      (b)  the person must, in determining whether the threat exists, have regard to whether the individual has a particular vulnerability because of:

                                     (i)  the individual’s age, membership of a minority group, physical or mental health, intellectual capacity, or ability to communicate in the English language; or

                                    (ii)  the extent to which the individual is able to access supports and services from family, friends, carers and NDIS providers; or

                                   (iii)  the kinds of supports or services provided to the individual by the individual’s NDIS provider or providers; or

                                   (iv)  any other matter prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.

Note:       For example, an individual may have a particular vulnerability because the individual receives supports that require a level of intimate personal contact with the participant (such as showering and toileting), or that are delivered in an environment in which there is limited external visibility or direct supervision.

(2B)  To avoid doubt, a threat is not current if, at the time of the making of the record, or the disclosure or use of the information:

                       (a)  the threat no longer exists; or

                      (b)  the threat does not exist, but may exist in the future.

(4)—Schedule 1, item 11, page 5 (lines 3 and 4), omit “a threat (whether current or future)”, substitute “a current threat”.

(5)—Schedule 1, item 12, page 5 (line 9), omit “past”, substitute “current”.

(6)—Schedule 1, page 5 (after line 10), after item 12, insert:

12A  After subsection 67A(1)

Insert:

(1A)  For the purposes of paragraphs (1)(e) and (f):

                       (a)  a threat is current if the threat exists at the time of the making of the record, or the disclosure or use of the information; and

                      (b)  the person must, in determining whether the threat exists, have regard to whether the individual has a particular vulnerability because of:

                                     (i)  the individual’s age, membership of a minority group, physical or mental health, intellectual capacity, or ability to communicate in the English language; or

                                    (ii)  the extent to which the individual is able to access supports and services from family, friends, carers and NDIS providers; or

                                   (iii)  the kinds of supports or services provided to the individual by the individual’s NDIS provider or providers; or

                                   (iv)  any other matter prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.

Note:       For example, an individual may have a particular vulnerability because the individual receives supports that require a level of intimate personal contact with the participant (such as showering and toileting), or that are delivered in an environment in which there is limited external visibility or direct supervision.

(1B)  To avoid doubt, a threat is not current if, at the time of the making of the record, or the disclosure or use of the information:

                       (a)  the threat no longer exists; or

                      (b)  the threat does not exist, but may exist in the future.

(7)—Schedule 1, page 5 (after line 17), after item 13, insert:

13A  After section 67G

Insert:

67GA  Notification and recording of disclosures etc.

   (1)  This section applies if:

                       (a)  a person (the discloser ):

                                     (i)  makes a record of information; or

                                    (ii)  discloses information to any other person; or

                                   (iii)  otherwise makes use of information; and

                      (b)  the discloser is authorised or required by or under this Part to make the record, disclosure or use of the information that is made by the discloser; and

                       (c)  the information is:

                                     (i)  protected Agency information; or

                                    (ii)  protected Commission information.

   (2)  The discloser must notify the person to whom the information relates of the making of the record, or the disclosure or use of the information:

                       (a)  in writing; and

                      (b)  as soon as practicable, and no later than 3 business days after, the making of the record or the disclosure or use of the information.

   (3)  The discloser must keep a written record that:

                       (a)  sets out:

                                     (i)  the identity of the discloser; and

                                    (ii)  details of the information that the discloser made a record of, disclosed or used, including a copy of the information and a record of any oral disclosures; and

                                   (iii)  the circumstances of the making of the record, or the disclosure or use of the information, including to whom the information was disclosed, and the method, time and date of the making of the record or the disclosure or use; and

                                   (iv)  a clear description of the factual information the discloser relied on to establish that the making of the record, or the disclosure or use of the information, was authorised or required by or under this Part; and

                      (b)  sets out details of any outcomes resulting from, or actions taken as a result of, the making of the record or the disclosure or use of the information, including:

                                     (i)  whether changes were made to a participant’s plan; and

                                    (ii)  whether a police force or service, fire service or ambulance service was notified, and if so, the actions taken by the force or service; and

                       (c)  complies with the record-keeping requirements specified in an instrument made under subsection (4).

   (4)  The Minister must, by legislative instrument, specify record-keeping requirements for the purposes of paragraph (3)(c).

Offences

   (5)  A person commits an offence if the person contravenes subsection (2).

Penalty:   Imprisonment for 2 years or 120 penalty units, or both.

Note 1:      If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

Note 2:      If a person who is a member of the staff of the Agency or the Commission contravenes subsection (2), the person may also breach the Code of Conduct under the Public Service Act 1999 and may be subject to sanctions under that Act.

   (6)  A person commits an offence if the person contravenes subsection (3).

Penalty:   Imprisonment for 2 years or 120 penalty units, or both.

Note 1:      If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.

Note 2:      If a person who is a member of the staff of the Agency or the Commission contravenes subsection (3), the person may also breach the Code of Conduct under the Public Service Act 1999 and may be subject to sanctions under that Act.

67GB  Annual reports to Information Commissioner about disclosures etc.

   (1)  As soon as practicable after the end of each reporting period, the Board members must prepare and give a report to the Information Commissioner that includes:

                       (a)  whether, during the reporting period, a person (a discloser ) made a record of, disclosed or used protected Agency information as authorised or required by or under this Part; and

                      (b)  details of the information that was recorded, disclosed or used; and

                       (c)  when the person to whom the information relates was notified of the making of the record, or the disclosure or use of the information; and

                      (d)  if the consent of the person to whom the information relates was sought to the making of the record, or the disclosure or use of the information:

                                     (i)  when the consent was sought; and

                                    (ii)  if the consent was given, when the consent was given; and

                       (e)  details of the identity of the disclosers; and

                       (f)  details of any outcomes resulting from, or actions taken as a result of, the making of the record or the disclosure or use of the information, including:

                                     (i)  whether changes were made to a participant’s plan; and

                                    (ii)  whether a police force or service, fire service or ambulance service was notified, and if so, the actions taken by the force or service.

   (2)  As soon as practicable after the end of each reporting period, the Commissioner must prepare and give a report to the Information Commissioner that includes:

                       (a)  whether, during the reporting period, a person (a discloser ) made a record of, disclosed or used protected Commission information as authorised or required by or under this Part; and

                      (b)  details of the information that was recorded, disclosed or used; and

                       (c)  when the person to whom the information relates was notified of the making of the record, or the disclosure or use of the information; and

                      (d)  if the consent of the person to whom the information relates was sought to the making of the record, or the disclosure or use of the information:

                                     (i)  when the consent was sought; and

                                    (ii)  if the consent was given, when the consent was given; and

                       (e)  details of the identity of the disclosers; and

                       (f)  details of any outcomes resulting from, or actions taken as a result of, the making of the record or the disclosure or use of the information, including:

                                     (i)  whether changes were made to a participant’s plan; and

                                    (ii)  whether a police force or service, fire service or ambulance service was notified, and if so, the actions taken by the force or service.

   (3)  The Minister may, by legislative instrument, prescribe particular information that must be included in a report under this section.

   (4)  For the purposes of this section, each of the following periods is a reporting period:

                       (a)  the period of 12 months starting on the day this section commences;

                      (b)  each subsequent period of 12 months.

(8)—Schedule 1, page 7 (after line 17), after item 22, insert:

22A  Before subsection 73Z(1)

Insert:

(1A)  If a reportable incident occurs, or is alleged to have occurred, in connection with the provision of supports or services by a registered NDIS provider, the Commissioner must provide persons with disability affected by the reportable incident with information regarding the use of an advocate (including an independent advocate) in relation to an investigation into the reportable incident.

(9)—Schedule 1, page 7 (after line 23), after item 24, insert:

24A  At the end of subsection 73Z(2)

Add:

Note:         The matters dealt with by the National Disability Insurance Scheme rules may be subject to provisions in the Privacy Act 1988 relevant to the use and disclosure of information.

(10)—Schedule 1, page 10 (after line 14), after item 42, insert:

42A  At the end of subsection 172(2)

Add:

                      (d)  de-identified information about:

                                     (i)  the number of times a person made a record of, disclosed or used protected Agency information as authorised or required by or under Part 2 of Chapter 4; and

                                    (ii)  the number of complaints made to the Agency in relation to the making of the record, or the disclosure or use of protected Agency information; and

                                   (iii)  whether a person made a record, disclosure or use of protected Agency information that was not authorised or required by or under Part 2 of Chapter 4, and any actions (including civil, criminal or administrative proceedings) taken against the person as a result.

42B  Subsection 174(2)

Repeal the subsection, substitute:

   (2)  The report must include:

                       (a)  information (including statistics) that relates to either or both of the following in the period to which the report relates:

                                     (i)  participants in each host jurisdiction;

                                    (ii)  funding or provision of supports by the Agency in relation to each host jurisdiction; and

                      (b)  de-identified information about the number of times a person made a record of, disclosed or used protected Agency information as authorised or required by or under Part 2 of Chapter 4.

42C  Subsection 174(3)

Omit “subsection (2)”, substitute “paragraph (2)(a)”.

42D  Before section 175

Insert:

174A  Annual report

          The annual report prepared by the Commissioner and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 must include, for the period to which the report relates, de-identified information about:

                       (a)  the number of times a person made a record of, disclosed or used protected Commission information as authorised or required by or under Part 2 of Chapter 4; and

                      (b)  the number of complaints made to the Commissioner in relation to the making of the record, or the disclosure or use of protected Commission information; and

                       (c)  whether a person made a record, disclosure or use of protected Commission information that was not authorised or required by or under Part 2 of Chapter 4, and any actions (including civil, criminal or administrative proceedings) taken against the person as a result.

(11)—Schedule 1, item 46, page 11 (lines 15 and 16), omit paragraph (3)(a).

(12)—Schedule 1, item 46, page 12 (lines 1 and 2), omit paragraph (7)(a).

(13)—Schedule 1, item 46, page 12 (after line 8), at the end of the item, add:

(9)   Section 67GA of the National Disability Insurance Scheme Act 2013 , as inserted by this Schedule, applies in relation to the making of a record of information, or the disclosure or use of information, on or after the commencement of this item, whether the information was obtained before, on or after that commencement.

Debate ensued.

Question—That the amendments be agreed to—put.

The committee divided—

AYES, 23

Senators—

Ayres

Faruqi

McAllister

Thorpe

Carr

Gallagher

McKim

Urquhart*

Chisholm

Green

O’Neill

Walsh

Ciccone

Grogan

Pratt

Waters

Cox

Hanson-Young

Rice

Watt

Farrell

Lines

Sheldon

 

 

NOES, 27

Senators—

Abetz

Davey

Paterson

Scarr

Bragg

Hughes

Patrick

Seselja

Brockman

Hume

Payne

Small

Canavan

McGrath*

Rennick

Smith, Dean

Cash

McKenzie

Reynolds

Stoker

Chandler

Molan

Roberts

Van

Colbeck

O’Sullivan

Ruston

 

* Tellers

Question negatived.

Bill agreed to and reported without amendment.

 

 

 

On the motion of the Minister for Government Services (Senator Reynolds) the report from the committee was adopted and the bill read a third time.