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

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1426 revised

2019-2021

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

 

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

 

 

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

[privacy and information sharing]

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

[privacy and information sharing]

(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.

[privacy and information sharing]

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

[privacy and information sharing]

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

[privacy and information sharing]

(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.

[privacy and information sharing]

(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.

[privacy and information sharing]

(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.

[reportable incidents]

(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.

[privacy and information sharing]

(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.

[privacy and information sharing]

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

[privacy and information sharing]

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

[privacy and information sharing]

(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.