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

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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

 

 

 

 

ADDENDUM TO THE 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

 

 

This addendum responds to comments raised by the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest No. 10 of 2021 , dated 13 July 2021 and comments raised by the Parliamentary Joint Committee on Human Rights in Report 9 of 2021 , dated 4 August 2021 and provides additional information to clarify the operation of information sharing provisions included in the Bill.

 

NOTES ON ITEMS

 

Item 8 - new paragraph 60(2)(f)

 

On page 6, at the end of the explanation of item 8 insert:

 

If a participant has been subjected to a past threat, this new clause would allow for the Agency to record, disclose or otherwise use that information for the purposes of enabling proactive measures to address a risk of harm, which the past threat has revealed.

 

The term 'reasonable grounds' is referred to throughout the Act and is applied consistently throughout. This new paragraph does not change how the term is currently applied under the Act, namely there will need to be facts that are sufficient to persuade a reasonable person that the Agency should record, disclose or use the information. Situations which may warrant the recording, disclosure or use of information that relate to reporting a past threat to a participant's life, health and safety vary depending on the nature of the threat.

 

This amendment clarifies that information about past conduct, and not just current or potential future conduct, can be disclosed in the context of current issues once the amendments come into force. The related ‘application’ provision in item 46 ensures that the Agency could disclose protected Agency information about a past threat to an NDIS participant’s life, health or safety where that information was obtained before the commencement date.

 

Item 9 - new subsection 60(4)

 

On page 6, at the end of the explanation of item 9 insert:

 

New subsection 60(4) deals explicitly with the CEO or an Agency officer disclosing protected Agency information to the Commissioner or Commission officer. Disclosures of protected Agency information to the Commissioner or a Commissioner officer can already occur under section 60 provided a ground for disclosure under the section applies. Further, section 66 already provides that the CEO is able to disclose information to such persons and for such purposes as the CEO determines if the CEO considers that it is in the public interest to do so. The CEO may also disclose information to certain Commonwealth, State or Territory bodies for the purposes of those bodies. However, disclosures under section 66 are subject to various procedural steps under the NDIS rules.

 

New subsection 60(4) will explicitly allow the CEO, or an Agency officer, to share certain information with the Commissioner without first having to go through the additional procedural requirements. This is a more efficient way to share information and is critical to protecting the health, safety and wellbeing of people with disability.

 

Although it is important to enable this rapid and efficient flow of information, it is likewise crucial to strike a balance between this aim and the protection of the privacy of people with disability. This provision does so by imposing statutory limits on the purposes for which information can be disclosed to the Commissioner, specifically for the purposes of, or in connection with the Commissioner’s functions or powers, which are specified in section 181D.

 

Further, the statutory information protection framework contained in the Act will protect the information once it has been provided to the Commissioner. This framework prescribes how information held by the Commission may be used and disclosed, and makes it an offence to, amongst other things, use or disclose protected information in an unauthorised manner.

 

Item 10 - new paragraph 67A(1)(db)

 

On page 7, at the end of the explanation of item 10 insert:

 

Currently, the Commissioner is able to disclose information under section 67E to such persons and for such purposes as the Commissioner determines if the Commissioner considers that it is in the public interest to do so. Under section 67E the Commissioner may also disclose information to the heads of Commonwealth, State or Territory Departments or authorities for the purposes of those Departments or authorities. However, disclosures under section 67E are subject to various procedural steps under the NDIS rules.

 

It is crucial to be able to disclose information quickly to key public sector bodies, for example to safeguard participants or to enable action to be taken to respond to risks to the community posed by service providers. Disclosures may need to be made to law enforcement bodies, child protection authorities, disability commissioners or worker screening bodies so they can have relevant information to respond swiftly and exercise their own functions and powers.

 

Therefore new paragraph 67A(1)(db) will provide a streamlined process so that the Commissioner can disclose information to certain persons for certain purposes without the procedural steps that would apply to a disclosure under section 67E. It is likely that the information will generally be about an NDIS provider or worker rather than an NDIS participant.

 

It is recognised that a balance needs to be struck between the necessity of having an efficient information sharing mechanism and the importance of protecting the privacy of people with disability and other people (such as providers) whose information may be disclosed. To provide protection and certainty for individuals, the NDIS rules will prescribe who protected Commission information can be disclosed to and for what purposes under the new paragraph 67A(1)(db).

 

Prescribing this information in rules is appropriate as new relevant bodies come into being and the names and functions of relevant bodies frequently change, which may necessitate periodic updating. For this reason, it is not appropriate to prescribe those bodies in the Act. In addition, the NDIS market is still relatively new, and it is essential for the Commissioner to be able to respond to new or emerging risks identified over time including through timely amendments to these rules.

 

The Commissioner Disclosure Rules are Category D Rules which require mandatory consultation with States and Territories before they are made or amended. There will therefore be consultation about the proposed prescribed bodies and purposes before the Commissioner Disclosure Rules are amended, with the amended rules subject to a disallowance period before the Parliament in which further parliamentary scrutiny can occur. Further, the Australian Information Commissioner will be consulted in designing amendments to the Commissioner Disclosure Rules. This will provide for an additional level of oversight and consideration so that the rules only permit disclosure of information for legitimate purposes.

 

Item 12 - new paragraph 67A(1)(f)

 

On page 8, at the end of the explanation of item 12:

 

This amendment clarifies that information about past conduct, and not just current or potential future conduct, can be disclosed in the context of current issues once the amendments come into force. The related ‘application’ provision in item 46 ensures that the NDIS Commissioner could disclose protected Commission information about a past threat to an NDIS participant’s life, health or safety where that information was obtained before the commencement date.

 

The term 'reasonable grounds' is referred to throughout the Act and is applied consistently throughout. This new paragraph does not change how the term is currently applied under the Act, namely there will need to be facts that are sufficient to persuade a reasonable person that the Agency should record, disclose or use the information. Situations which may warrant the recording, disclosure or use of information that relate to reporting a past threat to a participant's life, health and safety vary depending on the nature of the threat.

 

Item 13 - new subsection 67A(3)

 

On page 8, at the end of the explanation of item 13 insert:

 

New subsection 67A(3) deals explicitly with the Commissioner, or Commission Officer, disclosing information to the Agency or an Agency Officer. Disclosures of protected Commission information to the Agency or an Agency officer can already occur under section 67A provided a ground for disclosure under the section applies. Further, section 67E of the Act already provides that if the Commissioner is satisfied on reasonable grounds that it is in the public interest in a particular case or class of cases, then the Commissioner may disclose information to such persons and for such purposes as the Commissioner determines. Under section 67E the Commissioner may also disclose information to the heads of Commonwealth, State or Territory Departments or authorities for the purposes of those authorities. The Agency is an authority of the Commonwealth.

 

However, disclosures under section 67E are subject to various procedural steps under the NDIS rules. Therefore new subsection 67A(3) will explicitly allow the Commissioner, or a Commission officer, to share certain information with the Agency without the procedural steps that would apply to a disclosure under section 67E. This is a more efficient way to share information that will be critical to performing the Agency’s functions. It is likely that the information will generally be about an NDIS provider or worker rather than an NDIS participant.

 

Although it is important to enable this rapid and efficient flow of information to protect and promote the interests, safety and well-being of NDIS participants and the integrity of the NDIS, it is likewise crucial to strike a balance between this aim and the protection of the privacy of people with disability. This provision does so by prescribing the purposes for which information can be disclosed to the Agency, specifically for the purposes of, or in connection with, the Agency or CEO’s functions or powers, which are specified in sections 118 (Agency’s functions), 119 (Agency’s powers) and 159 (CEO’s functions).

 

Further, the statutory information protection framework contained in the Act will protect the information once it has been provided to the Agency. This framework prescribes how information held by the Agency may be used and disclosed, and makes it an offence to, amongst other things, use or disclose protected information in an unauthorised manner.

 

Item 32 - new paragraph 73ZN(3)

 

On page 12, at the end of the explanation of item 32 insert:

 

The current banning order provisions are a 'blunt instrument' and do not allow the Commissioner to refine the banning order to address specific concerns in particular cases. The ability to impose conditions allows a more fine-tuned regulatory response to enhance participant safeguarding. A broader discretion to impose conditions on a banning order enables the Commissioner to tailor banning orders to the specific circumstances of each case. It supports the Commissioner, when exercising his or her functions, to use best endeavours to conduct compliance and enforcement activities in a risk responsive and proportionate manner as required by paragraph 181D(4)(b) of the Act.

 

In practice this means when determining conditions on a banning order, the Commissioner may consider matters such as the risk to participants, the nature of the conduct which led to banning order being made, previous work, conduct history of the banned person, expressions or actions of remorse/ commitment to rehabilitation/ co-operation of the banned person and support for the banned person from participants or their families based on past experience of service provision by that person.

 

Having the ability to place conditions on a banning order can also be a favourable outcome for a worker, as it will allow the Commissioner to ban the worker from participating in certain types of activities without banning them entirely from the NDIS market.

 

Further, the Commissioner routinely reviews banning orders that are near the end of their term and can decide to extend them for a further period. Where a banning order is for a specified time, the Commissioner can consider the person's compliance with a condition (for example, if a person was banned until such time that they had successfully completed particular training) in deciding whether to vary the banning order or to extend it. Compliance with the condition could demonstrate to the Commissioner that the banning order subject has addressed the concerns that led to the order being made.

 

Item 35 - amended paragraph 73ZN(10)(b)

 

On page 12, at the end of the explanation of item 35 insert:

 

Where a breach involves a low level risk to participants, particularly if there are extenuating circumstances, it is expected that the amount of the civil penalty imposed would be low. For more serious breaches with more significant ramifications or unacceptable risk of harm to participants, a higher civil penalty, particularly if the breach of the condition was materially akin to breaching the banning order, would be appropriate.

 

It is appropriate that the maximum penalty for a breach of a condition of a banning order be consistent with the maximum penalty for the breach of a banning order.

 

Item 38 - amended paragraph 73ZS(3)(j)

 

On page 12, at the end of the explanation of item 38 insert:

 

Currently, there is an inconsistency in the Act between registered and unregistered providers in relation to the scope of information required to be published on the NDIS Provider Register (the Register). In relation to an NDIS provider that is not a registered NDIS provider, the Act currently enables the Register to include information about any compliance notice to which that provider is, or was, subject. In contrast, for registered NDIS providers, the Act currently requires the Register to include information about any compliance notice that is in force, not compliance notices that have been in force in the past.

 

This inconsistency is currently addressed by the Commissioner exercising a discretion under subsection 73ZS(6), which allows additional information to be included on the Register if the Commissioner is satisfied that the information is relevant to the provision of supports or services to people with disability. The Commissioner currently relies on this discretion to include information pertaining to registered NDIS providers with compliance notices that are no longer in force.

 

This amendment will therefore not cause any new information to be included on the register. Instead, the amendment to section 73ZS(3)(j) will actually provide greater clarity and transparency for providers as it will be explicit on the face of the Act that information about past compliance notices will be included.

 

In the majority of instances, the Register will not contain any personal information, the exception being where the provider is an individual. The privacy of such individuals must be balanced against the needs and safety of participants. Importantly, the NDIS Rules preclude the Commissioner publishing any information that has been included on the Register if the Commissioner considers that the publication of the part would be contrary to the public interest or that the publication of the part would be contrary to the interests of one or more persons with disability receiving supports or services.

    

Providing readily available and easily accessible information is a crucial component of supporting participants to exercise their right to choice and control, allowing them to make informed decisions in respect of the providers from whom they receive supports and services. Transparency and driving better performance is consistent with the expectation of good regulatory practice.

 

Statement of compatibility with human rights

 

On page 19, after ‘(ICCPR)’ insert:

 

ยท          the right to work in article 6 of the International Covenant on Economic, Social and Cultural Rights ( ICESCR ).

 

On page 21, before ‘conclusion’ insert:

 

Right to work - Article 6 of the ICESCR

 

Article 6 of the ICESCR provides that States Parties must recognise the right to work, which includes the right of everyone to the opportunity to gain his or her living by work which he or she freely chooses or accepts.

 

The Bill impinges Article 6 because it includes provisions that provide the Commissioner with a discretion to impose conditions on banning orders, and provide the Commissioner with the ability to impose banning orders on providers’ key personnel. This could have an effect on an individual’s ability to engage in the work of their choice.

 

The right to work can only be limited where there is a legitimate objective and the measure is proportionate. The objective of protecting people with disability from harm, holding responsible persons accountable in circumstances where an NDIS participant is at risk of harm and minimising the risk of banned individuals from working with people with disability are legitimate objectives and are directly connected to the Commission’s ability to uphold article 16 of the CRPD.

 

These measures are proportionate to achieving that crucial objective. Currently the Commission is able to impose a banning order on a provider but not on its key personnel unless they are employed or otherwise engaged by the provider. As a result, some key personnel, who have likely had significant responsibility for the matters that led to the banning order being imposed on the provider or a person who was employed or otherwise engaged by the provider, are able to work for another provider.

 

The ability to impose conditions on banning orders does not impact an individual’s right to work any more than section 73ZN as currently in force might affect those same rights. In fact, it will actually support the right to work, as it gives the Commissioner the ability to ban a worker from engaging in a particular type of work (for example working directly with people with disability) but allowing them to engage in another type of work in the disability sector (for example in an administrative role) but only if the worker complies with certain conditions. Banning orders are reviewed when they expire and the Commissioner considers anew whether the order should be extended or be allowed to lapse. Further, banning orders are subject to internal and external merits review, preventing inappropriate banning orders from being imposed or maintained.

 

The Bill is reasonable and proportionate as it only limits the right to work in extreme and limited circumstances. Further, it does not prevent a person from undertaking work, only undertaking work in a certain sector or undertaking certain activities. These limitations on the right to work are directly connected to the legitimate purpose of the Bill in upholding the rights of people with disability.