2019-2020-2021

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT

(IMPROVING SUPPORTS FOR AT RISK PARTICIPANTS) BILL 2021

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the

Minister for the National Disability Insurance Scheme, Senator the Hon Linda Reynolds CSC)

 

NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT

(IMPROVING SUPPORTS FOR AT RISK PARTICIPANTS) BILL 2021

 

OUTLINE

 

 

The Bill makes a range of changes to improve protections for people with disability including in response to recommendations 1, 6, 7, 8 and 9 of the Independent Review of the adequacy of the regulation of the supports and services provided to Ms Ann-Marie Smith, an NDIS Participant, who died on 6 April 2020 (the Robertson Review dated 31 August 2020).

 

This Bill strengthens supports and protections for NDIS participants by strengthening the Commissioner’s compliance and enforcement powers, clarifying provider registration provisions and enabling effective information sharing across government authorities or with any prescribed person or body.

 

The Bill also includes amendments to clarify the Commissioner’s powers to support the effective operations of the Commission based on the early implementation experience of the Commission.

 

The amendments made by the Bill commence the day after the new Act receives Royal Assent.

 

 

Financial impact statement

 

There are no 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

(IMPROVING SUPPORTS FOR AT RISK PARTICIPANTS) BILL 2021

 

NOTES ON CLAUSES

 

Abbreviations and terms used in this explanatory memorandum

 

• Chief Executive Officer means the Chief Executive Officer of the NDIA.

 

• Commission means the NDIS Quality and Safeguards Commission, as defined in section 9 of the National Disability Insurance Scheme Act 2013 .

 

• Commissioner means the Commissioner of the NDIS Quality and Safeguards Commission, as defined in section 9 of the National Disability Insurance Scheme Act 2013 .

 

• Agency means the National Disability Insurance Agency established by section 117 of the National Disability Insurance Scheme Act 2013 .

 

• NDIS means the National Disability Insurance Scheme, as defined in section 9 of the National Disability Insurance Scheme Act 2013 .

 

Clause 1 sets out how the new Act is to be cited - that is, as the National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Act 2021.

 

Clause 2 provides a table setting out the commencement dates of the new Act.  The Act commences the day after it receives Royal Assent.

 

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 strengthens supports and protections for NDIS participants by strengthening the Commissioner’s compliance and enforcement powers, clarifying provider registration provisions and enabling effective information sharing across government authorities or with any prescribed person or body.

 

Background

 

The Independent review of the adequacy of the regulation of the supports and services provided to Ms Ann-Marie Smith, an NDIS Participant, who died on 6 April 2020 (the Robertson Review dated 31 August 2020), commissioned by the Commissioner, made a number of recommendations for legislative change to improve the protections for participants at risk of harm. These recommendations included facilitating better exchange of information between the Agency and the Commission (Recommendations 1,5,7,9) and the disclosure of information to relevant state and territory bodies Recommendation 8).  They also included clarification around the scope of reportable incidents (Recommendation 6) and the strengthening of banning orders (Recommendation 10, which was addressed in a legislative change in November 2020).  This Bill amends provisions in the NDIS Act to support the implementation of changes in response to recommendations (1,5,6,7,8,9) and improves supports and protections provided to NDIS participants.

 

The Bill also includes amendments to clarify the Commissioner’s powers to support the effective operations of the Commission based on the early implementation experience of the Commission. 

 

Explanation of the changes

 

Item 1 substitutes the definition of protected Commission information with

protected Commission information means information about a person (including a deceased person) that is or was held in the records of the Commission, but does not include the following:

(a)       if there is publication of the NDIS Provider Register in whole or part as mentioned in paragraph 73ZS(7)(b)—information covered by that publication;

(b)       if there is publication of specified information entered on that Register as mentioned in that paragraph—that information.

 

Under the new definition, information to the effect that there is no information about a person held in the records of the Commission and information published in the Provider Register will not be protected Commission information. However, the scope of protected Commission information is extended to include information about a deceased person.

 

As a consequence of the new definition, the Commission is not required under the NDIS (Protection and Disclosure of Information - Commissioner) Rules 2018 to consult with a person about whether they object to the Commission disclosing that it has no information about that person. This will avoid delays in communicating that fact and implementing safeguarding measures such as NDIS worker screening checks to ensure the safety of participants receiving NDIS supports.

 

Item 2 amends paragraph 55A(2)(a) to enable the Commissioner to issue a notice which requires a person to give information or produce a document which may be relevant to whether an NDIS provider is contravening, or has contravened the requirements to be a registered provider under subsection 73B(2). The  requirements under subsection 73B(2) allow for the NDIS rules to prescribe specified classes of supports to be delivered by registered NDIS providers only. As such, an NDIS provider must not provide these prescribed supports to an NDIS participant if it is not registered to do so.

 

The amendment extends the scope of this provision to encompass contraventions which occurred in the past. This is to ensure that the Commissioner has power to obtain information about both past and current conduct of NDIS providers in providing supports to participants where they were not registered to provide such supports, irrespective of whether the NDIS provider is engaging in such conduct at the time the notice is issued.

 

This supports the implementation of a response to recommendations 1 and 9 of the Robertson Review by ensuring that information about the past conduct of persons wishing to provide NDIS supports is available to the Commissioner to enable better oversight of and ensure the integrity of supports provided under the NDIS. This means that the Commissioner will be able to request information about a person’s past conduct to enable proactive protections for participants receiveing NDIS supports. This supports the Commission to provide proactive protections for participants receiving NDIS supports through greater visibility of relevant previous conduct.

 

Item 3 amends paragraph 55A(2)(c) to enable the Commissioner to issue a notice which requires a person to give information or produce a document which may be relevant to whether an NDIS provider is meeting, or has met, the conditions of registration mentioned in subsection 73F(1). The amendment extends the scope of this provision to encompass contraventions by NDIS providers which occurred in the past. This is to ensure the Commissioner has information about both past and current conduct by NDIS providers in complying with registration conditions, irrespective of whether the NDIS provider is complying with those conditions at the time the notice is issued.

 

This also responds to recommendations 1 and 9 of the Robertson Review by ensuring that information about the past conduct of persons wishing to provide NDIS supports is available to the Commissioner to enable oversight of and ensure the integrity of supports provided under the NDIS. This supports the Commission to provide proactive protections for participants receiving NDIS supports through greater visibility of relevant previous conduct.

 

Item 4 amends paragraph 55A(2)(d) to enable the Commissioner to issue a notice which requires a person to give information or produce a document which may be relevant to whether a person who is currently or was previously employed or engaged by an NDIS provider or a person who is or was a member of the key personnel of an NDIS provider is complying or has complied with the requirements of the NDIS Code of Conduct. 

 

The amendment extends the scope of this provision to encompass contraventions of the NDIS Code of Conduct by persons who were previously employed or engaged by an NDIS provider rather than limiting it to those who were employed or engaged at the time the notice was issued.  The amendment also extends the class of persons to whom the notice may relate by including current and previous members of an NDIS provider’s key personnel.  This amendment is related to Item 22 which amends paragraph 73V(1)(b) to enable the NDIS rules to make provision for the NDIS Code of Conduct to apply to members of the key personnel of NDIS providers. 

 

Previously, the Act has allowed for current conduct to be considered, this amendment ensures that the Commissioner can also consider previous conduct of a person (including key personnel) wishing to provide NDIS supports to enable appropriate oversight and ensure the integrity of supports provided under the NDIS. This supports the Commission to provide proactive protections for participants receiving NDIS supports through greater visibility of relevant previous conduct.

 

Items 5 and 6 amend paragraph 55A(2)(e) to enable the Commissioner to issue a notice which requires a person to give information or produce a document which may be relevant to whether an NDIS provider or other person who is or was the subject of a banning order is providing or has provided supports or services in contravention of the order.  The amendment extends the scope of this provision to encompass contraventions of banning orders which are no longer in force at the time the notice is issued.

 

Alongside Items 2, 3 and 4, these Items implement change in response to recommendations 1 and 9 of the Robertson Review to ensure the Commission has appropriate oversight to enable the proactive protection of participants at risk of harm.

 

Item 7 amends paragraph 60(2)(e) to enable a person to record, disclose or use protected Agency information where the person reasonably believes that it is for the purpose of, or in relation to, preventing or lessening a threat (whether current or future) to an individual’s life, health or safety. This amendment responds to recommendations 1, 7 and 9 of the Robertson Review enabling information sharing across government and government agencies and is intended to enable better identification and protection of vulnerable NDIS participants. The Robertson Review found the current threshold of a ‘serious’ threat to an individual’s life, health or safety to be too high and recommended the removal of the threshold requirement of a ‘serious’ threat.  This amendment removes the qualifier ‘serious’ as a reasonable and proportionate means of better protecting vulnerable participants.

 

This amendment will enable the Agency and the Commission to provide a proactive individualised approach to identifying a participant that may be at risk of harm so that appropriate actions can be taken to reduce and better protect the participant.

 

Item 8 inserts new paragraph 60(2)(f) at the end of subsection 60(2). This will provide certainty that a person is authorised to record, disclose or use protected Agency information if it is for the purpose of, or in relation to, reporting a past threat to an individual’s life, health or safety.  The reporting of a past threat to an individual’s life, health or safety enables proactive measures to be taken to prevent future risk of harm to a participant. New paragraph 60(2)(f) will only authorise the recording, disclosure or use of protected Agency information where a person has reasonable grounds for believing it is for the purpose of, or in relation to, reporting a past threat to an individual’s life, health or safety. New paragraph 60(2)(f) provides a limited authority to record, disclose or use protected Agency information. This amendment is in response to recommendation 9 of the Robertson Review and improves the protection of vulnerable participants. This amendment is considered a reasonable and proportionate means of protecting vulnerable participants.

 

This amendment will enable the Agency and the Commission to take into consideration a past threat against a participants life, health or safety when making decisions about things like whether additional supports or protections should be put in place, or whether a provider or worker is suitable to continue providing NDIS supports.

 

Item 9 inserts new subsection 60(4) at the end of section 60. This will provide certainty for the Agency to disclose protected Agency information to the Commissioner or a Commission officer for the purposes of, or in connection with, the performance of the Commissioner’s functions or the exercise of the Commissioner’s powers. The Robertson Review considered it important that there should be a free exchange of information between the Agency and the Commission to enable the Commission to undertake its statutory functions in a more effective and efficient manner.  This amendment will enable the Commission to obtain necessary information to undertake its statutory functions efficiently in recognition of recommendations 1, 5, and 7 of the Robertson Review.  The information obtained by the Commission under this new subsection will be subject to the protected information provisions of the NDIS Act 2013 and will only be able to be used or disclosed in accordance with those provisions. Personal information will also be subject to the Privacy Act 1988 and will only be collected, used or disclosed in a manner consistent with these important legislative frameworks. 

 

Item 10 inserts new paragraphs 67A(1)(da) and (db) .  Chapter 6B confers functions on the Commissioner relating to the NDIS worker screening database and specifies that one of the purposes of the database is the sharing of information in the database with persons or bodies for the purposes of the NDIS.  However, the Commissioner may wish to share information on the database in circumstances where the sharing is not for the purposes of the NDIS and may also hold information relevant to whether a person should have or should continue to maintain an NDIS worker screening check which is not contained in the database and which should be disclosed to another person or body. 

 

New paragraph 67A(1)(da) will authorise the disclosure of protected Commission information to a State or Territory, or to an authority of a State or Territory, for the purposes of NDIS worker screening, including for the purpose of the carrying out of an NDIS worker screening check, for the purpose of an NDIS worker screening law or the screening of a worker employed or otherwise engaged by an NDIS provider or of a member of the key personnel of a registered NDIS provider.

 

This amendment will allow for the Commission to disclose protected information for the purpose of assessing the suitability of persons wishing to provide NDIS supports based on previous history. This information will be utilised in determining a person’s application for a NDIS worker screening check and ongoing monitoring of an existing NDIS worker screening check. The NDIS worker screening check is a key safeguard measure under the NDIS Quality and Safeguarding Framework.

 

New paragraph 67A(1)(db) will authorise protected Commission information to be disclosed to such persons or bodies, and for such purposes, as are prescribed in the NDIS rules.  This will enable the NDIS rules to specify entities with a role in relation to persons with disability and facilitate information disclosure to those entities, including: early identification of people with disability who are at risk of harm or neglect; and to support  a reasonable, necessary and proportionate safeguarding response by those entities. 

 

These amendments respond to recommendation 8 of the Robertson review to improve the exchange of information across Commonwealth and state and territory governments and government agencies in order to better protect participants at risk of harm.

 

Item 11 amends paragraph 67A(1)(e) in a similar manner to item 7. That is, item 11 removes the threshold requirement that a person reasonably believes that the recording, disclosure or use of protected Commission information is necessary to prevent or lessen a ‘serious’ threat to an individual’s life, health or safety. This amendment responds to recommendations 1 and 9 of the Robertson Review enabling two-way flow of information between the Commission and the Agency and is intended to better identify and protect vulnerable participants. The Robertson Review found that the current threshold requirement of a ‘serious’ threat to an individual’s life, health or safety to be too high and recommended its removal and replacement with a broader threshold of ‘threat’ to an individual’s life, health or safety.  Paragraph 67A(1)(e) is amended to enable a person to record, disclose or use protected Commission information where they reasonably believe that it is for the purpose of, or in relation to, preventing or lessening a threat (whether current or future) to an individual’s life, health or safety and is a reasonable and proportionate means of protecting vulnerable participants.

 

This amendment will enable the Agency and the Commission to provide a proactive individualised approach in identifying a participant that may be at risk of harm so that appropriate actions can be taken.

 

Item 12 inserts new paragraph 67A(1)(f) at the end of subsection 67A(1) in a similar manner to item 8. This will provide certainty for the Commission to record, disclose or use protected Commission information if it is for the purpose of, or in relation to, reporting a past threat to an individual’s life, health or safety. The reporting of a past threat to an individual’s life, health or safety enables proactive measures to be taken to prevent future risk of harm to a participant. New paragraph 67A(1)(f) will only authorise the recording, disclosure or use of protected Commission information where a person has reasonable grounds for believing it is for the purpose of, or in relation to, reporting a past threat to an individual’s life, health or safety. New paragraph 67A(1)(f) provides limited authority to record, disclose or use protected Commission information and is a reasonable and proportionate means of protecting vulnerable participants. This amendment is in response to recommendation 9 of the Robertson Review and is intended to better protect vulnerable participants.   

 

This amendment will enable the Agency and the Commission to take into consideration a past threat against a participants life, health or safety when making decisions such as whether additional supports or protections should be put in place, or whether a provider or worker is suitable to continue providing NDIS supports.

 

Item 13 inserts new subsection 67A(3) at the end of section 67A in a similar manner to item 9. This will provide certainty for the Commissioner or a Commission officer to disclose protected Commission information to the Agency or an officer of the Agency if the disclosure is for, or in connection with, the performance of the Agency’s or the Chief Executive Officer’s functions or the exercise of the Agency’s or the Chief Executive Officer’s powers. The Robertson Review considered it important that there should be a free exchange of information between the Agency and the Commission to enable the Agency and the Commission to undertake statutory functions (recommendations 1, 5 and 7 refer).  This amendment will assist the Agency to obtain necessary information to undertake its statutory functions. The information obtained by the Agency or an officer of the Agency under this new subsection will be subject to the protected information provisions of the NDIS Act 2013 and will only be able to be used or disclosed in accordance with those provisions. 

 

Item 14 amends subsection 73B(1) to substitute ‘NDIS providers’ with ‘persons’.  This is a technical amendment to provide consistency with the terminology in section 73C which refers to persons being registered as NDIS providers.  It also clarifies that a person or entity is not required to be an NDIS provider prior to seeking registration to provide specified classes or support in the NDIS.

 

Item 15 inserts new subsections 73C(6) and 73C(7).  New subsection 73C(6) makes it clear that an applicant for registration as a registered NDIS provider may at any time withdraw the application by writing to the Commissioner.  New subsection 73C(7) provides that a person’s renewal application is taken to be withdrawn if the person’s registration is revoked under section 73P while that application is pending. Where a person’s registration is revoked under section 73P while a renewal application is pending, it is highly unlikely the person’s renewal application will be successful as the Commissioner has determined through the revocation process that the registration should not continue.  New subsection 73C(7) improves administrative efficiency by avoiding the need for the Commission to determine a renewal application in circumstances where the application is highly unlikely to succeed.

 

Item 16 amends paragraph 73P(4)(b) to provide that, where the Commissioner issues a notice of intention of revocation to a registered provider, the Commissioner has the discretion to specify in the notice the period in which they may make submissions which may be longer than 28 days but must not be less than that period.

 

This amendment will provide the Commissioner with the ability to specify a longer period for a provider to appropriately respond to an intention of revocation notice. This will allow for a more thorough consideration of a registered providers conduct and whether the Commission should take regulatory action against the provider. As is currently the case, the Commission will ensure appropriate mechanisms are in place to ensure the safety of participants during the period in which the provider can make submissions.

 

Item 17 makes an amendment consequential to the amendment in item 16.

 

Item 18 makes an amendment consequential to the amendment in item 16.

 

Item 19 makes an amendment consequential to the amendment in item 16.

 

Item 20 amends paragraph 73T(3)(d) to enable NDIS Practice Standards to deal with matters relating to the screening of members of the key personnel of registered NDIS providers as well as matters relating to the screening of workers employed or otherwise engaged by registered NDIS providers. 

 

This amendment removes any doubt that key personnel such as board members and chief executive officers of a registered provider are held to the same standard as providers and workers under the NDIS Act.

 

Item 21 repeals subsections 73U(2) and (3) and inserts new subsections 73U(2) to (11) .  

 

New subsections 73U(2) to (4) enable a person or body to request to be approved as an approved quality auditor under section subsection 73U(1) of the Act.  If a person or body makes a request for approval, the Commissioner must make a decision to give approval or not to give approval.  Where the Commissioner refuses to give approval, new subsection 73U(4) requires the Commissioner to give notice of the refusal to the person or body requesting approval and provide reasons for the refusal.

 

New subsections 73U(5) to (9) enable the Commissioner to place conditions on the approval of an approved quality auditor and explicitly provides for the variation or revocation of an approval and notification to the person or body concerned. They also enable the Commissioner to vary any conditions or remove existing conditions.

 

Decisions to refuse to approve a person or body as an approved quality auditor, to specify conditions in an approval, to vary an approval or revoke an approval are reviewable decisions (see the amendments to subsection 99(1) made by item 39).

 

New subsection 73U(10) provides that an approval of a person or body as an approved quality auditor under subsection 73U(1) is not a legislative instrument.

 

New subsection 73U(11) provides that the Commissioner may publish on the Commission’s website a list of approved quality auditors.

 

These amendments will allow the Commission to apply conditions to new quality auditors and monitor the performance of quality auditors operating under the NDIS to ensure that providers are being audited in an effective, fair, and accurate manner. In turn, this will provide additional assurance of the quality of supports provided to participants under the NDIS.

 

Item 22 amends paragraph 73V(1)(b) to enable the NDIS rules to make provision for or in relation to a code of conduct applying to members of the key personnel of NDIS providers, as well as to NDIS providers and persons employed or engaged by NDIS providers.

 

This amendment removes any doubt that key personnel of a registered provider are held to the same standard as providers and workers under the NDIS Act.

 

Item 23 amends subsection 73Z(1) to clarify that the arrangements in the NDIS rules relating to the notification and management of reportable incidents apply to registered NDIS providers.

 

This amendment clarifies that NDIS providers are responsible for the notification and management of reportable incidents in accordance with the NDIS rules.

 

Item 24 amends subsection 73Z(1) to enable the NDIS rules to prescribe circumstances in which reportable incidents occur or are alleged to have occurred and to enable the NDIS rules to prescribe the arrangements relating to the notification and management of these reportable incidents by registered NDIS providers in these circumstances.  Currently, arrangements relating to the notification and management of reportable incidents apply to incidents that occur, or are alleged to have occurred, in connection with the provision of supports or services by registered NDIS providers. The NDIS rules specify the arrangements relating to the management and notification of reportable incidents to the Commission. These amendments respond to recommendation 6 and allow for the NDIS rules to prescribe the circumstances in which the arrangements for the notification of reportable incidents will apply.

 

These essential amendments will improve protections for people with disability by ensuring the arrangements for the notification and management of reportable incidents apply in the circumstances prescribed by the NDIS rules.

 

Item 25 makes a typographical amendment to paragraph 73Z(4)(b) .

 

Item 26 amends paragraph 73ZN(1)(b)(iii) to enable the NDIS rules to prescribe matters relating to the suitability of NDIS providers to which the Commissioner must have regard in determining whether to make a banning order against a person who is or was an NDIS provider.

 

This amendment allows the Commissioner to apply a consistent approach when determining the suitability of registered and unregistered providers and ensure alignment with suitability criteria outlined in the NDIS rules.

 

Item 27 amends the heading to subsection 73ZN(2) .

 

Item 28 amends subsection 73ZN(2) to enable the Commissioner to make a banning order against a person who is or was a member of the key personnel of an NDIS provider, as well as a person who is or was employed or otherwise engaged by an NDIS provider.  This amendment is to remove any doubt that a banning order can be made against a member of the key personnel of an NDIS provider.

 

This amendment strengthens protections for participants by ensuring that all responsible personnel of an NDIS provider are accountable in circumstances where a participant may become at risk of harm.

 

Item 29 amends subparagraph 73ZN(2)(a)(iii) in a similar matter to item 26.  It will enable the NDIS rules to prescribe matters relating to the suitability of a person who is or was employed or  otherwise engaged  by an  NDIS provider or is or was a member of the key personnel of an NDIS provider to which the Commissioner must have regard in determining whether to make a banning order against a person under 73ZN(2).

 

This amendment allows the Commissioner to apply a consistent approach when determining the suitability of registered and unregistered providers and ensure alignment with suitability criteria outlined in the NDIS rules.

 

Item 30 amends paragraph 73ZN(2A)(a) in a similar matter to item 26.  It will enable the NDIS rules to prescribe matters relating to the suitability of a person to be involved in the provision of specified supports or specified supports services to people with disability to which the Commissioner must have regard in determining whether to make a banning order against a person under 73ZN(2A).

 

This amendment allows the Commissioner to apply a consistent approach when determining the suitability of registered and unregistered providers and ensure alignment with suitability criteria outlined in the NDIS rules.

 

Item 31 inserts new paragraph 73ZN(2A)(d) to clarify that subsection 73ZN(2A)  applies in relation to a person who has not previously been a member of the key personnel of an NDIS provider.  This is consequential to the amendment in item 28.

 

Item 32 inserts new paragraph 73ZN(3)(c) .  New paragraph 73ZN(3)(c) enables a banning order to be made subject to specified conditions.  Without limiting the kinds of conditions that may be imposed, this may include conditions that the subject of the banning order must provide a copy of the banning order to prospective employers where the banning order restricts them from engaging in some but not all activities related to disability service provisions.  This assists the employer to ensure the worker is not involved in those activities.  A condition could also be imposed which requires the subject of the banning order to undertake and successfully complete specified training or skill development and provide evidence of this to the Commissioner.

 

The decision to subject a provider or worker to a banning order is the most serious regulatory action the Commission can enforce. Some banning orders may restrict a provider or worker from providing certain supports to maintain safeguards to participants. In this circumstance, the banning order may specify that the provider or worker must provide a copy of the conditions to existing or potential employers.

 

Item 33 inserts new paragraph 73ZN(5B).  New paragraph 73ZN(5B) ensures a banning order made against a person who is a member of the key personnel of an NDIS provider remains in force regardless if the person ceases to be such a member.  This amendment is consequential to the amendment in item 28 and is equivalent to paragraph 73ZN(5A).

 

Item 34 is a consequential amendment resulting from the amendment in item 28.  This item amends paragraph 73ZN(9)(c) to require an NDIS provider to be notified where a banning order is made against a member of the key personnel of the NDIS provider.

 

Item 35 amends paragraph 73ZN(10)(b) to make it a civil penalty offence to contravene a condition of a banning order.  This amendment enables the enforcement of a condition of a banning order.  The power for a banning order to be subject to conditions is provided for in the amendment in item 32. The maximum penalty for a breach of a condition is the same as the breach of the banning order.  The nature of the conditions applied may vary, therefore where there is a breach of a condition, the penalty applied must be proportionate to the seriousness of the contravention of such a condition. 

 

Item 36 inserts new subsection 73ZO(2A) .  New subsection 73ZO(2A) clarifies a variation to a banning order may involve imposing new conditions on the order or varying or removing existing conditions. This amendment allows the Commissioner to adjust and apply necessary regulatory action where circumstances change or new information supports the need for an adjustment to provide effective safeguards to participants.

 

Item 37 amends paragraph 73ZO(6)(b) to require that an NDIS provider be notified where a banning order relating to a member of the key personnel of that provider is varied or revoked.  This amendment is consequential to the amendment in item 28.

 

Item 38 amends paragraph 73ZS(3)(j) to allow the NDIS Provider Register to include information about a compliance notice that was in force, as well as a compliance notice that is in force. This supports participants to make an informed choice about the service providers they wish to engage.

 

Item 39 inserts new items 13A, 13B, 13C and 13D in the table in subsection 99(1).  New items 13A, 13B, 13C and 13D provide that a decision to refuse to approve a person or body as an approved quality auditor under subsection 73U(1), a decision to specify conditions in an approval under subsection 73U(1), a decision to vary an approval under subsection 73U(1) or a decision to revoke an approval given under subsection 73U(1) are reviewable decisions.

 

Item 40 inserts new item 14A in the table in subsection 99(1). New item 14A provides that a decision of the Commissioner to vary or revoke a compliance notice under subsection 73ZM(4) is a reviewable decision.

 

Item 41 amends subsection 100(5) to clarify who must review a reviewable decision. Where a decision-maker receives a request to review a reviewable decision, the decision-maker must review that decision.  The meaning of decision-maker is defined in section 9 of the NDIS Act 2013 .  Depending on the type of decision, the decision maker is the Chief Executive Officer, the Commissioner or a person prescribed by the NDIS rules. The Chief Executive Officer and the Commissioner may delegate their powers to review a reviewable decision under section 202 and section 202A of the NDIS Act 2013 . 

 

Item 42 inserts new subsection 100(5A) and new subsection 100(5B) .  New subsection 100(5A) prevents the decision-maker reviewing a decision if the decision-maker was personally involved in the making of the decision under review.  However, the decision-maker can review a reviewable decision that was made by a delegate of the decision-maker. New subsection 100(5B) includes an equivalent restriction in relation to decisions made by delegates of the decision-maker.  Where a delegate of the decision-maker has been involved in the making of a reviewable decision, that delegate cannot review that decision. 

 

Item 43 inserts new paragraph 201A(1)(oa) to enable the Minister to delegate to the Commissioner his or her powers under section 209 to make NDIS rules for the purposes of subparagraphs 73ZN(1)(b)(iii) and (2)(a)(iii) and paragraph 73ZN(2A)(a).  This amendment is consequential to the amendments made by items 26, 29 and 30.

 

Item 44 inserts new paragraph (cb) in item 4 of the table in section 209(8).  The amendment categorises rules for the purposes of new paragraph 67A(1)(db) as Category D NDIS Rules.  New paragraph 67A(1)(db) is inserted by item 10.

 

Item 45 inserts new paragraph (qa) in item 4 of the table in subsection 209(8).  The amendment categorises rules for the purposes of subparagraphs 73ZN(1)(b)(iii) and (2)(a)(iii) and paragraph 73ZN(2A)(a) as Category D NDIS Rules. This amendment is consequential to the amendments made by items 26, 29 and 30.

 

Item 46 provides application provisions relating to items 2-13.

 

(1)   The amendments of section 55A of the NDIS Act 2013 made by the Schedule apply in relation to a requirement made under subsection 55A on or after the commencement of item 46.  The amendments to section 55A enable the Commissioner to issue a notice requiring information or documents about conduct that has occurred prior to the issuing of the notice. This recognises recommendation 1 of the Robertson Review by ensuring that past conduct of persons wishing to provide NDIS supports is available to the Commissioner to enable oversight of and ensure the integrity of supports provided under the NDIS. This will mean that the Commissioner will have the ability to provide proactive protections for participants receiving NDIS supports.

(2)   The amendment of paragraph 60(2)(e) of the NDIS Act 2013 made by the 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 item 46, whether the information was obtained before, on or after the commencement of item 46.

 

(3)   Paragraph 60(2)(f) of the NDIS Act 2013 , as added by the 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 item 46:

 

          (a)   whether the threat was made before, on or after that commencement; and

                   (b)   whether the information was obtained before, on or after that commencement

 

(4)   Subsection 60(4) of the NDIS Act 2013 , as added by the Schedule, applies in relation to the disclosure of information on or after the commencement of item 46, whether the information was obtained before, on or after that commencement.

 

(5)   Paragraphs 67A(1)(da) and (db) of the NDIS Act 2013 , as inserted by the Schedule, apply in relation to the disclosure of information on or after the commencement of item 46, whether the information was obtained before, on or after that commencement.

 

(6)   The amendment of paragraph 67A(1)(e) of the NDIS Act 2013 made by the 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 item 46, whether the information was obtained before, on or after that commencement.

 

(7)   Paragraph 67A(1)(f) of the NDIS Act 2013 , as added by the 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 item 46:

 

(a)              whether the threat was made before, on or after that commencement; and

(b)              whether the information was obtained before, on or after that commencement

 

(8)   Subsection 67A(3) of the NDIS Act 2013 , as added by the Schedule, applies in relation to the disclosure of information on or after the commencement of item 46 whether the information was obtained before, on or after that commencement.

Item 47 provides application provisions relating to items 15-19.

(1)   Subsection 73C(6) of the NDIS Act 2013 , as added by the Schedule, applies in relation to:

(a)   an application under subsection 73C(1) of that Act that is made on or after the commencement of item 47;

(b)   an application under subsection 73C(1) of that Act that was made before the commencement of item 47 but not decided by the Commissioner immediately before that commencement.

(2)   Subsection 73C(7) of the NDIS Act 2013 , as added by the Schedule, applies in relation to a revocation of registration on or after the commencement of item 47, whether the application was made before, on or after that commencement.

(3)   The amendments of section 73P of the NDIS Act 2013 made by the Schedule apply in relation to a notice given under subsection 73P(4) of that Act on or after the commencement of item 47.

 

Item 48 provides application provisions relating to item 21. 

(1)   Subsections 73U(2) to (4) of the NDIS Act 2013 , as substituted by this Schedule, apply in relation to requests made on or after the commencement of item 48.

(2)   Subsection 73U(5) of the NDIS Act 2013 , as substituted by the Schedule, applies in relation to approvals given on or after the commencement of item 48.

(3)   Subsections 73U(6) to (9) of the NDIS Act 2013 , as substituted by the Schedule, apply in relation to approvals given before, on or after the commencement of item 48

(4)   Item 13A of the table in subsection 99(1) of the NDIS Act 2013 , as inserted by the Schedule, applies in relation to a refusal that occurs on or after the commencement of this item.

(5)   Item 13B of the table in subsection 99(1) of the NDIS Act 2013 , as inserted by the Schedule, applies in relation to a decision made on or after the commencement of item 48, where the approval is given on or after that commencement.

(6)   Items 13C and 13D of the table in subsection 99(1) of the NDIS Act 2013 , as inserted by the Schedule, apply in relation to a decision made on or after the commencement of item 48, whether the approval was given before, on or after that commencement.

(7)   The amendment of section 73U of the NDIS Act 2013 made by the Schedule does not affect the continuity of the list published under that section.

Item 49 provides application provisions relating to items 26-32, item 35 and item 36. 

(1)   The amendments of subsection 73ZN(1), (2) and (3) of the NDIS Act 2013 made by the Schedule apply in relation to a banning order made on or after the commencement of item 49.

(2)   To the extent that those amendments permit the making of a banning order against a person who is or was a member of the key personnel of an NDIS provider, those amendments apply in relation to a person who is or was such a member before, on or after the commencement of item 49, whether conduct to which paragraph 73ZN(2)(a), (b) or (c) of that Act relates occurred before, on or after that commencement.

(3)   The amendment of subsection 73ZN(10) of the NDIS Act 2013 made by the Schedule applies in relation to a breach of a condition of a banning order that occurs on or after the commencement of item 50, whether the banning order was made before, on or after that commencement.

(4)   Subsection 73ZO(2A) of the NDIS Act 2013 , as inserted by the Schedule, applies in relation to a variation made on or after the commencement of item 49, whether the banning order was made before, on or after that commencement.

Item 50 provides application provisions relating to items 38 39 and 40.

(1)   The amendment of section 73ZS of the NDIS Act 2013 made by the Schedule applies in relation to a compliance notice given before, on or after the commencement of item 50.

(2)   The amendment of section 99 of the NDIS Act 2013 made by the Schedule applies in relation to a variation or revocation that occurs on or after the commencement of item 50, whether the compliance notice was given before, on or after that commencement.

Item 51 provides application provisions relating to item 41 and item 42.  The amendment to subsection 100 of the NDIS Act 2013 made by the Schedule applies in relation to:

(a)   a request for review that is received on or after the commencement of item 51, whether the reviewable decision was made before or after that commencement; or

(b)   a reviewable decision taken to have been made as mentioned in paragraph 100(5)(b) of the Act on or after the commencement of item 51.

 

 

 

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

(IMPROVING SUPPORTS FOR AT RISK PARTICIPANTS) BILL 2021

This Bill is compatible with the human rights and freedoms recognised or declared in the international instrument listed in section 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

Overview of the Bill

The NDIS Act 2013 (the NDIS Act) provides a foundation for measures to support and protect NDIS participants at risk of harm. This Bill amends various provisions in the NDIS Act to improve the support and protections provided to NDIS participants who may be at risk of harm.

 

Following recent cases of abuse, neglect and exploitation of NDIS participants, the Government has considered a number of inquiries the effectiveness of NDIS safeguards in these cases, in addition to the Hon. Alan Robertson SC Independent Review of the adequacy of the regulation of the supports and services provided to Ms Ann- Marie Smith, an NDIS Participant, who died on 6 April 2020 (the Robertson Review), commissioned by the NDIS Commissioner.

 

The Bill will strengthen support and protections for people with disability by ensuring a clear and effective legislative basis for the NDIS Quality and Safeguards Commissioner’s (Commissioner’s) powers, compliance and enforcement arrangements, provider registration provisions and efficient information sharing across governments and government agencies. These measures cover the following areas:

Definitions

·          strengthening the reportable incidents function of the Commission by allowing NDIS rules to prescribe other circumstances in which reportable incidents may have occurred which must be notified to the Commission

·          clarifying that one type of reportable incident is a serious injury “to” a person with disability, rather than “of” a person with disability.

Information sharing

·          ensuring the Commission and the Agency have unambiguous authority to release protected information to one another, for the purposes of carrying out the core legislated functions of both agencies under the NDIS Act

·          removing qualifiers like ‘serious’ or ‘necessary’ to ensure that any current or future threat to life, health or safety is sufficient grounds for the recording, use or disclosure of protected Commission information or protected Agency information

·          clarifying provisions for disclosing information to ensure:

o    the Commission can disclose that it does not hold information about a person without being subject to information disclosure provisions which would delay this disclosure

o    protected information about a person remains protected even if the person is deceased

o    information recorded on the NDIS Provider Register is not considered protected information

o    the Commission is able to disclose information to worker screening units or other state or territory bodies for the purposes of worker screening laws and transitional checks

o    the  Commission is able to disclose information to prescribed bodies under the NDIS rules

o    the Commission can publish and maintain information on the NDIS Provider Register about historical compliance and enforcement action.

Commissioner’s powers

·          empowering the Commissioner to place conditions on approval of approved quality auditors and making explicit the Commissioner’s power to revoke approval of approved quality auditors

·          enabling the review of decisions made to refuse, attach a condition, vary or revoke an approval of a quality auditor

·          clarifying the Commissioner has the power to obtain information from other persons which is relevant to the Commissioner’s functions and to compliance with the NDIS Act, specifically: requiring the provision of information or documentation about the conduct of a provider, worker or member of key personnel, including past conduct or about a person or provider who was previously subject to a banning order

·          empowering the Commissioner to make rules for suitability for the purposes of making banning order decisions, aligning with existing provisions in relation to provider registration

·          clarifying that the Commissioner can ban someone who is or was one of the key personnel of a NDIS provider because the Commissioner considers they are not suitable to delivery NDIS services and supports or for other reasons.

Compliance and enforcement

·          clarifying the application of compliance notices, banning orders and revocation of provider registration, including:

o    enabling the review of decisions made to vary or revoke a compliance notice

o    banning orders can have conditions attached

o    if the Commissioner intends to revoke a provider’s registration, a specified period can be applied within which the provider is able to make submissions before a decision is made about revocation.

Provider Registration

·          clarifying application of registration provisions to:

o    enable an applicant to withdraw their application for registration

o    provide when a registered provider has their registration revoked, any renewal application in progress is deemed to be withdrawn

·          clarifying provisions to refer to the registration of ‘persons’ rather than ‘NDIS providers’

·          allowing the Commissioner to specify the time for a provider to respond to a notice of a revocation decision with a minimum of 28 days

·          clarifying that the NDIS Practice Standards can deal with matters relating to the worker screening of key personnel of a NDIS provider (not only workers) and that the NDIS Code of Conduct applies to such personnel.

Review of Reviewable Decisions

·          clarifying that the Commissioner, the Chief Executive Officer of the Agency, or other decision maker, as applicable, have the power to personally conduct an internal review of a reviewable decision under the Act.

 

The Bill will improve safeguards for NDIS participants, including those who are at greater risk of harm, and will support the Commission to operate to protect participants from harm.

 

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 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 State Parties take measures to protect persons with disabilities from all forms of exploitation, violence and abuse. The Bill promotes the rights of persons with disability to be free from exploitation, violence and abuse, consistent with Australia’s obligations.

The Bill ensures the Agency and the Commission are able to exchange information and work closely to identify participants who may be at risk of harm. This will enable both agencies to provide better outreach and take action to ensure the safety of NDIS participants who are in situations which might otherwise have remained unknown.

The Bill enables the Rules to make arrangements for notification of reportable incidents which occur in specified circumstances. This potentially expands the obligations of registered NDIS providers to manage and notify the Commission of reportable incidents. This helps to ensure all incidents meeting the legislative criteria are covered, enabling the Commission to become aware of and respond to potential instances of exploitation, violence or abuse.

The Bill broadens the circumstances in which protected information can be recorded or disclosed to ensure that it covers any threats to an individual’s life, health or safety. This removes uncertainty about application of the previous reference to ‘serious threat’, ensuring that promoting the rights enumerated in Article 16 does not depend on subjective judgement about the seriousness of a particular threat or harm.

Similarly, the Bill reinforces the information disclosure powers of the Commission, including the power to publish and maintain information about historical compliance activity and the power to disclose information to worker screening units and other agencies as needed, as well as minor clarifications about when information is considered protected and what information the Commission is able to disclose. These provisions support the transparent exercise of the Commission’s powers to ensure NDIS providers and workers are suitable to deliver supports to NDIS participants and comply with required standards.

This Bill also includes provisions in relation to the exercise of a number of the Commissioner’s powers, including in relation to enforcement and provider registration. This includes the power to place conditions on approved quality auditors, to obtain information or documentation about providers and workers, and to make rules about provider or worker suitability in relation to banning order decisions. These provisions help to ensure the integrity of the Commission’s regulatory scheme.

As such, this Bill promotes the right of people with disability to live free from abuse, violence, neglect and exploitation, consistent with Australia’s obligations with Article 16 of the CRPD.

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 Bill impinges Article 17 because it includes provisions to enable the exchange of information between the Commission and the Agency in relation to individual NDIS participants and others. This would include identifying and disclosing private information about an individual’s circumstances, including their disability, address and contact information. It could also include sensitive information about the supports individual NDIS participants receive, including their NDIS plan, budget, and expenditure, or even details of complaints or disputes that relate to them. By removing qualifiers like ‘serious’ or ‘necessary’, the Bill broadens the range of situations in which private information could be exchanged.

All personal information held by the Agency or the Commission is protected information under the NDIS Act, and will be handled in accordance with the limitations placed on the use and disclosure of protected Commission information under the NDIS Act,

the Privacy Act 1988 , and any other applicable Commonwealth, State or Territory legislation. Information will be only dealt with where reasonably necessary for the fulfilment of the Agency’s or the Commissioner’s lawful and legitimate functions, or as otherwise permitted under sections 60 and 67A of the NDIS Act. The penalty provisions in sections 61 to 64 and in sections 67B to 67D of the NDIS Act apply to any unauthorised disclosure of information. These protections ensure that the interference with privacy is proportionate to the end sought.

As such, the purpose of the provisions is directly connected to improving the Agency’s and the Commission’s ability to fulfil Article 16. Although the Bill broadens the circumstances under which information can be shared, it retains the restriction that sharing the information must be in relation to a threat to an individual’s life, health or safety. This meets the requirement that any limitation be connected to a legitimate objective and is therefore not an arbitrary interference with Article 17.

The Bill includes provisions to ensure the Commission is able to record, publish and share information in relation to NDIS providers and workers, including information about past compliance activity. The Bill also clarifies the Commission is able to disclose information to worker screening units and other agencies as required. This impinges Article 17 in relation to the privacy of workers identified by this information. This is a justified limitation because the information shared allows a range of parties to uphold the rights of people with disability, in line with the CRPD. In particular:

• Publishing and maintaining compliance and enforcement information allows NDIS participants to make informed decisions about the services and supports they access, supporting their right to exercise choice and control
• Sharing information with worker screening units and other agencies ensures that they have relevant information about whether workers or providers pose an unacceptable risk of harm and should not receive or retain an NDIS Worker Screening check, upholding Article 16 of the CRPD.

Information may also be used for policy development, evaluation and research purposes. Any 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.

These limitations on the privacy of NDIS participants, providers and workers are necessary to enable the Commission and the Agency to uphold Article 16 of the CRPD by working to jointly identify NDIS participants who may be at risk, and to detect and respond to occurrences of abuse, violence, neglect and exploitation. Similarly, the limitation on the privacy of NDIS providers and workers is necessary to ensure that the Commission, worker screening units, and other agencies are able to carry out their functions, and where that information is made public, to ensure people with disability are able to make informed decisions about the services and supports they use. Other provisions of the Bill are primarily technical in nature and therefore do not engage Article 17 of the ICCPR.

The Bill is reasonable and proportionate because it only enables information sharing subject to the existing limitations placed on the Commission and the Agency by the NDIS Act, including that the information must only be used for the purposes which have been defined in the NDIS Act. In addition, these limitations are directly connected to the legitimate purpose of the Bill in upholding the rights of people with disability.

 

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 people with disability and of workers in the disability sector, these impositions are reasonable, necessary and proportionate for the purpose of ensuring the Commission and Agency have sufficient information to identify NDIS participants who may be at risk of harm; ensuring the Commission has clear and consistent powers to operate an effective regulatory system; and safeguard NDIS participants against exploitation, violence and abuse.

 

 

 

 

 

 

 

 

 

[Circulated by the authority of the Minister for the National Disability Insurance Scheme, Senator the Hon Linda Reynolds CSC]