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National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020

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2019-2020

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT

(STRENGTHENING BANNING ORDERS) BILL 2020

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the

Minister for the National Disability Insurance Scheme, the Hon Stuart Robert   MP)

 



NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT

(STRENGTHENING BANNING ORDERS) BILL 2020

 

OUTLINE

 

This Bill broadens the circumstances in which the NDIS Quality and Safeguards Commissioner may make a banning order against a provider or person and clarifies the Commissioner’s powers.

 

Financial impact statement

 

There are no significant financial impacts of this Bill.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

The statement of compatibility with human rights appears at the end of this explanatory memorandum.

 

 

 

 

 

 



NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT

(STRENGTHENING BANNING ORDERS) BILL 2020

 

NOTES ON CLAUSES

 

Abbreviations and Acronyms used in this explanatory memorandum

 

  • Act means the National Disability Insurance Scheme Act 2013;

 

  • Commission means the NDIS Quality and Safeguards Commission, as defined in section 9 of the Act;

 

  • Commissioner means the Commissioner of the NDIS Quality and Safeguards Commission, as defined in section 9 of the Act;

 

  • NDIS means the National Disability Insurance Scheme, as defined in section 9 of the Act.

 

 

Clause 1 sets out how the new Act is to be cited - that is, as the National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Act 2020.

 

Clause 2 provides a table setting out the commencement dates of the various sections in, and Schedule to, the new Act.

 

Clause 3 provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule to the Bill has effect according to its terms.

 

 



Schedule 1 - Amendments

 

 

Summary

 

This Bill broadens the circumstances in which the NDIS Quality and Safeguards Commissioner may make a banning order against an NDIS provider or other person and clarifies the Commissioner’s related powers.

 

 

Background

 

It has become apparent that the circumstances in which the NDIS Quality and Safeguards Commissioner may issue banning orders (for the purposes of the NDIS) are too narrow. The Commissioner does not have power to issue a banning order against a person who is no longer employed or engaged by an NDIS provider.  However, it is common for providers to dismiss staff who are not undertaking their roles appropriately, prior to the Commissioner being informed of the situation or having a reasonable opportunity to take appropriate action in relation to those staff.  Additionally, even if a banning order is put in place for a provider’s staff before they leave the sector, there is a risk the order may lapse as soon as the staff member leaves the sector. Under this Bill, the Commissioner will be empowered to make a banning order against a provider’s former employee or other staff. In addition banning orders made against staff of a provider would not lapse if they cease to be engaged by the provider or the provider leaves the sector.

 

The Commissioner also does not currently have power to make a pre-emptive banning order against a person (whether an individual or otherwise) who has been identified as unsuitable to work with people with disability as a result of their actions in another field, such as aged care or child care.  If a person comes to the attention of the Commissioner, for example, because the Aged Care Quality and Safety Commissioner has taken action in respect of the person, the NDIS Commissioner will similarly be able to ban the person from working with people with disability in the future.

 

If the Commissioner makes a banning order, the amendments will explicitly empower the Commissioner to include detail of the order, including enough information to identify the person, in the NDIS Provider Register. This is a publically available register, which people with disability and their representatives may search to ensure that providers they are using are appropriately registered and not subject to any banning order.

 

The amendments will apply immediately to any person, regardless of when they ceased to be engaged in working with people with disability.

 

 

 

 

 

Explanation of the changes

 

Section 73ZN of the Act empowers the Commissioner to make a banning order.

 

Item 2 amends subsection 73ZN(2) to expand it to allow a banning order to be made against a person who is, or was employed or otherwise engaged by an NDIS provider. This will prevent such a person avoiding being banned by temporarily ceasing their employment or engagement in the NDIS.

 

Item 3 inserts new subsection 73ZN(2A) after subsection 73ZN(2).  This will empower the Commissioner to make a banning order prohibiting or restricting a person from being involved in the provision of specified supports or specified services to people with disability if the Commissioner reasonably believes that the person is not suitable to be so involved, the person has not previously been an NDIS provider, and the person has not previously been employed or otherwise engaged by an NDIS provider.

 

Item 4 inserts new subsection 73ZN(5A) after subsection 73ZN(5). For the avoidance of doubt, this subsection provides that if a banning order is made under subsection 73ZN(2) against a person who is employed or otherwise engaged by an NDIS provider, the banning order remains in force despite the person’s employment or engagement ceasing.

 

As for current banning orders made under section 73ZN, merits review is available of the decision to make a banning order (see section 99). This includes internal merits review by a delegate of the Commissioner who was not involved in making the reviewable decision (section 100) and that review decision may be externally reviewed by the Administrative Appeals Tribunal (section 103).

 

Item 5 amends section 73ZS, which empowers the Commissioner to keep an NDIS Provider Register. New subsection 73ZS(5A) , inserted after subsection 73ZS(5), allows the Register to include various pieces of information in relation to a person against whom a banning order is made under either subsection 73ZS(2) or subsection 73ZS(2A). The information included may be the person’s name, their ABN (if any), information about the banning order and any other matter prescribed by the NDIS Rules.

 

It is not anticipated at this stage that the matters which may be included in the Register prescribed by the Rules will extend to any highly sensitive or highly personal information about the person subject to the banning order.  However, in some instances, such as where an individual or business has a common name, it may be necessary to include further information, to publish an amount of information that is sufficient to ensure people with disability and their carers can identify the person.  This would not extend, for example, to the nature of the incident that prompted the making of the banning order. It may include, for example, a broad description of the town or area in which the banned person was providing services.

 

The NDIS Rules are a disallowable instrument made under section 209 of the Act, and are themselves subject to parliamentary tabling and scrutiny.

 

Item 1 consequentially amends paragraph 55A(2)(a), which empowers the Commission to obtain information from other persons for purposes related to ensuring the integrity of the NDIS.  Paragraph 55A(2)(e) allows information to be sought about particular persons subject to a banning order. The amendment generalises this section, so that it will also allow information to be required about the new persons who may now be subject to a banning order.

 

Item 6 amends paragraph (r) at subsection 209(8) at the cell at table item 4, column headed “Description” to allow Category D rules to be made for the purposes of new paragraph 73ZS(5A)(d).

 

Item 7  is an application provision relating to the amendment at item 1.

The amendment of section 55A of the National Disability Insurance Scheme Act 2013 made by this Schedule applies in relation to a banning order made before, on or after the commencement of this item.

 

Item 8  is an application provision relating to a banning order against a person who ceases to be employed or engaged by an NDIS provider. The amendment of subsection 73ZN(2) of the National Disability Insurance Scheme Act 2013 made by this Schedule applies in relation to a person who ceased to be employed or engaged by an N DIS provider before, on or after the commencement of this item.

 

Subsection 73ZN(5A) of the National Disability Insurance Scheme Act 2013 , as inserted by this Schedule, applies in relation to the following:

            (a)       a banning order made on or after the commencement of this item;

            (b)       a banning order made before the commencement of this item, where the person against whom the order is made ceases to be employed or otherwise engaged by the NDIS provider on or after that commencement.

 

Subsection 73ZS(5A) of the National Disability Insurance Scheme Act 2013 , relating to the NDIS Provider Register, as inserted by this Schedule, applies in relation to a banning order made before, on or after the commencement of this item.

 

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT

(STRENGTHENING BANNING ORDERS) BILL 2020

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

 

The NDIS Act 2013 currently provides for a banning order that prohibits or restricts a registered or unregistered NDIS provider or their employees or other staff from delivering NDIS services. However, the wording of the legislation limits this power to those currently delivering services under the NDIS. This means, for example, a banning order cannot be issued to a person who was employed by an NDIS provider but is no longer.

 

The objective of this Bill is to expand the NDIS Commissioner’s powers to allow a banning order to be made against such a person. This means the NDIS Commissioner may issue a banning order to an employee who has been dismissed by an NDIS provider because of the misconduct leading to such an order, for instance, or who is employed by a provider that has closed its NDIS service arm to avoid being subject to a ban. Further, the Bill provides that if a banning order is made against a person the banning order remains in force despite the person’s ceasing to deliver NDIS services.

 

Importantly, the Bill also allows for the NDIS Commissioner to proactively take banning action against a person (whether an individual or otherwise) that may be considered unsuitable to work with people with disability as a result of their actions in another field, such as aged care or child care.  If a person comes to the attention of the Commissioner, for example, because the Aged Care Quality and Safety Commissioner has taken action in respect of the person, the NDIS Commissioner will be able to consider the circumstances and make their own determination on whether to ban the person from working with people with disability in the NDIS before they commence in the NDIS.

 

If the NDIS Commissioner makes a banning order, the Bill also empowers the NDIS Commissioner to include detail of the order, including enough information to identify the person, in the NDIS Provider Register. This is a generally publically available national register, which people with disability and their representatives may search to ensure that providers they are using are appropriately registered and not subject to any banning order.

 

The amendments in the Bill will apply immediately to any person, regardless of when they ceased to be engaged in working with people with disability.

 

Human rights implications

 

The Bill engages the following rights under international human rights law:

·          the rights of people with disabilities, especially Article 16 of the Convention on the Rights of Persons with Disabilities ( CRPD );

·          the right to work (Article 6) of the International Covenant on Economic, Social and Cultural Rights ( ICESCR ); and

·          the right to privacy in Article 17 of the International Covenant on Civil and Political Rights ( ICCPR ).

 

Rights of people with disability - Article 16 of the CRPD

Article 16 of the CRPD requires that States Parties take measures to protect people with disabilities from all forms of exploitation, violence and abuse. The Bill promotes the rights of people with disability to be free from exploitation, violence and abuse, consistent with Australia’s obligations by ensuring that the supports and services provided through the NDIS are delivered by a suitable workforce.

This Bill broadens the circumstances in which the NDIS Quality and Safeguards Commissioner may make a banning order against a person (provider or employee) and clarifies the Commissioner’s powers .  Broadening the NDIS Commissioner’ powers promotes the rights of people with disability by:

·          sending a strong signal to the community as a whole about the priority placed on the rights of people with disability to be safe and protected;

·          ensuring appropriate regulatory action is taken against providers and employees who do cause harm to prevent them causing further harm in the future; and

·          reducing the potential for providers and employees who pose a risk to people with disability from entering the NDIS market.

 

This recognises that some NDIS participants are amongst the most vulnerable people in the community and that people with disability have the right to be protected from exploitation, violence and abuse. 

The Bill ensures that persons who pose risk of harm to people with disability, are excluded from delivering NDIS services and supports. This promotes the right of people with disability to live free from abuse, violence, neglect and exploitation, consistent with Australia’s obligations.

 

Right to work - Article 6 of the ICESCR

Article 6 of the ICESCR recognises the right to work and ‘includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts’.  This right applies to workers who work with people with disability, including NDIS participants.

 

By providing a broad power to ban workers from delivering NDIS services and supports, this Bill limits Article 6 of the ICESCR.

 

The existing provisions of section 73ZN establish clear boundaries on the use of the banning order, ensuring that it is solely used to ensure a suitable NDIS workforce and to uphold the requirements of Article 16 of the CRPD. This Bill only extends and clarifies section 73ZN to the extent necessary to ensure that banning orders can be applied despite the current employment status or sector of an individual. The use of banning orders will still be subject to the same conditions and protections for workers. As a proportionate regulator, the NDIS Commission has a flexible range of powers to respond to incidents and risks in the NDIS, ensuring that banning orders are only used in the most serious cases where they are appropriate.

 

Right to privacy - Article 17 of the ICCPR

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy.  The right to privacy includes respect for informational privacy, including in respect of storing, using and sharing private information and the right to control the dissemination of private information.  For interference with privacy not to be arbitrary, it must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances.  Reasonableness in this context incorporates notions of proportionality to the end sought and necessity in the circumstances.

 

The NDIS Provider Register is expected to hold information about the identity of persons who had a banning order made against them by the NDIS Commissioner , including enough information to identify the person. The register will be generally publically available to allow people with disability and their representatives to search to help ensure that providers they are using are appropriately registered and not subject to any banning order. This is consistent with the objective to ensure that information about whether a person who works, or seeks to work, with people with disability poses a risk to such people, is current, accurate, and available to all States and Territories, and to employers engaging workers in the NDIS.

 

The range of information that may be contained on the NDIS Provider Register is limited to information necessary for the performance of the Commissioner’s functions and for the purposes of the register set out in the Bill.  The Register will not contain detailed information on the circumstances leading to the banning order, highly sensitive information relied on to support the banning decision, or information about a person’s sexual identity or preferences.

 

The range of information that will be shared with persons or bodies will be proportionate and necessary for the objective of minimising the risk of banned persons delivering NDIS supports and services to people with disability under the NDIS.

 

All personal information stored on the register is ‘protected Commission information’ under the Act.  and will be handled in accordance with rules under section 73Z(7) of the Act concerning publication of the register and the limitations placed on the use and disclosure of protected Commission information under the Act, the Privacy Act 1988 , and any other applicable legislation.  Information will be only dealt with where reasonably necessary for the fulfilment of the Commissioner’s lawful and legitimate functions, or as otherwise permitted under section 67A of the Act in the case of employers.  The penalty provisions in sections 67B to 67D of the Act will also apply to any unauthorised disclosure of information in respect of the Register.  

 

Information on the register may also be used for policy development, evaluation and research purposes. Personal information used for this purpose will be de-identified in accordance with the requirements of the Office of the Australian Information Commissioner and used for the Commissioner’s core functions. These requirements will be addressed through the Commission’s standard operating procedures.

 

Conclusion

 

The Bill advances the protection of the rights of people with disability in Australia consistent with the CRPD, particularly in relation to preventing exploitation, violence and abuse in the disability sector.  To the extent the Bill impinges on the human rights of workers, these impositions are reasonable, necessary and proportionate to achieving the protection of people with disability and confidence in the safety of the NDIS market, thereby ensuring the long-term integrity and sustainability of the NDIS.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Circulated by the authority of the Minister for the National Disability Insurance Scheme, the Hon Stuart Robert MP]

2019-2020