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Joint Standing Committee on the National Disability Insurance Scheme
Market readiness for provision of services under the National Disability Insurance Scheme

HAWKE, Ms Sarah, Acting Branch Manager, NDIS Quality and Safeguards Policy, Department of Social Services

HEAD, Mr Graeme, NDIS Quality and Safeguards Commissioner, NDIS Quality and Safeguards Commission

TAYLOR, Ms Samantha, Registrar, NDIS Quality and Safeguards Commission

Committee met at 09:02

CHAIR ( Mr Andrews ): I open this hearing of the Joint Standing Committee on the National Disability Insurance Scheme for the inquiry into market readiness under the NDIS. These are public proceedings, although the committee may determine or agree to a request to have evidence heard in camera. I remind all witnesses that in giving evidence to the committee they're protected by parliamentary privilege. It's unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee and such action may be treated by the Senate as contempt. It's also contempt to give false or misleading evidence to a committee. If a witness objects to answering a question, the witness should state the ground upon which the objection is taken and the committee will determine whether it will insist on an answer, having regard to the ground which is claimed. If the committee determines to insist on an answer, a witness may request that the answer be given in camera. Such a request may be made at any other time. Could I please remind those contributing that you cannot divulge confidential, personal or identifying information when you speak. If you wish to supplement your evidence with information, please forward it to the secretariat after this hearing.

I now welcome representatives from the NDIS Quality and Safeguards Commission. I remind officials that the Senate has resolved that an officer of a department of the Commonwealth or of a state or territory shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted.

I thank Mr Head and others for appearing today. I invite you to make a brief opening statement, should you wish to do so.

Mr Head : Thank you, Chairman, and good morning to you and honourable members. Thank you very much for the opportunity to present today about the commission and its establishment. I will be making only a short opening statement.

Members of the committee are aware that the NDIS Quality and Safeguards Commission is progressively commencing, with its initial operations and jurisdiction for New South Wales and South Australia having commenced on Monday of this week. It's an independent government body that will work to improve the capability of NDIS providers to deliver high-quality and safe NDIS supports and strengthen the skills, knowledge and capability of participants to be active consumers in the NDIS market.

As I've indicated, the commission now has jurisdiction in New South Wales and South Australia as of Sunday just past, in other jurisdictions except for Western Australia on 1 July next year and in all jurisdictions, including WA, by July 2020. We have a number of functions that we will be responsible for nationally: provider registration and quality assurance, complaints handling, reportable incident notification, oversight of behaviour support and the use of restrictive practices, and the associated investigation compliance and enforcement actions that go with those functions.

Rules made under the legislation have been tabled in parliament. In fact, one of the things I'll talk about briefly is the process for developing the rules. The rules that have been tabled represent the third key stage in policy development for quality and safeguards. The first stage was the development of the NDIS quality and safeguarding framework, which was agreed by COAG in February 2017. The framework sets out a comprehensive picture of how quality and safeguards should be approached across three domains—developmental, preventive and corrective. The framework was developed jointly with the state and territory governments and was based on extensive public consultations and on a series of public inquiries into the abuse and neglect of people with disability in institutional settings.

The second stage was the passage late last year of the legislation to establish the commission. The Commonwealth will implement the responsibilities of the Commonwealth under the framework, and one of the key responsibilities of the Commonwealth was to abolish the commission. The head office for the commission has been established in Penrith in Western Sydney. In addition to my appointment, we have appointed a complaints commissioner; the registrar, Samantha Taylor; and the senior practitioner, who is the fourth member of the executive and who will commence on Monday next week, Dr Jeffrey Chan.

The rules represent really the third stage in policy development, and they provide detail about how the commission's functions will be implemented. I have delegation from the minister to make the majority of the rules. The final stage of that process will be the development and promulgation of guidance materials and a range of other capacity-building tools for both participants and providers to ensure that the features of the framework are understood by all and able to be navigated by all. We're currently consulting with people around those materials, and a number of guidance documents are already available on the website.

Just briefly on the rules, 11 sets of rules have been made to date. The rules reflect a significant amount of consultation. In addition to our working closely with states and territories there have been two rounds of consultation late last year and early this year with representatives of participants, providers and workers, and a number of significant changes were made in response to comments that we received. Of course, in developing the rules we have been very conscious of the fact that the raising of the bar on protections and safeguards is occurring at a time when we're also growing and evolving the market. That's an important consideration in terms of people with disability being able to exercise choice and control.

Finally, I'd note that what the rules do in the regulatory framework is sometimes I guess more obvious—people understand what happens in a regulatory construct—but in fact the commission's functions and powers include capacity building, and many of the important pieces of work that we'll be doing will be in that capacity building area, not just in the exercising of regulatory functions. A lot of effort in the launch of the commission this week has already gone into ensuring that both providers and participants are aware of the change that this represents, and in the first couple of days of our operations we've had good feedback from people contacting the commission. There have been about 400 contacts from people to date, and those contacts have been around the full range of functions. There have been contacts from providers but also the receipt of complaints and the reporting of some reportable incidents. I'll leave my opening statement there.

CHAIR: Thank you, Mr Head. I note that one of the functions of the commission is to 'promote the NDIS principles of choice and control, and work to empower participants to exercise their rights to access good quality services' et cetera. I wanted to ask you this in the context of the growing market which you referred to. Given that we've got a scheme which I think has about 140,000 or 150,000 already signed into at the moment, and we're going to 475,000, do you see any role for the commission in terms of what we're looking at this particular inquiry—that is, market readiness? In particular, where there is an absence of services or, to use the cliché, thin markets or in some instances virtually no markets at all, has the commission got any role in that regard?

Mr Head : The commission does have a function related to market oversight, and it will have when it's fully operational quite unique intelligence on things like workforce and on the registration groups—how those registration groups are distributed; where there is, as you've referred to, thinness in markets; and also we'll have intelligence on the performance of various parts of the system—so it will be contributing along with the other agencies involved to the picture about what is happening, where in the system and I guess the extent of any risks associated with that.

CHAIR: I know it's early days, but would you envisage that that sort of information might be contained in any regular reports from the agency?

Mr Head : We are currently considering what routine reports may assist people to understand how the areas that we have responsibility for are evolving, but I envisage that there will be some regular reporting on those things that people have a significant interest in that relate to the commission's functions.

CHAIR: Speaking for myself and not the committee, I suspect that would be useful information to be provided on a regular basis in terms of the way in which this rollout occurs in particular. You talked about capacity building and guidance materials. Where do you see the balance between what I'll call the policing function and the educative function of the commission?

Mr Head : This is a question I think I've been asked in every regulatory role. The functions must co-exist in an organisation. To be an effective regulator and to work with the regulated market we have to work with the sector to improve capability, and that will allow us to direct our enforcement actions appropriately. Importantly in this space, as well, my understanding is that historically there's been a relatively low level of complaints made to state based regulators, given the size of the sector. It's clearly the case that informed consumers are an important part of safeguarding the system as a whole, and so we see that we've got a very significant role to ensure that participants feel empowered to make complaints when they have concerns about the services they're receiving.

With the regulated community itself—with providers—there's a lot of work that needs to go into people understanding the intent of the regulation, and even some of the regulatory tools like the quality auditing are really designed to cause providers to reflect on their practice and the extent to which that practice is really delivering quality and safe outcomes for participants. The word we use about the regulatory framework is 'proportional', so we will be considering the risks associated with certain behaviours and the correct regulatory actions to take in relation to noncompliance, with a view always to using the regulatory tools to lift performance and therefore to improve outcomes for people with disability. But that includes, where there are serious noncompliances or nonconformities and significant risks, being able to take the strongest regulatory actions.

CHAIR: To what extent does that include encouraging providers—and I'm thinking more of the larger providers now rather than the sole practitioners—to develop their own quality standards and safeguards regime? To use an analogy: if you're a public company or, indeed, a private education provider, one of the things which you're encouraged to have is a quality committee of your board or governing management group. The idea there is that that body should be assessing the risks on an ongoing basis, reporting them through and building capacity within the organisation. If you look at what's happened, by way of analogy, in aged care, you see that that hasn't been encouraged to the extent which I think it should have been, because there was simply a reliance on ticking the boxes of what you need to do to satisfy the quality requirements of the equivalent of your agency. So I'm interested in the extent to which, looking forward, there will be encouragement for providers, particularly as, I suspect, over time there will be a rationalisation of providers and you'll get a significant number of larger providers with a fair share of the market—encouraging them, as you would in any other sphere of activity, to develop a quality assurance framework within each of their organisations.

Mr Head : The way this particular regulatory schema has been designed requires registered providers to be assessed against quality standards which have been released as part of the package of rules that have been released. I think one of the significant differences in the approach to quality auditing in this system is the focus on not just reviewing procedures et cetera but the focus on the participant experience as part of the quality audit. The system is not prescriptive about internal mechanisms in registered providers but is very clear about what is required in both the core module and the specialist module. With New South Wales and South Australia we've taken a phased approach to transitioning providers. On the weekend, just under 10,000 providers transitioned into the system, and within a matter of weeks the first of those providers will commence registration renewal under the new scheme and in a prioritised way will commence quality auditing against those standards. With any new schema it will be important for us to review the extent to which the practice is lining up with what we intended as the beginning, and we will of course be paying close attention to whether the first round of registration renewals is completed in such a way that it represents the step change we're seeking in the way this is done. Samantha, do you want to add anything in respect of the registration renewal process?

Ms Taylor : Not particularly except to say that the intent of the practice standards is to instil in providers and also in participants the view of the principle that you described, Chair, under the act. As Graeme said, the audit will be focused on the practice and experience of participants in the practice environment in which the services are delivered to participants. Part of the design of the audit strategy is also to include consumer technical experts in the audit mix so that we have people with lived experience of disability working alongside audit firms to build the capacity of those auditors to understand what's an acceptable experience and an acceptable practice environment for participants in the particular supports and services that the provider is registered to deliver.

Senator GALLACHER: Part of your charter is to lead collaboration with the states and territories to design and implement nationally consistent NDIS worker screening. What does that look like if you're a worker and want to get into the sector? Have you finished it?

Mr Head : No, it's not finished yet. The last of the rules were made last week, and that is the worker screening rule. That deals with transitional arrangements for New South Wales and South Australia, which are the first two jurisdictions to come into the system. The idea is that, once there is a national system of worker screening and a database related to that, workers screened in one jurisdiction against the national framework will get a clearance and will be able to work anywhere in the country with that clearance and that, equally, where there are issues related to that worker, they are flagged in the system. So the process is for the commission to work with states and territories on resolving the detail associated with that in order to migrate to the national system as part of the full rollout of the quality and safeguarding framework.

Senator GALLACHER: Given the increase in employment opportunities in this sector, we don't have a nationally consistent checklist?

Mr Head : Each state and territory has arrangements in place. The goal of this framework is to establish a national system that can operate when the quality and safeguarding system is operating nationally.

Senator GALLACHER: We have people in disability every day working now. You're saying there's no visible nationally consistent standard?

Mr Head : The national system is still being built and rolled out, and it's quite an explicit—

Senator GALLACHER: My next question goes to the pre-eminent goals of the scheme: choice, control and dignity. What about the cohort that presents to us with cognitive impairment and isn't able to exercise control? Is there a clearly established pathway for those who do exercise control—parents, guardians or whatever?

Mr Head : In respect of which particular—

Senator GALLACHER: If I suffer from schizophrenia and am not able to exercise control in my plan, who exercises control?

Mr Head : The first thing I'd say is that the quality and safeguarding commission isn't directly involved in the development of your plan. That's a matter for the agency. The role of the commission is in respect of any participant to regulate providers effectively and to work with participants and the people close to those participants around what they should be able to expect in terms of quality and safeguards provided by the system. An important part of our work in capacity-building is to work with the networks of participants and the people in caring relationships or family relationships of those participants to build their understanding of what they should be able to expect out of the quality and safeguarding arrangements, what obligations we place on their service providers, what matters we can take action about in a regulatory sense, how to make complaints—

Senator GALLACHER: I understand what you're saying. You're a regulator. If someone comes to you and says, 'I'm exercising control,' and someone else says, 'No, they shouldn't be,' what do you do about that?

Mr Head : In terms of?

Senator GALLACHER: The plan.

Mr Head : As I've indicated, the plan is something that's agreed between the participants and the agencies. The quality and safeguarding framework is designed to do specific things. Somebody might complain to us about whether or not a service provider is interrupting or interfering with things that they believe they should have control over, and that could be referred to us as a complaint that was in our jurisdiction. We would examine that. If it were a matter specific to the NDIA's role, we'd refer that to the NDIA.

Senator GALLACHER: Thanks.

Senator CAROL BROWN: What's your level of staffing at the moment?

Mr Head : We're intended this financial year to get up to about 214. So far we have about half of those positions filled but have the recruitment activity initiated for most of the rest of those positions. The approach we took to start up was to identify all of the key functions that we would need to operate from day one and to make sure that we have adequate staffing and also the capacity to really comprehensively induct those people so that, when participants, their families or friends contacted us, the contact centre would be working effectively; and providers, particularly given that there's a new body registering them and also new processes and new obligations, would get appropriate responses quickly.

Senator CAROL BROWN: Is the 214 people that you'll get up to by the end of this financial year based on a figure that you believe you'll need to carry out your functions? There's no cap on your staffing level?

Mr Head : My understanding is that extensive modelling was done by the department based on the level of activity in, for instance, state and territory systems around complaints, reportable incidents et cetera. That fed into the work that was one on what the agency's resourcing envelope—

Senator CAROL BROWN: So, if you need more staff than 214—because it is very early days—because it looks like it's not going to be enough, can the commission itself make the decision to employ more?

Mr Head : In fact, 214 is for this financial year. The commission grows over three years, and ultimately we will have just under 300 positions, with about 240 ASL and about 50 contractor positions. The areas we will be watching particularly around resources are the level of activity in the contact centre—

Senator CAROL BROWN: But are you able to make a decision if you need more staff above those figures that you've given me?

Mr Head : I currently have an ASL cap in relation to this, but that cap was developed with quite comprehensive inputs on complaints et cetera.

Senator CAROL BROWN: Okay. Is it the commission's intension to have a physical footprint in every state and territory?

Mr Head : Yes.

Senator CAROL BROWN: Are you up and running in South Australia?

Mr Head : Yes. We have offices in Grenfell Street in South Australia, and those offices opened last week. The offices in Penrith were opened in May this year.

Senator CAROL BROWN: Is Penrith where you work out of?

Mr Head : Yes.

Senator CAROL BROWN: I just want to go to restrictive practices. You talked about that in your opening statement. I'm very interested in the monitoring of the use of restrictive practices. Essentially, what organisations or institutions are you going to be monitoring? How is it going to work?

Mr Head : We have a function that's never existed nationally before, which is the senior practitioner role. Dr Jeffrey Chan, who was Victoria's inaugural senior practitioner, will commence in that role next week. There are a range of features in the rules around the work the commission will lead to reduce and ultimately work towards the elimination of restrictive practices. The senior practitioner will have a specific role in the development and promulgation of a competency framework that relates to the use of restrictive practices, but importantly there are obligations under the reportable incidents rules for people using restrictive practices to report any unauthorised use of those restrictive practices to the commission. But those restrictive practices continue to be authorised by the state or territory in which the services are being provided.

Senator CAROL BROWN: But your role only extends to NDIS providers of services. It doesn't go out into the school system, for example?

Mr Head : All of our regulatory functions relate to the people receiving supports under the NDIS and the providers of those supports, registered and unregistered.

Senator CAROL BROWN: You also talked about the capability of providers in your opening statement. Can you explain to me what you mean by that? I particularly want to know whether you have a role in terms of the issue around reviews and the length of time it takes for plan reviews.

Mr Head : If I can comment on the last part first, we do not have a role in relation to the time the agency takes to complete plan reviews. In fact, we don't regulate the agency in respect of those matters; we regulate people providing services to participants under plans, and the existing complaints mechanism in respect of plan review would continue to apply for the agency.

Senator CAROL BROWN: What do you mean around capability of providers?

Mr Head : The capability that I'm talking about is that we regulate those providers in respect of quality and safeguards issues. For instance, one of the new features of this national system is that we have a national code of conduct for the first time. So a really important role for the commission is to ensure that all providers, registered and unregistered—because the code also applies to unregistered providers—understand the code, what it's intended to do, what it means, what its implications are for providers. But equally we want to work with participants and their representatives to ensure that they understand and have the capabilities to use the code to produce the outcomes that they're seeking in that relationship with service providers. In fact, for example, where we are dealing with people who are self-managing—and this is an issue that's been the subject of questions in many of the provider forums I've done, with registered providers wanting to know how we will be dealing with unregistered providers in the market—the work we do with self-managing participants around what the code is there for, what the code means for them and how they can in fact use the commission by making complaints et cetera to ensure their providers are complying with the code will be an important part of how we interact with unregistered providers.

Senator CAROL BROWN: Have you had an opportunity to have a look at what I think you said were 400 complaints?

Mr Head : I've been getting a daily debrief—for the two days that we've been operating!—from the complaints commissioner, who is with the team out in Penrith this morning, on the breakdown of calls and the general nature of the things that are being raised. As you would expect, given that we migrated almost 10,000 providers on the weekend, the bulk of the calls to date have been from providers. They've been quite positive calls. They're quite happy with the level of information they've received about the process, so they've really been calls to clarify particular questions they have or to report any issue they've had with access—sort of minor technical issues. From a technical point of view, that migration went very well with no real issues for providers at all.

But we have received, as you would expect, some calls from participants making complaints about service providers, and we've already received notifications of a reportable incident. So we've had the range of things that you would expect to get in a contact centre for an organisation like this, but the volume has largely been driven, at this stage, by the fact that you've got roughly 10,000 providers dealing with a new regulator and a new process. But they've all been fairly routine in nature. We're monitoring that very, very closely and doing a detailed debrief with the senior executives who are out in Penrith to make sure that we're very aware, at a micro level, of any significant issues that we need to address in the way the system's working.

Senator CAROL BROWN: When you have a reportable incident, what's the process?

Mr Head : There are obligations on providers. Most reportable incidents need to be notified within 24 hours, so that we are aware of the issue. That doesn't negate the obligation on providers to notify other relevant bodies. If the matter, for instance, is a matter which is criminal in nature, they would still have an obligation to notify the police. In our follow-up work with providers—they must report most notifiable incidents within 24 hours—we would follow up on things like whether the necessary report to the police was made. So the commission's role is to receive those reports, to interact with the provider about the actions taken, and to determine whether or not that incident was handled appropriately and whether there are issues in terms of the way the provider is managing complex incidents.

Senator CAROL BROWN: If it's a complaint from a participant?

Mr Head : The reportable incidents scheme is an obligation on providers to report. If a participant reported a matter that's covered by the reportable incidents framework, and we had not been notified by the provider, that would trigger an immediate interaction with the provider about the incident: what's occurred and the relevant actions in respect of their registered activities.

Senator CAROL BROWN: So if a participant lodges a serious complaint about abuse or neglect, and the provider hasn't already lodged it, you then ring the provider. But if a provider reports a serious issue about abuse and neglect, do you also talk to the participant?

Mr Head : The design of the program is really to maximise support to participants where any situation that's covered by this is occurring. We may, for instance, in a particular event support participants to get access to advocacy and other services in addition to interacting with the service provider around their regulatory obligations. So something of the nature you're describing would come in as a complaint and would be assessed as a complaint that requires a more immediate action from the commission in terms of both supporting the participant and initiating any necessary dialogue with the registered provider. That's different, obviously, than if the provider notifies us under the reportable incident obligations, because one of the things that we would look at if we were getting a complaint from a participant about something that is a reportable incident is why we hadn't received a notification from the registered provider about that matter, given that it's one of their most significant obligations.

Senator STEELE-JOHN: Can I follow that line—or were you going to?

Senator CAROL BROWN: I was going to continue, but if you want to jump in, I don't mind sharing.

Senator STEELE-JOHN: I'm quite concerned about that process, to be quite honest with you. If you have a situation where a provider has reported to you a reportable incident, don't you think it would be good practice to have an actual guideline that said, 'You will contact the participant in relation to this issue and confirm that the reportable incident reported by the service provider matches up with the experience of the participant'? It seems that you'd automatically do it if the boot were on the other foot—if the participant complained to you, you'd contact the service provider.

Mr Head : There's quite a detailed set of arrangements that progress over time with reportable incidents. There's an initial obligation to report the facts of the matter and there is a more detailed review of what has happened in respect of that incident at the five-day point. So there may be, depending on the nature of the incident, particular interventions that need to occur immediately, and the more detailed review at the five-day point would cover off on a range of issues around what has occurred to resolve those issues. So it is actually designed to ensure that there's an immediate call-out of what has occurred, and then, depending on the nature of the particular incident, a much more comprehensive review within a short amount of time. Did you want to add anything to that?

Ms Taylor : I think that in the early days of the commission it's very important for us, given that the renewal process around registration will not have kicked in and the auditing of organisations' internal incident management arrangements won't have occurred in the initial few months. It's a very important part of the audit process that providers are able to demonstrate that they have an incident management process and how they apply that in the context of engagement with the participants. My sense would be that we would absolutely be looking to validate the reports of providers, depending on the nature of the particular issue and the extent to which we might be advised by a provider about the connection of a participant, as the commissioner said, with an independent advocate, for example.

One of the things that we've done very early is that early in June we spent two days with all the advocates across the country, describing the functions of the commission and how we intended to undertake some of those functions. It was an extremely valuable couple of days with feedback from them about how we could work with them around matters like that and around other matters related to behaviour support. So I think we are building very robust engagement with those independent advocates and with other stakeholders so that we have a range of channels to gather intelligence about the way in which providers are undertaking their responsibilities that commenced on Sunday.

Senator CAROL BROWN: When you get a report of a serious nature, what does 'immediate' mean to you? Is it within two hours or within 24 hours?

Mr Head : The obligation on providers is to report any reportable—

Senator CAROL BROWN: You received the complaint.

Mr Head : Do you mean from a participant or a report from a provider?

Senator CAROL BROWN: I mean from a participant.

Mr Head : That would be assessed and escalated as appropriate, depending on the nature of the incident. If it was a serious incident then the follow-up with the provider would be determined by the seriousness of the incident. So if it's a reportable incident coming in, they've got 24 hours to notify us. By and large, the obligations are on the provider to manage that incident in accordance with their incident management. If the nature of the incident was serious then the follow up from the commission—

Senator CAROL BROWN: But if it comes from a participant and the providers have a 24-hour period to advise commission of a reportable incident, how long do you consider? Because in your response you talked about an 'immediate response'. So if a participant calls about a very serious matter, how long do you give yourself to contact the providers?

Ms Taylor : I will respond to that. The channel for a participant works in a different way to the reporting obligations of the mechanics of how a provider is managing a particular event. The response to a participant around a very serious allegation or complaint about the matters I think you're coming at would be an immediate response to that participant. And we do have a view about the combination of factors that would mean that we needed to intervene immediately, and those have a threshold which, I think, enables us to deploy people with providers and to support that participant immediately.

There are other aspects to situations that you're thinking of, I suspect, where it's not only the commission's responsibility to engage with that participant and with the provider immediately, even if the provider's intent is to report, but there are other parties that we also recognise would need to be involved to assist that participant referred to advocates before the NDIA would need to be involved. We do have a crisis arrangement with the NDIA to assist jointly in intervening where there needs to be adjustments to that individual's situation to resolve the situation.

Senator CAROL BROWN: I'm just trying to get an understanding. When a provider reports an incident, there's a checklist of what they have to do. I'm just trying to understand: if a participant reports an alleged serious incident, if it's a matter that the police should be informed of, who does that? Are you relying on the participant to do that or do you ring the provider and say, 'You need to—'

Ms Taylor : We assist the participant to do that.

Senator CAROL BROWN: And then you advise the provider that this incident—

Ms Taylor : We make contact with the provider.

Senator CAROL BROWN: Because, obviously, there may be an overlap in that 24 hours.

Ms Taylor : That is exactly right. They are, as the commissioner pointed out, quite different matters. One is a technical requirement to report to us on an incident and how the provider is managing that incident. However, if the participant wishes to raise or a carer on their behalf wishes to raise issues about that situation and their belief that perhaps the provider is not going to be adept at managing that incident then that would trigger our checklist around management of a complaint and escalation through the particular arrangements we have described in the rules.

Senator STEELE-JOHN: I really must follow up on that. What processes are in place to protect the anonymity of a complainant in that kind of situation?

Ms Taylor : That's a very important point because there may be situations in a rural area where it's obvious who the complainant might be.

Senator STEELE-JOHN: Or it could be in a group home of 10 people in a metro area.

Ms Taylor : That's absolutely right. We have information we can furnish to the committee about how we're intending to manage those particular matters. It's a very important issue and one that did come up in conversations with advocates when we met with them, so I'm happy to furnish the committee with that out of session.

Senator STEELE-JOHN: That would be good.

Ms HUSAR: I have a question down this line before I flick to where I need to go. If a participant in the scheme calls the commission and alleges a serious incident, your act is then to contact the provider—is that correct? Is it only if it's appropriate to do so?

Ms Taylor : Yes, only if it's appropriate to do so.

Ms HUSAR: How would you know if it's appropriate? If a person says, 'This serious incident has occurred by this one worker,' maybe everybody knows about it, or maybe nobody knows about it. What's the protection given to the participant when they allege a serious incident if you're going to go back to that person's provider?

Ms Taylor : I think the earlier question cuts to the issue that you're describing, which is that we would need to make an assessment about any vulnerabilities for that individual in contacting their provider. We would only do that with their consent, unless there needed to be some immediate investigative action, when again we would need to work with the NDIA around adjustments to services to protect that individual.

Senator STEELE-JOHN: That's a hell of an assessment, though.

Ms Taylor : An assessment could take 10 minutes to determine what our actions might be, or it may take a longer period.

Ms HUSAR: Who's making that assessment, and what training and qualifications do they have in relation to protection of people? Who's making that assessment?

Ms Taylor : At present, I think we have made delegations against the rules.

Mr Head : My view is that, in the early life of an organisation like this, many of these decisions need to be taken at the most senior level, so we're building a new organisation in this space. We are recruiting people who've got relevant experience, but it's a new regulatory framework. The relationship with providers is new, and the way that participants make complaints and to whom is new. So, in making the delegations for the exercise of regulatory functions at this stage, I have generally held those delegations at a high level so that either my direct reports or the executives immediately below those are making most of the decisions. Of my three direct reports, all have extensive experience in the disability sector. Miranda Bruyniks, who's the complaints commissioner, was the Deputy Disability Services Commissioner in Victoria and ran the complaints function there. Ms Taylor has an extensive history in this domain in the New South Wales Department of Family and Community Services. Dr Chan, who commences on Monday in the behaviour support senior practitioner role, inaugurated that role in Victoria and a similar role in Queensland. So the view is that, while we are bedding in all of these new processes, we hold the exercise of those functions at a high level before they're delegated further down and that there's extensive work to induct people. Even where people have extensive experience in their own state or territory system—if that's where they've come from—the commission's work is not just a replication of what's been going on in that particular jurisdiction, typically.

Ms HUSAR: That's good to hear, because we know that we've got some serious issues around the way people with disability have been treated in their various state and territory jurisdictions over many, many years, and for a long time there's been a call for an investigation into that. So I wouldn't want to see those kinds of practices mirrored, and this is a good way of making that step to avoid it.

Mr Head : Importantly, we're also applying the NDIS Code of Conduct, which applies to providers registered and unregistered, to our own workforce.

Ms HUSAR: That leads into one of the questions I had, which was around the aim of undertaking investigations and enforcement action. When there is a breach of the code of conduct that you've referred to or when there's a not-as-serious allegation, what powers do you have to enforce some change or some restrictions or to make sure that, if it's raised once, it's not raised again?

Mr Head : We have comprehensive powers that you would expect to find in any Commonwealth regulatory body from both the enabling legislation, the NDIS legislation, and also the Regulatory Powers Act—the full suite of tools that you need to review a matter and to take the necessary regulatory action that's proportionate to that issue. So we would always be, in the first instance, examining, through noncompliances, what we need to do to ensure that something that's problematic that's occurring stops occurring and, then, taking whatever we deem to be the appropriate action in terms of sanctions for that behaviour. I have own-motion inquiry powers and extensive information-gathering powers. There is the capacity, in serious circumstances, to use things like banning orders and, obviously, deregistration, and there's also a civil penalties regime as well. So it's really, I think, a comprehensive set of powers that you would expect for a regulator regulating this particular sector to determine what has happened, the extent of that nonconformance and the potential for harm to occur or whether harm has actually occurred as a result of that non-conformance, and the tools to take the appropriate action in response to that.

We've done a lot of work with providers to date. So, in addition to them receiving their certificates of registration over the weekend, I had partnered with the NDIA for several months before the change to brief people around the country about what the regulatory framework looks like, how it differs from what they've experienced in the past, the range of powers we have and the comprehensive nature of those powers, and we then backed up those briefings of providers with correspondence to the providers who are coming in in New South Wales and South Australia. So there has been at least three or four points at which providers have been informed at some length about the fact that this is not about the status quo; this is about raising the bar and the nature and extent of the commission's powers in respect of them.

Ms HUSAR: I've got two final questions. The first is about the consistent approach so citizens can access service. Some of the evidence that we've taken over the course of the last two years has been that participants receive their plans and they can't always access services, because there are no service providers. That fits nicely into market readiness that we're enquiring into now. Is it part of your function to monitor the inability for those participants to receive services? Currently, the status quo is that, if you have a plan and you cannot fulfil part of that plan because there are no providers, you come up for review. The review says: 'You didn't use X amount of dollars in your plan, so therefore you lose it,' and no-one's (a) monitoring the fact that they couldn't access services and they've been sitting on a waiting list for two years of their plan or (b) taking any steps to help that participant to retain that funding in the hope that, as they move forward, those services may become available. Is that part of your remit?

Mr Head : Market oversight is part of our remit. But I guess everything that we do relates to the specific functions that the parliament legislated for the commission, which is in the quality and safeguarding space. So, in respect of things like thin markets or market failure, we may be looking at whether or not there are decreasing numbers of providers in particular registration groups, which is information that we would collect through the registration process. As the chairman alluded to in his first question, it might be helpful for the commission to be making observations about any of those changes in the market that we collect information on. We will be operating a national worker screening database and we will be doing market development work generally on workforce capability, so it's also the case that we would be able to provide insights around workforce issues that are going to be quite critical to resolving some of those issues. But those aspects of our role don't supplant the role of the agency in respect of market stewardship more generally and those issues to do with service provision under people's plans. So we have a role, but that role is not exclusive and it's connected to our functional remit.

Ms HUSAR: There's another significant issue at the moment. People are getting their plans and are not able to review them. They are just landing on their doorstep or in their myGov account. They are not consistent with what that person's needs are, so they're having to go to the AAT. There are now just over 142,000 participants in the scheme and about 9,000 people are sitting in the AAT appealing those decisions. What, if any, responsibilities does the quality and safeguards framework or the commission have in respect of that?

Mr Head : The commission doesn't have a role in relation to plan review, which is a matter for the agency. The commission's role is the regulation of both registered and unregistered providers in delivering supports that are part of a person's plan through the various tools that we've got, such as the registration process, the code of conduct et cetera. The specific matters that relate to plan review are not specific to the commission's functions.

Ms HUSAR: So do you see a role for you to play in that in the future?

Mr Head : The role that the commission has is the role that the parliament legislated for it, which is—

Ms HUSAR: I'm aware of that, but I'm asking if you feel that there is scope for that. What I'm getting at is that the AAT has no expertise in this specific field and that we're setting up a body that does have expertise in this specific field. People with complex needs are going to the AAT, which has no understanding of what it is they actually require. We are setting up this body to have oversight and make sure people get what they need within the legislation of the NDIA remit. Do you see that there may be a role going forward?

Mr Head : I think the commission's functional brief at the moment is enormous. The functional brief is to establish for the first time in this country a national quality and safeguarding framework and to progressively migrate jurisdictions into that framework. We've just seen the first movement of 10,000 providers. Between now and 1 July next year I'll be working with the Department of Social Services and also state and territory governments on the migration of Victoria, Queensland, Tasmania and the two territories, and establishing all of the relevant arrangements around registration, quality assurance, complaints management et cetera. That in and of itself is quite a significant role. Any adjustments to our remit in the future is a matter for others to determine, not a matter for me.

Senator STEELE-JOHN: I just want to start by assuring you all that I'm not infectious. It's just a light touch of Ebola, so we'll be fine!

Mr Head : Well, you're a good distance away.

Senator STEELE-JOHN: Let me start by asking about how you are managing providers migrating into this space who were previously subject to a number of sanctions in relation to malpractice. I'm thinking particularly in the childcare space, which we're hearing a lot about at the moment. Should a provider go from a sector where they have been failing quite substantially into the disability space, does that immediately trigger a red flag for you at the commission or is it still a situation of waiting for a complaint or a problem?

Mr Head : If I can, I'll make some comments about the general approach that we've adopted to transitioning providers and I'll ask Ms Taylor to talk specifically about some aspects of the registration going forward. A critical aspect of how we approached provider transition was to ensure that that process of transition was orderly, did not create confusion amongst providers and didn't deflect the attention of providers from the provision of supports to participants. So the design of the transition process was, on the one hand, developed to deal with those issues but, on the other hand, to begin the process of raising the bar immediately. The transitional rules migrated people. So, if you were a provider and you went to sleep on 30 June as a provider, you woke up on 1 July with a certificate of registration from the commission which registered you for your existing registration groups but indicated what the time frame would be for you to commence renewal of your registration, which is inextricably linked in the system to the commencement of your quality audit process.

Senator STEELE-JOHN: But if you'd been deregistered in a different sector, did the transitional arrangement treat you exactly the same?

Mr Head : The transitional arrangements operated on the basis of whether you were currently registered with the NDIA at the point of transition. So orderly migration for those providers that were providing complex supports or where there'd been no history of audit recency or where a recent audit was not really close to fit for purpose for the new scheme—that triggered the earlier requirement for registration renewal. So there is an approach in registration renewal which is designed to ensure that, of that 10,000, there's early attention paid to people who are working in complex areas or people who have a history of nonconformance in the past.

Senator STEELE-JOHN: What's the time frame on that, when you say 'early'?

Mr Head : The time frames ensure that people will commence their registration renewal within three months—

Ms Taylor : Three months of a date set by us.

Mr Head : of a date set by us, and will have completed that process within the first 12 months of the commission's operations. But the quality audit is the first thing that happens as part of that, and the entire process for the 10,000 will be completed within a two-year period.

Senator STEELE-JOHN: If I am a provider who either has conducted an audit which does not match up with the framework or works in a complex space, I have a year in which I can operate, with commission certified registration, potentially not having conducted an audit process that matches up with the new standard?

Mr Head : The point I would make before I ask Ms Taylor to talk in a bit more detail is that the commission is in control of the timing of the process, and what we've done is really phase provider registration to make sure that where there is risk there is a process that commences very quickly. And remember that the quality audits that are being undertaken are not necessarily of the type that people have undertaken in their state and territory systems. These providers are being assessed against new quality standards—the core module and anything that applies to them especially—and where the timing is really determined by the level of complexity or risk associated with that.

Ms Taylor : There's a few things in what you've just referred to, so I'm just thinking through how I might order a response. We worked with states and territories on establishing the transitional arrangements. So there was very important input from those states and territories around providers where the commission might not have been able to readily identify providers who had been banned from different sectors, and those providers were cross-checked against the list that came to us from the NDIA, where it was provided by the state or territory.

As the commissioner said, we have in our registration processes a series of checkpoints to help us understand whether or not a provider is embarking upon steps in the process that would enable it to complete, within a reasonable period of time, a registration renewal. I think it's around 1,000 providers who have been identified as not having necessarily audit recency or having other risk factors and delivering high-risk services. We require them to commence with us a process of self-assessment as well as advice to us around the suitability of the provider itself but also its key personnel, within a three-month period. That enables us to do something which is quite new and a feature of this particular registration process—that is, crosscheck the advice that's come from those providers about the suitability of key personnel and about the suitability of the organisation with other regulators with whom we're establishing information-sharing arrangements so we can determine the accuracy of the evidence they're providing as part of that commencement.

We then open a door, if you like, for that provider to make a booking with an auditor. We can see whether or not that's occurring and whether or not they've sought a quote from an auditor in the first place. They will, in that first period of time, have established a scope for that audit. The commissioner talked about the proportionality of that scope, but that also has a risk overlay with it. We can see whether or not they have they've gotten their scope and whether or not they've made a booking. We can then see from the auditors when they intend to undertake those visits. If it's our view that a provider is delaying any stages in that process, we will intervene with them. So if they do not complete that initial step I described around self-assessment and suitability assessment within a three-month period, their registration will automatically lapse. So there is no capacity for those providers to not commence the process without actually being deregistered, but that's of their own of their own decision. We would then monitor the subsequent period of time around the audit activity.

Senator STEELE-JOHN: In terms of the determination of whether they're delaying, is that another of those decisions that will sit with the three of you in an executive capacity for the time being?

Ms Taylor : Yes. That would sit with me to gather reports from my team about whether there were providers where it was evident to us that, given the scope of the audit that they're required to undertake, the timing of their booking would place completion at risk. We have an agreement with JAS-ANZ around an audit scheme. We will also obviously monitor the third-party impact on that, because in some situations it may be because the provider with best intent actually can't book an auditor for whatever reason. But we'll be monitoring that from the from the certified auditing body perspective.

Senator STEELE-JOHN: I'm aware that we are against the clock a bit; so I'll just have to prioritise, I think. Do you envisage that, going forward, the commission will provide a list—I don't want to use the word 'blacklist'—or in some way be communicating publicly those service providers that you have deregistered or have had multiple negative interactions with, in order to provide that information for self-managing participants when they are utilising their funding?

Ms Taylor : Yes. Under the legislation, the commission must publish a register of providers that are registered with the commission. That will include a range of information about those particular providers but it will also include where there have been adverse findings and bans of providers. That would be publicly available to anybody who wishes to view that.

Senator STEELE-JOHN: Is there a time line on that?

Ms Taylor : Having just migrated almost 10,000 providers over the weekend, we're working through what that will look like. But, of course, the commission won't be publishing anything about bans or other actions for some time—until we actually have that information.

Senator STEELE-JOHN: I will just put some questions on notice for you in the interest of time. You mentioned both in relation to the framework and the rules processes that there were significant consultations undertaken in the development of both the framework and the rules and that, particularly in relation to the rules, there were some changes made to the rules based on the consultations you undertook. Would you be able to provide us with the details of the consultation work you undertook, including locations, time periods, numbers of participants and the division between participants and service providers and, if possible, the changes that were made to the rule was based on the consultations that you undertook? Would that be possible?

Mr Head : Yes, we can provide a summary of that. If it's acceptable to you, Senator, I'd probably want to include in that the details of the information sessions that we did for providers, because there were a host of issues that were relevant to the development of rules which surfaced through those discussions and they were quite extensive. There was quite an extensive set of discussions.

Senator STEELE-JOHN: I imagine there would be. Finally, in relation to this question of assessment as to whether a service provider should be informed that a participant has made a complaint, you made it clear that, for the time being, that assessment will stay between yourself, Ms Taylor and Dr Chan and that, moving forward, you will do comprehensive induction processes as you delegate that authority out. That's three people. Do you have a defined period of time at which you will start training people up to delegate that authority?

Mr Head : Initially, there will be some delegations that remain with the executive leadership team, which is myself and three other people, including Ms Bruyniks, who is the commissioner as well. The rest of the complement of the senior executive is another four roles that commence over the next few weeks. So that's a deputy complaints commissioner, deputy registrar, head of strategy and engagement and also the general counsel and compliance and investigations role. Again, these are people who are very experienced. Some delegations will be able to be exercised by them and there are some delegations that are about routine matters that don't require that escalation and that can be performed at the EL2 level.

In any new agency, notwithstanding the fact that it creates an additional burden for senior people, it's very important for us to have a line of sight not just to how things were intended to happen but also how they're actually occurring, to make sure that we can support the staff to do the right thing and make sure that the experience of interacting with us, from both a participant's point of view and a provider's point of view, is the right kind of experience.

The last of our four-member executive leadership team starts next Monday, and the first meeting of that team is next Monday afternoon. We will be talking, as part of that process, about how we see the maturation of the organisation in terms of its key functions tracking over the next year and, in particular, what that means in terms of when groups of staff are starting, how they're going to be inducted and also how we as an organisation assess when they're ready to perform some of those other functions and how we ensure that there's the right level of scrutiny but also expectation about how matters are escalated.

Senator STEELE-JOHN: My concern, Mr Head—and you would be aware of this from your knowledge of the results of the Senate inquiry into violence, abuse and neglect—is that these situations are highly complex and often require quite a detailed understanding of the sector. The four-person team you're describing has some of that experience, I'm sure, but the safety or otherwise of an individual or multiple individuals potentially turns upon your ability to make that assessment effectively. As that gets farmed out, as I'm sure would be the natural process in the development of an agency, it gets further away from that executive team. I would be very interested to hear about the training processes you're putting individuals through in relation to those decision-making processes.

CHAIR: You can take that as a comment, Mr Head, in the interests of time, and come back to us.

Senator STEELE-JOHN: Or if you would be able to provide that to us.

CHAIR: Senator Brown, just one last question.

Senator CAROL BROWN: One last question, in three parts. I'm just confirming with you that the quality and safeguarding framework only applies to people with a disability who are NDIS participants. If someone has a disability but has not been accepted as an NDIS participant—

Mr Head : Then most of our functions would not apply. But of course, if people are making complaints, one of the things about our complaints process is that it's—

Senator CAROL BROWN: I particularly want you to address abuse, violence and neglect in your response. It says 'abuse and neglect' in the key functions here. So my question is: are people who aren't NDIS participants covered by your function around abuse and neglect?

Mr Head : Somebody might, for instance, make a complaint to us where we didn't have jurisdiction. The approach to the complaints management function is a 'no wrong door' approach, so, if people were making a complaint that was outside our jurisdiction, we would support those people to contact the people who do have jurisdiction in that space.

Senator CAROL BROWN: But it may well be an NDIS registered provider as well. I'm trying to understand. First of all, you don't have jurisdiction. You said that just then.

Mr Head : Our jurisdiction is—

Senator CAROL BROWN: Limited to NDIS providers and participants. Is that correct?

Mr Head : Yes.

Senator CAROL BROWN: Okay. But, if someone who wasn't an NDIS participant called and they had a serious complaint, do you have a process in place to deal with that?

Ms Taylor : As the commissioner said, we would refer that individual to the statutory body who did have jurisdiction over them. However, if there were complaints that were coming through about NDIS providers who perhaps are delivering services in other service delivery sectors—which is very common, as you would know—we do have emerging relationships with states and territories about sharing information about those kinds of matters. We have particularly had deep-dive conversations within New South Wales and South Australia about how we would share information where maybe those other statutory bodies were collecting information through complaints about a provider that has adjacent issues.

In my experience though, sometimes complaints related to a provider who might be delivering supports in another sector for another group of people do not always equal an issue across the board in the organisation. Sometimes it certainly does but not always, and that depends on the nature of that organisation and the complexity of that organisation. We have those agreements that we will work together to explore whether or not issues that are arising in other parts of the sector, where an NDIS provider is also involved in other matters, are being reported to those statutory bodies and that trickles through to the experience of NDIS participants under our jurisdiction.

Senator CAROL BROWN: But, essentially when we're talking about particular cases you would give the information to the person calling that they should go off and talk to the appropriate body?

Ms Taylor : And we will facilitate that contact with the appropriate body also. We won't just provide a phone number. We've got arrangements for warm hand through of individuals who ring us where they may need assistance from another statutory body, for example the NSW Ombudsman.

Senator CAROL BROWN: Where you receive complaints and you investigate those complaints, what part of your rules across the board are preventative in nature? This is all about incidences happening.

Mr Head : I think I made the point in my opening statement that the rules deal with a particular part of the domain but they're only part of it. A big part of the commission's work is actually around preventing things from happening. Even in the interactions with providers, while managing non-conformance is as important as working with them to understand what the quality framework is intended to produce, and preventing problems from occurring is quite important work, the work we will do on workforce capability is very significant in that respect.

I think the work that we do with participants and both registered and unregistered providers around the code of conduct is going to be extremely important in making people aware of what we expect in terms of both a kind of orientation and practice that's preventative in nature, so—

Senator CAROL BROWN: I ask this question particularly, because there will be participants or people that may observe these incidents that won't report to the providers and won't report to you. This is the concern that we have: the situations that have been highlighted within the media over the last few years and through a Senate committee inquiry. What I'm particularly asking is—and you can take it on notice—how these particular rules will be preventative in nature?

Mr Head : I'm happy to provide some extra information on notice but the point I'd make to the committee now is that the rules, as I've said, are just one part of the framework. The framework itself, the principles that characterise the range of functions we've been given including the rules, allows us to play a different role than has ever existed in the landscape before in respect of prevention, taking enforcement action and requiring providers to take remedial action. The fact that we will have access to data, and be able to link that data in new ways to paint different pictures of where problems appear to be emerging, is a really important part of the framework, as is the capacity for my office to exercise its own motion powers to examine things that appear to be unfolding in the wrong way. I think there are a range of tools we have access to, but that starts with working closely with participants, the people who advocate for participants and peak bodies around lifting awareness of the new framework but also how we empower people to make complaints. For instance, I would expect that if the commission is doing its job well we should see an increase in the complaints that we are receiving in number compared with what states and territories were receiving in the past, not a decrease. A very explicit program for the engagement part of the organisation will be working with organisations to make people aware of the features of the framework and that we encourage people to speak up about their experiences. By 2020, when the program's completely implemented, we will be able to exercise those powers in all jurisdictions.

Senator CAROL BROWN: Mr Head, if you and your team could provide some more detail on notice around exactly how that is working, that would be good. What we've discussed here is really about complaints received and your process going forward. I would like to see the other information and also how you're going to put advocates in this as well as participants, and around prevention.

Mr Head : I'm quite happy to provide that extra detail on the two-day discussions that the commissioner had with advocates recently and the key things that emerged from those discussions.

CHAIR: Ms Hawke, did you want to add something on a previous question?

Ms Hawke : Just a clarification point. Senator Brown, in relation to the jurisdiction of the commission being limited to NDIS participants, one of the rules that were made recently, the NDIS provider definition rule, extends the jurisdiction of the commission to older people with disability who are receiving continuity of support under the Commonwealth Continuity of Support Program relating to specialist disability services for older people. That program is administered by the Department of Health. The agreement to cover those people was outlined in the Quality and Safeguarding Framework. I understand there are about 11,000 people receiving supports and services under that program.

Senator CAROL BROWN: That's another issue. We'll get to it some other time. Thank you, I appreciate that.

CHAIR: Thank you very much. The secretariat will forward some questions on notice. If we could have answers by 20 July that would be appreciated. I also think that from the committee's perspective this discussion would be enhanced if it's an ongoing discussion, so I propose to invite you back in about three months time to have a further discussion about how the rollout of the commission is going and any matters that may have been raised with us in the meantime. Thank you very much for your participation.

Mr Head : Thank you, Chair. We'll have more than two days data when we come back.